Manning v. Boston Medical Center Corp.

Therefore, cannot now be Doral any way. grant pre-award challenge

heard the tribunal ground on the

interest authority that same very

lacked by agreeing to it granted

parties explicitly Arbi- the Commercial under

to arbitrate Arbitration the American Rules of

tration say more on this front

Association. To to Newcastle. carry coals

would be to

III. Conclusion reasons, the district foregoing

For the affirmed.

court decision is

Affirmed. al., et

Elizabeth MANNING

Plaintiffs, Appellants, MEDICAL CENTER COR-

BOSTON Ullian;

PORATION; Elaine James Appellees,

Canavan, Defendants, Center, Inc.; Regional Medical

Boston Center, Regional Medical

Boston

LLC; Medical Center 403B Boston Plan,

Retirement Defendants. 12-1573,

Nos. 12-1653. Appeals, States Court of

United

First Circuit.

Aug. Talia,

Guy A. with whom Patrick J. Solo- & LLP were on Thomas Solomon mon and brief, appellants. for Eaton, whom Richard L. C.J. Alfred, McGurn, M. Kristin G. Jessica Schauer, LLP were Seyfarth Shaw brief, appellees. THOMPSON, STAHL, and

Before LIPEZ, Judges. Circuit LIPEZ, Judge. Circuit Manning, Lisa Riv- Plaintiffs Elizabeth ers, Williams, McCarthy and Reva Rhonda against action bring wage-and-hour Corpo- Boston Medical Center defendants Ullian, (“BMC”), James Elaine ration former BMC em- Current and Canavan. allege that defendants ployees, plaintiffs through the wages them of their deprived employ- timekeeping policies use of them to work required practices ment periods, put through their meal and rest work extra time before and after their vacate the district court’s dismissal of the shifts, regularly work scheduled and at- against FLSA Ullian, claims BMC and as mandatory training tend sessions. The well the Massachusetts common law complaint asserts causes action under contract, claims for breach of promissory (“FLSA”) the Fair Labor Standards Act money received, estoppel, had and unjust and Massachusetts common law recov- enrichment, and conversion. We also va- unpaid ery wages. of their Plaintiffs also striking cate the class and pur- seek certification of a collective action allegations. collective We affirm the dis- 16(b), § suant to FLSA 29 U.S.C. trict court’s directive that 216(b), action pursuant class to the two cases file a single consolidated Federal Rule of Civil Procedure and, by extension, the district court’s assumption jurisdiction over the actions, began

This case separate as two law state claims. alsoWe affirm the dis- claims, raising one in federal court missal the FLSA Cana- and another in the Massachusetts Com- van, the and negligent fraud misrepresen- raising monwealth court state law claims. claims, tation and the denial of further Defendants removed the latter action to complaint. leave amend the federal court. After the two cases were joined filing via a single amended

complaint, defendants moved to dismiss all I. claims, state, both federal and Background A. Factual sought strike the class and collective allegations. action The district court BMC group refers to a organ- related granted defendants’ entirety, motion its operate izations that a set of healthcare now appeal. facilities in the Boston area. The two Ullian, individual are defendants Elaine before, have We seen this case albeit president BMC’s former and chief execu- with parties. explained different As in our officer, Canavan, tive and James BMC’s prior opinions, see Pruett v. Caritas former senior human resources director. (1st Cir.2012); 678 F.3d 10 Caval- Christi registered Plaintiffs are three nurses Healthcare, Inc., laro v. UMass Memorial Rivers, Williams) (Manning, and and one Cir.2012), 678 F.3d 1 numerous law- (McCarthy) administrative assistant who suits this kind been filed worked or currently work for BMC hospitals country, across the all alleging They several its locations. seek to rep- systematic similar forms undercompen- 4,000 group resent a of over people who cases, sation. These previ- which we have currently are employed by BMC ously “hospital compensation dubbed hourly as group workers. This includes cases,” assert “that require[ [defendants] ] in a range positions, individuals broad unpaid through work meal-breaks due to nurses, assistants, from medical techni- deduction, automatic timekeeping un- cians, and physical therapists, to adminis- paid work, preliminary and postliminary custodians, staff, trative and home health unpaid Pruett, training sessions.” aides. F.3d at 13-14. A number of these actions being are litigated by counsel for plaintiffs’ The crux of is that claims de- 11; Cavallaro, this case. id. at See 678 fendants denied BMC’s workers full com-

F.3d at 2. pensation through for their work a com-

After careful consideration of the nu- pay practices bination of unlawful arguments merous appeal, raised on timekeeping policies. The al- Additionally, employees are not BMC prop- are not employees BMC leges that during required train- spent perform- spent time for time erly compensated paid regularly place scheduled during trainings their These take ing ing work sessions. breaks, spent time before as well as meal hours and cover sub- during regular work The shifts. their scheduled and after work directly employees’ related to jects during employees perform work including new areas of responsibilities, after and before and breaks their meal as well as procedure research and medical tending patients, their includes shifts such as ad- protocols on basic instruction charts, and doing preparing paperwork, ministering cardiopulmonary resuscitation Employees phone calls. responding (“CPE”). employees not relieved other are often complaint further states that BMC The their meal the time comes when employees’ supervisors are well breaks, during to work forcing them performing employees are aware that ostensibly they sup- not times when being Employees are paid. without work working. posed to be dur- responsibilities take on often asked to that BMC con- complaint suggests and after ing their meal breaks before advantage employees’ of its sciously takes performed shifts. The work is their work pa- to their and commitment dedication during operational premises BMC’s tients, knowing that would aban- hours, man- “in full view of defendants’ responsibilities simply caregiving their don also al- supervisors.” Plaintiffs agers are over or be- their work hours because staffing shortages and that due to lege or rest they are due to take meal cause demands, manage- BMC’s industry other break.1 they assign ment knows that the tasks aspect of key A through require their to work policies alleged interaction of BMC’s and before and after their meal breaks company’s timekeeping practices shifts. regularly scheduled using maintains time records system. BMC system programmed that is an automated History B. Procedural employees’ pay- from the time deduct meals, breaks, or other noncom- checks for noted, began sepa- As this case two plain- fact Despite the pensable time. actions, initiated in the District of rate one this time performing tiffs much of spend in and the Com- Massachusetts the other regular responsibilities, the deduc- work re- recount their monwealth courts. We meal time are auto- tions for their break paths to this court. spective they allege that are matic. Plaintiffs also per- all their work “not allowed to record 1. The Initiation of the Two Actions shifts, and, after before and their formed” plaintiffs, Manning, Three of the named permitted to record even when Williams, Rivers, an action in and filed time, they compensated “prop- are not (“Maw- in September federal court erly.” properly---- If complaint patient was taken care of is an article from 1. Attached to the describing brought got you your the home The Times some of lunch from New York hospital compensation This article it to the cases. cafeteria and took food in the registered unit, a quotes interrupted by nurse who worked for nursing you would be Pennsylvania: hospital calls, in family by mem- phone physicians and you. really talk We who wanted to put patient We bers the first.... 'Most nurses uninterrupted meal break.' did not have gave up to see that often lunch breaks ”), I alleging complaints claims under the would moot ning the consolidation request. other and federal statutes.2 Defendants all

moved to dismiss of those claims under February granted In the court the 12(b)(6). Civil Federal Rule of Procedure motion to the Manning dismiss I com- specifically, As to the FLSA claim plaint, ruling that the alleged facts were challenged sufficiency motion insufficient to a plausible state claim for complaint’s factual relief under the FLSA. district The court then-existing contended that because the “complaint stated that the pages runs to 25 members, all plaintiffs were union yet and 158 paragraphs, it lacks even by operation claim precluded most basic information [plaintiffs’] about governing federal labor laws the union- among claims.” The court observed that relationship, including Na- employer deficiencies, complaint other did not (“NLRA”). tional Labor Relations Act identify the defendants for whom the worked, plaintiffs’ jobs September Manning, Also Riv- ers, parallel occupations, or the of unpaid and Williams initiated a action amounts wages. the Massachusetts court dismissed the FLSA Commonwealth II”). (“Manning prejudice gave plaintiffs This without complaint courts leave to pled statutory a number of amend correct the identified Massachusetts claims, deficiencies. relying and common law on the same facts as the case. federal Defen- In March the district court ruled court, dants removed the ease to federal on the II. pending Manning motions all contending plaintiffs’ claims plaintiffs’ The court denied remand mo- completely preempted by § tion, holding complete that LMRA pre- Management the Labor Relations Act emption applied plaintiffs’ Massachu- (“LMRA”), 185(a), 29 U.S.C. because claims, converting setts thus them into were union workers covered federal causes of action rendering (“CBA”) collective bargaining agreement properly case removed. The court also their causes action were founded granted defendants’ motion dismiss directly necessarily required on or in- Manning complaint, II or- referring to its terpretation of the CBA. Defendants then I dismissing Manning der complaint requested Manning consolidation of I and similarly ruling that the law common Manning II under Federal Rule of Civil were insufficiently pled. The court Procedure and also filed motion pub- also observed that BMC’s status as a Manning dismiss the II fail- charity statutorily exempt lic it rendered Plaintiffs, ure to state a claim. wage-and- from Massachusetts sought part, Manning to remand II as hour claims them and dismissed as well. improperly removed. given Plaintiffs were leave to amend their 16, 2010, complaint plead to a “recharacterized September

