DeDeyn et al v. Gintzler Graphics, Inc. et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________________
J. PATRICK DeDEYN, JEFFREY ERNY, JEFFREY 	REPORT
KASPRZYK, on behalf of themselves and all others 	and
similarly situated, JACK KILIANSKI, BRIAN 	RECOMMENDATION
SLAVINSKI, TIFFANY DiSALVO, MICHAEL SPARKS, 	-----------------------------
MATTHEW BUDDE, DINO BIANCO, STEVEN 	DECISION
BURGESS, ERICA WITKOWSKI, DARRYL RYBAK, 	and
CHRIS ROBERTSON, CHARLIE RASP, TYLER 	ORDER
NUCCI, KATHY ROBERTSON, MIKE KREPPEL,
ERIC BAUMGART, KAREN KOZLOWSKI, WENDY 	23-CV-1291-LJV-LGF
LANGE, and KATHLEEN SULLIVAN,
Plaintiffs,
v.
GINTZLER GRAPHINCS, INC., and
RESOURCE LABEL GROUP LLC,
Defendants.
_____________________________________________
APPEARANCES: 	SANDERS & SANDERS
Attorneys for Plaintiffs
HARVEY P. SANDERS, of Counsel
401 Maryvale Drive
Cheektowaga, New York 14225
LITTLER MENDELSON, P.C.
Attorneys for Defendants
JACQUELINE PHIPPS POLITO, and
ERIN M. TRAIN, of Counsel
375 Woodcliff Drive
Suite 2D
Fairport, New York 14450
JURISDICTION
This case was referred to the undersigned by Honorable Lawrence J. Vilardo on
March 12, 2024, for all pretrial matters including preparation of a report and
recommendation on dispositive motions. (Dkt. 27). The matter is presently before the
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court on Plaintiffs’ motion for conditional certification filed January 10, 2024 (Dkt. 8), and
Defendants’ motion to dismiss filed March 11, 2024 (Dkt. 25).1
BACKGROUND
Plaintiffs J. Patrick DeDeyn, Jeffrey Erny, and Jeffrey Kasprzyk (together,
“Named Plaintiffs”), commenced this putative collective action December 13, 2023,
against their employer, Gintzler Graphics, Inc., and its parent company Resource Label
Group LLC (together, “Defendants”), asserting three claims for violations of the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), Complaint, First Claim (“FSLA
claim”), New York Labor Law (“Labor Law”), Complaint, Second Claim (“Labor Law
claim”), and sections 404 and 406 of the Employment Retirement Income Security Act
of 1974 (“ERISA), Complaint, Third Claim (“ERISA claim”). Since Named Plaintiffs
commenced this action, others have consented to opt-in as Party Plaintiffs (“Opt-In
Plaintiffs”), including Jack Kilianski and Brian Slavinski on January 30, 2024 (Dkt. 12),
Tiffany DiSalvo on January 31, 2024 (Dkt. 13), Michael Sparks and Matthew Budde on
February 6, 2024 (Dkt. 14), Dino Bianco on February 9, 2024 (Dkt. 15), Steven Burgess
on February 12, 2024 (Dkt. 16), Charlie Rasp, Chris Robertson, Darryl Rybak, Erica
Witkowski, Kathy Robertson, and Tyler Nucci on February 20, 2024 (Dkt. 18), Mike
Kreppel on February 26, 2024 (Dkt. 20), Eric Baumgart on February 27, 2024 (Dkt. 21),
Karen Kozlowski on March 4, 2024 (Dkt. 23), Wendy Lange on August 23, 2024 (Dkt.
1 Although a motion for class certification pursuant to Fed.R.Civ.P. 23 is dispositive, a motion for
conditional certification of a collective action under the FSLA is nondispositive. See Kimble v. Opteon
Appraisal, Inc., 712 F.Supp.3d 379, 385 (W.D.N.Y. 2024) (conditional certification of FLSA collective
action is a preliminary determination that is not dispositive) (citing cases). Further, Plaintiffs’ request for
leave to amend, included in Plaintiffs’ response to Defendants’ motion, Plaintiffs’ Response at 21-23, also
seeks nondispositive relief. In the interest of clarity and judicial economy, all are addressed together in
this combined Report and Recommendation/Decision and Order.
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45), and Kathleen Sullivan on September 12, 2024 (Dkt. 47) (together with Named
Plaintiffs, “Plaintiffs”).
On January 10, 2024, Plaintiffs moved for conditional certification of a class
pursuant to the FLSA (Dkt. 8) (“Plaintiff’s motion”), attaching Plaintiffs’ Memorandum of
Law in Support of Motion for Conditional Certification and for Leave to Send Notice to
Potential Opt-In Plaintiffs Pursuant to the FLSA, 29 U.S.C. § 216(b) (Dkt. 8-1)
(“Plaintiff’s Memorandum”), with the proposed opt-in notice form denominated Exhibit A
(Dkt. 8-2) (“proposed opt-in notice”),2 the Declarations of J. Patrick DeDeyn, Jeffrey
Erny, and Jeffrey Kasprzyk in Support of Motion for Conditional Certification and for
Leave to Send Notice to Potential Opt-In Plaintiffs Pursuant to the FLSA, 29 U.S.C.
§ 216(b), respectively, Dkt. 8-3 (“DeDeyn Declaration”), Dkt. 8-4 (“Erny Declaration”),
and Dkt. 8-5 (“Kasprzyk Declaration”), and a proposed order (Dkt. 8-6).
On March 11, 2024, Defendants filed a motion to dismiss for failure to state a
claim (Dkt. 25) (“Defendants’ motion”), attaching the Memorandum of Law in Support of
Motion to Dismiss (Dkt. 25-1) (“Defendants’ Memorandum”), the Declaration of
Jacqueline Phipps Polito[, Esq.]3 (Dkt. 25-2) (“Polito Declaration”), with exhibit A (Dkt.
25-3). Defendants also filed on March 11, 2024, Defendants’ Memorandum of Law in
Opposition to Plaintiffs’ Motion to Conditionally Certify a Collective Action (Dkt. 26)
(“Defendants’ Response”), the Declaration of Jacqueline Phipps Polito[, Esq] (Dkt. 26-
1), attaching the Declaration of Jessica Hubert (Dkt. 26-2) (“Hubert Declaration”).
2 On January 12, 2024, Plaintiffs re-filed the proposed opt-in notice (Dkt. 9).
3 Unless otherwise indicated, bracketed material has been added.
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On April 19, 2024, Plaintiffs filed Plaintiffs’ Reply Memorandum of Law in Further
Support of Motion for Conditional Certification and for Leave to Send Notice to Potential
Opt-In Plaintiffs Pursuant to the FSLA, 29 U.S.C. § 216(b) (Dkt. 34), attaching the
Declaration of Harvey P. Sanders[, Esq.] (Dkt. 34-1), with Exhibit 1 (Dkt. 34-2). Also on
April 19, 2024, Plaintiffs filed Plaintiffs’ Memorandum of Law in Opposition to
Defendants’ Motion to Dismiss (Dkt. 35) (“Plaintiffs’ Response”), attaching the
Declaration of Harvey P. Sanders[, Esq.] (Dkt. 35-1), with exhibits A and B (Dkts. 35-2
to 35-3) (“Plaintiffs’ Exh(s). __”). On April 22, 2024, Plaintiffs filed Plaintiffs’ Amended
Reply Memorandum of Law in Further Support of Motion for Conditional Certification
and for Leave to Send Notice to Potential Opt-In Plaintiffs Pursuant to the FSLA, 29
U.S.C. § 216(b) (Dkt. 36) (“Plaintiffs’ Reply”). On May 17, 2024, Defendants filed
Defendants’ Reply Memorandum of Law in Further Support of Defendants’ Motion to
Dismiss the Complaint (Dkt. 39) (“Defendants’ Reply”).
Because the pending motions concern several unresolved issues pertaining to
the FSLA and Labor Law, Plaintiffs and Defendants filed several letters discussing
recent court decisions bearing on the issues, including Plaintiffs’ letter dated May 23,
2024 (Dkt. 40), Defendants’ letter dated June 17, 2024 (Dkt. 41), Plaintiffs’ letter dated
June 19, 2024 (Dkt. 42), Plaintiffs’ letter dated July 30, 2024 (Dkt. 43), Defendants’
letter dated August 1, 2024 (Dkt. 44), Defendants’ letter dated September 27, 2024
(Dkt. 48), and Plaintiffs’ letter dated September 27, 2024 (Dkt. 49). Oral argument was
deemed unnecessary.
Based on the following, Plaintiffs’ motion is DISMISSED without prejudice and
with leave to refile; Defendants’ motion should be GRANTED; Plaintiff’s request to file
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an amended complaint is DENED, and the Complaint dismissed with leave to refile as
to the ERISA claim.
