Gutierrez v. Luck Grove Construction Inc. et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Armando A. Ortiz, Esq., for Plaintiff
Dean DiPilato, Esq., for Defendants
Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Brian Gutierrez, individually and on behalf of similarly situated coworkers, began
this action on May 2, 2025. Dkt. No. 1. The Amended Complaint (Am. Compl.) alleges violations
of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201, et seq., and New York Labor
Law (NYLL) and supporting regulations, N.Y. Lab. Law. §§ 190, 650 et seq., N.Y. Comp. Codes.
R. & Regs. tit. 12, § 142-2.2., by Defendants Luck Grove Construction, Inc. (Construction) and
Luck Grove Telecom, Inc. (Telecom). Am. Compl. ¶¶ 113–54, Dkt. No. 9. Presently before the
Court is Defendants’ motion to dismiss portions of the Amended Complaint under Federal Rule
of Civil Procedure 12(b)(6) and to strike portions of the Amended Complaint under Federal Rule
of Civil Procedure 12(f). Dkt. No. 10. The motion is fully briefed, Dkt. Nos. 10-1, 16, 17, and
oral argument is not necessary. For the following reasons, Defendants’ motion is denied.
BRIAN GUTIERREZ, on behalf of himself
and all others similarly situated,
Plaintiff,
v.
LUCK GROVE CONSTRUCTION INC.
and LUCK GROVE TELECOM INC.,
Defendants.
5:25-cv-552
(ECC/CBF)
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I. 	FACTS1
Plaintiff was employed “as a top hand tower technician from approximately January 9,
2023 to September 12, 2023,” working “in and around the Syracuse, New York area.” Am. Compl.
¶¶ 94–95. Construction was “listed as the corporate payor” on Plaintiff’s pay stubs. Id. at ¶ 50.
Construction 	and 	Telecom 	are 	“telecommunications 	and 	utilities 	engineering 	and
construction” companies created in 2008 and “aimed at connecting businesses and communities
with fast, reliable, and efficient communications services.” Am. Compl. ¶ 2. They offer “services
in a variety of telecommunications related areas, namely, land surveys, data collection through
field verification, engineering assessments, and post-inspection, fiber-optic network design,
engineering, and installation for commercial and residential purposes, and fixed line construction.”
Id. at ¶ 3. Defendants’ revenue in 2023 was $33 million. Id. at ¶ 11.
Defendants have their “corporate headquarters” in Syracuse, New York with offices in
Tampa, Florida and Watseka, Illinois. Am. Compl. ¶ 4. Defendants “share employees, services,
records, and equipment among one another,” and “time keeping systems between the two entities
are commonly managed and controlled.” Id. at ¶ 6. In addition, “employees are shared between
job sites, and [Defendants’] employees share equipment without regard to what entity may
technically ‘own’ such equipment.” 	Id. 	Human resources for Defendants is organized under
Telecom, “as indicated in emails between Plaintiff and the [Human Resources] Department.” Id.
at ¶ 8. 	The Human 	Resources Department 	“would handle employee grievances 	for all
[Defendants’] workers.” Id. Employee records are maintained by Telecom. Id. at ¶ 9. Telecom
1 These facts are drawn from the Amended Complaint. The Court assumes the truth of, and draws
reasonable inferences from, the well-pleaded factual allegations, see Lynch v. City of New York,
952 F.3d 67, 74–75 (2d Cir. 2020), but does not accept as true any legal conclusions, see Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
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uses Construction to “process payroll checks.” 	Id. at ¶ 14. 	Defendants also share a common
website where they “refer to one another interchangeably without regard to ‘construction’ or
‘telecom.’” Id. at ¶ 11. The website career page “does not differentiate between applying for jobs
to Telecom or Construction, rather, prospective employees simply can request more information
for ‘Luck Grove’ potential job opportunities.” Id. at ¶ 12. The “website also identifies common
management between the” Defendants including the President and Owner, Chief Executive
Officer, Chief Operations Officer, and Chief Technical Officer. Id. at ¶ 13.
Plaintiff regularly worked more than 40 hours a week, but he was not always paid at a
higher rate for overtime. Am. Compl. ¶¶ 96–97. “For instance, in the workweek ending April 2,
2023,” Plaintiff 	was paid “straight time,” not a higher rate, for 8.75 hours of overtime. 	Id. at
¶ 101. 	In addition, Plaintiff was not always paid for all the hours that he worked, and his
compensation was deducted for “for reasons including[] out of pocket fuel costs and for reports
related to workers smoking at the employer-provided housing.” Id. at ¶¶ 102, 104.
