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Aviles-Cervantes v. Outside Unlimited, Inc.

United States District Court, D. Maryland

September 7, 2017

AVILES-CERVANTES, et al., Plaintiffs
v.
OUTSIDE UNLIMITED, INC., Defendant.

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.

         Plaintiffs Rafael Aviles-Cervantes, Pablo Gonzalez-Aviles, Heleodoro Peña-Gonzalez, and Jose Alberto Ramirez-Bernardino have brought this putative class action against Defendant Outside Unlimited, Inc. (“Defendant” or “Outside Unlimited”), a landscaping company operating in Maryland and Pennsylvania, on behalf of themselves and all other temporary guestworkers hired by Outside Unlimited as landscape laborers in 2013, 2014, and 2015, pursuant to the H-2B visa program.[1] Second Am. Compl., ¶¶ 1, 6, ECF No. 24.[2] Plaintiffs allege violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. (Count I); the Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Lab. & Empl. § 3-401, et seq. (Count II); the Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann., Lab. & Empl. § 3-501, et seq. (Count III); and two Breach of Contract claims (Counts IV & V), in connection with their employment by Outside Unlimited between 2013 and 2015. Id. ¶¶ 45-52. Currently pending before this Court is Outside Unlimited's Motion to Dismiss the Second Amended Complaint (ECF No. 27). The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated herein, Outside Unlimited's Motion to Dismiss the Second Amended Complaint (ECF No. 27) is DENIED. Although Plaintiffs allege, inter alia, violations of Department of Labor H-2B regulations by Outside Unlimited, this action is properly before this Court on Plaintiffs' Fair Labor Standards Act claims, and Plaintiffs were not required to exhaust Department of Labor administrative remedies prior to filing suit. To the extent that certain Department of Labor H-2B visa regulations are currently under review in related proceedings[3], a stay of this action or severance of claims may be appropriate if those related proceedings are not resolved prior to trial in this case. However, this Court will defer ruling on that issue, as the parties have not fully briefed their positions.

         BACKGROUND

         In ruling on the Defendant's Motion to Dismiss, this Court “accept[s] as true all well-pleaded facts in [the] [C]omplaint and construe[s] them in the light most favorable to the [P]laintiff.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017). “Since at least 2012, [Defendant Outside Unlimited, Inc. (“Defendant” or “Outside Unlimited”)] has been engaged in the business of providing landscaping services to customers in Maryland and Pennsylvania.” Second Am. Compl., ¶ 14, ECF No. 24. “In order to find sufficient workers to fill its landscaping jobs, [Outside Unlimited] petitioned the [United States] Department of Homeland Security (“DHS”)” in the years 2013, 2014, and 2015 “for permission to import foreign workers to perform landscape work using H-2B temporary work visas.” Id. ¶ 17. Plaintiffs Rafael Aviles-Cervantes, Pablo Gonzalez-Aviles, Heleodoro Peña-Gonzalez, and Jose Alberto Ramirez-Bernardino are “citizens of the Republic of Mexico, ” hired by Outside Unlimited as “landscape laborers” between 2013 and 2015, pursuant to the H-2B visa program. Id. ¶¶ 1, 5, 14-15.

         As this Court has recently explained in Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec., No. ELH-16-1015, 2017 WL 3189446, at *2 (D. Md. July 27, 2017), “[t]he H-2B visa program permits [United States] employers to recruit and hire foreign workers to fill temporary unskilled, non-agricultural positions for which domestic workers cannot be located.” (citing 8 U.S.C. § 1101(a)(15)(H)(ii)(b); La. Forestry Ass'n, Inc. v. Sec'y of Labor, 745 F.3d 653, 658 (3d Cir. 2014)). Pursuant to Department of Homeland Security regulations, prior to authorizing an eligible employer to hire H-2B guestworkers, the United States Department of Labor (“DOL”) must “determine whether (1) qualified workers in the United States are available to fill an employer's job and whether (2) the alien's employment will adversely affect wages and working conditions of similarly employed [United States] workers.” Id. (citing 8 C.F.R. § 214.2(h)(6)(iii)(A)). “If, after reviewing an employer's job offer and recruitment efforts, the Secretary of Labor determines that [United States] workers are not available to fill the jobs described in the employer's application and that the offered terms of work will not adversely affect similarly employed [United States] workers, DOL issues a ‘temporary labor certification' that the employer must attach to the H-2B visa petition it submits to [the Department of Homeland Security].” Id. (citing 8 C.F.R. §§ 214.2(h)(6)(iii)(C) and 214.2(h)(6)(iv)(A)). “No petition for H-2B visas may be issued by DHS without an approved labor certification from DOL.” Id.