FACTS4
Defendant Gintzler Graphics, Inc. (“Gintzler”), is a manufacturer of consumer
labels and packaging products. Defendant Resource Label Group LLC (“RLG”) is the
parent company of Gintzler. RLG is the sponsor of an ERISA 401(k) employee benefit
plan (“Plan”), to which Gintzler is a “party in interest”. Complaint ¶¶ 1, 10, 11. Each of
the Named Plaintiffs has worked for Gintzler as a “manual worker” as defined under
New York Labor Law (“Labor Law”) § 190[4] (“§ 190[4]”), including J. Patrick DeDeyn
(“DeDyne”), since January 1995 and continuing to the present day, Jeffrey Erny
(“Erny”), since 2001 and continuing to the present day, and Jeffrey Kasprzyk
(“Kasprzyk”), from February 2018 through September 2023.
Plaintiffs allege that although New York Labor Law § 191[1][a](i) requires
employers pay manual workers on a weekly basis and within seven days of the last day
of a work week, for the period October 2017 through July 1, 2022, Gintzler maintained a
company-wide payroll policy pursuant to which manual workers were paid every two
weeks in violation of both state and federal labor laws. The late payments allegedly
interfered with Plaintiffs’ ability to spend their money on such things as purchasing
products and paying bills for everyday living expenses including rent, mortgage
payments, utilities, car payments, insurance, tuition, and daycare. Plaintiffs maintain
the negative effects of the delayed wage payments were further exacerbated by the
4 Taken from the Complaint filed in this action.
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time value of money lost. Plaintiffs allege there are at least 100 Gintzler employees
who were untimely paid during the relevant period. Plaintiffs also allege that money
withheld from employees’ pay as employee-funded contributions to an employee benefit
plan sponsored by RGL pursuant to § 401(k) of the Employee Retirement Income
Security Act (“ERISA”) (“the Plan”) was not timely deposited into each participating
employee’s respective account, resulting in further loss based on the time-value of
money.5
DISCUSSION
1. 	Request to Amend
Preliminarily, the court addresses Plaintiffs’ alternative request, in responding in
opposition to Defendants’ motion, for leave to amend the Complaint, Plaintiffs’
Response at 21-23, supported by a submission of a proposed amended complaint (Dkt.
35-3) (“PAC”). Relevantly, Fed.R.Civ.P. 15(a)(1)(B) permits the filing of an amended
complaint as a matter of course and without the court’s permission 21 days after the
service of a motion to dismiss pursuant to Rule 12(b)(6). Given Defendants’ motion was
filed on March 11, 2024, Plaintiffs had until April 1, 2024 to file an amended complaint
without leave of court. Plaintiffs, however, did not do so but instead, included in their
response to Defendants’ motion an argument for leave to amend, Plaintiffs’ Response
at 21-23, attaching as Exhibit B (Dkt. 35-3) the Amended Complaint for Violation of Fair
Labor Standards Act, New York Labor Law, and ERISA (“proposed amended complaint”
or “PAC”). As Defendants argue, Defendants’ Reply at 15-16, this request is
5 No copy of the Plan or the Plan summary is in the record.
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procedurally defective because it does not comply with Local Rule of Civil Procedure –
W.D.N.Y. 15 (“Local Rule 15__”).
Specifically, not only have Plaintiffs failed to file an actual motion to amend, but
Local Rule 15 requires “[a] movant seeking to amend or supplement a pleading must
attach an unsigned copy of the proposed amended pleading as an exhibit to the
motion,” Local Rule 15(a), and parties represented by counsel must identify the
proposed amendments “through the use of a word processing ‘redline’ function or other
similar markings....” Local Rule 15(b). See Food Holdings Ltd. v. Bank of Am. Corp.,
423 Fed.Appx. 73, 76 (2d Cir. 2011) (finding district court did not abuse its discretion in
denying leave to amend when request was made “on the final page of their brief in
opposition to defendants' motion to dismiss, in boilerplate language and without any
explanation as to why leave to amend was warranted”); Popat v. Levy, 253 F.Supp.3d
527, 546 (W.D.N.Y. 2017) (denying leave to amend where plaintiff failed to comply with
the Local Rules by including a cursory request for leave to amend in his opposition
papers). Similarly, in the instant case, “‘because Plaintiff has failed to comply with the
Local Rules, the Court exercises its discretion in denying this ‘cursory or boilerplate
request[ ] . . . made solely in a memorandum in opposition to a motion to dismiss.’”
Mastercraft Decorators, Inc. v. Orlando, 356 F.Supp.3d 259, 275 (W.D.N.Y. 2018)
(quoting Popat, 253 F.Supp.3d at 546 (further quotation omitted)). Accordingly,
Plaintiffs’ alternative request for leave to amend is DENIED.
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2. 	Motion to Dismiss
Although Plaintiffs move for conditional certification pursuant to FSLA, 29 U.S.C.
§ 216(b), Defendants’ motion to dismiss for failure to state a claim, if granted, would
render Plaintiffs’ motion moot. Accordingly, Defendants’ motion is addressed first.
A complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted if it does not plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (rejecting longstanding precedent of Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). As such, the Supreme Court requires application of “a ‘plausibility standard . . .
.’” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (citing Twombly, 550 U.S. at 570,
and quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). On a motion to dismiss under
Rule 12(b)(6), the court looks to the four corners of the complaint and is required to
accept the plaintiff's nonconclusory allegations as true and to construe those allegations
in the light most favorable to the plaintiff. Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.
2008) (court is required to liberally construe the complaint, accept as true all factual
allegations in the complaint, and draw all reasonable inferences in the plaintiff's favor).
“To survive a 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.’” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).
A claim has facial plausibility 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 (citing Twombly, 550 U.S. at 556). The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
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sheer possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line
between possibility and plausibility of “entitlement to relief.”’ Id. (quoting Twombly, 550
U.S. at 557).
“[A] Rule 12(b)(6) motion is addressed to the face of the pleading.” Goldman v.
Belden, 754 F.2d 1059, 1065 (2d Cir. 1985). “In considering a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts
alleged in the [pleading], documents attached to the [pleading] as exhibits, and
documents incorporated by reference in the [pleading].” DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by
“accepting all factual allegations as true and drawing all reasonable inferences in favor
of the [claimant].” Trustees of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt.,
843 F.3d 561, 566 (2d Cir. 2016). “While a [pleading] attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a [claimant]’s obligation to
provide the grounds of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (internal quotations and citations omitted). If the plaintiff's
pleadings “have not nudged [his or her] claims across the line from conceivable to
plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570. Further,
Applying the standard for a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) “is ‘a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.’” In re Amaranth Natural Gas Commodities Litigation, 730 F.3d
170, 80 (2d Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
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In support of dismissal pursuant to Rule 12(b)(6) for failure to state a claim,
Defendants argue that Labor Law § 191[1][a](i) does not allow for a private right of
action for untimely payment of wages that are paid in full, Defendants’ Memorandum at
8-17, although the FSLA has been construed to require “prompt payment” of wages,
what time period qualifies as “prompt” is not specified, id. at 5-8, and the Complaint fails
to sufficiently allege facts establishing Plaintiffs have standing for the ERISA claim, as
well as a breach of fiduciary duties required for an ERISA claim. Id. at 17-25.
Defendants alternatively argue that the ERISA claim should be severed from the Labor
Law and FSLA claims (“the wage claims”) because the ERISA claim arises out
allegations entirely different than those on which the wage claims are based, id. at 25-
26, and the court should decline to exercise supplemental jurisdiction over the Labor
Law claim if the FSLA and ERISA claims are dismissed. Id. at 27. In opposition,
Plaintiffs argue caselaw supports Plaintiffs’ untimely wage payment claims under both
Labor Law § 191[1][a](i) and the FSLA, Plaintiffs’ Response at 6-15, the complaint
sufficiently alleges Defendants breached fiduciary duties and engaged in prohibited
transactions in violation of §§ 404 and 406 of ERISA, id. at 15-20, and Plaintiffs’ ERISA
claim should not be severed. Id. at 20-21. Plaintiffs alternatively request leave to file an
amended complaint. Id. at 21-23. In further support of dismissal, Defendants repeat
their argument that Plaintiffs do not have a claim for late wage payment under the
FLSA, Defendants’ Reply at 1-6, or Labor Law § 191[1][a](i), id. at 6-10, and Plaintiff’s
ERISA claim must be dismissed, id. at 10-15, or severed from the wage claims, id. at
15, and that Plaintiff’s alternative request for leave to file an amended complaint is futile.
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Id. at 15-18. Careful and thorough consideration of the parties’ arguments and relevant
caselaw establishes Plaintiffs do not have a cause of action under Labor Law
§ 191[1][a](i) or the FSLA, and have failed to sufficiently allege a claim under ERISA,
which Plaintiffs should be allowed to replead.
A. 	Labor Law Claim
Plaintiffs claim that Gintzler, in moving from a weekly to bi-weekly pay period for
all employees, including manual workers,6 violated New York Labor Law § 191[1][a]
(“§ 191[1][a]”), which requires that “[a] manual worker shall be paid weekly and not later
than seven calendar days after the end of the week in which the wages are earned . . .