On approximately September 6, 2023, Plaintiff emailed Telecom’s Human Resources
“Generalist, Renice Williams, about his hours being deducted,” and he attached a copy of a New
York Labor Law statute. Am. Compl. ¶ 108. “On September 12, 2023,” Defendants terminated
Plaintiff’s employment “with no reason provided.” Id. at ¶ 109. The termination letter was “signed
by Renice Williams, HR Generalist, from [Telecom].” 	Id. 	The letter contained Telecom’s
“corporate logo and name on the letterhead.” Id. at ¶ 61. In addition, the letter stated, “You are
separated from employment from Luck Grove Telecom, Inc.” Id. at ¶ 7 (emphasis removed).
II. 	LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
“a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’”
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Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 	“Although a complaint need not contain
detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation
of the elements of the cause of action, and the factual allegations ‘must be enough to raise a right
to relief above the speculative level.’” Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017
WL 4250513, at *2 (S.D.N.Y. Sep. 22, 2017) (quoting Twombly, 550 U.S. at 555). A court must
accept as true all well-pleaded factual allegations in the complaint and draw all reasonable
inferences in the plaintiff’s favor. 	See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014)
(citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III. 	DISCUSSION
A. Telecom’s Status as Plaintiff’s Employer
Defendants move to dismiss the Amended Complaint because Plaintiff did not plead
sufficient nonconclusory facts to establish that Telecom was his employer under the FLSA and
NYLL. 	Defendants’ Memorandum of Law (Def. Mem.) at 8, 10, Dkt. No. 10-1.2 	Defendants
argue that those facts alleged “only on information and belief” are not well-pled. Id. at 12. Plaintiff
responds that both Defendants are his employer because they are a single integrated enterprise.
Plaintiff’s Memorandum of Law (Pl. Mem.) at 12–13, Dkt. No. 16. Defendants reply that even
under the single integrated enterprise test, Plaintiff did not allege that Telecom is his employer
because Plaintiff only pled “allegations [that] are merely boilerplate recitations of the test’s
2 Unless otherwise noted, citations to page numbers refer to pagination generated by the Court’s
ECF system.
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elements, not factual averments.” Defendants’ Reply Memorandum of Law (Def. Reply) at 4–5.
For the FLSA, an “employer” is “any person acting directly or indirectly in the interest of
an employer in relation to an employee.” 29 U.S.C. § 203(d); see also N.Y. Lab. Law §§ 190(3),
651(6) (defining, for NYLL, employer to include “any person, corporation . . . employing any
individual in any occupation, industry, trade business, or service” and as “any individual,
partnership, 	association, 	corporation, 	limited 	liability 	company, 	business 	trust, 	legal
representative, or any organized group of persons acting as employer”). 	“Recognizing the
‘expansiveness’ of this definition, the Supreme Court has long instructed that employment status
under the FLSA should be based on ‘economic reality rather than technical concepts.’” 	Perez
Perez v. Escobar Constr., Inc., No. 23-1240-cv, 2024 WL 3594325, at *2 (2d Cir. July 31, 2024)
(citations omitted) (quoting Falk v. Brennan, 414 U.S. 190, 195 (1973) and Goldberg v. Whitaker
House Co-op., Inc., 366 U.S. 28, 33 (1961)). 	“The regulations promulgated under the FLSA
expressly recognize that a worker may be employed by more than one entity at the same time.”
Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 66 (2d Cir. 2003) (citing 29 C.F.R. § 791.2 (2003));
see also Perez Perez, 2024 WL 3594325, at * 4 (“It is well established that, for purpose of the
FLSA, ‘a worker may be employed by more than one entity at a time.’”) (quoting Zheng, 355 F.3d
at 66).
