United States District Court, D. Delaware
R. ALEXANDER ACOSTA, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
DEVILBISS LANDSCAPE ARCHITECTS, INC. a corporation d/b/a DEVILBISS LANDSCAPE ARCHITECTS; and PAUL DEVILBISS, Defendants.
E. Noyes, II, Offit Kurman P.A., Wilmington, DE; Wendel V.
Hall, Hall Law Office, PLLC, Washington, DC - attorneys for
Matthew R. Epstein, U.S. Department of Labor, Office of the
Solicitor, Philadelphia, PA -attorney for Defendants
NOREIKA, U.S. DISTRICT JUDGE
March 31, 2017, Plaintiff, R. Alexander Acosta, Secretary of
Labor (''Plaintiff' or "Secretary")
filed this suit against Defendants DeVilbiss Landscape
Architects, Inc. and Paul DeVilbiss (collectively
"Defendants") asserting violations of the Fair
Labor Standards Act ("FLSA"). (D.I. 1). Pending
before the Court is Defendants, motion to dismiss the
Complaint, or in the alternative, for summary judgment. (D.I.
7). In addition, in connection with the briefing on that
motion to dismiss, Defendants have moved (D.I. 13) to strike
paragraphs 11-14 of the Declaration of Rowena Luk (D.I. 10,
Exh A), which was submitted in connection with Plaintiffs
opposition. For the reasons stated below, the Court will deny
DeVilbiss, a landscape architect, is the president and owner
of DeVilbiss Landscape Architects, Inc., a company engaged in
landscape design. (D.I. 1 at ¶¶ 1, 2). The
Complaint in this action alleges that during the period from
"at least April 18, 2014 through at least April 15,
2016," Defendants employed workers "engaged in
retail and wholesale nursery operations, who worked over 40
hours in a workweek" but failed to compensate them
appropriately for their overtime hours. (D.I. 1 at ¶ 6).
It alleges that Defendants' employees engaged in
activities such as "routinely handling landscaping
materials including but not limited to mulch, bricks, pavers,
and gravel" and handling "plants and trees that
were not grown" by Defendants, which are "not
agriculture within the meaning of the [FLSA]." (Id.,
}, The Complaint further alleges that Defendants
"failed to make, keep, and preserve adequate and
accurate records of their employees, which they maintained as
prescribed by the regulations issue and found at 29 C.F. R
Part 516." (Id. at ¶ 7).
complaint must contain "a short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). This requires a
"'showing,' rather than a blanket assertion, of
entitlement to relief." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 n.3 (2007) (quoting
Fed.R.Civ.P. 8(a)(2)). "Specific facts are not
necessary; the statement need only 'give the defendant
fair notice of what the ... claim is and the grounds upon
which it rests.'" Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at
555). To survive a motion to dismiss under Rule 12(b)(6), the
plaintiffs obligation to provide the grounds for his
entitlement to relief necessitates that the complaint contain
"more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555.
factual allegations of a complaint are assumed true and
construed in favor of the plaintiff, "even if it strikes
a savvy judge that actual proof of those facts is improbable
and 'that a recovery is very remote and
unlikely.'" Id. at 556 (quoting Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974)). "n the
assumption that all the allegations in the complaint are true
(even if doubtful in fact)," the allegations in the
complaint must "raise a right to relief above the
speculative level." Id. at 555-56. Put simply,
the complaint must plead "enough facts to state a claim
for relief that is plausible on its face." Id.
at 547. "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (the plausibility standard does not
require probability but requires more than a sheer
possibility that a defendant has acted unlawfully.).
whether a complaint states a plausible claim for relief is
"a context-specific task" that requires the court
"to draw on its judicial experience and common
sense." Id. at 679. Accordingly, under
Twombly, a court considering a motion to dismiss may
begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth. Id. Although legal conclusions "can
provide the framework of a complaint, they must be supported
by factual allegations." Id. When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief. Id.
the court must find "enough factual matter (taken as
true) to suggest" that "discovery will reveal
evidence" of the elements of the claim.
Twombly, 550 U.S. at 556. When the allegations in a
complaint, however true, could not raise a claim of
entitlement to relief, the complaint should be dismissed for
failure to state a claim under Fed.R.Civ.P. 12(b)(6).
Twombly, 550 U.S. at 558; Iqbal, 556 U.S.
Motion to Dismiss
Complaint Sufficiently Alleges ...