.” N.Y. Labor Law § 191[1][a](i). It is undisputed that for the period October 2017
through July 1, 2022, Gintzler paid Plaintiffs on a biweekly basis in violation of
§ 191[1][a](i), but whether a violation of § 191[1][a](i) provides for a private right of
action is an unresolved matter in New York courts with the issue not being presented to,
and thus not addressed, by the New York Court of Appeals. Although § 191[1][a](i)
does not expressly authorize a private cause of action for a manual worker to recover
for late payment of wages, some courts have found such private right of action exists,
either expressly or impliedly, based on N.Y. Labor Law § 198[1-a] pursuant to which
violations of the Labor Law’s substantive wage provisions are enforced. Relevantly, the
two appellate courts that have addressed the issue reached different conclusions,
6 New York Labor Law defines a “manual worker” as a “mechanic, workingman or laborer.” N.Y. Lab. Law
§ 190[4]. “The New York Department of Labor has elaborated on this terse definition” to include
“employees who spend more than 25 percent of their working time performing ‘physical labor,’” which
includes “a wide range of physical activities.” Krawitz v. Five Below, Inc., 2023 WL 6385711, at *3 n.4
(E.D.N.Y. Sept. 29, 2023) (citing N.Y. Dep't of Labor Op. Ltr. No. RO-09-0066 (May 21, 2009)). In the
instant case, Defendants do not challenge any Plaintiff’s assertion of being employed at Gintzler as a
manual worker and the court presumes, for the sake of this discussion, that each Plaintiff worked at
Gintzler as a manual worker as defined by Labor Law § 190[4].
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compare Grant v. Global Aircraft Dispatch, Inc., 204 N.Y.S. 3d 117 (2d Dep’t 2024)
(“Grant”) (concluding there is no private right of action), with Vega v. CM & Associates
Construction Management, 107 N.Y.S.3d 286 (1 st Dep’t 2019) (“Vega”) (finding a private
right of action), thus requiring this court to “predict how the [New York] Court of Appeals
would rule on this legal question, [for which] the decisions of New York State’s Appellate
Division are helpful indicators.” Michalski v. Home Depot, Inc., 225 F.3d 113, 116-17
(2d Cir. 2000). See also DiBella v. Hopkins, 403 F.3d 102, 111-12 (2d Cir. 2005)
(determining that where the state’s appellate court’s have reached different conclusions
on an issue not addressed by the Court of Appeals, “in light of existing authority from
New York and elsewhere on this matter, we must undertake the imprecise but
necessary task of predicting on a reasonable basis how the New York Court of Appeals
would rule if squarely confronted with this issue” (citing Michalski, 225 F.3d at 116)).
In Vega, similar to the instant case, the plaintiff sued to recover damages from
her employer who paid the plaintiff, a manual worker, biweekly, rather than weekly in
violation of Labor Law § 191[1][a]. Vega, 107 N.Y.S. 3d at 287. The court held that
even if § 191[1][a](i) did not expressly authorize a manual worker’s private right of
action, such right was provided for by N.Y. Labor Law § 198[1-a] (“§ 198[1-a]”), “which
applies to ‘wage claims based upon violations of one or more of the substantive
provisions of Labor Law article 6.’” Id. (quoting Gottlief v. Kenneth D. Laub & Co., 626
N.E.2d 29, 31 (N.Y. 1993)). The court in Vega specifically found that “Labor Law §
198[1-a] expressly provides a private right of action for a violation of Labor law § 191,”
and that any holding to the contrary would depend on “an erroneous assertion that the
late payment of wages is not an underpayment of wages.” Id. at 288. Although Vega
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did not address the fact that § 198[1-a] specifically provides for a right of action for wage
claims to be brought by the Commissioner of the New York State Department of Labor,
the court alternatively held that even if § 198[1-a] did not expressly provide or a private
right of action by an individual employee for a violation of § 191[1][a], such remedy was
implied because the plaintiff, as a manual worker, was one of the class for whose
benefit the statute was enacted, recognizing a private right of action would promote the
statute’s legislative purpose to protect workers who are generally dependent upon the
weekly payment of wages for sustenance, and permitting such action was consistent
with the legislative scheme because it allowed individual employees to sue an employer
for violations of the state labor laws, even if a commissioner chose not to do so. Vega,
107 N.Y.S.3d at 289 (citing AHA Sales, Inc. v. Creative Bath Products, Inc., 867
N.Y.S.2d 169, 177-78 (2d Dep’t 2008) (finding an implied right of action by individual
employees to institute wage claims because both § 198[1] and § 198[1-a] provide for
the recovery of costs and attorney’s fees “‘[i]n any action instituted upon a wage claim
by an employee or the commissioner.’”)).
Contrary to Vega, in Grant, the Second Department rejected the First
Department’s conclusion that § 191[1][a] provides for either an express or implied
private right of action. Grant, 204 N.Y.S.3d at 125. In Grant, the court acknowledged
Labor Law provides the “official enforcement mechanism” for violations of the
“frequency of payments” provision of § 191, but does not expressly authorize a private
right of action. Id. at 121. The court further found that § 198[1-a], which “permits the
Commissioner [of Labor] to bring an action or administrative proceeding ‘[o]n behalf of
any employee paid less than the wage to which he or she is entitled . . . to collect such
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claim,’ does not provide a private right of action for a violation of § 191[1][a] where the
employer pays wages to manual workers pursuant to a regular, biweekly pay schedule.
Id. (quoting Labor Law § 198[1-a]) (italics in Grant). In so finding, the court focused on
the fact that the plaintiff manual workers had received all wages to which they were
entitled on a regular schedule, albeit a biweekly rather than weekly schedule, such that
the plaintiffs were not entitled to recover for any nonpayment or underpayment of
wages, a fact that was consistent with the plaintiffs’ seeking only liquidated damages
(along with interest and attorney’s fees), but not any amount for underpaid wages. Id. at
121-22. The Second Department relied on a recent decision by the Court of Appeals,
Konkur v. Utica Academy of Science Charter School, 185 N.E.3d 483 (N.Y. 2022)
(“Konkur”), that provide where there exist “‘significant enforcement mechanisms
provided for in the statute,’ a private right of action would not be consistent with the
legislative scheme.” Id. (quoting Konkur, 185 N.E.3d at 487). Relevantly, the Second
Department found that as written, § 198[1-a] provides for the recovery of “liquidated
damages as an ‘additional amount,’ clearly contemplating recovery of an underpayment
as the primary, foundational remedy.” Id. at 122 (quoting Labor Law § 198[1-a]).
Further, § 198[1-a]’s legislative history does not refer to the timing or frequency of wage
payments but, rather, focuses on “remedying employers’ failure to pay the amount of
wages required by contract or law,” including cases in which an employer pays less
than the minimum wage. Id. at 124 (citing Assembly Mem in Support, Bill Jacket, L
2009, ch 372 at 5). Accordingly, the Second Department concluded that § 198[1-a] was
never intended to remedy an employer’s failure to pay wages on any particular schedule
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and that no private cause of action for a violation of § 191[1][a] either expressly or
impliedly exists. Id.
Recently, when the same issue was presented here, this court found Grant,
rather than Vega, more persuasive. See Galante v. Watermark Services IV, LLC, 722
F.Supp.3d 170 (W.D.N.Y. 2024) (“Galante”). In Galante, District Judge Frank P.
Gerace, Jr., in rejecting that § 198[1-a] expressly provides a private right of action for a
violation of § 191[1], found persuasive the Second Department’s reliance on “the usual
and commonly understood meaning” of the terms “less than” and “underpayment” to
“refer to situations in which an employee has not received the amount of wages she is
entitled to, rather than situations in which she received them one week late.” Galante,
722 F.Supp.3d at 184. Significantly, Judge Geraci found § 198[1-a] “provid[es] a
remedy for violations of statutes governing how much an employer must pay an
employee, not how frequently the employer must do so.” Id. (italics in original). Judge
Geraci observed both the statutory purpose and legislative history of § 198[1-a] failed to
support finding an express private right of action for a manual worker to recover for a
violation of § 191[1][a](i)’s requirement of weekly payment of wages for manual workers.
Id. In particular, § 198[1-a] permits employees to assign wage claims to the
Commissioner of Labor, while the requirement that employers pay liquidated damages
whenever § 198[1-a] is violated is intended to ensure an employer faces penalties
beyond merely paying back wages without interest upon being caught. Id. In short,
Judge Geraci focused on the fact that throughout the legislative history of § 198[1-a],
liquidated damages are available whenever an employee receives either no wages or
less than the wages to which he is entitled, in contrast to the circumstances presented
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in the instant case where Plaintiffs do not allege any wages underpayments but, rather,
challenge only the timing of the payment of their earned wages. Id. at 185.
In also rejecting that § 198[1-a] does not provide an implied right of action for a
violation of § 191[1], Judge Geraci applied the same three-factor test used by the New
York Court of Appeals. Specifically, an implied right of action based on a statute’s
legislative intent requires consideration of “‘(1) whether the plaintiff is one of the class
for who particular benefit the statute was enacted; (2) whether recognition of a private
right of action would promote the legislative purpose; and (3) whether creation of such a
right would be consistent with the legislative scheme.’” Galente, 722 F.Supp.3d at 185-
86 (quoting Konkur, 185 N.E.3d at 483). Finding a private right of action requires the
presence of all three factors. Id. at 186.
