Szabelski v. AM&G Waterproofing, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------

HENRYK SZABELSKI,

Plaintiff, MEMORANDUM & ORDER

22-CV-6590 (MKB)

v.

AM&G WATERPROOFING, LLC, MIKE

RIVERA, WILLIAM RIVERA, and JOHN DOES

1–10,

Defendants.

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MARGO K. BRODIE, United States District Judge:

Plaintiff Henryk Szabelski commenced the above-captioned action on October 28, 2022,

against Defendants AM&G Waterproofing, LLC (“AM&G”), Mike Rivera, William Rivera, and

John Does 1–10. (Compl., Docket Entry No. 1.) On February 9, 2023, Plaintiff filed an

Amended Complaint alleging, individually and on behalf of a putative class, that Defendants

violated the prevailing wage payment provision of the Fair Labor Standards Act, 29 U.S.C. § 201

et seq. (“FLSA”), and the prevailing wages, notice and record-keeping, and wage statement

provisions of the New York Labor Law §§ 190 et seq. and 650 et seq. (“NYLL”).1 (Am. Compl.,

Docket Entry No. 15.) Plaintiff also alleges breach of contract and third-party beneficiary

claims. (Id.)

1 Plaintiff also alleged that Defendants violated the False Claims Act (“FCA”), 31 U.S.C.

§ 3729(a)(2). Defendants moved to dismiss the FCA claim, and on March 20, 2024, Plaintiff

voluntarily dismissed his FCA claim, and the government consented to the dismissal. (Notice of

Voluntary Dismissal, Docket Entry No. 30; Gov’t Notice of Consent to Voluntary Dismissal,

Docket Entry No. 31.)

Defendants move to dismiss the Amended Complaint for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to

state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Plaintiff

opposes the motion.2 For the reasons set forth below, the Court grants Defendants’ motion.

I. Background

AM&G is a general contractor providing waterproofing and construction services in the

non-residential industry and performing city, state, and federally-financed projects.3 (Am.

Compl. ¶¶ 19–20.) Defendants William Rivera and Mike Rivera, Chief Operating Officer

(“COO”) and member of AM&G, respectively, were in charge of paying wages to Plaintiff and

others similarly situated. (Id. ¶ 7.) John Does 1–10 are unidentified supervisors and foremen

who directly supervised Plaintiff and kept track of his hours and those of others similarly

situated. (Id. ¶ 9.)

Plaintiff was employed by Defendants from 2014 through April of 2021, during which

time he performed masonry work, pointing, and scaffolding work for “publicly financed

projects.” (Id. ¶¶ 5, 22, 28.) Plaintiff worked forty hours per week and was paid $35 per hour.

(Id. ¶¶ 27, 31.) Plaintiff is a member of the International Union of Bricklayers and Allied

Craftworkers, whose prevailing union level wage for masonry ranges from $80–$90 per hour.

(Id. ¶¶ 29–30.) Plaintiff alleges that he was supposed to receive prevailing union level wages as

well as other employee benefits for all or some of the projects he worked on, including “a

2 (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), Docket Entry No. 22; Defs.’ Mem. in Supp. of

Defs.’ Mot. (“Defs.’ Mem.”), Docket Entry No. 27; Pl.’s Mem. in Opp’n to Defs.’ Mem. (“Pl.’s

Opp’n”), Docket Entry No. 25; Defs.’ Reply Mem. in Supp. of Defs.’ Mot. (“Defs.’ Reply”),

Docket Entry No. 23.)

3 The Court assumes the truth of the factual allegations in the Amended Complaint for

the purposes of this Memorandum and Order.

Mitchell Lama project,” but never received them for any of the prevailing wage state and federal

government projects he worked on while employed by Defendants. (Id. ¶¶ 32–33, 36–37.)

Plaintiff alleges that Defendants failed to pay prevailing wages at the proper classification

because they sought to both gain a competitive bidding advantage for state and federally-funded

projects and to underpay Plaintiff and other similarly situated individuals. (Id. ¶¶ 40, 43.)

Plaintiff also alleges that Defendants failed to display job site notices concerning state and

federal labor laws in English and Plaintiff’s native language of Polish, and failed to provide

NYLL-required wage notices or statements. (Id. ¶¶ 41, 50–55.)