On the district Manning 301 count” in II. hearing pending court held a on all the in Manning motions I II. Manning Proceedings Subsequent 2. and the The took court then the motions under Dismissing Order the Amended submission and stated that it would defer Complaint on ruling defendants’ motion consolidate the two until it Anticipating filing actions resolved the mo- the of amended com- dismiss, scheduling tions as the a plaints, joint dismissal of the court held claims, only appeal. 2. Of federal before the dismissal the FLSA claim is us on that defendants indicating matter 14, 2011, Manning factual on April conference re- policy place in had a concrete have not Manning Although II. I and through work quired employees BMC transcript a of this with provided been breaks, their meal and rest before the court parties agree that hearing, hours, during training peri- after complaint a single to file plaintiffs directed assuming policy a Even that such ods. law FLSA and state containing both their existed, complaint failed demon- by responded filing Plaintiffs claims.3 managers or any strate that of BMC’s I Manning only. in complaint amended knowledge plaintiffs’ supervisors had a of action alleged cause complaint This Similarly, ruled unpaid the court work. FLSA, brought behalf of all on under the individual de- against the claims defendants, as well as against all plaintiffs a insufficient to make out fendants were contract, fraud, and tort a number relief, claim for and that plausible law Massachusetts pursuant plaintiffs’ state common law claims brought only behalf BMC conclusory too to survive dismissal. The by a add- not covered CBA. a a McCarthy, employee, nonunion ed reasons, court granted related For represent in order to nonu- plaintiff to strike the class defendants’ motion putative in the BMC workers nionized allegations. The court collective action for conditional class. Plaintiffs moved plaintiffs sought represent noted expedited notice under certification and in employees who worked numerous BMC provisions. action the FLSA’s collective positions. of different “[T]he multitude Defendants, part, for their moved dis- ‘policies,’” court of such existence complaint and further miss the amended group putative plain- opined, “across complaint’s urged function, hours, daily the court to strike the job whose tiffs action un- ground class and collective little to no common tasks share 12(f). plausible.” der Rule of Civil Procedure simply Federal 12(f) (permitting court to See Fed.R.Civ.P. Finally, leave court denied “redundant, immaterial, imperti- strike complaint, ob- to file second amended nent, plead- from or scandalous matter” brought had serving that counsel ing). hospital compensation five at least other in the District of Massachusetts In the court dismissed the cases April alone, entirety. and that similar cases health complaint in its The amended through- pleading proliferating facilities were court concluded that while the care com- length, country. in it out the These cases used significantly had increased “substantially identical” problems plaints the court that were remedy failed to case, and the original I to the one at issue Manning had identified in the courts The court observed that other district Manning complaints. II amend- routinely complaints as said, dismissed such ed court contained no had complaint, the note, however, dismissing district court’s plain- We that the district order The court's otherwise, complaint suggests Manning entry dated tiffs’ amended I contains an docket given 4/14/2011, the observation its order Man- clerk’s note re- which includes the ning states, directed to file cause of II garding joint hearing. entry This case. under the LMRA in that action Pleadings emphasis added: "Amended on the in Man- court’s formal orders motions (1 complaint).’’ The ref- [] due 4/29/2011 expressly Manning II do ning I and not direct parties' complaint” out the to "1 bears erence single the com- file consolidated description the court's directive. plaint.

43 insufficiently pled. Accordingly, plain- Id. allegations enough must be “[wjhere “have tiffs received benefit numer- render claim plausible: rulings from ... on judges complaint ous federal pleads ‘merely facts for requisites proper pleadings,” and their consistent with’ a liability, defendant’s it continuing inability allege ‘stops a cause of short of the line between [mere] futility action attested to the possibility plausibility further of entitlement ” opportunities to amend. 662, relief.’ v. 556 Iqbal, U.S. Ashcroft 678, 1937, 173 (2009) 129 S.Ct. L.Ed.2d 868 Having all preju- dismissed claims with (quoting Twombly, 557, 550 U.S. at dice, court judgment entered for de- 1955) (quotation omitted). S.Ct. marks in Manning fendants I and terminated We appropriately “judicial draw our Manning II on docket. its Plaintiffs took experience and common sense” in evaluat appeals from both cases. We consolidated ing 679, a complaint, 1937, id. at 129 S.Ct. appeals purposes those for the of briefing but we not may disregard allega factual argument. tions if it “even savvy strikes a judge actual proof those improbable.” facts is II. 556, Twombly, 550 U.S. at 127 S.Ct. 1955. Sufficiency Allega- A. The of the FLSA “The question relevant ... assessing tions plausibility is not complaint whether the any particular makes factual allegations We de exercise novo over review but, rather, whether ‘the war complaint district court’s dismissal of a 12(b)(6). dismissal it rants] Rule because failed in Uphoff Figueroa under toto v. render 423, plau entitlement to Alejandro, 597 relief F.3d Cir. 2010). sible.’” Rodríguez-Reyes v. Federal Rule of Molina-Rod Civil Procedure (1st Cir.2013) 8(a)(2) riguez, 49, requires that the complaint contain (quoting Twombly, 14, “a 550 U.S. at 569 n. plain short statement 1955). 127 S.Ct. showing that the pleader is entitled to relief.” Such a only statement “needs

enough detail provide defendant Sufficiency 1. The Alle- FLSA ‘fair notice of ... what the claim is and the gations Against BMC ” grounds upon which it rests.’ Ocasio- recovery Plaintiffs seek under Fortuño-Burset, Hernández unpaid compensation. for overtime (1st Cir.2011) (quoting Bell Atlantic The basic elements of a FLSA claim are Corp. v. Twombly, 550 U.S. (1) plaintiffs employed by must be (2007)) (inter S.Ct. L.Ed.2d 929 (2) defendants; the work involved inter omitted). nal quotation marks and, activity; state importantly most (3) sufficiency

We present assess purposes, plaintiffs “performed complaint’s allegations factual two steps. they work for under-compen which First, Pruett, conclusory allegations merely sated.” at 12. A claim parrot legal the relevant unpaid wages standard are dis overtime must demon regarded, as are not entitled to the strate were employed Second, presumption truth. Id. we ac “for a longer forty workweek than hours” cept the factual remaining any and that hours worked in excess of if, true drawing and decide all forty per compensated reasonable week were “at a in plaintiffs’ favor, they inferences are suf than rate not less one and one-half times ficient 207(a)(1); to show an regular entitlement relief. rate.” 29 U.S.C.

44 Inc., occasions,” Const., directly employees number of v. Maietta

see also Román (1st Cir.1998). prac- managers about the questioned BMC 71, 75 147 F.3d automatically deducting time from tice arguments about the suffi- parties’ The managers paychecks, and the employees’ allegations BMC boil ciency of the responded “fully that the were (1) com- whether the to three issues: down Additionally, their work time.” paid for or sufficiently BMC’s actual pleads plaint managers regularly performance set BMC plaintiffs’ under- knowledge constructive required employees that to work deadlines (2) al- facts whether compensation; through As designated their breaks. plaintiffs per- leged make out sessions, training defendants scheduled longer than compensable work formed during place regular them to take work (3) week; and whether forty per hours sessions, required led hours and dem- sufficiently has al- plaintiff each named onstrating they knew that the train- compensable worked over- leged she ings taking place. time. allegations Defendants assail these Knowledge a. knowledge vague support too BMC’s employees’ unpaid They argue that the term “em work. The defines allegations though to work.” 29 even are factual in ploy” permit as “to suffer or agree nature, allegations, stating § while not 203(g). parties The “some U.S.C. conclusions, definition, legal are nevertheless employer’s this “an actual ultimate under necessary speculative ... or fail knowledge or is a so threadbare imputed conclusory employer to cross the line between finding condition to suffers Chao v. and the factual.” Peñalbert-Rosa v. For permits or that work.” Gotham (2d tuño-Burset, Inc., 592, F.3d 514 F.3d 287 Cir. 631 595 Cir. Registry, 2011) omitted) (citation (internal 2008); quotation v. City see also Newton omitted). (5th Henderson, marks that the Cir. Defendants note Lion, 1995); is pleading vague v. Food about number of Davis (4th Cir.1986). is knowledge points, Actual such as identities and roles of “managers” plaintiffs spoke required; knowledge will with whom not “constructive frequency Holzapfel Newburgh, suffice.” v. Town and the and content of these (2d Cir.1998); purported see also interactions. (“Work requested 785.11 C.F.R. does not demand de Rule permitted is work time.... but suffered Even where gree particularity. direct employer knows or has reason to be The allegations knowledge pled in a continuing to employee] lieve that is [the fashion, conclusory knowledge defendants’ time.”). working work and time “may of unlawful conduct be inferable Here, complaint.” relies on a mix from in the other 55; Rodríguez-Reyes, 711 F.3d at knowledge of actual and constructive Auth., knowledge alleges Grajales P.R. Ports pleading theories. The (1st Cir.2012). 40, 47 down employees’ uncompensated that the work F.3d Boiled essence, premises to its claim is that the performed “on defendants’ hours, during operational employment of several BMC full view intersection them supervisors.” required managers practices frequently of defendants’ breaks, through their scheduled be pleading further states that work hours, during after work managers had conversations with their fore and work, “a This often re- uncompensated training work. On sessions. about defendants, quired performed pends definitions,” by “rigid per not on se but Although open. defendants suffered rather “the circumstances of the whole place, permitted and this work to take activity.” Inc., ConAgra, Reich v. they knew that their automatic time- also (8th (citation Cir.1993) deduct cat- keeping system would certain omitted) omitted); (quotation marks egories noneompensable time from the Registry, Gotham 514 F.3d at 286-87 paychecks. employees’ Yet defendants (applying Tennessee Coal test deter- nothing did to account for the time extra employees mine whether engaged com- facts, toto, These worked. taken in activities). pensable a plausible sufficient to establish infer- In affirming complaint dismissal of a ence of To knowledge. defendants’ re- plaintiffs, quire seeking represent raising allegations, that similar our opin- recent individuals, a whole class of describe ion in Pruett observed “the amended with, specific managers they talked and (let provide does not examples document, time, date, by place, and amounts) alone estimates as to the of such they instances which had a relevant unpaid for either plaintiff time or describe managers, conversation those would performed of the during nature work exceed Rule 8’s of a “short requirement those times.” 678 F.3d at 14. Defendants plain making and statement” out level a similar contention this com- See Grajales, relief. 47 plaint, asserting allege that it fails to (“In plausi- with a connection threshold plaintiffs engaged in compensable work bility inquiry, degree factual high specificity. with sufficient Here, specificity required.”). is not complaint sufficiently pleads that the em- agree While some ployees performing uncompensated were complaint’s allegations straddle the line work with or ac- defendants’ constructive conclusory factual, between the and the knowledge. tual the pleading enough contains substantive content to elevate the FLSA claims above Compensable b. Work the mere possibility liability. defendants’ Supreme Court has defined above, complaint’s gist As discussed “work” under the FLSA “physical employees’ assigned because the tasks (whether mental exertion burdensome or completed often to be certain need not) required by employ controlled or times, understaffing and because of and necessarily er and pursued primarily and breaks, during lack relief meal and work employer for the benefit his frequently complete BMC must Coal, Tenn. business.” Iron & R.R. Co. v. regular working during activities 590, 598, Muscoda Local No. 321 U.S. their meal breaks or before and after their (1944); 64 S.Ct. 88 L.Ed. 949 see also example, Manning scheduled For shifts. IBP, Alvarez, 21, 25-30, Inc. U.S. Williams, nurses, spent who worked as (2005). 126 S.Ct. 163 L.Ed.2d 288 charting, performing this time administra not all Accordingly, employee activities an tasks, monitoring provid tive patients, performs are necessarily compensable. Rivers, nurse, ing registered treatment. Pruett, (discussing See reg similarly this time to patients used assist excluding types training ulations certain difficulty McCarthy, who had an sleeping. or activities from FLSA’s definition of work). assistant, spent administrative her uncom The determination of whether employee’s activities constitute de- pensated placing answering “work” time plaintiffs, the four named Rivers calls, drafting correspondence,

