JEFFREY B. MOULD, Plaintiff
NJG FOOD SERVICE, INC., Defendants
MEMORANDUM AND ORDER
James K. Bredar United States District Judge
This case was filed by Jeffrey B. Mould on May 1, 2013, against NJG Food Service, Inc., d/b/a The Crab Bag; OC Crabbag, LLC; Nolen J. Graves; and Albert Levy. (Compl., ECF No. 1.) Mould’s complaint alleges that he is employed as a server at The Crab Bag and has been since February 13, 2011. (Id. ¶ 3.) He further alleges that Defendants have violated the federal Fair Labor Standards Act (“FLSA”) and Maryland wage and hour laws in the utilization of a mandatory tip pooling arrangement for servers, which resulted in a failure to pay servers minimum wage and constituted unlawful and unauthorized deductions from his wages, all in violation of federal and Maryland law. (Id. ¶¶ 13, 14, 24, 29.) He also alleges Defendants have violated the federal and state laws by their failure to pay overtime. (Id. ¶¶ 15, 37, 42, 48.) Additionally, Mould alleges Defendants have violated provisions of the Internal Revenue Code by filing fraudulent W2s that over-report wages in the form of tips received. (Id. ¶¶ 16, 52, 53.) Finally, Mould asserts causes of action of conversion and unjust enrichment against Defendants based upon the mentioned acts. (Id. ¶¶ 17, 55-64.)
On July 1, the same day when the Court held its initial scheduling conference with counsel, and well within the time allowed in the scheduling order for moving to amend pleadings (ECF No. 19), Mould filed a motion for leave to file an amended complaint (ECF No. 17). As grounds therefor, Mould stated that on June 23, 2013, after he had met with several employees to inform them that he had filed the instant lawsuit and that Defendants’ pay practices were illegal, he was notified by Defendant Levy that Mould was being suspended indefinitely. (Pl.’s Mot. Amend Supp. Mem. 1.) Further, Mould stated that he was informed by Levy on June 27, 2013, that he was now terminated. (Id.) Consequently, Mould’s motion requests leave to amend his complaint to include a count for retaliation for engaging in protected activities under the FLSA and another count for abusive discharge under Maryland law. (Id. 1-2.)
Defendants argue in opposition that amendment of the complaint would be futile for two reasons: (1) Mould has a statutory retaliation provision that he may utilize, thus foreclosing under Maryland law the common-law tort of abusive discharge; and (2) Mould fails to state a claim for FLSA retaliation. (Defs.’ Opp’n 1, ECF No. 23.) Mould replies that an opinion by Chief Judge Chasanow of this district refutes the first argument and that his FLSA retaliation claim is adequately stated and supported in the proposed amended complaint. (Pl.’s Reply 4-6, ECF No. 24.) The motion will be granted in part and denied in part.
II. Standard for Amendment of Complaint
In the circumstances presented here, when a plaintiff’s motion is filed within the deadline that has been set in a scheduling order for filing motions for leave to amend, a motion for such permission to amend the complaint is governed by Rule 15(a), which directs the Court to “freely give leave when justice so requires.” The Fourth Circuit has stated that leave to amend under Rule 15(a) should be denied only in three situations: when the opposing party would be prejudiced, when the amendment is sought in bad faith, or when the proposed amendment would be futile. Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006).
III. Standard of Dismissal for Failure to State a Claim
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 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ . . . Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, that principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.
Defendants have not asserted they would be prejudiced by the amendment or that Mould’s amendment is sought in bad faith. Their only ground for opposition to the motion is futility. (Defs.’ Opp’n 3.)
Taking first the proposed FLSA retaliation count, the Court finds it amply states a claim for relief. The applicable statutory ban on retaliation in the FLSA is found at 29 U.S.C. § 215(a)(3):
[I]t shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding . . . .
Mould’s additional allegations make clear that he was fired within two months after he filed the instant lawsuit asserting violations of the FLSA. Such temporal proximity is sufficient to establish a prima facie causal connection between an employee’s protected conduct and an employer’s adverse action. See Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (noting Fourth Circuit in earlier case had found four-month period in between protected activity and adverse employment action to constitute a causal nexus). Defendants’ argument that Mould’s proposed amended complaint “conveniently avoids any reference of [sic] the Defendants’ justification for firing him, or how that justification might plausibly be pre-textual” (Defs.’ Opp’n 6) ...