II. Discussion

a. Standards of review

i. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to

Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court “lacks the statutory or

constitutional power to adjudicate it.” Huntress v. United States, 810 F. App’x 74, 75 (2d Cir.

2020) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Cortlandt St.

Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting

Makarova, 201 F.3d at 113); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (per curiam)

(quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)).

“‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable

inferences in favor of [the] plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that

showing is not made by drawing from the pleadings inferences favorable to the party asserting

it.’” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted) (first

quoting Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); and then quoting

APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)), aff’d, 561 U.S. 247 (2010). Ultimately, “the

party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the

evidence that it exists.’” Tandon v. Captain s Cove Marina of Bridgeport, Inc., 752 F.3d 239,

243 (2d Cir. 2014) (quoting Makarova, 201 F.3d at 113); see also Suarez v. Mosaic Sales Sols.

US Operating Co., 720 F. App’x 52, 53 (2d Cir. 2018) (“[T]he party asserting subject matter

jurisdiction must demonstrate its existence by a preponderance of the evidence.”) (citing

Morrison, 547 F.3d at 170); Clayton v. United States, No. 18-CV-5867, 2020 WL 1545542, at *3

(E.D.N.Y. Mar. 31, 2020) (quoting Tandon, 752 F.3d at 243); Fed. Deposit Ins. Corp. v. Bank of

N.Y. Mellon, 369 F. Supp. 3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon, 752 F.3d at 243).

ii. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a court “must construe [the Complaint] liberally, accepting all factual allegations

therein as true and drawing all reasonable inferences in the plaintiffs’ favor.” Sacerdote v. N.Y.

Univ., 9 F.4th 95, 106–07 (2d Cir. 2021) (citing Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d

Cir. 2019)); see also Vaughn v. Phx. House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020) (same).

A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Bacon v. Phelps, 961 F.3d 533, 540 (2d Cir.

2020) (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Cavello Bay Reinsurance Ltd. v. Shubin Stein, 986

F.3d 161, 165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678). Although all allegations

contained in the complaint are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678; Vaughn, 957 F.3d at 145 (quoting Iqbal, 556 U.S. at 678).

b. Plaintiff’s FLSA claim

Defendants argue that Plaintiff fails to state a claim for violations of the FLSA because

the FLSA does not provide recourse for a failure to pay prevailing wage rates. (Defs.’ Mem. 12–

14.) In support, Defendants argue that “Plaintiff alleges that he was paid at a rate of at least $35

per hour, which is significantly more than the federal minimum wage,” and that he worked forty

hours per week, which does not qualify him for overtime compensation. (Id. at 13.)

Plaintiff argues that he states a claim under the FLSA because he was not paid the correct

wages due to him, nor did he receive employee benefits to which he was entitled, during his

work on city and state projects. (Pl.’s Opp’n 6.) Plaintiff argues that his work for Defendants

was covered by the FLSA because (1) Defendants were required to pay Plaintiff a “prevailing

wage” specified in the subject contracts, and (2) Plaintiff provided labor for federal public works

projects, which makes them subject to the relevant provisions of the FLSA.4 (Id. at 8.)

The FLSA contains a provision prohibiting employers from paying their employees a rate

lower than a certain minimum hourly wage. 29 U.S.C. § 206(b). The minimum wage under the

FLSA is $7.25 an hour. 29 U.S.C. § 206(a)(1)(C); see, e.g., Paschalidis v. Airline Rest. Corp.,

No. 20-CV-2804, 2021 WL 5013734, at *4 (E.D.N.Y. Oct. 28, 2021) (applying the $7.25 federal

minimum wage to the plaintiff’s employment during early 2020). The FLSA, however, “does

not address liability for underpayment of hours at prevailing wage rates.” Grochowski v. Phx.

Constr., 318 F.3d 80, 87 (2d Cir. 2003) (“In contrast [to the Davis-Bacon Act], the FLSA

requires employers to pay each employee a guaranteed minimum wage, and it does not address

liability for underpayment of hours at prevailing wage rates.”); Cortese v. Skanska USA Inc., No.

4 Plaintiff also argues that he has properly alleged Defendants’ status as FLSA employers

under the “economic realities” test. (Id. at 12–16.) Defendants do not contest this. (See Defs.’

Reply 11.)