phone they McCarthy, complaint alleges filing paperwork. forty-hour/ regularly scheduled essentially indistinguish- work was This Any time that worked week shifts. the em- during performed able from work breaks, before or after their during meal hours regularly scheduled ployees’ shifts, training periods, in would thus standpoint [was] [their] work from “[s]uch A compensation. to overtime entitle them at Registry, 514 F.3d fungible.” Gotham Manning, usually plaintiff, third sched- is not that this assertion 286. The fact shifts, thirty-six but uled for hour/week list of a detailed each accompanied by a shift “approximately once month” her fel- every activity plaintiffs the forty-hour in a week. resulted schedules compensation does lows without performed Hence, month, a the approximately once complaint’s dismissal. not mandate the her alleged uncompensated put time would id., work, all,” we see after “Work is over numerical threshold. the de- such exhaustive no reason demand tail. allegations as to sufficiency The Williams, employed Rhonda who was

c. Worked Overtime complaint’s time of the BMC as whether the com- parties The debate question. closer filing, presents a alleges that each of plaint properly “from pleading January states that more individually named worked 2006,” “typically” until she was scheduled workweek, given in a as forty than hours forty-hour this alle- workweeks. While claim. required bring a FLSA overtime bring her into the gation would seem dismissal, rely support In defendants McCarthy, category Rivers and same as recent heavily on the Second Circuit’s a imposes two-year statute of Sys. in Health opinion Lundy Catholic limitations, years extending three (2d Inc., 711 F.3d 106 Long Island 255(a). willful violations. U.S.C. Cir.2013), hospital com- is another which in September initiated This case was There, pensation case. the Second Circuit regularly that was not meaning Williams carefully each named examined forty-hour to work scheduled weeks within the likelihood and discussed From on- period. either limitations forty that he or worked more than she ward, “typical[]” schedule was Williams’s given Lundy in a week. The court hours hours/week, twenty-four reduced to which repeated use complaint’s criticized plainly bring is insufficient her even imprecise “occasionally” as words such close to the threshold. “typically” to named plaintiffs’ describe the however, alleges, also that she Williams vague-

work hours. at 114-15. This Id. forty-hour shift was scheduled for week ness, fact with the that combined year” regular “at once a after her least uncompensated amounts of purportedly week, changed. During any hours such small, relatively provided time “but forty-hour hours she worked above speculation” plain- low-octane fuel for her to overtime threshold would entitle truly enough tiffs had hours to be worked noted, complaint’s basic pay. As pay. Id. at 115. entitled overtime pay practices thrust defendants’ continuously employees to

Although required defendants characterize BMC simi time for which did receive “strikingly instant work fact rea- Lundy, compensation. supports lar” This pleading to the issue any during week reading close reveals otherwise. As to two sonable inference which to work for- super- Williams was scheduled manner would “make any hours, ty she least performed visory some employee, any even those without uncompensated work. control the corporation’s payroll, per- over sonally unpaid liable for the or deficient Consequently, we conclude wages of other employees.” Id. at 1513. included, plaintiffs, named Williams alleged enough to survive dismissal. We added substance the economic reality in Baystate test Alternative Staff-

2. The Individual Defendants Herman, ing, Inc. v. 163 F.3d 668 Cir.1998), explaining that The FLSA claims are also direct ed two individual defendants: analysis [the] focusefs] on role Ullian, president Elaine and BMC’s CEO played the by corporate in officers caus- Canavan, from until James ing corporation the to undercompensate senior human BMC’s resources director prefer and to the payment of liability from until 2010. FLSA at obligations other the retention of and/or any “employer,” taches to which is defined profits. In addition direct to evidence of “any to broadly person acting include di role, such a other may relevant indicia in rectly indirectly or the interest of an example, exist as well—for an individu- in employer relation to an employee.” 29 operational al’s significant control over 208(d). generally U.S.C. Courts have aspects the of business and an individu- agreed corporate oper that “a officer with ownership al’s interest the business. corporation’s ational control of a covered indicia, Such dispositive, while not is an enterprise employer along with the ... important they suggest because corporation, jointly and severally liable ... an individual a corporation’s controls for unpaid wages.” Agnew, Donovan v. and can cause the cor- financial affairs (1st Cir.1983). 1509, 1511 (or poration compensate com- not to pensate) employees in with accordance

In Agnew, our seminal on case the FLSA. liability, individual we balanced “the added) (internal personal liability shield from (emphasis is one Id. at 678 [that] cita- omitted). major of purposes the of tion doing business cautioned We these corporate in a against Congress’s crystal form” indicia of a the connection between incorporate clear refusal “to employee the common and the must alleged violations parameters employer-employee law of the up something merely add more than relationship” into the FLSA. “the Id. exercise of control a corporate Examining the Supreme prece- corporate employee Court’s officer or over the ” dents interpreting the FLSA and other ‘work generally, situation’ as otherwise statutes, employment they noted that “almost any supervisory managerial em- course, applying charted middle a con- ployee corporation per- of a could be held text-dependent reality” “economic sonally wages test liable for the other unpaid of totality 679; employees.” looked the Id. at see individu- also Chao v. Oasis, Inc., corpora- al’s level involvement with the Hotel F.3d Cir.2007) day-to-day operations, tion’s as well as (concluding corporate officer participation creating their direct just any or was “not some employee with adopting pay unlawful practices. supervisory employees,” Id. control over other at 1513-14. While the fact- recognizing causing but rather was “instrumental (in- test, based corporation nature we admonished violate FLSA” omitted)). that courts not apply analysis quotation should ternal marks preclude in itself establish or typi eases title does not liability individual Our FLSA FLSA”). op liability But corporate “a officer his or her under cally address corporation’s covered emphasis ownership erational control the case law’s employee. a mere rather than enterprise,” is sensible because these financial control (two individuals at 1511 Agnew, 712 F.2d strong degree of authori- suggest factors President, Treasurer, “together and, who as a ty corporation’s finances over the Board Secretary sole members of corpo- corollary, ability to “caus[e] Oasis, Directors”); see also Hotel undercompensate employees ration corporation”). at 34 (“president obligations prefer payment other similarly ownership identified We have Baystate, profits.” retention and/or of an individual’s highly probative stake as 163 F.3d at 678. status, 163 F.3d at Baystate, employer high level of domi suggests as it a. Elaine Ullian company’s operations. See nance over the backdrop, we turn Against this Ackerley, Lambert v. Ullian, for BMC’s (9th Cir.1999) (approving jury instruction president say Plaintiffs mer CEO. liable if had a that individuals were to, did, authority make Ullian “had the opera interest “significant ownership the policies decisions that concerned defen of significant aspects the tional control of implementation and the adopted dants (em day-to-day functions” corporation’s she policies.” They claim that exer those added)); Herman v. RSR Sec. phasis opera her over BMC’s cised dominance Cir.1999) Ltd., (2d 132, 140 F.3d Servs. 172 by coordinating major merger tions (“Because controlled the [the defendant] hospitals, overseeing Boston area several financially, it was no idle threat company setting com corporation’s budget, the and he that he could dis when testified “involved pany-wide policy. She was company the if other defen [the solved employment-related of major in” a number directions.”). his had not followed dants] decisions, including hiring employees from directly company’s profits also inure The community reducing jobs organizations, ownership with an inter an individual cuts, budget negotiat and services due to est, “employs” meaning that the individual unions, ensuring that minori ing with and and very the worker in a concrete literal in BMC’s workforce. represented ties Tours, See Dole v. Elliott Travel & sense. (hold (6th Cir.1991) Inc., 942 F.2d allegations say These do not that Ullian ing liable where “the evidence individual BMC, in possessed any ownership interest clearly [individual] that was demonstrates significant which we have identified as corporation func ‘top the man’ ... and the liability analysis. in factor the individual profit”). tioned for his Nevertheless, president her role as BMC’s that suggests and chief executive officer the say that FLSA’s defi- This position she in a to exert substantial was those without employer nition of excludes authority corporate policy relating to over ownership in- high positions executive Oasis, wages. employee See Hotel terests, speaks reality test as the economic (emphasizing at 34 that individual F.3d “opera- broadly of individuals who have the in corporate principally “was officer significant aspects tional control over directing employment practices, 678; charge Baystate, at business.” [including] to attend requiring employees Hurricane also Lamonica Safe (11th Shutters, employees’ Inc., meetings unpaid, setting schedules”). Cir.2013) allegations (observing supervisor’s wages “a While position solely on Ullian’s within Rodríguez-Reyes, reliant tions.” 55. F.3d at Instead, whether, we look to in would not be sufficient to hold her “taken BMC entirety,” alleged the facts liable, individually contains enough to state claim. With respect, Id. indicating that she “controlled we believe the dissent devalues the famil- company’s] purse-strings or made cor- [the iar process drawing inferences from porate policy compensation about [its] status, of employer “relevant indicia” such practices.” Baystate, 163 F.3d at 678. operational “an individual’s control over Specifically, Ullian was involved in significant aspects Bays- of the business.” array managing of decisions related to tate, 163 F.3d at 678. example, finances. For was BMC’s she specific allegations cite, The but- hospital budget in the and made involved express tressed allegation decisions allocate substantial resources ‘actively Ullian ... on advised the en- Moreover, projects. certain she illegal forcement of the policies,’ ‘raise jobs in reduction ser- “involved expectation reasonable discovery will due budgetary vices” BMC con- reveal played evidence’ Ullian a role straints, similarly and was involved in stra- causing corporation violate tegic positions decisions cut staff Twombley, FLSA. U.S. company’s spending. reduce the as- These pleading discusses Ullian’s involvement support sertions notion that Ullian had employment, training, payroll opera- to, did, authority make critical tions, participation her ac- recruiting regarding decisions allocation of tivities, and decisions made she to reduce resources, thereby buttressing BMC’s budget staff due to allega- cuts. These type had opera- inference she tions describe an only executive who not company tional control over the that would possessed, repeatedly but exercised give rise to liability. individual FLSA authority to establish company-wide poli- cy employment-related regarding matters The dissent notes these same factual significant and made regarding decisions but that allegations, concludes the allocation of financial resources that “merely with” consistent an inference of directly affected employees. BMC’s liability, Twombly, at U.S. These facts denominate concrete actions sufficient S.Ct. than rather to raise that had im- measurable and immediate plausible Although claim. the ac- dissent Thus, on pacts the BMC’s workforce. knowledges need not state plausible complaint raises not inference “particular showing facts that an individual only that compensation-related matters specific defendant made a decision or took bailiwick, were well within but Ullian’s a particular directly action that the caused also, and importantly, most she plaintiffs’ undercompensation,” it criticizes corporation’s the] financial “controlled complaint failing the to show “that the affairs and ... corporation cause[d] plaintiffs’ sufficiently compensation was (or compensate compensate) justify within the bailiwick defendant’s in accordance with holding personally her liable.” It also FLSA.” Id. at 678. issue the complaint’s takes lack of specific allegations linking While Ullian allegations “connecting to any Ullian com- to BMC’s timekeeping system automated of’ ponent timekeeping practices practice or the of meal working through training work and requirements periods and rest would have further but- systematic undercompensation. caused the claim, of tressed FLSA that kind question “[t]he But relevant ... in as- direct evidence is not essential to the as- sessing plausibility is not Moreover, whether the com- of plausible sertion claim. particular plaint any allega- demanding type allegation makes factual is often to such an liability when extended FLSA individ- stage “some unrealistic at be ual.4 may in control information needed Pruett, F.3d at 15.

