Ramirez et al v. E.N. Home Improvement Inc. et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:22-cv-01086-EK-PCG
Document 73 Filed 02/16/26 Page 1 of 13 PageID #:

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X
ALEJANDRO RAMIREZ et al., individually and on behalf of all others similarly-situated,
MEMORANDUM & ORDER
22-CV-1086 (EK) (PCG)
Plaintiffs,
-against-
E. N. HOME IMPROVEMENT INC. et al.,
Defendants.
ERIC KOMITEE, United States District Judge: X
The named plaintiffs in this case are construction workers. They bring claims under the Fair Labor Standards Act and New York Labor Law against two corporations and two individuals they allege functioned collectively as their "joint employers." Plaintiffs allege that the defendants failed to pay them for all hours worked and for overtime, and also failed to provide them with required wage statements and notices.
Two defendants - ASF Construction & Excavation Corp. and Andre Fernandes - have moved to dismiss for failure to state a claim. They argue that the complaint does not plausibly allege that they functioned as the plaintiffs' "employers" (joint or otherwise) within the meaning of the operative statutes. Because the complaint's allegations on this score are conclusory and do not distinguish among the defendants, this
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

2
motion is granted; plaintiffs are, however, granted leave to
amend. 	Plaintiffs are also directed to show cause why their
wage notice and wage statement claims should not be dismissed
for lack of Article III standing.
Background
The following facts are drawn from the amended
complaint and are presumed true for purposes of this action.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007).
Defendants E.N. Home Improvement Inc. (“E.N. Home”)
and ASF Construction & Excavation Corp. (“ASF”) are construction
companies based in New York. 	Am. Compl. (“Compl.”) ¶¶ 15-16,
ECF No. 41.1 	Defendant Andre Fernandes owns ASF. 	Id. ¶ 42. 	He
oversees daily operations at ASF, determines how its employees
are paid, and establishes “work schedules” and “hours of work.”
Id. ¶¶ 44, 49, 54. 	Defendant Carlos Arevalo owns E.N. Home.
Id. ¶ 29. 	Arevalo, too, oversees that company’s daily
operations, determines how its employees are paid, and
establishes “work schedules” and “hours of work.” 	Id. ¶¶ 31,
36, 37. 	E.N. Home “would issue corporate checks to pay” ASF
workers. 	Id. ¶ 21. 	Arevalo signed these checks, which “often”
bounced. 	Id. ¶ 97.
1 The complaint does not actually allege that the two companies are
construction companies. 	The Court draws this inference based on their names,
references to “jobsites,” and other context. 	Compl. ¶ 22.
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 2 of 13 PageID #:
<pageID>

3
All plaintiffs allege that they were employed by all
four defendants. 	Each plaintiff alleges different dates of
employment, ranging from May 2018 to March 2022. Id. ¶¶ 56, 64,
72, 80, 87. 	All plaintiffs allege that they regularly worked
more than forty hours per week and were not paid for that time.
Id. ¶¶ 61, 63, 69-71, 76, 79, 84, 86, 91, 93. 	Defendants also
did not provide plaintiffs with wage statements upon each
payment of wages, nor a written notice in English and Spanish
(the plaintiffs’ primary language) of their applicable rate of
pay and regular pay day. 	Id. ¶¶ 131, 134.
Notably absent from the complaint are several facts.
These include any allegation about what work each company did,
either generally or in the context of specific projects. 	Though
plaintiffs allege Fernandes’ relationship with ASF, and
Arevalo’s relationship with E.N. Home, they do not describe the
relationship between the two sets of defendants with any non-
conclusory factual content.
Plaintiffs bring claims for unpaid wages and overtime
under the Fair Labor Standards Act (“FLSA”) and New York Labor
Law (“NYLL”). 	They also bring wage statement and wage notice
claims under the NYLL.
ASF and Fernandes moved to dismiss for failure to
state a claim, and Fernandes moved to dismiss for insufficient
service of process. 	ECF No. 43. 	Though service was neither
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 3 of 13 PageID #:
<pageID>