As in Galente, here, it is undisputed that the first two factors are present with
Plaintiffs being manual workers as defined by the Labor Law, and permitting Plaintiffs to
bring an action for a violation of § 191[1][a](i) would promote its legislative purpose of
ensuring manual workers are paid every week. Id. (citing Vega, 107 N.Y.S.3d at 289
(“Here, plaintiff is a ‘manual worker’ as defined by the statute, and allowing her to bring
suit would promote the legislative purpose of § 191, which is to protect workers who are
generally ‘dependent upon their wages for sustenance.’” (quoting People v. Vetri, 131
N.E.2d 568, 570 (N.Y. 1955))). “Consistency with the legislative scheme is ‘the most
important [factor] and typically turns on the legislature’s choice to provide one particular
enforcement mechanism to the exclusion of others,’ because that choice ‘demonstrates
that the legislature has considered and decided what avenues of relief were
appropriate.’” Id. (quoting Konkur, 185 N.E.3d at 486) (brackets in Galente). As Judge
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Geraci observed, in Konkur, the Court of Appeals, in rejecting the plaintiff’s argument for
an implied right of action under § 198[1-a], observed that with regard to the Labor Law,
the legislature expressly provided for a private right of action where an article 6
provision was to be subject to individual enforcement. Id. at 186. Further, that
§ 191[1][a](i) exempts some manual workers from the weekly payment of wages
provision, including manual workers employed by a “non-profitmaking organization,”
§ 191[1][a](i), and employers of more than 1000 manual workers who apply for and
receive authorization from the labor commissioner, § 191[1][a](ii), with wage payments
for both groups required to be made semi-monthly, establishes that weekly payment of
all manual workers is not categorically part of the legislative scheme. Moreover, the
Labor Law separately provides an enforcement scheme for violations of § 191,
specifically, N.Y. Labor Law § 218 (“§ 218__”), pursuant to which the Commissioner of
Labor is authorized to impose harsh civil monetary penalties. Id. at 186-87. The
legislative scheme thus does not support finding an implied private right of action to
enforce § 191[1][a](i) in the instant case.
Defendants’ motion to dismiss should be GRANTED with regard to Plaintiffs’
Labor Law claim.
B. 	FLSA Claim
Plaintiffs’ FSLA claim for untimely payment of wages is also based on
Defendants’ biweekly payment of their wages earned as manual workers allegedly in
violation of § 191[1][a](i). Put another way, Plaintiffs argue that Defendants, by paying
manual workers biweekly in violation of § 191[1][a](i), have also violated the FLSA by
failing to promptly pay wages earned by manual workers. In support of dismissal,
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Defendants argue that because the FSLA does not provide for when wages are to be
paid, there is no violation of the FSLA so long as employees are paid at the minimum
wage rate and according to a regular payment schedule. Defendants’ Memorandum at
5-8. In opposition to dismissal, Plaintiffs urge the court find that a violation of Labor Law
§ 191[1][a](i)’s requirement that the wages of manual workers be paid weekly, which
requirement was violated by Defendants’ biweekly payment of manual workers for the
period October 2017 through July 1, 2022, establishes a violation of the FSLA’s prompt
payment requirement. Plaintiffs’ Response at 6-9. In further support of dismissal,
Defendants characterize Plaintiffs’ argument as a “bait-and-switch theory” devoid of any
support in law or fact given Plaintiffs never allege they were not paid on their regularly
scheduled payday such that there is no basis on which to find Plaintiff were not promptly
paid for any work. Defendants’ Reply at 1-6.
It is undisputed that although the FSLA specifies that “[e]very employer shall pay
to each of his employees . . . who in any workweek is engaged in commerce or in the
production of goods for commerce . . . . not less than the minimum wage rate . . . ,” 29
U.S.C. § 206(b), the FSLA “does not specify when this wage must be paid.” Rogers v.
City of Troy, N.Y., 143 F.3d 52, 55 (2d Cir. 1998). Nevertheless, courts “have long
interpreted the statute to include a prompt payment requirement, id. at 56, which is
assessed pursuant to “objective standards.” Id. at 57.
In particular, a change to an employer’s pay schedule does not violate the
prompt payment requirement under the FSLA provided “‘the change: (a) is made for a
legitimate business reason; (b) does not result in an unreasonable delay in payment; (c)
is intended to be permanent; and (d) does not have the effect of evading the FSLA’s
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substantive minimum wage or overtime requirements.’” Ramirez v. Tigaret Discount,
Inc., 2023 WL 6318616, at * 6 (S.D.N.Y. Sept. 28, 2023) (quoting Rogers, 148 F.3d at
57, and citing Sarit v. Westside Tomato, Inc., 2020 WL 1891983, at * 4 (S.D.N.Y. Apr.
16, 2020) (applying same standard)). In the instant case, Plaintiffs fail to allege facts
establishing Defendants’ changing of the pay schedule for manual workers from weekly
to biweekly for the period October 2017 to July 1, 2022 did not comply with these four
factors.
Specifically, Plaintiffs allege that after paying manual workers weekly for years, in
October 2017, Defendants switched to a biweekly payment schedule for all workers
“pursuant to a company-wide payroll policy that was uniformly applicable to all of the
Employees,” Complaint ¶¶ 22, 36, establishing the decision to change the payment
schedule was to place all employees, including manual workers and others, on the
same pay schedule. Even if the change in pay schedule was in violation of New York
Labor Law § 191[1][a](i), that biweekly wage payments is not a per se unreasonable
delay is consistent with the fact that § 191[1][a] permits semi-monthly payment of wages
to manual workers employed by non-profit organizations, § 191[1][a](i), as well as those
employers of more than 1000 manual workers who receive authorization from the labor
commissioner, § 191[1][a](ii). Significantly, when paid biweekly, Plaintiffs received
double the pay they would have received when paid weekly. That the change from a
weekly to biweekly pay schedule continued for almost five years, and resulted in a
uniform pay schedule for all employees indicates the change was not intended to be
temporary. Nor did the change to a biweekly pay schedule result in Defendant evading
any minimum wage or overtime requirements and Plaintiff does not allege otherwise.
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Further, at issue in the cases cited by Plaintiffs, Plaintiff’s Response at 6-7, in
which courts found the complaint stated a claim based on a violation of the FSLA’s
prompt wage payment requirement was not an employer’s change in the regular pay
schedule as alleged here but, rather, an employer’s failure to abide by a regular pay
schedule. See Lipstein v. 20X Hospitality LLC, 2023 WL 6124048, at ** 12-13 (S.D.N.Y.
Sept. 29, 2023) (FSLA claim for late payment of wages sufficiently stated where the
plaintiff alleged that on one occasion, the plaintiff was unable to make a timely rent
payment because the defendant employer failed to provide the plaintiff with all of his
earned wages on the regularly scheduled payday); Rosenbaum v. Meir, 658 F.Supp.3d
140, 148 (E.D.N.Y. 2023) (allegations that employer missed paying wages on multiple
occasions without any legitimate business reason stated FSLA claim for unreasonable
delay in payment of wages); Brito v. Marina’s Bakery Corp., 2022 WL 875099, at * 11
(E.D.N.Y. Mar. 24, 2022) (plaintiffs stated an FSLA claim for late payment of wages by
alleging the defendants “regularly withheld their wages for days on end, and for as
much as two to three weeks after their regularly scheduled pay days”); Karupaiyan v.
CVS Health Corporation, 2021 WL 4341132, at * 29 (S.D.N.Y. Sept. 23, 2021) (holding
the plaintiff’s allegations that he never received a paycheck sufficiently established a
claim against his employer pursuant to the FSLA); Sarit, 2020 WL 1891983, at ** 5-6
(finding the plaintiff alleged an FSLA violation where the employer changed its pay
schedule from weekly to biweekly, after which some pay dates were deferred, other pay
dates were missed, and the pay records did not reflect the dates and times worked);
Gaughan v. Rubenstein, 261 F.Supp.3d 390, 426 (S.D.N.Y. 2017) (allegations that
employer delayed paying the plaintiff’s wages either by failing to issue paychecks or by
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21
forward-dating paychecks so that the funds could not be immediately accessed alleged
an FSLA late payment of wages claim). Further, in Cooke v. Frank Brunckhorst Co.,
LLC, 722 F.Supp.3d 127 (E.D.N.Y. 2024), on which Plaintiff also relies, Plaintiff’s
Response at 7, the court, in ruling on a class certification motion for an FSLA late wage
payment claim brought by the plaintiff who alleged he was a manual worker paid on a
biweekly basis in violation of Labor Law § 191, held that, “as Plaintiff correctly points
out, whether any prompt payment requirement was violated is a merit-based
determination not ripe for adjudication at this stage,” Cooke, 772 F.Supp.3d at 138-39,
and thus the court did not reach the issue presented here. Accordingly, none of the
cases on which Plaintiffs rely support finding an FSLA claim based on late payment of
wages earned.