of defendants.” emphasis law’s In view the case corporate officer status individuals with opinions our prior one of Importantly, in ownership company, an stake and/or nearly in a liability found individual FLSA any lack such assertions relat- Oasis, Hotel context. In identical factual Canavan, allegations as to his ing corpora- president we deemed enforcing setting involvement in he “had ulti- liable because personally tion pay become all practices unlawful issue day-to- over the business’s mate control important. Although there are the more at 34. The day operations.” him, allegations against they are such the corporate question individual more than assertions nothing unadorned directing “principally charge officer not supplemented specific that are alle- hiring such as employment practices, gations supporting the inference that Ca- employees to firing employees, requiring purse-strings navan controlled BMC’s setting em- meetings unpaid, attend fi- made decisions about the allocation of Id. Nota- ployees’ wages schedules.” Baystate, See nancial resources. F.3d bly, these facts were sufficient establish 678; compare Donovan Hotel Grim against regardless the individual Cir.1984) (find- (5th Co., inter- possessed ownership whether he ing liable held their individual when “he Id. As enumer- company. est in at 34 n. 9. guided policies,” purse-strings and above, against allegations ated Ullian companies part family “were of the ... closely sufficient hew to the facts found business,” profit and “functioned for the liability in Hotel Oa- establish individual detailed, family”). his As we have there Consequently, sis. the dismissal of against were such Ullian. her must be vacated. respect Their absence with to Canavan any undermines inference of individual lia- b. Thomas Canavan bility. does, Similarly, say, complaint to hold as the seeks Canavan, senior human re had some involvement BMC’s former Canavan director, personally “maintaining “payroll liable the records” or func- sources enough support lacks tions” not a alleged violations. Canavan is reason- FLSA BMC, any liability, given does not able inference of ownership interest officer, corporate a and there high-level plaintiffs serve as nowhere assert was company’s anything per taking is a board of se unlawful about au- not member Ullian, apparently employees’ directors. he tomatic deductions from time. Unlike anything, merely to a are a more akin senior If these occupied position Al corporate than a official. consistent with the notion that Canavan employee functions, job though “employer” performing definition of was his rather FLSA’s necessarily engaging not senior-level than in conduct that led does exclude yet alleged employees, previous have not violations. our cases Indeed, (N.D.Ohio 1999) F.Supp.2d 4. a case identified liability imposed a where circuit court FLSA (ruling depart- of that head human resources pos- manager on a human resources who Family and "employer” was Med- ment under ownership company. no sessed stake in Act). ical Leave Refrigeration Corp., Carpenter v. But see Sales reasons, way require For these does to do so is to the unionized a claim Rivers, Williams) not state Canavan. (Manning, and to arbitrate their FLSA claims pro- before Arbitrability B. The of Plaintiffs’ ceeding to federal court.5 FLSA Claims This argument “exhaustion” runs challenge also mount a Defendants to aground governing on well-settled case law of viability FLSA claims arbitrability statutory federal unions, governing based on federal laws claims.6 In O’Brien v. Town Agawam, including the National Labor Relations Act (1st Cir.2003), 350 F.3d 279 we addressed (“NLRA”) Although LMRA. de- the argument FLSA claims hazy, is argument fendants’ somewhat certain unionized workers were “barred way. it this LMRA 301 em- understand they from federal court because are essen strong policy bodies federal in favor of tially contract unpaid claims for overtime” the use “protect[ing] of arbitration and subject therefore to the griev CBA’s grievance procedures common to CBAs.” ance procedures.7 and arbitration Id. Cavallaro, Thus, 678 F.3d at 5. the LMRA rejected proposition, We this observ strong preemptive exerts a effect over ing that “[rlights by Congress conferred state law causes of action “so as long relief conceptually distinct from those creat provided can be within the CBA process.” ed by private agreement, and there no FLSA, permits at 6. part, Id. for its authority for proposition that rights employers to contract under the merge into contractual about certain terms and of em- conditions ones overlap.” whenever the two Id. ployment, including parties’ definition 285; see also Gilmer Interstate/Johnson “work,” long as those contractual 20, 35, Corp., Lane U.S. S.Ct. provisions remain consistent with the 1647, 114 (1991) L.Ed.2d 26 (distinguishing provisions purposes. FLSA’s Al- rights between “contractual under a collec though protection the LMRA’s broad tive-bargaining agreement and individual claims, arbitration focuses on state law statutory rights”). defendants maintain that the FLSA claims similarly subject consequence, should be federal As FLSA claims policy arbitrating subject favor of are not disputes grievance be- to CBA’s employers simply tween and union procedures workers re- arbitration because garding payment wages. subject The best address similar matter or be- firming reasoning 5. We note using that defendants do not address dismissal McCarthy, plaintiff a nonunion whose FLSA appropriate would be an exercise our abili- be cannot covered CBA. McCar- ty any present to affirm on basis in the rec- thy’s FLSA appear claims would thus to re- ord, necessary put no cross-appeal accepted we main untouched even if defen- See, e.g., this issue before United & us. Fire view the dants’ of law. Residential, LLC, v. Cas. Co. Boulder 633 Plaza 951, (10th Cir.2011); F.3d 958 Smith v. John- 6. Plaintiffs maintain that defendants should Johnson, 280, (3d son F.3d & 593 283 n. 2 argument appeal, have raised this in a cross Cir.2010); City Cnty. & San Rivero v. Fran- of adopting it because would alter amend the or cisco, 857, (9th Cir.2002). F.3d 862 316 judgment defendants' favor. To con- trary, the district court’s order dismissed omission, 7.In a notable both defendants plaintiffs’ prejudice. FLSA claims Ac- plaintiffs have to or cite failed discuss even argument cepting defendants' "exhaustion” briefs, Agawam despite appli- in their its clear same would cause the result—the dismissal of prejudice. cability FLSA claims with Af- to this case. 52 must be clear and unmistak- compensable nation claims define CBAs