4
timely nor proper, the Court denied Fernandes’ motion and
granted plaintiffs an additional sixty days to serve him. 	Mem.
& Order, ECF No. 66. 	Plaintiffs have since served Fernandes,
ECF No. 68,2 and he no longer contests the adequacy of service,
ECF No. 71.
Discussion
A. 	Legal Standard
To overcome a motion to dismiss under Rule 12(b)(6), a
complaint must plead facts sufficient “to state a claim to
relief that is plausible on its face.” 	Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). 	The Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. 	See Lundy v.
Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d
Cir. 2013).3 	The Court need not credit “conclusory allegations
or legal conclusions masquerading as factual conclusions.”
Smith v. Loc. 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d
Cir. 2002).
2 In response to the Court’s order, plaintiffs filed two affidavits of
service. 	Inexplicably, the first contained the very same flaw the Court
described in its prior order: the process server did not note on which door
of Fernandes’ multi-unit building he affixed the summons. 	See ECF No. 67.
3 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 4 of 13 PageID #:
<pageID>

5
B. 	Plaintiffs Have Not Plausibly Pled that ASF and
Fernandes Were Their Employers
To assert an FLSA claim, a plaintiff must plausibly
allege that “(1) the defendant is an employer subject to the
FLSA; (2) the plaintiff is an employee within the meaning of the
FLSA; and (3) the employment relationship is not exempted from”
the statute. 	Sanchez v. Ms. Wine Shop Inc., 643 F. Supp. 3d
355, 366 (E.D.N.Y. 2022). 	Here, the parties dispute only the
second element. 	The FLSA’s definition of “employer” is broad,
and reaches both entities and persons. 	Herman v. RSR Sec.
Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (a person may be
an “employer” under the FLSA). 	Additionally, a single employee
can have multiple employers, each individually and jointly
responsible for the FLSA’s requirements. 	See Barfield v. New
York City Health & Hosps. Corp., 537 F.3d 132, 141 (2d Cir.
2008).
“[T]he determination of whether an employer-employee
relationship exists . . . should be grounded in economic reality
rather than technical concepts.” 	Irizarry v. Catsimatidis, 722
F.3d 99, 104 (2d Cir. 2013).4 	The “overarching concern is
4 “Courts applying both the FLSA and the New York Labor Law have
concluded that the standards by which a court determines whether an entity is
an ‘employer’ under the FLSA also govern that determination under the NYLL.”
Mangahas v. Eight Oranges Inc., 754 F. Supp. 3d 468, 492 (S.D.N.Y. 2024)
(collecting cases); see also Hart v. Rick’s Cabaret Int’l, Inc., 967 F. Supp.
2d 901, 924 (S.D.N.Y. 2013) (“[T]here appears to have never been a case in
which a worker was held to be an employee for purposes of the FLSA but not
the NYLL (or vice versa).”).
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 5 of 13 PageID #:
<pageID>

6
whether the alleged employer possessed the power to control the
workers in question.” 	Herman, 172 F.3d at 139.
Here, plaintiffs allege that ASF and Fernandes were
their joint employers, along with E.N. Home and Arevalo. 	In
assessing putative joint employers, “[t]he Second Circuit has
identified two sets of factors relevant to” the economic reality
test. 	In re Domino’s Pizza Inc., No. 16-CV-2492, 2018 WL
4757944, at *4 (S.D.N.Y. Sept. 30, 2018). 	One set of factors
“examine[s] the degree of formal control exercised over a
worker.” 	Barfield, 537 F.3d at 143. 	Formal control is
sufficient, but not necessary. 	Zheng v. Liberty Apparel Co.
Inc., 355 F.3d 61, 71 (2d Cir. 2003). 	A putative joint employer
may have “lacked formal control” but “nevertheless exercised
functional control over a worker.” 	Barfield, 537 F.3d at 143.
Plaintiffs fail to plausibly allege that ASF and Fernandes were
their joint employers under either approach.
Formal Control. 	In Carter v. Dutchess Community
College, the Second Circuit instructed courts to assess whether
the putative employer “(1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules
or conditions of employment, (3) determined the rate and method
of payment, and (4) maintained employment records.” 	735 F.2d 8,
12 (2d Cir. 1984). 	Here, the complaint fails to plausibly
allege facts that would satisfy the Carter factors. 	As to ASF,
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 6 of 13 PageID #:
<pageID>