Although Defendants’ biweekly payments to manual workers may have been in
violation of § 191[1][a](i), even possibly subjecting Defendants to some liability under
New York law, there is no requirement that the FSLA’s prompt payment requirement be
interpreted in tandem with New York Labor Law. Rather, as construed by the Second
Circuit, the FSLA’s prompt payment requirement is not violated so long as an
employer’s wage payment schedule is for a legitimate business reason, does not
unreasonably delay payment, is permanent, and “does not have the effect of evading
the FSLA’s substantive minimum wage or overtime requirements.” Rogers, 148 F.3d at
57. None of these requirements is tied to compliance with New York Labor Law.
In the instant case, Plaintiffs allege Defendants’ biweekly pay schedule “was
made pursuant to a company-wide payroll policy that was uniformly applicable to all of
the Employees.” Complaint ¶ 22. Any determination that paying some workers
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22
biweekly constitutes an unreasonable delay in payments solely because it violates
§ 191[1][a](i) blinks at the reality that New York Labor Law does not require all workers
to be paid weekly, undermining the argument that a biweekly payday schedule is
unreasonable especially given that the biweekly pay is double what a manual worker
would receive pursuant to a weekly pay schedule. Therefore, that an employer may be
unwise, or even foolish to pay manual workers in New York on a biweekly schedule
which risks facing legal action by New York’s Commissioner of Labor, does not render
the biweekly pay unreasonable.
Nor does a biweekly pay schedule violate the FLSA’s substantive minimum wage
requirements; rather, that determination is reached when the quotient resulting from
dividing a worker’s total regular pay by the number of hours worked in any scheduled
pay period is less than the statutorily required minimum wage as set forth in 29 U.S.C.
§ 206(a)(2).7 Whether an employer’s payment of overtime wages is determined
pursuant to a similar calculation.
Accordingly, Defendants’ motion should be GRANTED as to the FSLA claim.
C. 	ERISA Claim
ERISA was enacted in 1974 to protect the “interests of participants in
employment benefit plans,” including retirement plans. 29 U.S.C. § 1001(b). ERISA
“creates a private right of action to enforce the terms of a benefit plan.” Roganti v.
7 The court notes the federal minimum wage is $ 7.25 per hour, 29 U.S.C. § 206(a)((1)(C), whereas New
York’s minimum wage is $16 per hour in New York City, Long Island and Westchester County, and $ 15
per hour in the rest of the state. N.Y. Labor Law § 652. This difference between federal and state
minimum hourly wages demonstrates that the federal labor laws need not be construed in tandem with
state labor laws. Following Plaintiffs’ logic, i.e., that the federal and state wage laws be construed in
tandem with each other, would mean that paying a worker $ 7.25 per hour as required under federal law,
but less than the applicable New York State minimum wage, could subject an employer to liability under
both federal and New York law.
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Metro. Life Ins. Co., 786 F.3d 201, 204 (2d Cir. 2015) (citing 29 U.S.C. § 1132(a)(1)(B)).
Nevertheless, “[o]nly plaintiffs who are properly considered ‘participants’ or
‘beneficiaries’ (or ‘fiduciaries’) of an employee benefit plan have standing to sue under
ERISA. Grund v. Delaware Charter Guarantee & Tr. Co., 788 F.Supp.2d 226, 236
(S.D.N.Y. 2011) (citing cases), clarified on other grounds on reconsideration, 2011 WL
3837146 (S.D.N.Y. Aug. 30, 2011). “Therefore, in a putative class action, the named
plaintiffs must properly allege facts establishing that they are ERISA ‘participants’ or
‘beneficiaries’ in order to survive a motion to dismiss. “ Id. (quoting O'Shea v. Littleton,
414 U.S. 488, 494 (1974) (“if none of the named plaintiffs purporting to represent a
class establishes the requisite of a case or controversy with the defendants, none may
seek relief on behalf of himself or any other members of the class.”) (citations omitted in
Grund)).
Plaintiffs allege Defendants, since January 1, 2022, breached their fiduciary
duties and engaged in prohibited transactions by regularly failing to ensure that
amounts withheld from Gintzler’s employees’ paychecks as intended contributions to
the Plan were remitted to the Plan late in violation of ERISA § 404(a)(1)(A), (B), and (D);
29 U.S.C. § 1104(a)(1)(A), (B), and (D), and ERISA § 406(a)(1)(D); 29 U.S.C. §
1106(a)(1)(D), and that Defendants, rather than timely remitting the withheld funds to
the Plan, chose to use the funds to run the business. Complaint ¶¶ 29-33. In support of
dismissal, Defendants argue Plaintiffs fail to establish the court has subject matter
jurisdiction over the ERISA claim. Defendants’ Memorandum at 18-21. Defendants
further argue Plaintiffs failed to plausibly allege any ERISA claim. Id. at 21-25.
Alternatively, Defendants argue the ERISA claim should be severed from the Labor Law
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and FSLA claims. Id. at 25-26. In opposition to dismissal, Plaintiffs argue Defendants
have misconstrued the relevant statutes. Plaintiffs’ Response at 17-20. In further
support of dismissal, Defendants argue Plaintiff have not established standing for their
ERISA claim because Plaintiffs failed to allege they participated in or made
contributions to the Plan, Defendants’ Reply at 10-11, or that Plaintiffs sustained any
injury sufficient to establish standing. Id., at 11-12. Defendants also argue Plaintiffs’
“wholly conclusory allegations, unsupported by any facts, are simply insufficient to
withstand a 12(b)(6) motion to dismiss,” id. at 12-15, and again alternatively seek to
sever the ERISA claim from this action. Id. at 15.
1. 	Jurisdiction and Standing
With regard to Defendants’ argument that Plaintiffs have failed to establish
constitutional standing in this court, Defendants’ Memorandum at 18-21, because the
presence or absence of Article III standing implicates the court's subject matter
jurisdiction, the court considers this issue first. See Savage v. Sutherland Global
Services, Inc., __ F.Supp.3d __, 2024 WL 3982831, at * 4 (W.D.N.Y. Aug. 28, 2024)
(citing Singh v. United States Citizenship & Immigr. Servs., 878 F.3d 441, 445 (2d Cir.
2017) (“Federal courts are courts of limited jurisdiction and must independently verify
the existence of subject-matter jurisdiction before proceeding to the merits.”)). It is
basic that district courts lack subject matter jurisdiction if the suit at issue lacks a federal
statutory or constitutional basis for adjudication by the court. Cortlandt St. Recovery
Corp. v. Hellas Telecommunications, S.à.r.l., 790 F.3d 411, 416-17 (2d Cir. 2015) (“A
district court properly dismisses an action under Fed.R.Civ.P. 12(b)(1) for lack of subject
matter jurisdiction if the court ‘lacks the statutory or constitutional power to adjudicate it .
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. . .’”). A plaintiff has the burden to demonstrate the court has subject matter jurisdiction
over the suit, Cooke v. United States, 918 F.3d 77, 80 (2d Cir. 2019) (“The plaintiff
bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.” (internal quotation omitted)), and the court may consider facts outside the
record to determine its jurisdiction. Id. (“To resolve jurisdictional issues, we may
consider affidavits and other materials beyond the pleadings, but we cannot rely on
conclusory or hearsay statements contained in the affidavits.”). Further, although
Defendants’ argument that Plaintiffs lack standing for the ERISA claim implicates
Fed.R.Civ.P. 12(b)(1), where a “Rule 12(b)(1) motion is facial, i.e., based solely on the
allegations of the complaint or the complaint . . ., the plaintiff has no evidentiary burden.”
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (citing Amidax Trading
Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)). Rather, at the pleading
stage, “t]he task of the district court is to determine whether the Pleading ‘allege[s] facts
that affirmatively and plausibly suggest that [the plaintiff] has standing to sue.’” Id.
(quoting Amidax Trading Grp., 671 F.3d at 145) (brackets in Carter).
“Article III standing requires plaintiffs to show (1) an ‘injury in fact,’ (2) a ‘causal
connection’ between that injury and the conduct at issue, and (3) a likelihood ‘that the
injury will be redressed by a favorable decision.’” Maddox v. Bank of New York Mellon
Tr. Co., N.A., 19 F.4th 58, 62 (2d Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992) (internal quotation marks omitted)). “‘[S]tanding is not dispensed in
gross” and “a plaintiff must demonstrate standing for each claim [it] seeks to press and
for each form of relief that is sought.’” Savage, 2024 WL 3982831, at *4 (quoting Town
of Chester, N.Y. v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017) (quotations omitted)).
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Further, “[e]ach element of standing must be supported with the manner and degree of
evidence required at the successive stages of litigation,” New York v. Yellen, 15 F.4th
569, 575 (2d Cir. 2021) (alterations, internal quotation marks, and citation omitted), and
the “party invoking federal jurisdiction bears the burden of establishing these elements.”
Lujan, 504 U.S. at 561. “[W]here jurisdictional facts are disputed, the Court has the
power and the obligation to consider matters outside the pleadings to determine
whether jurisdiction exists.” Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.
1986).
In arguing Plaintiffs have failed to allege facts establishing subject matter
jurisdiction in this court over the ERISA claim, Defendants argue the Complaint is
devoid of allegations establishing the three elements for constitutional standing
including (1) that Plaintiffs suffered an injury in fact; (2) that is traceable to the
Defendants’ conduct challenged by Plaintiff; and (3) for which a favorably judicial
decision is likely to redress. Defendants’ Memorandum at 18-21. According to
Defendants, Plaintiffs have failed to plead the threshold requirements by failing to
reference the specific plan at issue, id. at 19, failing to allege any injury based on
Defendants’ conduct with respect to the Plan, id. at 19-20, and by relying solely on an
asserted statutory violation instead of claiming the violation resulted in “concrete harm.”