cause able, Indeed, “less-than-explicit” the law is waiver the state of and that “work.” insufficient).9 to a FLSA unsettled as whether somewhat was by a waived CBA.8 may claim ever be provision work As to what kind of would may question to that the answer Whatever waiver, we have a clear and unmistakable be, point: one in order plain the law is arbitra- broadly-worded observed that “[a] statutory subject to federal for a CBA covering ‘any one dis- tion clause such as arbitration, must any such waiver concerning of arising out the terms pute face. unmistakable” on its be “clear and ’ ... will CBA] conditions of not [the and/or 285; F.3d at Caval Agawam, 350 suffice; rather, specif- closer something laro, The Supreme at 7. Court statutory ic claims to enumeration this See repeatedly reaffirmed rule. has Cavallaro, is required.” be arbitrated 678 260, 129 1456 Pyett, 556 U.S. at S.Ct. example, Wright, 7 n. 7. For age union (holding that members’ discrimi that the CBA in that case was Court held subject be CBA’s nation claims must sufficiently lucid it not when contained “clear provisions because CBA arbitration “very requiring clauses arbitra- general” requires respondents ly unmistakably dispute’” “‘[m]atters tion under them); Wright v. arbitrate” Universal “ hours, wages, oth- affecting ‘matters 70, 80, 119 Corp., Serv. 525 U.S. S.Ct. Mar. ” (1998) employment,’ and conditions of er terms 391, (holding L.Ed.2d 361 incorporation of statu- “explicit without requirement requiring contained CBA tory requirements.” antidiscrimination parties employment to arbitrate discrimi- 875, (4th Cir.1996) (observing opinion n. 2 Supreme Court’s in Barrentine 8. Inc., Sys., Freight v. 450 U.S. Title VII and Americans with Disabilities Act Arkansas-Best 728, 1437, (1981), arbitration, encouraging 67 L.Ed.2d provisions S.Ct. contain strongly language suggesting not), contained broad FLSA does with. v. whereas Kuehner appropriate were never for Co., (9th that FLSA claims & Cir. Dickinson 742-45, arbitration. Id. at 101 S.Ct. 1437. 1996) (stating employee was "[u]nable opinion the Court’s recent in 14 Penn But support legislative identify in the text or histo Pyett, S.Ct. LLC v. 556 U.S. Plaza ry of ex the FLSA” notion FLSA (2009), held that a 173 L.Ed.2d 398 arbitration). cludes certain claims from As requiring provision the arbitration statuto- explain, question we not need answer that enforceable, ry age discrimination claims today. statutory and indicated that unless scheme "particular specifically removed class Agawam opinions and the other discussed grievances sweep,” a from the NLRA’s broad Leahy above defeat reliance on defendants' given CBA’s clause should be full arbitration (7th City Chicago, 96 F.3d Cir. 257-58, 129 In effect. Id. at S.Ct. 1456. 1996). There, panel a divided held "if conclusion, Pyett reaching disapproved guarantee compensa [CBA’s] overtime opinions addressing Barrentine similar eight tion time in excess of hours worked statutes, employment other insofar as protects rights plaintiffs’] ... FLSA [the suggested statutory could that federal claims compensation, agreement overtime then through properly be arbitra- addressed liability under the FLSA.” Id. at a defense 265-72, tion. Id. at 129 S.Ct. 1456. Leahy long that as 232. The court held protection grants CBA workers all the Pyett strongly indicates that FLSA affords, provides the courts, FLSA then the CBA ex however, are indeed arbitrable. Some vindicating clusive means the workers’ suggested that the structure and FLSA’s rights be and their claims must dis language may distinguish it from the ADEA however, Agawam explains, this missed. As employment discrimination and other statutes analysis incorrectly conflates contractual purposes. Compare v. Ow- these Austin Inc., Container, statutory rights 350 F.3d at 285. ens-Brockway F.3d ones. Glass 78

53 80-81, Quint at In Aga- Co., 119 S.Ct. 391. A.E. Staley Mfg. U.S. 1999) wam, we deemed insufficient arbitration Cir. (holding Wright, after “ CBA only “explicitly that did not language referring ‘grievances,’ mention[]” arbitration of in turn defined discrimination which as claims [were] ” “pose[d] action”); no bar to the instant that the Town violated the CBA without York, City Scott v. New F.Supp.2d any reference to the “arbitration of statu- (S.D.N.Y.2008) (re je 399-400 & n.97 claims, tory let a clear unmistak- alone cting arbitral argument “exhaustion” judicial of a ablewaiver forum such citing Agawam in support). claims.” F.3d at 285-86. sum, In a well-developed body prece- Here, point the defendants cannot dent that a dictates CBA’s waiver of feder- single provision to a the relevant CBAs al statutory claims must be clear un- that works a clear and unmistakable waiv mistakable. No such waiver in exists er of claims. their FLSA The CBAs’ arbi CBAs at issue here. Consequently, tration contain provisions general griev do CBAs do not plaintiffs’ foreclose claims procedures, ance but define “grievances” under the FLSA.10 disputes or arising concerns out interpretation of the CBAs themselves. McCarthy’s C. State Common Law These not provisions do mention em Claims claims, ployees’ statutory much clearly less challenge Plaintiffs also the district unmistakably subject agree them to claims, court’s disposition of their state law Accordingly, nothing in arbitration. asserting that the trial court erroneously even remotely CBAs can be construed to plaintiff, forced a nonunion McCarthy, to require to seek redress for join her state law claims with the federal their FLSA through the CBA’s by claims asserted plain- the other named grievance processes. tiffs, all whom were union members matter, perceive As a final we no mean- alternative, covered In plain- CBAs. ingful saying distinction between that the argue tiffs that the district court in erred entirely. CBA precludes the federal suit In dismissing McCarthy’s state law claims un- circumstance, either the contention is that 12(b)(6). der Rule plaintiffs’ rights vindication of the McCarthy’s 1. The Consolidation of

necessarily depends upon griev- the CBA’s Claims with the Union Plaintiffs’ procedures, principles ance and the ani- Claims mating the cases discussed above are equally applicable. that any To extent The state law claims at in issue remains, Agawam confusion impliedly re- II, this genesis Manning case had their jected this distinction. F.3d 285 n. began which the Commonwealth courts 12 (discussing district court’s re- mistaken subsequently but was removed to federal liance theory); on “exhaustion” see also court via LMRA complete preemption. assertions, Contrary simply rephrasing argu- to defendants’ of their “waiver” preemption ment, LMRA and its attendant doctrine reject accordingly we it as well. support arbitrability do not Similarly unavailing is defendants' reliance acknowledge, FLSA claims. As defendants Corp., on Tamburello v. Comm-Tract body typically of law addresses effect (1st Cir.1995), where deemed a RICO upon labor federal law state law causes of “preempted” by federal labor when law says accordingly action and little about the the claim asserted violation of federal labor proper relationship between two statu- federal predicate law as a act. Id. at 976-78. This Cavallaro, 4-5; tory schemes. See implicate unique case does not Tamburello’s II.C.l, Supreme Part infra. however, posture, as here assert opinion Agawam pre- Court and our statutory rights wholly independent that exist analysis scribed a different when it comes to short, depend upon and do CBA its inter- latter circumstance. In defendants’ pretation. preemption reliance on LMRA doctrine is

“ courts, plaintiffs in ... the Commonwealth applies where ‘Complete preemption’ the court’s say, would have violated district re-charac- a claim either is purported state single to file a consolidated com- directive or ... is other- claim terized as a federal putative class plaint that included the permit law as to to federal wise so related state law claims. Cavallaro, members’ 678 F.3d at 4. In the removal.” context, all this doctrine reaches labor the the district There no evidence directly on ‘founded “state law claims McCarthy preclude from court intended by collective-bargaining rights created law claims in state court. pursuing state ‘substantially dependent on or agreements’ recap, plaintiffs three named who To collective-bargaining agree- a analysis of I and II Manning Manning initiated both ” (quoting Caterpillar Inc. Id. at 5 ment.’ all to be union members. were asserted 386, 394, Williams, 107 S.Ct. 482 U.S. court directed At the time district (1987)). LMRA com- 96 L.Ed.2d 318 plaintiffs single to file a consolidated com- a transforms claim plete preemption thus only plaint, plaintiffs these were the three arising a pled law into claim under state Thus, in the case. the district court un- law, thereby establish- federal labor under only plaintiffs the case concern derstood jurisdiction and ing a basis for federal members, plaintiffs who were union governing changing the substantive law showing that the nothing in the record cite Id. at 5-7. itself.11 court was even aware of the exis- district a had the plaintiff tence of named who Manning in original plaintiffs The three undisputed ability nonpreempted to assert members, all all union assert II were on the circum- state law claims. Based court claims that district ed state law it, stances before the district court acted substantially dependent on to be found assumption that if the on the reasonable CBAs, rendering them interpreting the bring plaintiffs then-existent wanted Plaintiffs raise no completely preempted. claims, they joined be any state law should app conclusion on dispute legal with this with their federal causes of action. See 28 Instead, object the district they eal.12 1367(a). § U.S.C. a file court’s directive single complaint pleading amended Even if the district court had been made began claims that as federal and state law McCarthy plaintiff, a exercis- aware as I Manning separate two cases supplemental jurisdiction over her ing Manning II. Plaintiffs observe appro- have than claims would been more McCarthy, employee nonunion priate, part undisputedly since CBA, ability to by a had the raise covered controversy. See the same case Ca- completely sure, vallaro, state law claims that were not To 678 F.3d at 5. be the LMRA. Pruell v. preempted by jurisdiction See of this was within the exercise discretion, McCarthy Cir. Caritas court’s could Christi 2011) (“So long plaintiffs pur as non-union particular moved to dismiss her represent prejudice. sue their claims or others own claims without See U.S.C. 1367(c) CBAs, § that is (permitting who are not covered district courts de- law.”). supplemental jurisdiction But in certain bring under state cline state case circumstances). enumerated But McCarthy’s separate claims as action McCar- ing brief, reply § Complete In their cite com- preemption is rooted 301 of 12. LMRA, governs § which 29 U.S.C. allegation joined Rivers a union plaint’s an for violation of contracts between ”[s]uits approxi- only having after worked BMC organization represent- employer and labor any mately years, suggest five 185(a). Although ing employees." Id. arising pre-union term em- out of Rivers’s express provision, preemption LMRAlacks preempted. completely ployment are not provi- Supreme this Court has construed opening argue issue failure supporting preemption of state sion as distinguish any attempt Riv- dooms brief Cavallaro, 678 F.3d at 5 law claims. See Republic v. Islamic ers’s claims. See Rubin preemption opin- (discussing of LMRA line Iran, (1st Cir.2013). ions). FLSA”) (internal thy bring the chance to requested never created under the quota- omitted). her claims outside federal court. While tion marks parties do the amended includes footnote dispute this proposition. McCarthy’s state stating that the state law claims were law claims are accordingly limited to the joined to the federal of action per causes recovery “straight-time” i.e., un- pay, directive, vague the district court’s this paid wages for non-overtime hours at her only says notation that the “re- hourly regular rate. all rights.” McCarthy serve cannot now Plaintiffs challenge the district court’s complain the court’s failure to address conclusion McCarthy’s that state law this issue when she did not such a put claims pled were in too conclusory a fash-

request before court below. ion to Defendants, withstand dismissal. Finally, to the that plaintiffs extent at- part, for their urge us to adopt district tack the district directive to court’s file court’s reasoning. alternative, In the they single complaint, consolidated that conten- assert that all the common law are claims Storage tion is meritless. See & Sutcliffe precluded or “preempted” by Massachu- States, Warehouse Co. United wage-and-hour setts begin statutes. We (1st Cir.1947) (stating that “dis- with the question of whether the Massa- acting quite trict court would be within its wage-and-hour chusetts precludes law taking discretion in steps consolidate or claims, McCarthy’s common law and then duplication otherwise avoid the of such sufficiency turn to the complaint. cases, closely similar whatever the sub- rights parties”). stantive a. The Effect of the Massachusetts reasons, For these all of the named Wage-and-Hour Statutes claims, state, federal both Common Law Claims properly were before the district court. note that

