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Andrews v. Comcast Cable Communications Management, LLC

United States District Court, Fourth Circuit

June 28, 2013



WILLIAM M. NICKERSON, Senior District Judge.

Before the Court is Defendant's motion to dismiss Count III of Plaintiffs' Amended Complaint. ECF No. 31. The motion is ripe. Upon a review of the pleadings and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that the motion will be granted.


Plaintiffs Ishmael Andrews and Kyle Camp, on behalf of themselves and all others similarly situated, seek to recover overtime wages from the Defendant Comcast Cable Communications Management, LLC (Comcast). Plaintiffs were employed at Comcast's call center as hourly, non-exempt Customer Account Executives (CAE). Plaintiffs allege that they were required to work before and after their recorded start and end of shift to perform duties such as "booting-up computers, initializing several software programs, reading company emails, and performing other tasks." Am. Compl. ¶ 2. Plaintiffs also allege that they performed work during break periods which included "completing customer orders, finishing customer service calls, logging back into the phone system, re-booting computers, and initializing software programs." Id. at ¶ 3.

To accomplish these required tasks, Plaintiffs allege that they consistently worked approximately 10 to 15 minutes prior to the recording of their start shift. As a result of working before their scheduled shifts, during breaks, and after their scheduled shifts, Plaintiffs worked over 40 hours a week. Plaintiffs allege that the Defendant did not pay employees for their unrecorded overtime work, for which they were entitled to receive compensation at the overtime rate or one and one-half times the hourly pay. Id. at ¶¶ 2-4.

Based on these facts, Plaintiffs bring their claims under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, the Maryland Wage and Hour Law (MWHL), Md. Code Ann., Lab. & Empl. §§ 3-401-3-407, and the Maryland Wage Payment and Collection Law (MWPCL), Md. Code Ann., Lab. & Empl. §§ 3-501-3-509. Defendant moves to dismiss Plaintiffs' MWPCL claim, Count III of Plaintiffs' Amended Complaint, because the Amended Complaint fails to state a cause of action under that statute. Defendant argues that the Plaintiffs' claim to overtime wages is governed under the FLSA and the MWHL, not the MWPCL.


Defendant moves to dismiss Plaintiffs' MWPCL claim under the Federal Rule of Civil Procedure 12(c), which states that a party may request judgment on the pleadings after the pleadings are closed if brought early enough not to delay trial. A Rule 12(c) motion is governed by the same legal standard as a motion to dismiss under Rule 12(b)(6). See Edwards v. City of Goldsboro , 178 F.3d 231, 243 (4th Cir. 1999).

"The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint." Butler v. Directsat USA, LLC , 800 F.Supp.2d 662, 666 (D. Md. 2011). In order to survive a Rule 12(b)(6) motion to dismiss, the complaint must plead factual allegations that plausibly demonstrate that the plaintiff is entitled to relief. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2009). When reviewing a Rule 12(b)(6) motion to dismiss, a court must accept all factual allegations as true, which are viewed in the light most favorable to the non-moving party. Brockington v. Boykins , 637 F.3d 503, 505 (4th Cir. 2011).


Section 3-507.2 of the MWPCL provides a private cause of action to an employee to recover from an employer unpaid wages under certain circumstances. Under this provision, an employee may only recover when an employer has violated § 3-502 or § 3-505 of the Act. Section 3-502 requires the employer to set regular pay periods and pay the employee at least every two weeks or twice in each month. Section 3-505 requires the employer to pay a terminated employee any wages due within the regular pay period. According to § 3-507.2(b), a court may award an employee treble damages and attorney fees if there is a found violation that an employer withheld wages that was not the result of a bona fide dispute.

In one of the primary Maryland cases discussing the MWPCL, the Maryland Court of Appeals stated that the Act "does not concern the amount of wages payable but rather the duty to pay whatever wages are due on a regular basis and to pay all that is due following termination of the employment." Friolo v. Frankel , 819 A.2d 354, 362 (Md. 2003). The Maryland Court of Appeals also held that, while the MWPCL provides a cause of action for wages unlawfully withheld, it is the MWHL that provides a cause of action for the entitlement of wages owed to an employee. Id. at 361-62. Thus, a claim that focuses on the plaintiff's entitlement to overtime wages falls outside the scope of the MWPCL. Butler , 800 F.Supp.2d at 671.

"While it may be an intuitive argument that wages which are not paid at all are necessarily not paid on time, courts applying the MWPCL, including this one, have held otherwise." Orellana v. Cienna Props., LLC, No. 11-2515, 2012 WL 203421, at *4 (D. Md. Jan. 23, 2012). For example, in McLaughlin v. Murphy, this Court dismissed Plaintiff's MWPCL claim, because he did not allege that his employer "failed to pay him regularly, but that it failed to pay him enough; and he [did] not allege that [his employer] failed to pay him minimum wage and overtime due him upon his termination, but that it failed to pay him these wages at all." 372 F.Supp.2d 465, 475 (D. Md. 2004). Similarly, in Butler, this Court held that the plaintiffs failed to state a cause of action under the MWPCL because they "[did] not allege that Defendants failed to pay them on a regular basis or that they were not paid upon termination." 800 F.Supp.2d at 670. Rather, the plaintiffs' allegations focused on their entitlement to wages and thus was outside of the scope of the Act. Id. at 671; see also, Guevara v. Clean & Polish, Inc., No. 12-2944, 2013 WL 1856357, at *2-3 (D. Md. May 1, 2013) (holding that allegations that focus on the underlying claim of entitlement to wages rather than the timing of payments will be dismissed); Jones v. Nucletron Corp., No. 11-02953, 2013 WL 663304, at *3 (D. Md. Feb. 20, 2013) (same); Calle v. Chul Sun Kang Or, No. 11-0716, 2012 WL 163235, at *4 (D. Md. Jan. 18, 2012) (same); Fisher v. Rite Aid Corp., No. 09-1909 , 2010 WL 2332101, at *2 (D. Md. June 8, 2010) (same).

Relying on this well established line of cases, Defendant argues that Count III of Plaintiff's Amended Complaint should be dismissed. Defendant argues that the Amended Complaint does not contain facts alleging that Comcast failed pay them regularly during their employment pursuant to § 3-502 or that Comcast failed to pay them upon termination pursuant to § 3-505. Instead, Plaintiffs' allegations focus ...

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