7
the complaint alleges that ASF and E.N. Home were “jointly
responsible” for “hiring or firing employees,” “supervision of
Plaintiffs’ work,” “setting terms and conditions of employment,”
and “determining Plaintiffs’ hours and pay” at jobsites. 	Compl.
¶¶ 22-25. 	These allegations simply parrot the Carter factors,
without any supporting factual content. 	There are no
allegations, for example, regarding how or when ASF and E.N.
Home (or their agents) made these decisions, and no specific
decisions cited. 	Nor are there allegations as to which company
interviewed which plaintiff or offered them employment. 	This is
insufficient, as “boilerplate” allegations that “merely track
certain factors of the economic reality test” will not state a
claim. 	Collison v. WANDRD, LLC, 737 F. Supp. 3d 231, 243
(S.D.N.Y. 2024) (collecting cases); see generally Twombly, 550
U.S. at 555 (“[L]abels and conclusions and a formulaic
recitation of the elements of a cause of action will not do.”).
The allegations regarding Fernandes fare no better.
The complaint alleges that Fernandes was “responsible for
determining [and] establishing . . . [Plaintiffs’] work
schedules.” 	Compl. ¶ 50. 	Fernandes was also allegedly
“responsible for determining how the employees including
Plaintiffs were paid,” for determining their “rate of pay,” for
“distributing the pay,” and for maintaining employment records.
Id. ¶¶ 51-54. 	Again, these conclusory allegations lack specific
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 7 of 13 PageID #:
<pageID>

8
factual content and simply parrot the Carter factors. 	In Perez
Perez v. Escobar Constr., Inc., the Second Circuit held that a
complaint plausibly alleged employer status under Carter. 	No.
23-1240, 2024 WL 3594325, at *3 (2d Cir. July 31, 2024). 	There,
the complaint contained “specific factual allegations” in
support of the Carter factors, such as specific promises
defendant made to an individual plaintiff regarding his wage
increases, as well as that defendant’s role in hiring
plaintiff’s supervisor. 	Id. 	Here, the complaint has no such
specific allegations.5
Plaintiffs make certain additional — but still generic
— allegations against all defendants. 	For example, three of the
five named plaintiffs indicate that they performed
“miscellaneous job duties and tasks . . . for Defendants.”
Compl. ¶¶ 73, 81, 88. 	But “it is well-established in this
Circuit that plaintiffs cannot simply lump defendants together
for pleading purposes.” 	Nesbeth v. New York City Mgmt. LLC, No.
17-CV-8650, 2019 WL 110953, at *3 (S.D.N.Y. Jan. 4, 2019); see
also Atuahene v. City of Hartford, 10 F. App’x 33, 34 (2d Cir.
2001) (complaint may not “lump[] all the defendants together in
5 The complaint does specifically allege that Fernandes distributed pay.
But that allegation is in tension, at least, with the complaint’s allegation
that E.N. Home and Arevalo (not Fernandes) paid plaintiffs. 	Compl. ¶ 21; cf.
DPWN Holdings (USA), Inc. v. United Air Lines, Inc., 747 F.3d 145, 151–52 (2d
Cir. 2014) (“Although factual allegations of a complaint are normally
accepted as true on a motion to dismiss, that principle does not apply to
general allegations that are contradicted by more specific allegations in the
Complaint.”).
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 8 of 13 PageID #:
<pageID>

9
each claim and provid[e] no factual basis to distinguish their
conduct”).6 	Courts regularly reject such “group pleading” when
confronted with allegations that “particular defendants
constitute employers.” 	Ortiz v. Consol. Edison Co. of New York,
Inc., No. 22-CV-8957, 2024 WL 3086161, at *9 (S.D.N.Y. June 7,
2024), report and recommendation adopted, 2024 WL 3105686
(S.D.N.Y. June 24, 2024) (collecting cases); e.g., Shi Ming Chen
v. Hunan Manor Enter., Inc., No. 17-CV-802, 2018 WL 1166626, at
*9 (S.D.N.Y. Feb. 15, 2018). 	Thus, plaintiffs’ allegations do
not plausibly allege that ASF or Fernandes was their joint
employer under Carter.
Functional Control. 	Because the Carter factors are
sufficient, but not necessary, to determine joint-employer
status, we proceed to consider whether ASF or Fernandes
“nevertheless exercised functional control” over plaintiffs.
Barfield, 537 F.3d at 143. 	Here, the Second Circuit has
described a non-exhaustive list of relevant factors, including
“(1) whether [the putative joint employer’s] premises and
equipment were used for the plaintiffs’ work; (2) whether the
[plaintiffs’ employer] had a business that could or did shift as
a unit from one putative joint employer to another; (3) the
extent to which plaintiffs performed a discrete line-job that
6 The other two plaintiffs — Ramirez and Juan De La Rosa — performed
such duties and tasks “for the Individual Defendants.” 	Compl. ¶¶ 57, 65.
These allegations feature the same defect.
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 9 of 13 PageID #:
<pageID>