Defendants the district court McCarthy’s 2. The Merits of State original Manning dismissed the II com- Law Claims plaint’s statutory wage-and- Massachusetts hour exempt claims those because statutes grouped The district court the state law employee “an of an incorporated hospital (1) into three categories: claims contract ... which public is conducted as a chari- (Counts quasi-contract claims II-IV ty,” § (2) (Counts Mass. Gen. Laws ch. IX); fraud claims VII and “any employee who (3) employed is ... in a VIII); enrichment, unjust money 1A(16). hospital,” ch. received, id. Defen- had and and conversion claims (Counts V, X). argue McCarthy dants seeks to evade clarify VI and To the force exemptions by clothing of these scope appeal, district court statutory her ruled that claims contractual ones. insofar as these common law They McCarthy’s sought contend all com- pay, recover overtime they mon law claims are preempted premised on the viola- because con- tion of comprehensive wage-and-hour flicted the FLSA’s Massachusetts stat- re- Román, utes, medial and that scheme. 147 F.3d at those statutes should be Cf. 76 (addressing preemption any of Maine construed “preempt” recovery law suggesting unpaid wages through “the FLSA the ex- common law causes remedy clusive of rights enforcement of action.13 McCarthy preclude displace contends barred and-hour statutes or claims, evaluating wage- doing from whether Massachusetts common law since so would Id. The observed plaintiff When class.” SJC persuaded. are not

We ..., juris employee diversity supplemental hourly opportu- exercising “[t]o claims, we apply nity peace work and eat a meal stop over state law diction Barton v. Clan a during busy workday may state law. See a constitute substantive (1st Cir.2011). doing value,” In 9, par- cy, significant 17 of which the 682 benefit so, an informed duty is to “make in of bargain our could for the course ties likely the court’s as to state Id. prophecy establishing an enforceable contract. Int’l, Inc. v. Andrew Robinson ina- stance.” a consequence, plaintiffs’ 1217. As 48, Co., 51 Fire Ins. of un- bility remedy to avail themselves a Hartford Cir.2008). begin, the Massachusetts To pre- wage-and-hour der the laws did not arising that duties out of courts have noted sought claim that clude a common law from those may distinguished a be contract rights. legal vindicate distinct statute, by and the two do not imposed closely tracks case. Salvas they cover similar merge simply because McCarthy bring statutory Although cannot Indeed, Massachu subject matter. the defendants wage-and-hour clear that “an exist courts have been setts status, that directly exempt due to BMC’s ing remedy is not to be taken common law compel of prohibition does not the erasure away by statute unless direct enact Eyssi, at common See her remedies law. Eyssi necessary implication.” v. ment or (holding that 618 N.E.2d 1361-62 Lawrence, 194, City 416 Mass. 618 of compensation amendments workers’ (citation omitted) (1993) 1358, N.E.2d 1361 not bar common law loss of statutes did (internal omitted); quotation marks brought by spouse action consortium Co., 420, v. 219 Mass. King also Viscoloid officer). police of child (1914) (same). 988, N.E. conjure argument, Seeking contrary a Stores, Inc., In the Salvas v. Wal-Mart rely on two cases that defendants SJC Supreme Judicial Court Massachusetts (“SJC”) proposition read for the that “[w]here a applied principles these to claim seemingly a statute has been enacted group on of a of workers who al- behalf it subject the to which relates leged deprived cover whole employer had law provisions ... other of the common periods pay- them of their meal without 337, 1187, thereby ... superseded.” ment. 452 Mass. 893 N.E.2d School Comm, Lowell, (2008). There, pled City City a v. the Lowell 91, (1928). 353, 164 But cause of action under Massachusetts Gen- 265 Mass. N.E. 100, sweep broadly. not so For Chapter unpaid eral Laws these cases do breaks, one, right a that was meal as well as breach con- Lowell addressed deprivation. “wholly same creature of statute” and that tract claim based the Although statutory claim failed not at common law.” Id. at 93. “[did] Id. be- exist contrast, rights plain the common provide By the relevant law did not law cause private long pre or an seek here have express implied either an tiffs to vindicate action, wage-and-hour right id. at the court held ceded Massachusetts cite, statutory The other case private right lack of laws. SJC defendants “[t]he presents Reilly, no Committee Boston v. of action bar School (1972),actually a contractu- Mass. 285 N.E.2d 795 [defendant] violated There, the duty periods al to the undermines their contentions. provide meal 6, supra, wrong. See enlarging judgment footnote she is Powell have the effect of in Cir.1999). Schriver, (2d explained defendants’ favor. For the reasons relationship between contractual one” and that the court erred SJC considered prohibiting em- municipal ruling criminal statute the amended complaint ployees engaging from in strikes or work failed allege agree. a contract. We of a be- stoppages, and terms CBA While the may be larded system tween Boston school detail, with the basic claim is clear. The prohibited teachers’ union defendants, by hiring and employing Id. at 796. the teachers’ strikes. When plaintiffs, employment ] “entered into [ engaged stoppage, union work contracts] There is no re- [them].” school district sued under CBA quirement greater formality to establish injunction. obtained an Id. at 797. Re- Indeed, an employment contract. in- “an the teachers’ contention that jecting formal employment may contract of arise provided criminal statutes the exclusive by simple handing job appli- act conduct, remedy the union’s the SJC cant a shovel and providing workplace.” nothing con- saw that “would warrant the 69, King Spalding, Hishon v. & 467 U.S. clusion that enact- criminal [the statute’s] 74, 2229, (1984). S.Ct. L.Ed.2d 59 was previously ment intended to restrict existing common law remedies for breach complaint, Per the the terms employer-employee of contract in the con- of alleged contract were similarly text.” Id. at 798.14 straightforward—McCarthy and her fel short, “provide

In lows would labor ser defendants have not identified any defendants, that persuasive specified evidence the Massa- vices role for legislature agreed chusetts for an sought exchange upon hourly pay eliminate longstanding action ‘all by common law causes of rate for plaintiffs.” hours worked’ wage-and-hour minimum, through very laws. We “At a employ an at-will do therefore conclude that these laws agree ment relationship encompasses an McCarthy preclude asserting from by employee ment to perform specified pled law claims in this common case. work an agreement by the employer to pay performed.” for the work Gasior Sufficiency b. The of the Hosp., Mass. Gen. Mass. State Law Claims (2006). n. N.E.2d The heart sufficiency that, now turn to the of the We of the state claims is through law 12(b)(6), law state claims under Rule timekeeping payroll policies detailed grouping them the district court did above, agree defendants breached claims, claims, into un- contract fraud pay promises ments all of the and/or just above, enrichment claims. As stated wages complaint The due. includes parties are in accord that claims these stating defendants breach recovery “straight-time” pay are for duty good failing pay ed the faith by only. worked, plaintiffs for their hours relied, detriment, to their

i. The Contract Claims on promises pay defendants’ all the McCarthy wages allega dis factual contends owed. While these “misapprehended trict relatively simple, court em tions are so are the ele is, heart, ployer-employee relationship a claim sounding a ments of in contract. We engage remaining 14. Defendants' consist with the doctrine described above. authorities unpublished adopt We Massachusetts trial court thus no reason to their reason- opinions inapposite ing. that are either or fail to attempt “make no appeal when specificity more need to demand see no whatsoever, enough. let alone devel- any analysis is obvious the core assertion when Miller, 1683, 2006 No. WL oped argument”). Spears v. Cf. Sept. (Mass.App.Div. at *3 2006) contrast, “complaint court’s (observing By while the district precise employ- enrichment, [employees’] unjust money silent as dismissal of the allegations that em- arrangements,” received, ment and conversion had employ- and that ployer “employed them” entirely conclu on its erroneous was based “ ‘legally mandated ‘agreed pa/ ” er them sufficiently sion that the did not to state were sufficient pay’ overtime required or had plead that “defendants claim). breach of contract per knowledge allegedly work II.A.l.a, Part plaintiffs.” See formed reasons, the dismissal For these nor supra. court de Neither district sounding in contract McCarthy’s claims proffered another appeal fendants must be vacated. affirming court’s or the district basis Unjust ii. Fraud and the dismissal Consequently, der. Enrichment Claims enrichment, conversion, unjust money vacated. and received claims should be may law had remaining common The an initial disposed simply. be of more As

matter, McCarthy articulates note that we D. Plaintiffs’ Class Action and Collec- court’s challenge no to the district conclu- Allegations tive Action meet the fraud claims did not sion that the dismissing plaintiffs’ to sub- In addition by set Rule pleading threshold heightened action, of the district court stantive causes 9(b) 9(b). (requiring See Fed.R.Civ.P. struck the class and collective action alle- partic- claims “state with fraud or mistake gations. seeks The amended constituting ularity circumstances both certification of a class action under mistake”). Although McCarthy fraud or for the Rule of Civil Procedure 23 Federal the dismissal of the common contends that nonunion law claims seek- members’ state it law claims should be vacated insofar as ing straight-time pay, and a collective ac- complaint’s plead failure to is on the based 16(b), under FLSA Section 29 U.S.C. tion was not knowledge, pleading defect 216(b), § for the FLSA overtime of court’s dismissal of basis the district claims. Although Rule 23 and the FLSA failure the fraud claims. Due to the require- impose different certification any developed argumentation as to provide ments, the same the district court used should survive Rule why fraud claims allegations, of reasoning strike both sets VII, 9(b), of we affirm the dismissal Count large VIII, parties do distin- claim, negli- the fraud and Count guish regimes. We con- between two gent misrepresentation claim. See Elena Juan, 1, analysis the same sequently v. 8 assume Municipality San of sake, (1st Cir.2012) simplicity’s For applies claim waived on both.15 (deeming suits, predominate of a FLSA hour that common issues Conditional certification collec- ones, 23(b)(3). putative plaintiffs requires Although action that the tive id. over individual 216(b). § "similarly 29 be situated.” U.S.C. certification re- we treat class collective contrast, By Rule 23 calls for the class purposes of quirements as the same for the fact, questions of law Fed. share common or suggest this appeal, we do not confla- 23(a)(2), sought and if certification is R.Civ.P. appropriate in all circumstances. tion is 23(b)(3), typical wage-and- under Rule as is

