United States District Court, D. Massachusetts
H. HENNESSY, UNITED STATES MAGISTRATE JUDGE.
me is Defendants' second motion to dismiss the complaint
in this action for failure to state a claim. Docket #19;
see Fed.R.Civ.P. 12(b)(6). Plaintiff filed an
opposing memorandum on June 26, 2017. See Docket
#21. In this second motion, Defendants seek dismissal of both
counts of Plaintiff's First Amended Complaint. For the
reasons that follow, the motion is GRANTED WITHOUT PREJUDICE
as to Count I and DENIED as to Count II. I allow Plaintiff a
final chance to amend Count I to state a viable claim for
unpaid overtime wages.
employment action, Plaintiff Michelle McDunnah seeks recovery
from Defendants Tu Moda Spa for Beauty & Wellness, Inc.
and Josue Rosa, Tu Moda's owner and manager, for alleged
unpaid wages, failure to provide meal breaks, unpaid overtime
wages, and illegal wage deductions. See generally
Docket #16. Defendants removed this action from Worcester
District Court, Docket #1, and the parties consented to my
jurisdiction, Docket #9. Defendants previously moved to
dismiss Plaintiff's original complaint for failure to
state a claim. See Docket #6. I granted that motion
without prejudice, affording Plaintiff an opportunity to
remedy defects in Count I (failure to pay for hours worked
and for overtime) and Count II (illegal wage deductions).
Docket #13. Plaintiff took up that opportunity and filed a
First Amended Complaint on May 4, 2017. Docket #16.
First Amended Complaint alleges the following. Plaintiff
worked for Defendants as a massage therapist and esthetician
from October 26, 2004 through October 12, 2014. Docket #16
¶ 2. Her schedule varied, but she most often worked
thirty hours per week. Id. ¶ 17. Defendants
paid Plaintiff weekly on a commissions-only basis.
Id. ¶ 13.
of the First Amended Complaint contends that Defendants
failed to pay Plaintiff for hours worked and for overtime and
did not allow Plaintiff meal breaks to which she was
entitled. In support of these claims, Plaintiff avers that
Defendants forced her to attend meetings and trainings,
perform “non-commissioned based side work, ”
report for unpaid work days, and go to promotional events,
for which Plaintiff received no commissions and thus no
compensation. Id. ¶¶ 14-15. These tasks
exceeded one fifth of Plaintiff's total work time in
weeks during which Defendants held a “client
appreciation day, ” conducted off-site advertising at a
trade show, or held certain meetings. Id.
¶¶ 2, 18. Defendants also
“occasionally” required Plaintiff to spend an
entire workday on uncompensated tasks, id. ¶
16, and required that Plaintiff arrive at work fifteen
minutes before her first appointment, id. ¶ 19.
Plaintiff submits that she consequently received insufficient
compensation for her work, in violation of section 206(a)(1)
of the federal Fair Labor Standards Act (the
“FLSA”) and various provisions of the
Massachusetts Wage and Hour Laws. Id. ¶ 20.
sparse filing seeks dismissal of Count I for three reasons,
each of which is set forth in one sentence with no supporting
citations. First, Defendants emphasize that the First Amended
Complaint neither states nor establishes that Plaintiff's
compensation ever amounted to less than the federal minimum
wage. Docket #20 at 2. Second, they note that two of the
statutes cited in Count I-Mass. Gen. Laws c. 149 §§
110, 101-govern certain employees' meal breaks, a subject
on which Plaintiff's allegations are
silent. Id. Finally, Defendants argue in
conclusory fashion that the facts in the First Amended
Complaint “give no plausible basis” for
Plaintiff's overtime claim under Massachusetts law.
Count II, Plaintiff alleges that Defendants illegally
deducted charges from her pay. She claims that when she
started her job, she and Defendants agreed that her
compensation would consist entirely of fifty-five percent
commissions “of the gross services” for each
client service she performed. See Docket #16
¶¶ 2, 23. Plaintiff also allegedly “was
reassured there would not be any further deductions”
aside from this 55%/45% commission split. Id. ¶
23. According to Plaintiff, Defendants violated this
agreement by deducting from Plaintiff's commissions
arbitrary and unspecified “service charges” of
from one hundred to two hundred dollars each week,
id. ¶ 2, which included deductions for
Defendants' overhead costs, id. ¶ 26.
acknowledges that Defendants' employee handbook called
for commissions of fifty-five percent “after the
service charge is deducted.” Id. ¶ 25.