         “Because the numbers of [United States] workers who accepted [Outside Unlimited's] jobs were not sufficient to fill all of the company's landscape laborer jobs, ” the Plaintiffs contend that “Outside Unlimited filed labor certification applications on ETA Form 9142-B so that it could hire additional foreign landscape workers to work in Maryland and Pennsylvania in 2013, 2014 and 2015.” Second Am. Compl., ¶ 21, ECF No. 24. “Those forms set forth the terms and conditions of work [Outside Unlimited] was offering to its H-2B workers, [including] . . . an assurance that the wage offered by Outside Unlimited [ ] would equal or exceed the prevailing wage that was or would be issued by the DOL for the specified period of employment.” Id. “Based on those offered contract terms, the DOL approved Defendant's temporary labor certification applications and DHS approved Defendant's H-2B visa petitions.” Id.

         Plaintiffs allege that in 2013, 2014, and 2015, Outside Unlimited “entered into work contracts with the [United States] and foreign H-2B workers it recruited to work as landscape laborers, including Plaintiffs.” Id. ¶ 24. “Those work contracts explicitly and/or by operation of law, offered the terms and conditions of work set forth in Defendant's ETA Form 9142-B temporary labor certification applications, including the promise to pay the offered rate, which rate would equal or exceed the latest prevailing wage set by DOL (including prevailing wages set during the course of a season) and time-and-a-half the offered rate for hours over 40.” Id. “In the summer of 2013, DOL notified [ ] Outside Unlimited [ ] of supplemental prevailing wage determinations that required Outside Unlimited to increase the wages of its landscape laborers because of an increase in the applicable prevailing wage.” Id. ¶ 25. Plaintiffs contend that Outside Unlimited “did not increase its wages in conformity with the notices it received from DOL and failed to pay Plaintiffs and the other landscape laborers at the new prevailing wage rate despite its contractual commitment to Plaintiffs and other class members to pay at least the prevailing wage that ‘will be' issued by DOL during the course of the 2013 season.” Id.[4]

         Plaintiffs additionally allege that Outside Unlimited failed to reimburse them for pre-employment visa, transportation, and lodging expenses; took improper deductions from their weekly wages for uniform services and housing; failed to pay workers for approximately 1-2 hours of work per day for time spend loading and unloading trucks and traveling from Outside Unlimited's “yard” to job sites and back again; failed to pay workers who were employed by Outside Unlimited to drive workers between their housing and the yard an additional 3-4.5 hours per week; and failed to pay the applicable prevailing wage to Plaintiffs and other workers performing supervisory and driving tasks. Id. ¶¶ 26-40. As a result of these unlawful practices, Plaintiffs contend that they and other class members received less than their contract wages and less than the federal and state minimum wages. Id. ¶¶ 41-43.

         Plaintiffs have now brought this putative class action on behalf of “[a]ll H-2B temporary guestworkers hired by Defendant to fill jobs described in Defendant's 2013, 2014 or 2015 ETA Form 9142 labor certification applications, ” alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. (Count I); the Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Lab. & Empl. § 3-401, et seq. (Count II); the Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann., Lab. & Empl. § 3-501, et seq. (Count III); and two Breach of Contract claims (Counts IV & V). Id. ¶¶ 7, 45-52. Plaintiffs filed their initial Complaint in this action on April 22, 2016 (ECF No. 1), but have subsequently amended that Complaint twice. Plaintiffs' Second Amended Complaint (ECF No. 24) is now the operative complaint. Outside Unlimited previously filed a Motion to Dismiss the First Amended Complaint (ECF No. 13), but that motion was rendered moot upon Plaintiffs' filing of the Second Amended Complaint. See Letter Order, ECF No. 29. Outside Unlimited has now filed a Motion to Dismiss the Second Amended Complaint (ECF No. 27), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         STANDARD OF REVIEW

         Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The United States Supreme Court's opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated “[t]wo working principles” that courts must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all factual allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); see also Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (“Although we are constrained to take the facts in the light most favorable to the plaintiff, we need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments.” (internal quotation marks omitted)). Second, a complaint must be dismissed if it does not allege “a plausible claim for relief.” Iqbal, 556 U.S. at 679.

