Palmer v. Trump Model Mgmt., LLC

175 F.Supp.3d 103

Alexia Palmer, individually and on behalf of others similarly situated, Plaintiff,

v.Trump Model Management, LLC, Corrine Nicolas, individually, and Jane or John Doe, individually, Defendants.

14 Civ. 8307(AT)

United States District Court, S.D. New York.

Signed March 23, 2016

Naresh M. Gehi, Law Offices of N. M. Gehi, P.C., Forest Hills, NY, for Plaintiff.

Lawrence S. Rosen, Rosen Weinhaus LLP, Mamaroneck, NY, Patrick Thomas McPartland, Larocca Hornik Rosen Greenberg & Blaha LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

ANALISA TORRES, District Judge

Plaintiff, Alexia Palmer, brings this putative class action against Defendants, Trump Model Management, LLC (“Trump”), Corinne Nicolas,¹ President of Trump, and John or Jane Doe, CEO of Trump, alleging violations of the Fair Labor Standards Act, the Immigration and Nationality Act, and the Racketeer Influenced and Corrupt Organizations Act. Second Am. Compl. (the “complaint” or “Compl.”) ¶¶ 1–2, ECF No. 24. Plaintiff also asserts claims for breach of contract, unjust enrichment, fraud, and conversion. Id. 68–93. Plaintiff alleges that, for years, Defendants have engaged in a fraudulent scheme whereby they lure foreign models to the United States with false promises of “a life of glamour in Soho clubs and on catwalks,” lie to the federal government in order to obtain H–1B visas for the models, and then cheat the models out of their pay. Compl. ¶¶ 58–63; Pl. Opp. 5, 11, ECF No. 38. Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Defendants' motion is GRANTED.

BACKGROUND²

Pursuant to a contract between Trump and Plaintiff, from January 2011 to May 2014, Plaintiff “worked as a model on modeling contracts” arranged by Defendants. Compl. ¶ 30; Pl. Opp. Ex. F. Plaintiff claims that she signed, “under duress,” a “separate contract,” the Trump “Model's Loan Agreement,” which obligates her to pay for certain expenses and permits Trump to deduct unpaid amounts from her paycheck. Compl. ¶¶ 37, 38, 44; Rosen Decl. Ex. E, ECF No. 36–5.

When Trump offered the modeling opportunity to Plaintiff, she resided in Jamaica, her native country. Pl. Opp. 6. On April 15, 2011, Defendants submitted to the U.S. Department of Homeland Security a letter requesting an H–1B visa for Plaintiff—a visa which permits U.S. employers to temporarily employ foreign “fashion model [s] ... of distinguished merit and ability.” 8 U.S.C. § 1101(a)(15)(H)(i)(b) ; Compl. 136; Pl. Opp. Ex. D. Attached to the letter was a Labor Condition Application for Nonimmigrant Workers certified by the U.S. Department of Labor, a form employers must file to obtain an H–1B visa for prospective workers.³ Pl. Opp. Ex. B. The labor application states that Defendants will pay Plaintiff $75,000 per year, and that the “prevailing wage”⁴ is $45,490. Compl. ¶ 36; Pl. Opp. Ex. B.

From approximately January 2011 to December 2013, Plaintiff worked on 21 different projects arranged by Trump. Compl. ¶¶ 30–31. Defendants withheld the “twenty percent (20%) agency fee[ ] and charged [ ] Plaintiff” for “obscure expenses.” Id. ¶ 32. Plaintiff was required to pay for “walking lessons,” “numerous, unnecessary cosmetics kits,” and “expensive limousines.” Id. ¶ 34.

“After the deduction of all agency fees, expenses, and allowance[s],” Plaintiff was paid $3,880.75 for her work from 2011 to 2013. Id. ¶ 35. Plaintiff alleges that, “as evidenced in the [labor] application,” Defendants “promis[ed] to pay her $75,000 per year,” id. 41, but instead “took more than 80% of [ ] Plaintiff's hard earned money by cloaking it as 'expenses,' ” id. 40. She also claims that “Defendants failed to pay her even the prevailing wage of $45,490 per year as required by [i]mmigration laws.” Id. ¶ 41.

DISCUSSION

I. Motion to Dismiss Standard

To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A plaintiff is not required to provide “detailed factual allegations” in the complaint, but must assert “more than labels and conclusions.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Ultimately, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. On a Rule 12(b)(6) motion, the court may consider only the complaint, documents attached to the complaint or incorporated in it by reference, matters of which a court can take judicial notice, or documents that the plaintiff knew about and relied upon in bringing the suit. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir.2002). The court must accept the allegations in the complaint as true and draw all reasonable inferences in the non-movant's favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007).