But she asserts that she never received a copy of the
handbook, that she never agreed to any service charge
deduction, and that she “most often” learned
about changes to the service charge “well after they
occurred” by hearing other employees discuss it.
Id. ¶¶ 24, 31, 36. Further, Defendant Rosa
allegedly “admitted upon questioning” that the
service charges deducted from Plaintiff's wages
“were arbitrary and did not reflect any real or
cognizant [sic] costs of products or materials.”
Id. ¶ 32. Plaintiff also accuses Defendant Rosa
of repeatedly changing the service charge without notice and
failing to update information about the charge for months at
a time. Id. ¶¶ 28, 30. Finally, Plaintiff
alleges that her paychecks simply indicated her gross pay,
with no accounting of the work she performed, no indication
of the amount of the service charge for each pay period, and
no itemized documentation of the costs and expenses on which
the service charge purportedly was based. Id.
¶ 29. Plaintiff maintains that these deductions
contravene the purpose of section 148 of the Massachusetts
Wage Act as interpreted by the Massachusetts
Supreme Judicial Court (“SJC”) in Awuah v.
Coverall North America Inc., 460 Mass. 484 (2011).
See id. ¶ 34.
advance two arguments supporting dismissal of Count II.
First, they seek to distinguish the SJC's Awuah
opinion, which Plaintiff cited in the First Amended
Complaint, from the present case. They highlight that the
SJC's decision dealt with workers who, unlike Plaintiff,
were misclassified as independent contractors by their
employers. See Docket #20 at 2. They also contend
that “[t]he SJC was not asked, and did not address, the
question of whether an employer could deduct from an
employee's pay expenses not statutorily mandated.”
See Id. Second, Defendants argue that an earlier
U.S. District Court opinion in the Awuah litigation,
740 F.Supp.2d 240 (D. Mass. 2010), undercuts Plaintiff's
theory of liability insofar as it expressly noted that no
Massachusetts law prohibited an employer and employee from
agreeing to shift certain costs from the former to the latter
so long as the employee earned minimum wage. See id.
at 2-3. Defendants urge that the legal premise underlying
Count II therefore lacks foundation. Id. at 3.
resolving a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must assume the complaint's
well-pleaded facts to be truthful and must draw all
reasonable inferences from those facts in the plaintiff's
favor. Ruiz v. Bally Total Fitness Holding Corp.,
496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v.
Menino, 175 F.3d 75, 77 (1st Cir. 1999)). The Court also
will consider any materials attached to a complaint or
incorporated into a complaint by reference, as those
materials are deemed part of the pleading itself.
Trans-Spec Truck Serv. v. Caterpillar, 524 F.3d 315,
321 (1st Cir. 2008). However, the plaintiff's
“legal labels and conclusions” are to be
“isolate[d] and ignore[d]” at this stage.
Schatz v. Republican State Leadership Committee, 669
F.3d 50, 55 (1st Cir. 2012); cf. Haag v. United
States, 736 F.3d 66, 69 (1st Cir. 2013) (quoting
Iqbal, 556 U.S. at 678) (“Although we view all
well-pleaded facts in the light most favorable to the
non-moving party, ‘the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.'”). The Court
thus need not credit a party's “bald assertions,
unsupportable conclusions, periphrastic circumlocutions, and
the like.” Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 5-6 (1st Cir. 2005)
(quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.
survive this motion, the First Amended Complaint's stated
claims must be facially plausible. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In other words,
Plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative level . . .
on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at
555 (citations omitted). “The plausibility standard is
not akin to a ‘probability requirement, ' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal therefore lies if Plaintiff's well-pleaded
facts do not “possess enough heft to show that
[P]laintiff is entitled to relief.” Ruiz Rivera v.
Pfizer Pharms., LLC, 521 F.3d 76, 84 (1st Cir. 2008)
(quotations and alterations omitted).
order to adequately state her claim under the FLSA and the
Massachusetts Wage Act, Plaintiff must allege that 1) she was
Defendants' employee; 2) her work for Defendants involved
an interstate activity; and 3) Defendants undercompensated
her for her work. Manning v. Bos. Med. Ctr. Corp.,
725 F.3d 34, 43 (1st Cir. 2013). Defendants only challenge
the viability of Count I as to ...