59 (1st Cir.1985). to the relevant as “class 763 F.2d refer This is so allegations. action” “striking portion because a a pleading is remedy ... sought drastic it often is dispositive question for pur by the movant simply dilatory as a poses appeal of this is whether the com harassing tactic.” 5C Alan Charles plaint pleads group of a existence al., Wright, et. Federal Practice & Proce- putative class members whose claims are (3d ed.2011). Second, dure courts susceptible of resolution on classwide repeatedly emphasized that striking Stores, Inc., basis. See Wal-Mart v. 12(f) class allegations under Rule —Dukes, U.S.-, 131 S.Ct. is even more disfavored because it re- (2011) (holding L.Ed.2d com quires reviewing court preemptive- mon issue fact “must be such ly terminate the class aspects of ... lit- nature that is capable it classwide reso igation, solely on the basis of what lution—which means that determination of alleged in complaint, and before falsity its truth or will resolve an issue that are permitted complete validity is central to the of each one of the discovery which would other- stroke”). claims in The Supreme one wise be questions entitled on relevant recognized that “[s]ometimes Court has to class certification. plain enough the issues are from the pleadings to determine whether the inter Mazzola v. Corp., Roomster F.Supp.2d parties fairly ests the absent encom 395, (S.D.N.Y.2012) (citations omitted) passed within the named claim.” (internal omitted); quotation marks Falcon, Tel. v. Gen. Co. Sw. U.S. Cholakyan Mercedes-Benz USA 147, 160, 102 S.Ct. 72 L.Ed.2d 740 LLC, (C.D.Cal. F.Supp.2d 1220, 796 (1982). If is pleadings it obvious from the 2011) (noting that “it is in fact rare to that the proceeding possibly cannot move allegations] in of a [strike class advance basis, a forward on classwide district motion class certification” and collect courts authority use their under Federal cases). ing Accordingly, court a should 12(f) of Rule Civil Procedure to delete the typically development await the of a factu See, allegations.16 complaint’s e.g., class al record determining before whether the Card, LLC, Pilgrim v. Universal Health representa case should move forward on a (6th Cir.2011) (upholding basis. tive striking allegations prior of class to close Here, analysis the district court’s class). of discovery certify and motion to to in allegations as the class deeply was

Nonetheless, plaintiffs’ courts should exer tertwined with its dismissal of striking cise caution when class action alle substantive claims. The court that ruled gations solely pleadings, alleged suggest based on the facts did not the the as First, ruling policy” two reasons. while on a mo existence that applied of “official tion to strike committed to the district to “each the than 50 discrete of more court’s judgment, occupational plaintiffs sound “such motions are claim make classes scope, practice, more, narrow in the up potential disfavored class.” What is the readily and not calculated to invoke district court believed that the existence of widespread policy court’s discretion.” Boreri Fiat a a S.p.A., v. such across such brief, reply plaintiffs In their contend that tive action. Because this assertion was raised expressly require late, does not that pass upon we do not its merits. too complaint requirements plead the aof collec- discovery a through properly-brought “simply employees group diverse motion for class certification. plausible.” however, the core explained, As we have invit- suggest Defendants straight inis fact plaintiffs’ allegations to the class ed the district court resolve through a combina forward—namely, that moved pleadings on the when issues and other hu timekeeping policies tion of a col- for conditional certification of FLSA employees BMC practices, man resources employees of BMC lective action on behalf to work consistently required break deduc- alleged affected “meal periods and for breaks through their meal plaintiffs’ how policy.” tion We fail regular work after their of time before and allega- striking the class supports motion This work compensation. hours without early stage. The mere fact tions hospital’s facili at the place openly took raised the issue the court ties, actual or con employer’s with the confining inquiry did not warrant the com knowledge. Accepting structive alone, and court pleadings the trial true, must, as we plaint’s allegations would been within its discretion well inference support the plausible these facts ruling defer the conditional certifica- policies affected this combination request stage tion until later of the case. board, across the not BMC’s See, Rest. e.g., Perez Prime Steak House within withstanding different roles their — F.Supp.2d-,-, WL Corp., if court had con Even company. 2013). (D.P.R. Apr. at *8 ability represent cerns about Moreover, dis- plaintiffs point out employees, those group such diverse evi- trict court elected not to address the justify the drastic measure concerns do not plaintiffs proffered support dence allegations in their striking class motion for conditional certification. entirety. Twombly, U.S. at 563 n. Cf. emphasizes prematurity fact This (“[W]hen S.Ct. the district decision strike the court’s claim, may it not be adequately states a allegations class collective on the court’s as based on district dismissed pleadings. will fail find plaintiff sessment evidentiary support for his Consequently, we must vacate the of prove claim to the satisfaction his collec- striking court’s order class and factfinder.”). Moreover, district court action from the complaint. tive many disposal tools at its to address has regarding appropriate con concerns E. Leave to Amend class, putative including of the rede tours Finally, request that plaintiffs fining during class the certification given any to deficien be leave correct process subclasses. Fen creating Cf. in the extent that the pleading, cies Found., Inc., gler v. 595 Crouse Health Fed district court’s dismissal is affirmed. (N.D.N.Y.2009) F.Supp.2d (grant 15(a)(2) Rule eral of Civil Procedure states ing hospital compensa class certification freely give should leave “[a] court case, excluding “non-patient care tion but This justice requires.” when so rule does workers,” workers and such as cafeteria mind mean “a trial staff, court must security failed to because lessly grant every request leave to that these worked without show P.R., Aponte-Torres amend.” v. Univ. hospital administrators’ knowl pay with (1st Cir.2006). Leave Therefore, edge). plaintiffs should have when, inter appropriately amend is denied prove the chance assertions alia, request by “the is characterized ‘un- of many dismissal of these similar allega- faith, futility, delay, tions, due bad the ab- including [or] by those written plaintiffs’ diligence here, sence due the movant’s counsel should put plaintiffs’ have ” v. part.’ Wilmington Calderón-Serra counsel necessity on notice of a (1st Co., Cir.2013) 14, 19 Trust thorough job. drafting This circumstance Champion Mortg., (quoting Palmer supports further judge’s the trial conclu- Cir.2006)). F.3d We review the sion that giving them another chance district court’s denial of leave to amend for would have served little purpose. abuse discretion. Platten v. HG Ber- sum, In we must “defer to the district Ltd., Exempted muda court’s judgment hands-on long so as the (1st Cir.2006). adequate record evinces an reason for the Here, we affirm the dismissal of Aponte-Torres, denial.” 445 F.3d at 58. Canavan, against the FLSA claims as well Given say the facts of this case we cannot as the fraud claims. These claims were that denial of further leave to amend was originally pled separate the two com an abuse of discretion. plaints Manning that initiated I and Man II, ning respectively. The district court III.

identified a number of deficiencies both pleadings, these and the amended com stated, For the reasons we vacate the plaint now represents plaintiffs’ before us district in part court’s order it affirm attempt problems. cure those While in part. Specifically, we vacate the dis- judge certainly given the trial could missal against of the FLSA BMC plaintiffs yet try, by another the court was (Count I), and Ullian the contract claims means so. required espe no to do This is (Counts II-IV, IX), money and the cially true allegations, the fraud received, unjust enrichment, had and plaintiffs fell short where far of meeting (Counts X). V, VI, conversion claims heightened pleading imposed standard We also vacate the district court’s order 9(b). by Although Rule the district court striking the class and collective action alle- all plaintiffs’ was incorrect dismiss gations. claims, it within its discretion con clude the time had arrived to settle We the dismissal of the affirm pleadings. (Count I). Canavan We also the district court’s exercise many hospi-

We observe affirm jurisdiction over the state law compensation tal being brought lawsuits claims, and the requiring court’s directive throughout country, including those single to file a consolidated com- case, litigated plaintiffs’ counsel in this plaint alleging all their causes of action. complaints use assert the same basic Further, we the dismissal of the factual allegations and claims raised here. affirm negligent misrepresentation fraud and expressed A number of courts have then- (Counts VIII), VII and and the frustration with the lack of detail in these denial of leave to amend. Pruett, 678 14 complaints. See F.3d at & n. 2 (collecting noting cases district proceedings The case remanded for courts’ “displeasure” with their com- opinion. with parties consistent this The plaints). may While these cases involve to bear own costs. complaints respects that differ in some case, pleading from the at issue this So ordered.