Id. at 20. Defendants further maintain Plaintiffs have not even alleged that they were
participants in or beneficiaries of the Plan. Id. at 20-21. In opposition, Plaintiffs argue
the Complaint sufficiently alleges Defendants, by remitting employees’ ERISA
contributions late, engaged in breaches of fiduciary duties and prohibited transactions
that resulted in harm to the Plan through the loss of use of the belatedly remitted funds.
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Plaintiff’s Response at 15-17. Plaintiffs also maintain Defendants’ reliance on the so-
called “safe harbor” provision to justify the late remittance of employee contributions to
the Plan does not apply, id. at 17-19, and that the belated remittance of the employees’
contributions also caused Plaintiffs to lose the time value of their money. Id. at 19-20.
In further support of dismissal of the ERISA claim, Defendants repeat that Plaintiffs fail
to allege they participated in or made contributions to the Plan, or are among those
injured by the alleged improper actions of Defendants acting as fiduciaries with regard
to the Plan. Defendants’ Reply at 10-15.
“ERISA defines a ‘participant’ as ‘any employee or former employee of an
employer ... who is or may become eligible to receive a benefit of any type from an
employee benefit plan.’” Caltagirone v. N.Y. Cmty. Bancorp, Inc., 257 Fed.Appx. 470,
472 (2d Cir. 2007) (quoting 29 U.S.C. § 1002(7)). In the instant case, because the
Complaint alleges each of the named Plaintiffs is or was an employee of Gintzler,
Complaint ¶¶ 4, 6, and 8, that RLG, as the parent company of Gintzler, sponsors and
maintains an employee benefit Plan pursuant to ERISA § 401(k), Complaint, ¶¶ 1 and
11, Plaintiffs are not completely without standing to sue under ERISA. Caltagirone, 257
Fed.Appx. at 473. Nevertheless, under the instant circumstances, Plaintiffs have not
alleged the requisite injury to support their ERISA claim.
In particular, “‘[t]o demonstrate injury in fact, a plaintiff must show the invasion of
a [1] legally protected interest that is [2] concrete and [3] particularized and [4] actual or
imminent, not conjectural or hypothetical.’” Id. (quoting Strubel v. Comenity Bank, 842
F.3d 181, 188 (2d Cir. 2016) (brackets in Maddox; further internal quotation marks
omitted)). In the instant case, the Complaint fails to sufficiently allege facts plausibly
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demonstrating the requisite injury in fact. See Calcano v. Swarovski N. Am. Ltd., 36
F.4th 68, 75 (2d Cir. 2022) (although courts “generally accept the truth of a plaintiff's
allegations at the motion to dismiss stage, the plaintiff still ‘bears the burden of alleging
facts that affirmatively and plausibly suggest that [the plaintiff] has standing to sue.’”
(quoting Cortlandt St. Recovery Corp., 790 F.3d at 417 (brackets in Calcano), and
quoting Amidax Trading Grp., 671 F.3d at 148 (“[F]or [a plaintiff] to have standing to
sue, its alleged injury in fact must be plausible.”)). “Assessing plausibility is ‘a context-
specific task that requires the reviewing court to draw on its judicial experience and
common sense.’” Id. (quoting Iqbal, 556 U.S. at 679). The court “need not credit ‘a
legal conclusion couched as a factual allegation’ or a ‘naked assertion devoid of further
factual enhancement,’” id. (quoting Iqbal, 556 U.S. at 678), but instead “must refer to a
complaint's ‘factual context’ to discern whether to accept ‘a complaint's conclusory
statements.’” Id. (quoting Amidax Trading Grp., 671 F.3d at 146 (quoting Iqbal, 556
U.S. at 686)). Here, the Complaint lacks the requisite factual context to establish an
injury under ERISA.
In particular, Plaintiffs’ factual allegations in support of the ERISA claim include
Between at least January 1, 202 and the present, Defendants regularly failed to
ensure that amounts withheld from paychecks of Gintzler employees were
remitted to the Plan as soon as they could reasonably be segregated from the
assets of the employer. Some remittances have been one week late and others
have been as long as one month late, each of which is untimely under applicable
standards governing the timing of 401(k) contributions.
Complaint ¶ 30.
Plaintiffs further allege that Defendants, rather than timely remitting the withheld
employees’ contributions to the Plan, retained the funds in their own accounts for the
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Defendants’ own use and benefit. Id. ¶ 32. These allegations are insufficient because
they fail to meet the facial plausibility standard.
Specifically, a claim has facial plausibility 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 (citing Twombly, 550 U.S. at 556). The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line
between possibility and plausibility of “entitlement to relief.”’ Id. (quoting Twombly, 550
U.S. at 557). Here, Plaintiffs’ claims fall short of plausibly alleging that even assuming,
arguendo, Defendants breached their fiduciary duties by failing to timely remit moneys
withheld from Gintzler’s employees’ paychecks as contributions to such employees’
individual accounts with the Plan, such belated contributions to the Plan resulted in any
reduction in value to each Plaintiff’s individual Plan account. Plaintiffs’ failure to specify
when the belated payments were remitted to the Plan asserts only a possibility, rather
than a plausibility, that Plaintiffs sustained any injury. Significantly, the missing factual
allegations cannot be attributed to Plaintiffs’ not having access to the details necessary
to sufficiently allege an actual harm, including the dates contributions were belatedly
remitted along with the market conditions at the relevant times so as to determine
whether Plaintiffs actually lost investment earnings as Plaintiffs allege. See Complaint
¶¶ 25, 47 (alleging that the late payment of Plaintiffs’ wages and late remittance of
Plaintiffs’ employee contributions to the Plan caused Plaintiffs to lose “the time value of
money”). Indeed, by belatedly remitting the various Plaintiffs’ contributions into the
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investment funds comprising the Plan may have caused the Plaintiffs to avoid
devaluation if such funds were then losing value. Accordingly, Plaintiffs have failed to
allege sufficiently facts to “nudge” the ERISA claim “across the line from conceivable to
plausible,” requiring the ERISA claim be dismissed. Twombly, 550 U.S. at 570.
Alternatively, the court addresses whether Plaintiffs have sufficiently alleged a claim for
breach of fiduciary duty under either ERISA § 404 or § 406 as asserted in the
Complaint.
2. 	Breach of Fiduciary Duty
Initially, the court addresses Defendants’ contention that Plaintiffs’ allegations
that Defendants remitted some employees’ contributions as late as one month after the
contributions were due fails to state a claim because under a so-called “safe-harbor”
provision, unpaid contributions are considered plan assets even if not yet delivered to
the plan, Defendants’ Memorandum at 23 (citing 29 C.F.R. § 2510.3-102(a)(1), and
such contributions need not be remitted to the Plan until 90 days after they become due.
Id. (citing 29 C.F.R. § 2510.3-102(c)).8 Plaintiffs, in opposition, assert the safe-harbor
provision only applies to “small” plans with no more than 100 participants, whereas the
Plan at issue has 1037 participants. Plaintiff’s Response at 16-17.9
8 Defendants’ references to these regulations as “29 C.F.R. § 2510.102(a)(1)” and “29 U.S.C. §
2510.102(c)” appear to be typographical error as neither regulation exists, but the text quoted by
Defendants is found in 29 C.F.R. §§ 2510.3-102(a)(1) and (c).
9 In support of their argument that the Plan has 1037 participants, Plaintiffs reference Defendant RLG’s
Annual Return/Report of Employee Benefit Plan Form 5500 for 2022 (Plaintiff’s Exh. A (Dkt. 35-2)), noting
that this “plan document” was relied upon in the Complaint and thus may be considered on a motion to
dismiss. Plaintiffs’ Response at 17 n. 3. A careful review of the Complaint, however, fails to show any
reference to this document. Moreover, the document itself is not a Plan document, but a document
generated by the Department of the Treasury, Internal Revenue Service (“IRS”), which Plaintiffs were
required to file on an annual basis. Nevertheless, consideration of the document is not necessary
because, as the ensuing Discussion shows, Defendants’ argument is without merit for another reason.
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Although 29 C.F.R. § 2510.3-102(c) does provide that participant contributions to
a plan must be considered as plan assets not later than “90 days from the date on
which the participant contributions are received by the employer . . . ,” thereby requiring
amounts withheld from employees’ pay as intended contributions to an ERISA plan be
deposited within 90 days, this provision, by its terms, applies only to “employee welfare
benefit plans” rather than to “employee pension benefit plans,” for which all
contributions are to be made not later than “the 15th business day of the month following
the month in which the participant contributions . . . are received by the employer . . . .”