II. FLSA Claim

Plaintiff claims she was not paid the minimum wage required by the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. Compl. ¶¶ 46–53. The FLSA provides that every employer must pay each employee a minimum of $7.25 an hour. 29 U.S.C. § 206(a). An employee cannot state a claim for a minimum wage violation unless she alleges facts showing that her “average hourly wage falls below the federal minimum wage.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 115 (2d Cir.2013). A plaintiff's average hourly wage is determined “by dividing [her] total remuneration for employment ... in any workweek by the total number of hours actually worked by [her] in that workweek for which such compensation was paid.” 29 C.F.R. § 778.109. The FLSA also obligates employers to reimburse employees for costs incurred “primarily for the benefit or convenience of the employer” if such expenses “cut[ ] into the minimum or overtime wages required to be paid ... under the Act.” 29 C.F.R. §§ 531.32(c), 531.35 ; see also Guan Ming Lin v. Benihana Nat'l Corp., 755 F.Supp.2d 504, 511–12 (S.D.N.Y.2010).

Plaintiff's minimum wage claim fails. Plaintiff alleges only that Defendants paid her $3,880.75 for work she performed over a period of three years. Compl. ¶ 49. She does not specify the number of hours worked. Further, Plaintiff does not dispute Defendants' claim that she was paid above the minimum wage. See Def. Mem. 5–6. Indeed, Plaintiff merely responds, in opposition to Defendants' motion to dismiss, that she “expected that she would be given sufficient hours to work [but] was not.... Defendants promised ... Plaintiff a certain amount of work, and promised that she would be compensated fairly—graciously, in fact—for the work. Then, for reasons unstated, they failed to provide that much work; they failed, in fact, to provide work almost at all.... [T]hey just stopped giving her the hours which would lend themselves to such calculation.” Pl. Opp. 9–10.

Because Plaintiff does not “allege facts about her salary and working hours, such that a simple arithmetical calculation [could] be used to determine the amount owed per pay period,” Casci v. Nat'l Fin. Network, LLC, No. 13 Civ. 1669, 2015 WL 94229, at *4 (E.D.N.Y. Jan. 7, 2015) (quoting Tackie v. Keff Enters. LLC, No. 14 Civ.2074, 2014 WL 4626229, at *3 (S.D.N.Y. Sept. 16, 2014) ), her conclusory minimum wage allegations are insufficient to raise “more than a mere possibility of a right to relief,” Nakahata v. New York–Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 197 (2d Cir.2013). Therefore, Plaintiff's FLSA claim cannot stand.⁵ See Bojaj v. Moro Food Corp., No. 13 Civ. 9202, 2014 WL 6055771, at *3 (S.D.N.Y. Nov. 13, 2014)(dismissing FLSA and state law minimum wage claims where complaint alleged “neither the hours of [the plaintiff's] employment with [the defendant], nor the payments that amounted to compensation below the state or federal minimum wage”); Casci, 2015 WL 94229, at *4.

Accordingly, Plaintiff's FLSA claim is DISMISSED.

III. RICO Claim

Plaintiff's second cause of action alleges violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq.⁶ Compl. 54–67. Specifically, Plaintiff claims that Defendants devised and carried out a fraudulent scheme to deprive her and other foreign models of a promised salary of $75,000 per year. Id. 57–59, 62–64. To accomplish their scheme, Plaintiff alleges, Defendants submitted to the federal government sham H–1B visa applications stating that Defendants would pay the models $75,000 when “Defendants had no intention of doing so.”⁷ Id. ¶¶ 61–63. Plaintiff claims that, instead of paying Plaintiff the promised wages, Defendants “took more than 80% of [her] hard earned money by cloaking it as 'expenses.' ” Id. ¶¶ 59, 63. Plaintiff alleges that she relied to her detriment on the promised $75,000 salary by forgoing other work. Id. ¶ 60.

Under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., an employer seeking to hire an “alien”⁸ in a “specialty occupation ... or as a fashion model,” may obtain an H–1B visa for the prospective worker by satisfying certain requirements. Id. § 1101(a)(15)(H)(i)(b). First, the employer is obligated to file with the U.S. Department of Labor (“DOL”), and obtain the DOL's certification of, a Labor Condition Application for Nonimmigrant Workers. 20 C.F.R. § 655.700(b)(1). The labor application must specify, among other things, the “wage rate and conditions under which [the worker] will be employed.” 8 U.S.C. § 1182(n)(1). Second, after securing DOL certification, the employer is required to submit an H–1B visa petition, together with the certified labor application, to the Department of Homeland Security (“DHS”) for approval. 20 C.F.R. § 655.700(b)(2).⁹

A worker, such as Plaintiff, who believes that her employer lied on a labor application by overstating her wages, may seek redress...