The Second Circuit has relied on “various factors,” to determine whether an entity is an
employer based on “economic realities.” Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132,
143 (2d Cir. 2008) (collecting cases). In Perez Perez, the Second Circuit used the single integrated
enterprise test, where “an employee, who is technically employed on the books of one entity, which
is deemed to be part of a larger ‘single-employer’ entity, may impose liability for certain violations
of employment law not only on the nominal employer but also on another entity comprising part
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of the single integrated employer.” Perez Perez, 2024 WL 3594325, at *4 (quoting Arculeo v. On-
Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005) (quoting Cook v. Arrowsmith Shelburne,
Inc., 69 F.3d 1235, 1240–41 (2d Cir.1995))).3 “Courts consider the following factors to determine
if multiple defendants constitute a single integrated enterprise: ‘(1) interrelation of operations; (2)
centralized control of labor relations; (3) common management; and (4) common ownership or
financial control.’” Hudson v. St. Joseph’s Hosp. Health Ctr., No. 5:21-cv-935 (GLS/TWD), 2023
WL 356165, at *2 (N.D.N.Y. Jan. 23, 2023) (quoting Perez v. Westchester Foreign Autos, Inc.,
No. 11-cv-6091, 2013 WL 749497, at *7 (S.D.N.Y. Feb. 2018, 2013) (citing Cook, 69 F.3d at
1240)).
As an initial matter, Defendants’ objection to Plaintiff’s use of information and belief in
the Amended Complaint is misplaced. 	An allegation in a complaint is not insufficient merely
because it is pled “upon information and belief.” Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir.
2008) (Sotomayor, J.). In addition, pleading on information and belief is “generally appropriate”
when a complaint alleges matters “particularly within [a defendant’s] knowledge and control.” Id.
(citing 5 Wright and Miller’s Federal Practice and Procedure § 1224 (3d ed. 2004)).
The facts that Plaintiff pled on information and belief—including Defendants’ shared use
of equipment and the maintenance of their employment records by Telecom—are matters that are
particularly within a defendant’s knowledge and control. Accordingly, the Court will consider all
non-conclusory allegations that Plaintiff has pled on information and belief.
3 There appears to be a split of authority as to whether the single integrated enterprise test applies
to FLSA claims given that it “was developed in the context of the National Labor Relations Act.”
Juarez v. 449 Rest., Inc., 29 F. Supp. 3d 363, 368 n.3 (S.D.N.Y. 2014). This issue is not addressed
here because defendants have not argued that it does not apply and the Second Circuit applied the
test in the FLSA context in an unpublished decision. As a result, “given the early stage of these
proceedings, the Court need not address this issue further at this juncture.” Id.; see Perez Perez,
2024 WL 3594325, at *4 (applying the single integrated enterprise test).
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Regarding the first prong of the single integrated enterprise test, interrelation of operations,
Plaintiff alleges that (1) Defendants shared offices, a website, employees, services, records, and
equipment among one another, Am. Compl. ¶¶ 4, 6, 9, and that (2) the Defendants’ website career
page “does not differentiate between applying for jobs” for one Defendant or the other, id. at ¶ 12.
Regarding centralized control of labor relations, Plaintiff alleges that Defendants shared a human
resources structure, the human resources structure handled all employee grievances for both
Defendants, and, even though Plaintiff was nominally employed by Construction, a Telecom
employee fired Plaintiff in a letter on Telecom letterhead that referred to his employment with
Telecom. 	Id. at ¶¶ 7, 8, 58, 61, 108–09. 	Regarding common management, in addition to the
allegations summarized for the first two factors, Plaintiff alleged that Defendants share a President,
Chief Executive Officer, Chief Operations Officer, and Chief Technology Officer. 	Id. at ¶ 13.
Finally, regarding the common ownership or financial control factor, Plaintiff alleged that
Defendants have the same owner. Id. Considering the totality of the circumstances and drawing
all reasonable inferences in Plaintiff’s favor, Plaintiff alleges that Telecom and Construction are a
single integrated enterprise, and that as a matter of economic reality, Telecom was also his
employer for the FLSA and NYLL.
Defendants rely on cases that are not binding and also distinguishable. Def. Mem. at 10–
11; Def. Reply at 5–6. In Lopez v. Acme Am. Env’t Co., No. 12-cv-511, 2012 WL 6062501, at *4
(S.D.N.Y. Dec. 6, 2012), the court concluded that the plaintiffs failed to “allege a relationship of
control between the [defendants] and themselves.” Here, however, Plaintiff alleged a relationship
of control between himself and Telecom by alleging that Telecom fired him and therefore had the
power to fire him. See also Apolinar v. R.J. 49 REST., LLC, No. 15-cv-8655, 2016 WL 2903278,
at *4 (S.D.N.Y. May 18, 2016) (concluding that no employment relationship existed where the
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plaintiffs did “not allege that [the defendants] had any sort of direct employer responsibility over
them, such as the ability to hire or fire, or set work hours or job responsibilities”). Similarly, in
Chui-Fan Kwan v. Sahara Dreams Co. II Inc., No. 17-cv-4058, 2018 WL 6655607, at *3–4
(S.D.N.Y. Dec. 19, 2018), the court granted the motion to dismiss because, unlike here, the plaintiff
alleged only “conclusory, boilerplate allegations” that the defendants “shared centralized control
of labor relations or interrelation of operations, much less that they had any control—as a matter
of economic reality—over Plaintiff.”