62

STAHL, under the Lamonica v. Hur- Judge, concurring in FLSA.” Circuit Safe Shutters, Inc., 711 F.3d 1310 dissenting part. ricane part (11th Cir.2013). all thorough opinion in court’s join I against my Importantly, our cases warn ways with respect. part I but one FLSA definition of “em- construing colleagues as to whether the Ullian, broadly ruling too when on claims against ployer” Elaine stated claim against In See Hotel president and CEO. individual defendants. erstwhile BMC’s Oasis, 34; view, Baystate, at 163 F.3d my plaintiffs’ vague, boilerplate 493 F.3d 679; In our nudge Agnew, their claim at 712 F.2d 1513. do not liability un- from first encounter individual Ullian across the line conceiv- against FLSA, “it Atl. v. der we concluded that plausible. Corp. See Bell able 544, 570, be inferred that Con- Twombly, lightly 127 S.Ct. should 550 U.S. (2007). Thus, I in this context gress disregard intended to 167 L.Ed.2d liability from which is personal from the court’s deci- the shield respectfully dissent doing major purposes busi- point. sion on this one corporate Agnew, ness in a form.” majority precedents our explains, As the F.2d 1513. a literal We thus eschewed reality” to gauge test use an “economic reading “broadly of the FLSA’s inclusive an individual defendant is the whether ” im- ‘employer,’ definition of which would “employer” pur- for FLSA liability “any supervisory pose personal Oasis, Inc., Hotel poses.17 See Chao v. adopted the real- employee,” and economic (1st Cir.2007); Baystate Alter- F.3d Id.; ity Baystate, test instead. Herman, Staffing, Inc. v. 163 F.3d native “such an (reaffirming F.3d at 679 (1st Cir.1998); Ag- Donovan v. expansive application of definition Cir.1983). new, 1509, 1513 liability ‘employer’ personal an to a deter- played by on the role This test “focuse[s] pursuant mination the FLSA is untena- in causing the cor- corporate ] officer! ble”). with this apply We should test poration undercompensate employees.” liability about in mind. concern unbounded “[Rjelevant Baystate, 163 F.3d at 678. Oasis, (describing at 34 See Hotel employer indicia” of status include the de- “narrowly” Agnew deciding signifi- over “operational fendant’s control liability” preclude personal FLSA “did not aspects cant of the business” and “owner- significant for officers with in- ownership business,” any; if ship interest in these day-to-day and significant opera- terests suggest that factors matter “because control, including compensation tional over finan- corporation’s individual controls personally employees, who made deci- corporation cial and can cause the affairs leading undercompensation); Ag- sions (or compensate) not to em- compensate new, 712 F.2d at 1513. Id.; with the FLSA.” ployees accordance Oasis, impacts see Hotel at 34. This One other factor how we must analyze operational on actual control means Ullian: focus case, supervisor’s Agnew, Baystate, that “a title does not in itself unlike or Hotel Oasis, liability preclude his or her was resolved on a motion to dismiss. establish Conrad, “unhelpful.” “employer” "in- been called Jackson defines 3852343, 09-00425, directly any person acting No. 2010 WL at *1 indirect- clude! 1 30, (D.D.C. 2010) Sept. ly employer (quoting to Henthorn v. in the interest of an in relation 682, (D.C.Cir. Dep’t Navy, employee public agency.” 29 F.3d 684 án includes a of 203(d). 1994)) (internal omitted). aptly quotation U.S.C. This has marks 29 definition

63 Thus, plaintiffs’ against sponsibilities has, for the claim Ulli- a normally CEO to proceed, complaint “must con- but our cases make clear that merely hold- matter, tain sufficient factual accepted as ing high-level a supervisory or executive true, to ‘state claim to relief that is position is enough not trigger individual ” plausible Iqbal, on its face.’ v. Ashcroft liability. FLSA See Agnew, 712 F.2d at 662, 678, 1937, 129 556 U.S. S.Ct. 173 1513; Catsimatidis, see also v. Irizarry (2009) Twombly, (quoting L.Ed.2d 868 550 99, 107, 722 3388443, F.3d 2013 WL at *6 570, 1955). Put U.S. S.Ct. another (2d 2013) (“Most 9, July Cir. circuits ... way, complaint’s “non-conclusory factu- [require] owner, company president, content,” al v. Town Gianfrancesco of or stockholder must have at least some Wrentham, 712 F.3d Cir. degree of involvement in the way com- 2013), must allow us draw the reason- pany interacts with to be a plain- able inference that Ullian was the ‘employer.’”). many And “employer” tiffs’ under the economic reali- allegations that seek tie Ullian to the ty test. This solely inference cannot rest plaintiffs’ employment situation are “nomi- that, allegations stating on “while not ulti- nally cast in factual terms but so [are] conclusions, legal mate are nevertheless so general and conclusory toas amount mere- or speculative threadbare fail ly to an assertion unspecified facts conclusory the line cross between the exist legal to conform to blueprint.” Christi, the factual.” v. Pruett Caritas Inc., Menard CSX Transp., F.3d (1st Cir.2012) (quoting Peñal- (1st Cir.2012). For example: “As Pres- Fortuño-Burset, bert-Rosa v. CEO, ident actively Elaine Ullian ad- (1st Cir.2011)) (internal quotation vised omitted). agents defendants’ on Here, the enforce- mark illegal policies ment of the complained on just Ullian relies such “border- in allegations. line” See id. this case.” It is to imagine hard what underlie this assertion. facts allegations against Most of the Ullian amount to this: she was BMC’s CEO and allegations Some are more specific: we many responsibilities had one would told Ullian’s in overseeing role expect a CEO to have. The merger, constructing a new hospital build- says that Ullian significant “controlled ing, implementing an electronic records business”; functions of the “was involved system, setting policy regarding pharma- in the budget for the in- hospital”; “was ceutical and representa- medical device regular in presentations volved and meet- tives, part in taking rally supporting ings community BMC; on behalf of’ health-care underprivi- services for the to, did, “had the authority make deci- leged. together, Taken these sions that policies concerned the defen- plausibly establish that Ullian “had the dants adopted implementation and the authority manage aspects certain to, policies”; those “had authority operations a day-to-day business’s ba- did, make decisions that concerned defen- Baystate, But, sis.” operations, dants’ including functions re- Baystate, enough; employment, resources, lated human “personal called for some indication of re- benefits”; training, payroll, and and was sponsibility for making about actively decisions recruiting, involved in hiring, and conduct the business that contributed reductions force due to budget cuts. Thus, we know many that Ullian had violations of Act.” Id. As the Sec- (if described) high-level vaguely recently put re- ond Circuit it: Baystate, 163 F.3d at 678. To plaintiffs, an owner individual is

Evidence an sure, require, or I do not think our cases company, otherwise be of a or officer pleading stage, particular at facts that have corporate makes decisions showing func- an defendant made employee’s an individual nothing to do with tion, a specific particular to demonstrate ‘em- a decision took is insufficient Instead, an directly plaintiffs’ to be ‘em- caused ployer’ status. action that something must undercompensation. an individual defendant But more ployer,’ company’s “authority” a actual control over is possess boilerplate than assertions a in manner that relates to ‘operations’ present a required; a must facts employment. com- plausibly showing that the sufficiently pensation was within the defen- 109, at 2013 WL Irizarry, 722 F.3d per- justify holding her dant’s bailiwick to *8; Wargo, v. at Patel cf. sonally Agnew, 712 F.2d at liable.19 Cf. (11th Cir.1986) (defendant Here, gist I no facts. The 1513. such president president and vice who was both is that plaintiffs’ complaint BMC’s corporation, well as a director and of a timekeeping system combined automated stockholder, employer not an principal training with its work and re- inflexible operational “did not have con- because he systematic quirements to cause undercom- aspects compa- [the significant trol pensation. allegations are There no con- functions, day-to-day including com- ny]’s necting any component of this Ullian to pensation or other matters ” establishing alone that she had regime, let (citing employee’ Ag- ‘in to an relation Bays- it. “operational control” over See 1514)).18 new, 712 F.2d at tate, 163 F.3d 678. complaint comes to al The closest the Finally, acknowledges, majority as the had control leging operational that Ullian ownership defendant’s individual FLSA plaintiffs’ employment compensa over major in the a interest business is consid- had the allegations tion is in the that she: precedents. our eration under See Hotel authority employees; and fire to hire Oasis, 34; Agnew, 493 F.3d at minority representation sought to ensure Here, of course no at 1511-12. there is workforce; layoffs; in the was involved allegation any ownership had Ullian negotiation and “was in the with involved BMC, a unions, non-profit interest in which is or- unfair la including relating Moreover, ganization. large is BMC a or- practices fairly of nurses.” But these bor ganization. being equal, All together else BMC’s allegations, broad even when read presi- it plausible size makes less complaint, rest of the see Ocasio- Fortuno-Burset, causing had hand v. dent CEO Hernández undercompensation Cir.2011), employees’ not than it plausible do create in, smaller, say, closely “in be played inference that a role would held Ullian sum, undercompensate” company. given allegations In causing [BMC] they suggest allegations vagueness mirror the 18. This not to of an but also because authority over individual defendant’s other as- against made the individual defen- pects are irrelevant to the em- business plain- dants in FLSA suits filed other ployer inquiry; they Irizarry, are not. See Complaint E.g., tiffs’ counsel. Amended at *8. WL But neither 17-18, N.Y.-Presbyterian Health- Nakahata sufficient. Inc., PAC, Sys., 2011 WL care 10 CIV. 2661 28, 2011) (No. (S.D.N.Y. Jan. 10- complaint’s allegations 19. I call 2661), “boilerplate” only No. Ullian because of their ECF. complaint and our determination expansive that In re definition the term METHYL TERTIARY BUTYL “untenable,” (“MTBE”) “employer” this context is ETHER PRODUCTS 679, Baystate, at I cannot con- LIABILITY LITIGATION. clude that have stated a 10-4135-cv, Docket Nos. 10-4329-cv. against claim Ullian. that, cognizant I am before discovery, United States Court of Appeals, plaintiff everything cannot know about Second Circuit. conduct, potentially wrongful defendant’s 23, Argued: May especially 2012. when it comes the inner workings corporate or institutional Decided: July Thus, our post -Twombly defendant. cases “ recognized may that ‘some latitude’ be appropriate plausible where a claim known,’

may be indicated is ‘based what

at least where ... ‘some of the information may

needed in the be control of [the] ” (al- Menard, defendants.’ 698 F.3d at 45 Pruett, in original) (quoting

teration 15). plausible

F.3d at claim” But “a is still

required. Twombly Iqbal And make

clear plausible claim is not when

“complaint pleads ‘merely facts that are liability.”

consistent with’ a defendant’s

Iqbal, 556 U.S. at 129 S.Ct. 1937

(quoting Twombly, 550 U.S. 1955).

S.Ct. is That what we have here.

It is perhaps possible that Ullian

plaintiffs’ employer under the FLSA. The

allegations in are consistent possibility.

with that But broad assertions authority might Ullian had en-

compass requisite degree of control

over employment do not expectation

“raise a dis- reasonable

covery will of’ liability. reveal evidence

Twombly, 550 U.S. 127 S.Ct. 1955. reason,

For I respectfully dissent

from the court’s decision that the

have stated a plausible Ulli-

an. I join opinion the court’s in all other

respects.

Case Details

Case Name: Manning v. Boston Medical Center Corp.

Court Name: Court of Appeals for the First Circuit

Date Published: Aug 1, 2013

Citation: 725 F.3d 34

Docket Number: 12-1573, 12-1653

Court Abbreviation: 1st Cir.