         ANALYSIS

         I. This Court's Consideration of All Arguments Raised in Outside Unlimited's Motion to Dismiss is Not Precluded by Rule 12(g)(2) of the Federal Rules of Civil Procedure

         As a preliminary matter, Plaintiffs object that Outside Unlimited's “second motion to dismiss raises new legal arguments that it could have raised, but chose not to, when it filed its initial motion to dismiss.” Pl. Opp'n, p. 1, ECF No. 30. As discussed supra, Outside Unlimited previously filed a Motion to Dismiss the Plaintiffs' First Amended Complaint (ECF No. 13), but that motion was rendered moot upon Plaintiffs' subsequent filing of their Second Amended Complaint. See Letter Order, ECF No. 29. Rule 12(g)(2) of the Federal Rules of Civil Procedure provides that “[e]xcept as provided in Rule 12(h)(2) or (3)[5], a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” “[T]o the extent Defendant's [second] motion raises new grounds for dismissing the complaint that could have been raised before, ” including Defendant's administrative exhaustion and contract formation arguments discussed herein, Plaintiffs now contend that “those defenses are waived and should be summarily rejected.” Pl. Opp'n, p. 3, ECF No. 30.

         Although a technical reading of Rule 12(g)(2) could bar Outside Unlimited from filing a successive pre-answer motion to dismiss, courts routinely exercise discretion in applying this rule. The United States Court of Appeals for the Seventh Circuit has specifically held in Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) that “Rule 12(g)(2) does not prohibit a new Rule 12(b)(6) argument from being raised in a successive motion.” Additionally, the United States Court of Appeals for the Ninth Circuit has recently observed in In re Apple Iphone Antitrust Litig., 846 F.3d 313, 318 (9th Cir. 2017) that Rule 12(g)(2) should be read “to secure the just, speedy, and inexpensive determination of every action and proceeding” [quoting Fed.R.Civ.P. 1] and that “[d]enying late-filed Rule 12(b)(6) motions and relegating defendants to the three procedural avenues specified in Rule 12(h)(2) can produce unnecessary and costly delays, contrary to the direction of Rule 1.” Although the United States Court of Appeals for the Fourth Circuit has not squarely addressed this issue, this Court has interpreted Rule 12(g)(2) permissively. See, e.g., F.T.C. v. Innovative Mktg., Inc., 654 F.Supp.2d 378, 384 (D. Md. 2009); Mylan Laboratories, Inc. v. Akzo, N.V., 770 F.Supp. 1053, 1059 (D. Md. 1991); see also Superior Performers, Inc. v. Ewing, No. 1:14CV232, 2015 WL 3823907, at *2 (M.D. N.C. June 19, 2015); Tatum v. R.J. Reynolds Tobacco Co., No. 02-373, 2007 WL 1612580, at *5-6 (M.D. N.C. May 31, 2007).

         As a matter of judicial efficiency, this Court will consider all of Outside Unlimited's arguments in the pending Motion to Dismiss. As this Court has observed in Dart Drug Corp. v. Corning Glass Works, 480 F.Supp. 1091, 1095 n. 3 (D. Md. 1979), “[a] complaint is always vulnerable to a challenge for legal sufficiency[, and] it is far more efficient to treat the arguments prior to more extensive discovery.” There is no indication that Outside Unlimited filed its second Motion to Dismiss (ECF No. 27) in order to delay these proceedings or to inconvenience or prejudice the Plaintiffs. See Am. Chiropractic Ass'n v. TrigonHealthcare, Inc., No. 00-113, 2001 WL 420602, *2 (W.D. Va. Jan. 29, 2001) (noting that a second motion to dismiss may be permitted if it “will not visit that sort of inconvenience or prejudice upon the plaintiffs that is sought to be avoided under the federal rules”). On the contrary, ...


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