The Second Circuit and other district courts in this circuit have concluded that allegations
similar to the Plaintiff’s allegations in the Amended Complaint were sufficient to plead a single
integrated enterprise. See, e.g., Perez Perez, 2024 WL 3594325, at *4 (concluding that a single
integrated enterprise was sufficiently pled where the plaintiffs alleged that the defendants shared
staff, paid plaintiffs for work performed for one defendant with checks issued by other defendants,
advertised “as an enterprise,” transferred profits to “family members who did not work for the
companies,” and one person “ultimately controlled” the defendants); Gonzalez v. Wicked Taco
LLC, 764 F. Supp. 3d 77, 97–98 (E.D.N.Y. 2025) (same where plaintiff alleged that “supplies were
transferred between” defendants; marketing for defendants was interrelated; employment records
for defendants, “including those regarding payroll and timekeeping, were stored and maintained
through the same payroll processor” for both defendants; employees of both defendants were
directed to send “questions concerning payroll or finances” to the same email address;
management was shared between defendants as one man “had the ability to hire and fire all
employees” and could “modify any employee’s shift schedule at will;” and one person owned both
defendants.) reconsideration denied, 772 F. Supp. 3d 284 (E.D.N.Y. 2025), objections overruled,
795 F. Supp. 3d 401 (E.D.N.Y. 2025), and objections overruled, 795 F. Supp. 3d 401 (E.D.N.Y.
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2025); Aguilar v. Calexico Cinco LLC, No. 22-cv-6345, 2024 WL 3837669, at *8 (E.D.N.Y. June
28, 2024) (same where plaintiff alleged that defendants “shared a website for advertising,
communication, and job applications,” used the same trademarked name, “utilize a centralized
human resources department and a shared employee handbook” and had “common ownership”).
Defendants’ motion to dismiss Telecom as a Defendant is therefore denied.
B. Class Allegations
Defendants also move to dismiss or strike Plaintiff’s NYLL class allegations “because
Plaintiff has not plausibly alleged that the proposed class meets the numerosity requirement” of
Federal Rule of Civil Procedure 23(a)(1), and Plaintiff’s allegation that more than 50 class
members exist is “purely speculative and is achieved only by counting the combined workforces
of both [Construction] and Telecom.” Def. Mem. at 22–24. Plaintiff responds that the motion to
strike improperly relies on facts outside those pled in the Amended Complaint and that the motion
is premature. Pl. Mem. at 26–28.
Under Federal Rule of Civil Procedure 12(f), “a court may strike ‘from a pleading’ any
‘insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.’” GEOMC
Co. v. Calmare Therapeutics Inc., 918 F.3d 92, 95 (2d Cir. 2019) (quoting Fed. R. Civ. P. 12(f)).
To the extent that Plaintiff has alleged facts that bear on class certification, at this stage of the
litigation, nothing suggests that they are “redundant, immaterial, impertinent, or scandalous.” The
motion to strike the class allegations is therefore denied.
In addition, as Plaintiff points out, Defendants cannot rely on facts that are neither in the
Amended Complaint nor subject to judicial notice to argue that a well-pled allegation in the
Amended Complaint is not true. Cf. Tecocoatzi-Ortiz v. Just Salad LLC, No. 18-cv-7342, 2019
WL 1585163, at *6 (S.D.N.Y. Apr. 12, 2019) (“Whether the plaintiffs will be able to make a
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sufficient showing to support certification at the first stage of the certification process so that notice
should be sent to potential members of the class cannot be decided on this motion to dismiss.”)
(citation omitted). 	Moreover, even if Defendants’ factual assertion could be considered, their
motion to dismiss Telecom is denied. Accordingly, the NYLL class allegations are not dismissed
or struck, and Defendants’ motion is denied in its entirety.
IV. 	CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ motion to dismiss and strike, Dkt. No. 10, is DENIED.
IT IS SO ORDERED.
Dated: March 18, 2026
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