29 U.S.C. § 2510.3-102(b). Accordingly, because at issue here is the funds allegedly
withheld from Plaintiffs’ pay as intended contributions to an employee pension plan,
rather than an employee welfare benefit plan, there is no merit to this argument
advanced by Defendants.
a. 	§ 404
Plaintiffs allege Defendants, by failing to timely remit all Gintzler employees’
contributions to the Plan, failed to administer the Plan in a prudent manner and
breached their fiduciary duties to the Plain in violation of ERISA § 404(a)(1)(A), (B), and
(D) (“§ 404__”); 29 U.S.C. § 1104(a)(1)(A), (B), and (D) (“§ 1104__”). Complaint ¶ 31.
ERISA requires a fiduciary to “discharge his duties with respect to a plan ... with the
care, skill, prudence, and diligence under the circumstances then prevailing.” 29 U.S.C.
§ 1104(a)(1)(B). “To state a claim for breach of a fiduciary duty, a plaintiff must allege
that (1) the defendant was acting as a fiduciary of the plan, (2) the defendant breached
that duty, and (3) the breach caused harm to the plaintiff.” Laboy v. Board of Trustees
of Bldg. Service 32 BJ SRSP, 513 Fed.Appx. 78, 79 (2d Cir. 2013) (citing Pegram v.
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Herdrich, 530 U.S. 211, 225–26 (2000)). Defendants argue in support of dismissal that
Plaintiffs’ “scant” allegations in the Complaint fail to plausibly allege the elements of a
§ 404 claim. Defendants’ Memorandum at 22-24; Defendants’ Reply at 10-14. In
opposition to dismissal, Plaintiffs argue the Complaint sufficiently alleges all three
elements of an ERISA § 404 violation. Plaintiffs’ Response at 15-20.
Plaintiffs’ § 404 claim that Defendants allegedly failed to timely remit employees’
contributions to the Plan is brought pursuant to ERISA § 502(a)(1)(B); 29 U.S.C.
§ 1132(a)(1)(B), which provides in relevant part
(a) Persons empowered to bring a civil action
A civil action may be brought—
(1) by a participant or beneficiary— . . .
(B) to recover benefits due to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights to future benefits under
the terms of the plan . . . .
29 U.S.C. § 1132(a)(1)(B).
A fiduciary to an ERISA plan and who breaches any responsibilities or obligations to the
plan may be personally liable to make good to the plan for any losses resulting from
such breach. ERISA § 409(a); 29 U.S.C. § 1109(a).
Plaintiffs’ ERISA claim alleges violations of § 404 based on breaches of the
fiduciary duties of loyalty, prudence, and to monitor the Plan. Fiduciaries under ERISA
are bound by “a number of detailed duties and responsibilities, which include the proper
management, administration, and investment of [plan] assets, the maintenance of
proper records, the disclosure of specified information, and the avoidance of conflicts of
interest.” Mertens v. Hewitt Assocs., 508 U.S. 248, 251–52 (1993) (internal quotation
marks omitted). “‘To state a claim for breach of fiduciary duty [under ERISA], a
complaint must allege that (1) the defendant was a fiduciary who (2) was acting in a
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fiduciary capacity, and (3) breached his fiduciary duty.’” Bloom v. AllianceBernstein
L.P., 725 F.Supp.3d 325, 335 (S.D.N.Y. 2024) (quoting Cunningham v. USI Ins. Servs.,
LLC, 2022 WL 889164, at *2 (S.D.N.Y. Mar. 25, 2022), and citing In re Pfizer ERISA
Litig., 2009 WL 749545, at *6 (S.D.N.Y. Mar. 20, 2009) (citing 29 U.S.C. § 1109)).
“Under ERISA, a fiduciary must ‘discharge his duties with respect to a Plan ... with the
care, skill, prudence, and diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such matters would use ....’” Id.
(quoting 29 U.S.C. § 1104(a)).
As relevant here,
[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any
discretionary authority or discretionary control respecting management of such
plan or exercises any authority or control respecting management or disposition
of its assets, (ii) he renders investment advice for a fee or other compensation,
direct or indirect, with respect to any moneys or other property of such plan, or
has any authority or responsibility to do so, or (iii) he has any discretionary
authority or discretionary responsibility in the administration of such plan.
29 U.S.C. § 1002(21)(A) (“§ 1002(21)(A)”).
Here, Plaintiffs’ claim pursuant to § 404 is inadequately pleaded for several reasons.
First, Plaintiffs fail to adequately allege either Defendant is a fiduciary with regard
to the Plan. Although Plaintiffs allege Gintzler, as Plaintiffs’ employer, is a “party in
interest” of the Plan, Complaint ¶ 10, for purposes of ERISA, the term “party in interest”
includes “an fiduciary, including, but not limited to, any administrator, officer, trustee, or
custodian), counsel, or employer of such benefit plan,” 29 U.S.C. § 1002(14)(A), as well
as “an employer any of whose employees are covered by such plan,” 29 U.S.C.
§ 1002(14)(C), but that the terms “fiduciary” is not inclusive of the term “employer.” In
other words, although both a fiduciary and an employer can be parties in interest to an
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ERISA plan, an employer is not necessarily an ERISA plan fiduciary. See Lockheed
Corp. v. Spink, 517 U.S. 882, 890 (1996) ((observing employers, as plan sponsors, do
not act as fiduciaries when deciding to adopt or terminate an ERISA plan) (citing cases).
It is “‘[o]nly when fulfilling certain defined functions, including the exercise of
discretionary authority or control over plan management or administration,’” that an
employer or plan sponsor becomes a fiduciary pursuant to § 1002(21)(A). Id. (quoting
Siskind v. Sperry Retirement Program, Unisys, 47 F.3d 498, 505 (1995), abrogation on
other grounds recognized by Janese v. Fay, 692 F.3d 221, 227 (2d Cir. 2012)). The
Complaint thus fails to allege Defendant Gintzler is a fiduciary with regard to the Plan,
thereby foreclosing even the possibility that Gintzler breached any fiduciary duty with
regard to the Plan.
Similarly, although Plaintiffs allege Defendant RLG is the sponsor of the Plan,
Complaint ¶ 11, a “plan sponsor” is not defined under ERISA to include a plan fiduciary.
Significantly, ERISA defines a “plan sponsor” to include the employer with regard to a
single employer plan, the employee organization for a plan established or maintained by
an employee organization, the association, committee, joint board of trustees or similar
group of representatives for a plan established or maintained jointly by two or more
employees, or the pooled plan provider for a pooled employer plan. See 29 U.S.C.
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§ 1002(16)(B). Here, Plaintiffs do not even allege which type of ERISA plan is at issue
so it is impossible to determine whether RLG is, in fact, the Plan sponsor.10, 11
Further, “‘ERISA itself does not make plain where one finds the ‘terms’ of an
ERISA plan, other than to mandate that ‘[e]very employee benefit plan shall be
established and maintained pursuant to a written instrument.’ ’” Division 1181
Amalgamated Transit Union-New York Employees Pension Fund v. New York City
Department of Education, 527 F.Supp.3d 455, 464-65 (quoting Silverman v. Teamsters
Local 210 Affiliated Health and Ins. Fund., 761 F.3d 277, 286 (quoting 29 U.S.C.
§ 1102(a)(1))), aff’d, 9 F.4 th 91 (2d Cir. 2021). In the instant case, the Complaint fails to
plausibly allege that Defendants had any obligations as fiduciaries under the terms of
the Plan, nor is any copy of the Plan or the Plan Summary attached to the Complaint or
otherwise provided to the court for review. Furthermore, as pleaded, nothing in the
Complaint suggests the remittance of Plaintiffs’ contributions to the Plan was a
discretionary act, as opposed to administrative act, as required to find either Defendant
is a Plan fiduciary. See 29 U.S.C. § 1002(21)(A)(i) and (iii) (providing, as relevant, a
person is a fiduciary with respect to a plan when exercising “any discretionary authority
10 Although Plaintiffs do not describe the Plan in any detail, and in fact do not even provide the complete
title of the Plan, the court notes that an IRS document Plaintiffs filed in opposition to Defendants’ motion
indicates the Plan is a single-employer plan. See Plaintiff’s Exh. A (Dkt. 35-2) (Annual Return/Report of
Employee Benefit Plan Form 5500 for 2022). Because the court’s consideration of a motion to dismiss is
limited to the pleadings and any documents attached thereto or incorporated by reference into the
pleadings, this document is not considered at this time. See footnote 9, supra.
11 The court notes that the type of Plan is relevant to whether Plaintiffs can even bring a claim against
Gintzler, as the employer, for failing to make required contributions to the Plan. Although 29 U.S.C.
§ 1145 permits a plan’s trustees to bring such a claim against a multiemployer plan, there is no parallel
provision for non-remittance of contributions to single-employer plans. See Fiduciary duty to collect
contributions due to a plan, RIA Pension & Benefits Library, Pens. Analysis P 50,052, 2024 Thompson
Reuters Tax and Accounting RIA Pension analysis, available at http://1.next.westlaw.com/Document/
1315064601d4811e498db8b09b4f043e0/View/FullText.html?, last visited January 4, 2025 (“Congress
enacted ERISA 515 [29 U.S.C. § 1145] to allow multiemployer plan trustees to sue for delinquent
contributions under ERISA. No similar ERISA obligation is imposed on single-employer plans.”).
