Hernandez-Adorno v. LMD & ASSC.

EFRAIN HERNANDEZ-ADORNO, individually and on behalf of all others similarly situated, Plaintiff, v. LMD & ASSC., LLC, Defendant.

No. 2:21-cv-1519-DCN

United States District Court, D. South Carolina, Charleston Division

August 6, 2021

ORDER

DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

The following matter is before the court on defendant LMD &Assc., LLC's (“LMD”) motion to dismiss ECF No. 7. For the reasons below, the court grants the motion.

I. BACKGROUND

In September 2017, Hurricanes Irma and Maria swept through the northeast Caribbean, bringing devastation to its islands including the United States territory of Puerto Rico. As part of its relief efforts, the United States contracted Louis Berger, a New Jersey architecture and engineering firm, to perform repairs and rebuild infrastructure in Puerto Rico shortly after the storms. Louis Berger subcontracted many of its obligations under those contracts to various subcontractors, including the defendant in this action, LMD. In turn, those subcontractors hired workers in Puerto Rico to perform the contracted services. On December 14, 2018, one of those workers, Ivan Ojeda (“Ojeda”), filed an action in the District of New Jersey against Louis Berger and two of its subcontractors, Kennett Consulting and Kallberg Industries. Ojeda v. Louis Berger Group, Inc., No. 2:18-cv-17233-KM-JBC (D.N.J. 2018) (the “New Jersey Action”). Ojeda filed the New Jersey Action as a collective and class action on behalf of similarly situated workers, asserting claims under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), and various Puerto Rico worker protection laws under Title 29 of the Puerto Rico Code Annotated, 29 L.P.R.A. § 1, et seq. ECF No. 13-1. Ojeda's complaint specifically alleges that the defendants engaged in a slew of illegal pay practices, including improperly characterizing workers as independent contractors, failing to properly compensate for overtime work, and unlawfully deducting wages, among others. Id.

On March 19, 2019, Ojeda filed an amended complaint, joining a second named plaintiff and several additional defendants, including LMD. ECF No. 13-2. Shortly thereafter, four of the subcontractor defendants, including LMD, filed motions to dismiss for lack of personal jurisdiction. Before resolving the motions, the district court ordered the relevant parties to engage in jurisdictional discovery. During that period, on June 11, 2020, the plaintiffs filed a second amended complaint, adding additional named plaintiffs, such that the lawsuit included at least one named plaintiff who performed work for each defendant. Plaintiff Efrain Hernandez-Adorno (“Hernandez-Adorno”) was joined as the plaintiff who performed work for LMD. On March 11, 2021, the New Jersey district court concluded that it lacked jurisdiction over LMD, Ojeda v. Louis Berger Group, 2021 WL 941875 at *15 (D.N.J. March 21, 2021), and subsequently transferred the claims against LMD, a South Carolina limited liability company with its principal place of business in South Carolina, to this court, No. 2:18-cv-17233 at ECF No. 339.

Accordingly, on May 19, 2021 Hernandez-Adorno-pursuant to the New Jersey Action's transfer order-filed with this court the instant collective and class action against LMD on behalf of himself and all others similarly situated (collectively, “plaintiffs”). ECF No. 1, Compl. Like the New Jersey Action that preceded it, this action asserts claims under the FLSA and Title 29 of the Puerto Rico Code Annotated. With respect to the Puerto Rico law claims, plaintiffs specifically assert that LMD: (1) failed to properly pay overtime wages in violation of 29 L.P.R.A. § 271, id. ¶ 64; (2) made unlawful wage deductions in violation of § 171, id. ¶ 64; (3) failed to make timely wage payments in violation of § 173, id. ¶ 67; (4) wrongfully discharged employees in violation of § 185, id. ¶ 68; (5) failed to pay minimum wage in violation of § 250, id. ¶ 69; (6) failed to allot meal hours in violation of § 283, Id. ¶ 71; and (7) failed to pay Christmas bonuses in violation of § 501, id. ¶ 72. On June 9, 2021, LMD filed a motion to dismiss for failure to state a claim, arguing that plaintiffs' Puerto Rico law claims are barred by the applicable statute of limitations. ECF No. 7. On June 30, 2021, Hernandez-Adorno responded to the motion. ECF No. 13. And on July 7, 2021, LMD replied. ECF No. 20. The court held a hearing on the motion on July 27, 2021. ECF No. 23. Accordingly, the motion is now ripe for the court's review.

II. STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for “failure to state a claim upon which relief can be granted.” When considering a Rule 12(b)(6) motion to dismiss, the court must accept the plaintiff's factual allegations as true and draw all reasonable inferences in the plaintiff's favor. E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss, the court's task is limited to determining whether the complaint states a “plausible claim for relief.” Id. at 679. Although Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief, ” “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

III. DISCUSSION

In its motion, LMD argues that plaintiffs' Puerto Rico law claims “are time[-] barred as they are subject to a one-year statute of limitations [pursuant to] 29 L.P.R.A. § 250j.” ECF No. 7-1 at 5. Plaintiffs submit several arguments against dismissal, each of which the court addresses in turn.

Before delving into the substance of those claims, however, the court clarifies one initial matter raised by the parties' papers. In its motion to dismiss, LMD seeks dismissal of plaintiffs' Puerto Rico law claims and supplies detailed and well-reasoned arguments in support. Muddying the waters, though, LMD states in a summary of its argument, “Additionally, the claims under FLSA set forth by Edgardo Soto Infante (“Soto”) and Alfonso Molina Mannero (“Molina”)-the other two individuals mentioned in the Complaint-are time-barred because they have never filed opt-in notices.” ECF No. 7-1 at 4 (emphasis omitted). Despite this strong stance, LMD offers no accompanying law or set of facts which might support the court's dismissal of Soto and Molina's FLSA claims and fails to otherwise mention that position at all in subsequent filings with the court. LMD concludes its motion by seeking dismissal of “all Puerto Rico law claims against LMD, ” without any mention of plaintiffs' FLSA claims. Id. at 6. In response to questions from the court at the hearing, LMD confirmed that its motion only seeks dismissal of plaintiffs' Puerto Rico law claims, not their FLSA claims. Thus, the court considers only those claims in resolving LMD's motion to dismiss.

A. Untimeliness

LMD's motion asserts that plaintiffs' Puerto Rico law claims are time-barred by the applicable statute of limitations. Disagreeing on several fronts, plaintiffs first respond to LMD's statute-of-limitations argument with an untimeliness argument of their own, contending that LMD cannot assert a statute-of-limitations defense in a successive motion to dismiss under Fed.R.Civ.P. 12. Plaintiffs explain that because LMD filed a motion to dismiss for lack of personal jurisdiction in the New Jersey Action, it is procedurally barred from filing a successive motion to dismiss on statute-of-limitations grounds. Like other courts in this circuit, the court chooses substance over form and therefore rejects plaintiffs' position.

Rule 12(g)(2) precludes a party from making a successive Rule 12 motion “raising a defense or objection that was available to the party but omitted from its earlier motion, ” except as provided for in Rule 12(h)(2) or (3). Rule 12(h)(2) provides that a party may raise “failure to state a claim upon which relief can be granted” as a defense in a successive Rule 12 motion, but that it must do so in a pleading, “by a motion under Rule 12(c), ” or at trial. Stated less enigmatically, where a party makes a Rule 12(b) motion for dismissal and omits its failure-to-state-a-claim defense from that first motion, it may subsequently assert that defense only in a pleading, a Rule 12(c) motion for judgment on the pleadings, or at trial. However, as several courts have realized, denying a Rule 12(b)(6) motion for failure to state a claim on the basis that it should have been filed under Rule 12(c) often needlessly elevates the form of the rules over their substantive purpose.

As the Middle District of North Carolina noted, Rules 12(g) and (h) are “intended to eliminate unnecessary delays at the pleading stage of a case by avoiding the piecemeal consideration of pretrial motions.”^[1] Tatum v. R.J Reynolds Tobacco Co., 2007 WL 1612580, at *6 (M.D. N.C. May 31, 2007), rev'd sub nom. on other grounds, Tatum v. RJR Pension Inv. Comm., 761 F.3d 346 (4th Cir. 2014). Declining to consider a party's failure-to-state-a-claim defense because it was filed under Rule 12(b)(6) rather than Rule 12(c) makes little sense in most cases, given that the court resolves both motions under an identical standard. Deutsche Bank Nat. Tr. Co. v. I.R.S., 361 Fed.Appx. 527, 529 (4th Cir. 2010) (“A [ ] Rule 12(c) motion for judgment on the pleadings is decided under the...