19-CV-11189, 2020 WL 2748438, at *4 n.6 (S.D.N.Y. May 26, 2020) (“It is clearly established

that [the] FLSA provides no cause of action for non-overtime wages above the federal minimum

wage.” (first citing 29 U.S.C. § 206(a)(1); and then citing Grochowski, 318 F.3d at 87)); Brown

v. Tomcat Elec. Sec., Inc., No. 03-CV-5175, 2010 WL 11603139, at *1 n.1 (E.D.N.Y. May 14,

2010) (“The [FLSA] . . . does not provide for the judicial vindication of any statutory right to be

paid a prevailing wage.” (citing Grochowski, 318 F.3d at 87)); Sobczak v. AWL Indus., Inc., 540

F. Supp. 2d 354, 360 (E.D.N.Y. 2007) (“Grochowski precludes consideration of federal

prevailing wage standards in determining plaintiffs’ rights under the FLSA.”).

Plaintiff fails to state an FLSA minimum wage claim. Plaintiff appears to base his FLSA

minimum wage claim on his allegation that Defendants failed to pay him and other putative class

members prevailing wage payments. (See, e.g., Am. Compl. ¶ 107 (“Defendants failed and

willfully failed to pay Plaintiff and all others similarly situated prevailing wages[.]”); Pl.’s Opp’n

8 (“Defendants were required . . . to pay their employees, including Plaintiff, a ‘prevailing

wage[.]’”).) The FLSA, however, “does not address liability for underpayment of hours at

prevailing wage rates.” Grochowski, 318 F.3d at 87; see also, e.g., Cortese, 2020 WL 2748438,

at *4 n.6; cf. Lubas v. JLS Grp., Inc., No. 18-CV-6611, 2020 WL 4210754, at *8–9 (E.D.N.Y.

July 22, 2020) (denying plaintiffs’ motion to certify plaintiffs’ prevailing wage claims where

they asserted an FLSA claim based on “a failure to pay prevailing (or union) wages” because

“[w]hen plaintiffs who seek to recover unpaid wages were paid salaries at a rate higher than the

minimum wage in effect at the time of their employment, the FLSA is not applicable” (citation

omitted)). Thus, Plaintiff cannot predicate an FLSA minimum wage claim on Defendants’

alleged failure to pay him prevailing wages.

Plaintiff also does not allege that Defendants violated the minimum wage requirement

under the FLSA because he alleges that he was paid at an hourly rate significantly higher than

the federal minimum wage during the relevant time period. The minimum wage required under

the FLSA at all relevant times was $7.25 per hour. 29 U.S.C. § 206(a)(1)(C) (setting the federal

minimum wage at $7.25 as of July 24, 2009); see also, e.g., Fernandez v. Zoni Language Ctrs.,

Inc., 858 F.3d 45, 51 (2d Cir. 2017) (noting that 29 U.S.C. § 206(a)(1)(C) mandated a federal

minimum wage of $7.25 as of July 2009); Cao v. Flushing Paris Wedding LLC, No. 20-CV-

2336, 2024 WL 1011162, at *17 (E.D.N.Y. Mar. 9, 2024) (At all times [from 2013 to 2020], the

federal minimum wage was $7.25 per hour.” (citing 29 U.S.C. § 206(a)(1)(C))); Saavedra v.

Dom Music Box Inc., No. 21-CV-6051, 2024 WL 208303, at *12–13 (E.D.N.Y. Jan. 19, 2024)

(applying the $7.25 per hour federal minimum wage to the plaintiff’s employment from 2015

through 2019 and 2021), report and recommendation adopted by No. 21-CV-6051 (E.D.N.Y.

Mar. 13, 2024). Plaintiff alleges that he was paid $35 dollars per hour, and therefore has not

alleged an FLSA minimum wage claim.5

Accordingly, the Court dismisses Plaintiff’s FLSA claim.6

5 To the extent Plaintiff alleges that Defendants violated section 211(c) of the FLSA by

failing “to properly credit, record, report and/or compensate Plaintiff” and “to properly disclose

or apprise Plaintiff of his rights under the FLSA,” (Am. Compl. ¶¶ 111–112; Pl.’s Opp’n 10),

this does not save his FLSA claim from dismissal, as section 211(c) does not provide for a

private right of action to enforce its recordkeeping requirements. See 29 U.S.C. § 211(c); Bi v.