10
was integral to [the alleged employer’s] process of production;
(4) whether responsibility under the contracts could pass from
one subcontractor to another without material changes; (5) the
degree to which the [putative joint employer] or [its] agents
supervised plaintiffs’ work; and (6) whether plaintiffs worked
exclusively or predominantly for the [putative joint employer].”
Zheng, 355 F.3d at 72.
The complaint touches on only two of these factors:
supervision and use of premises and equipment. 	The allegations
regarding supervision are conclusory and group-pled, and thus
cannot meet the Zheng enquiry. 	Regarding shared premises and
equipment, the complaint alleges that there were jobsites at
which ASF and E.N. Home employees worked, but not whether ASF
and E.N. Home employees worked at the same jobsite at the same
time, or where these jobsites even were. 	Compl. ¶¶ 22-25.7
Finally, the complaint alleges that Fernandes and Arevalo
purchased goods, products, and materials for plaintiffs that
they used daily while working for both ASF and E.N Home. 	Id.
¶ 28. 	But again, the complaint does not include allegations
regarding whether ASF and E.N Home employees shared these
materials. 	The complaint thus fails to allege joint-employer
status under Zheng.
7 Adding further confusion, in three consecutive allegations the
complaint references a single “job site,” multiple “job sites,” and the
middle ground of “job site(s).” 	Compl. ¶¶ 22-24.
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 10 of 13 PageID #:
<pageID>

11
* 	* 	*
Courts “routinely dismiss[] complaints that do nothing
but recite the Carter and Zheng factors and claim that an
alleged employer satisfies them without offering further
detail.” 	Ortiz, 2024 WL 3086161, at *14. 	So, for example,
allegations that a restaurant manager “determines the wages and
compensation of the employees of Defendants, including
Plaintiffs, establishes the schedules of the employees,
maintains employee records, and has the authority to hire and
fire employees” did not provide “the specific factual
allegations necessary to satisfy the economic reality test.”
Fallon v. 18 Greenwich Ave., LLC, No. 19-CV-9579, 2021 WL
1105066, at *4 (S.D.N.Y. Mar. 23, 2021). 	The allegations in
this case are at least as conclusory as those held insufficient
in the cited cases.
C. 	Leave to Amend
Federal Rule of Civil Procedure 15(a) provides that
leave to amend “shall be freely given when justice so requires.”
Initially, defense counsel indicated that it would seek
dismissal only of the claims brought against Fernandes. 	See
Eden Ltr., ECF No. 36. 	Though plaintiffs amended their
complaint in response, they have not yet had an opportunity to
amend this complaint to add further factual allegations about
ASF and the relationship among the defendants. 	The Court will
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 11 of 13 PageID #:
<pageID>

12
therefore grant plaintiffs’ request for leave to amend. 	See
Pl.’s Resp. 2, ECF No. 48.8
D. 	Plaintiffs’ Wage Notice and Wage Statement Claims
No defendant has questioned plaintiffs’ standing to
bring their NYLL wage statement or wage notice claims. 	Because
the issue implicates its subject-matter jurisdiction, however,
the Court has an affirmative obligation to evaluate whether
standing exists as to each of plaintiffs’ claims. 	E.g.,
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006).
Numerous courts in the Second Circuit have concluded
that employees lacked standing to bring a NYLL wage statement
and wage notice claim when they failed to allege any concrete
injury traceable to such a violation. 	See Choi v. SD Tools,
Inc., No. 19-CV-2008, 2024 WL 4989224, at *16 (E.D.N.Y. Dec. 5,
2024) (collecting cases). 	“[T]echnical violations of the Labor
Law” are not enough; rather, a plaintiff “must allege actual
injuries suffered as a result of the alleged wage notice and
wage statement violation.” 	Guthrie v. Rainbow Fencing Inc., 113
F.4th 300, 305 (2d Cir. 2024). 	Accordingly, plaintiffs will be
ordered to show cause why these claims should not be dismissed
for lack of subject-matter jurisdiction.
8 Page numbers in citations to the parties’ briefs refer to native
pagination.
Case 1:22-cv-01086-EK-PCG Document 73 Filed 02/16/26 Page 12 of 13 PageID #:
<pageID>

Case 1:22-cv-01086-EK-PCG
Document 73 Filed 02/16/26 Page 13 of 13 PageID #:

Conclusion
For the reasons set forth above, the motion to dismiss is granted, with leave to amend. Plaintiffs may file an amended complaint by March 18 addressing the deficiencies identified. Plaintiffs are also ordered to show cause by that date why their NYLL wage notice and wage statement claims should not be dismissed for lack of subject-matter jurisdiction. Plaintiffs' submission should not exceed three pages.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE United States District Judge
Dated:
February 16, 2026
Brooklyn, New York
13