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36
or discretionary control respecting management of such plan or exercises any authority
or control respecting management or disposition of its assets, or “he has any
discretionary authority or discretionary responsibility in the administration of such plan”).
Accordingly, the Complaint asserts a perfunctory recitation of the elements of a § 404
claim, bereft of any factual allegations in support and to nudge the claim over the line
from possible to plausible. See Twombly, 550 U.S. at 570.
b. 	§ 406
Plaintiffs allege Defendants, by failing to timely remit the amounts withheld from
Gintzler’s employees’ paychecks and instead using the funds intended as contributions
to the Plan for Defendants’ own benefit, engaged in prohibited transactions in violation
of ERISA § 406(b)(1) and (2) (“§ 406__”); 29 U.S.C. § 1106(b)(1) and (2) (“§ 1106__”).
Complaint ¶¶ 29-33. ERISA § 406(b)(1) prohibits a plan fiduciary from “deal[ing] with
the assets of the plan in his own interest or for his own account.” In re Consol. Welfare
Fund ERISA Litig., 839 F.Supp.1068, 1072 (S.D.N.Y. 1993) (citing 29 U.S.C.
§ 1106(b)(1)). ERISA § 406(b)(2) prohibits a plan fiduciary from acting in his individual
or in any other capacity “in any transaction involving the plan on behalf of a party (or
represent [sic] a party) whose interests are adverse to the interests of the plan or the
interests of its participants or beneficiaries . . . .” 29 U.S.C.A. § 1106(b)(2).
In support of dismissal, Defendants argue Plaintiffs’ failure to plausibly allege
Plaintiffs acted as fiduciaries with regard to the Plan, or that any of Defendants’ actions
were harmful to the Plan, require dismissal of this claim, Defendants’ Memorandum at
24-25; Defendants’ Reply at 14-15, that Plaintiffs’ claims fail to allege the unpaid
contributions were assets of the plan as required to establish Defendants had control
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37
over the funds, Defendants’ Memorandum at 23, that Plaintiffs were harmed by any late
contributions, id. at 24, or that Defendants were acting as fiduciaries with regard to the
complained-of conduct. Id. at 24-25. Alternatively, Defendants argue the ERISA claim
should be severed from the Labor Law and FSLA claims. Id. at 25-26. In opposition,
Plaintiffs maintain the Complaint sufficiently alleges that Defendants, who are Plan
fiduciaries, used the late deposits for their own benefit, Plaintiffs’ Response at 20, but
do not address Defendants’ other arguments in support of dismissal.
ERISA makes it unlawful for plan fiduciaries to engage in certain “prohibited
transactions.” 29 U.S.C. § 1106; see also Skin Pathology Assocs., Inc. v. Morgan
Stanley & Co. Inc., 27 F.Supp.3d 371, 374 (S.D.N.Y. 2014) (“Congress, in addition to
establishing basic standards of care, defined certain types of transactions in which
fiduciaries may not engage or cause their plans to engage.”). As relevant here, ERISA
§ 406(b) prohibits certain transactions between a “fiduciary” and a plan, dictating that a
fiduciary with respect to a plan shall not:
(1) deal with the assets of the plan in his own interest or for his own account, (2)
in his individual or in any other capacity act in any transaction involving the plan
on behalf of a party (or represent a party) whose interests are adverse to the
interests of the plan or the interests of its participants or beneficiaries, or (3)
receive any consideration for his own personal account from any party dealing
with such plan in connection with a transaction involving the assets of the plan.
Id. § 1106(b).
ERISA § 406(b) “‘codifie[s]’ certain core tenets of the duty of loyalty ‘by prohibiting [a
plan's fiduciary from engaging in] transactions tainted by a conflict of interest and thus
highly susceptible to self-dealing[.]’” Bloom, 725 F.Supp.3d at 344 (quoting
Cunningham, 86 F.4th at 973) (bracketed material in Bloom); Cunningham, 2022 WL
889164, at *2. Here, as discussed above, Discussion, supra, at 33-34, Plaintiffs have
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not adequately alleged either Defendant is a fiduciary with respect to the Plan, thus
defeating Plaintiffs’ ERISA claim based on § 406.
Plaintiffs’ ERISA claim, based on § 404 and § 406, thus should be DISMISSED.
3. 	Severance of Claim
Defendants’ alternative argument that the ERISA claim should be severed from
the Labor Law and FSLA claims is rendered moot assuming the District Judge agrees
with the undersigned’s recommendations that the Labor Law and FSLA claims be
dismissed.
3. 	Motion for Conditional Certification
Plaintiffs’ motion seeking conditional certification would be rendered moot by the
court’s dismissal of the Complaint for failure to state a claim.
4. 	Dismissal with Leave to Replead
Plaintiffs argue that if Defendants’ motion to dismiss is granted, Plaintiff should
be granted leave to file an amended complaint, and attach a proposed amended
complaint (“PAC”)in support of the request. Plaintiff’s Response at 21-22 and Plaintiffs’
Exh. B (Dkt. 35-3). Defendants oppose the request as procedurally improper absent an
actual motion, Defendants’ Reply at 15-16, assert the PAC will not cure the defects in
the Complaint, id. at 16-17, and argue that insofar as the PAC seeks to assert two new
paragraphs relevant to the FSLA claim that Defendants failed to promptly pay Plaintiffs’
wages, are time-barred. Id. at 17-18. Because Plaintiffs have not formally moved for
leave to file an amended complaint, the court considers the PAC only with regard to
whether dismissal of Plaintiffs’ claims should be with or without prejudice.
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As a general matter, “‘[t]he district court has discretion whether or not to grant
leave to amend, and its decision is not subject to review on appeal except for abuse of
discretion ....’” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)
(quoting 3 Moore's Federal Practice ¶ 15.08 [4], at 15–64 (2d ed. 1992) (footnotes
omitted), and citing Foman v. Davis, 371 U.S. 178, 182 (1962), and Evans v. Syracuse
City School District, 704 F.2d 44, 47 (2d Cir. 1983)). Although in exercising such
discretion, “the district court is required to heed the command of Rule 15(a) to grant
leave to amend ‘freely . . . when justice so requires,’” id. (quoting Fed.R.Civ.P. 15(a),
and citing Foman, 371 U.S. at 182, Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir.
1990), and 3 Moore's Federal Practice ¶ 15.08[4], at 15–65), “[w]here it appears that
granting leave to amend is unlikely to be productive . . . it is not an abuse of discretion
to deny leave to amend. Id. (citing Foman, 371 U.S. at 182 (denial not abuse of
discretion where amendment would be futile); Health–Chem Corp. v. Baker, 915 F.2d
805, 810 (2d Cir. 1990) (“where . . . there is no merit in the proposed amendments,
leave to amend should be denied”); and Billard v. Rockwell International Corp., 683
F.2d 51, 57 (2d Cir. 1982) (denial not abuse of discretion where plaintiff had had
“access to full discovery” in a related case)). See also Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (affirming dismissal of plaintiff's claim for failure to state a claim
with prejudice and without leave to replead where even a liberal reading of complaint
failed to suggest plaintiff had merely inadequately or inartfully pleaded and plaintiff,
speaking through counsel on appeal, suggested no new material that could be pleaded
to sufficiently reframe claim, such that repleading would be futile). Nor does a district
court abuse its discretion in denying leave to replead where the papers provide “no clue
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40
as to how the complaint's deficiencies would be cured.” Noto v. 22nd Century Group,
Inc., 35 F.4th 95, 107 (2d Cir. 2022).
Here, Plaintiff’s papers filed in opposition fail to provide any clue as to how the
deficiencies of the New York Labor Law and FSLA claims might be cured. Noto, 35
F.4 th at 107. This is not surprising given the problems with Plaintiff's New York Labor
Law and FSLA claims are substantive, as discussed, see Discussion, supra, at 11-17
(Labor Law claim), and 17-22 (FSLA claim), such that further pleading cannot cure them
and would therefore be futile. See Cuoco, 222 F.3d at 112. The dismissal of Plaintiff's
Labor Law and FSLA claims thus should be with prejudice and without leave to replead.
Although Plaintiffs’ ERISA claim is subject to dismissal based on the paucity of
factual allegations, a deficiency that is not cured by the newly asserted allegations in the
PAC that essentially only provides concrete dates for which Plaintiffs maintain employee
contributions to the Plan were not timely remitted, see PAC ¶ 34, the problems with the
ERISA claim are not substantive. Accordingly, the ERISA claims should be dismissed
with leave to replead.
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CONCLUSION
Based on the foregoing, Plaintiffs’ motion (Dkt. 8), is DISMISSED without
prejudice and with leave to refile; Plaintiffs’ alternative request for leave to file an
amended complaint is DENIED; Defendants’ motion (Dkt. 25), should be GRANTED
and the Complaint dismissed with leave to refile only as to the ERISA claim.
SO ORDERED, with respect to Plaintiff’s
motion (Dkt. 8), and Plaintiff’s request to
file an amended complaint.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Respectfully submitted, as to Defendants’
motion (Dkt. 25),
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	January 14, 2025
Buffalo, New York
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ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiffs and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	January 14, 2025
Buffalo, New York
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