Xia, No. 18-CV-23, 2023 WL 4684828, at *7 (D. Conn. July 21, 2023) (“[T]here is no private

right of action to enforce 29 U.S.C. § 211(c).” (first quoting Pau v. Chen, No. 14-CV-841, 2015

WL 6386508, at *6 (D. Conn. Oct. 21, 2015); and then citing Elwell v. Univ. Hosps. Home Care

Servs., 276 F.3d 832, 843 (6th Cir. 2002))).

6 The Court also dismisses Plaintiff’s breach of contract and third-party beneficiary state

law claims to the extent they seek to assert claims for federal rather than state prevailing wages.

Although Plaintiff may seek to assert claims for state prevailing wages through state law claims,

he is prohibited from seeking to enforce federal prevailing wages in this manner. See, e.g.,

Cortese, 2023 WL 8368858, at *2 n.4 (“[A] plaintiff may not use a claim for state-law breach of

contract, as third-party beneficiary, to circumvent the prohibition against privately enforcing the

prevailing wage schedules contained in the Davis-Bacon Act.” (first citing Grochowski, 318 F.3d

at 84–87; and then citing Carrion v. Agfa Constr., Inc., 720 F.3d 382, 386 (2d Cir. 2013))).

c. Plaintiff’s NYLL claims and other state law claims

Defendants argue that the Court should dismiss Plaintiff’s state law breach of contract,

third-party beneficiary, and NYLL claims because in the event the Court dismisses Plaintiff’s

federal claims, it should decline to exercise supplemental jurisdiction over Plaintiff’s remaining

state law claims. (Defs.’ Mem. 14–16). Defendants also argue that in the event the Court does

exercise supplemental jurisdiction over Plaintiff’s state law claims, then Plaintiff’s claim for

violations of NYLL § 650 should be dismissed for failure to state a claim because Plaintiff is not

alleging any minimum wage violations, and therefore must pursue any alleged prevailing wage

claims under NYLL § 220 rather than NYLL § 650. (Id. at 16–17.)

Plaintiff argues that because his federal claims are cognizable, the Court should exercise

supplemental jurisdiction over Plaintiff’s breach of contract claim. (Pl.’s Mem. 21–22.) Plaintiff

also argues that he has properly pleaded breach of contract, third-party beneficiary, and NYLL

claims. (Id. at 9–10, 22–23.)

Because the Court dismisses Plaintiff’s federal claim, the Court declines to exercise

supplemental jurisdiction over the remaining breach of contract and third-party beneficiary state

law claims, as well as Plaintiff’s state law claims for violations of NYLL. See 28 U.S.C.

§ 1367(c)(3) (“[D]istrict courts may decline to exercise supplemental jurisdiction over a claim if

. . . the district court has dismissed all claims over which it has original jurisdiction[.]”). “[I]n

the usual case in which all federal-law claims are eliminated before trial, the balance of factors to

be considered under the pendent jurisdiction doctrine — judicial economy, convenience,

fairness, and comity — will point toward declining to exercise jurisdiction over the remaining

state-law claims.” Pension Benefit Guar. Corp. ex rel. Saint Vincent Cath. Med. Ctrs. Ret. Plan

v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013) (quoting Valencia ex rel.

Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003)); see also Chinniah v. Fed. Energy Regul.

Comm’n, 62 F.4th 700, 703 (2d Cir. 2023) (same); One Commc’ns Corp. v. JP Morgan SBIC

LLC, 381 F. App’x 75, 82 (2d Cir. 2010) (“If all of a plaintiff’s federal claims are dismissed, a

district court is well within its discretion to decline to assert supplemental jurisdiction over any

state law claims[.]”). Accordingly, the Court dismisses Plaintiff’s state law claims without

prejudice.

III. Conclusion

For the reasons stated above, the Court grants Defendants’ motion. The Court dismisses

Plaintiff’s FLSA minimum wage claim for failure to state a claim with prejudice. See, e.g.,

Lundy v. Cath. Health Sys. of Long Island, 711 F.3d 106, 111 (2d Cir. 2013) (affirming the

district court’s dismissal with prejudice of FLSA claim for gap-time pay where the FLSA did not

permit gap-time claims for the circumstances presented). The Court declines to exercise

supplemental jurisdiction and dismisses Plaintiff’s state breach of contract, third-party

beneficiary, and NYLL minimum wage, wage notice, and wage statement claims without

prejudice. The Clerk of Court is directed to close this case.

Dated: March 25, 2024

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge