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News | Jul 21, 2015

HERE ARE SOME FEDERAL COURT CASES HOLDING THAT ALLEGATIONS OF “WILLFULNESS” UNDER THE FLSA NEED NOT BE PLED WITH SPECIFICITY

Here is the text from a very brief memorandum I just filed arguing that the federal court should reject a company’s argument that our client is required to plead “willfulness” with specificity in an FLSA overtime rights lawsuit pending in Easton, PA.  As indicated, we argue that conclusory allegations of “wilfullness” are sufficient at the outset of litigation:

The Fair Labor Standards Act (“FLSA”) provides for a 3-year – rather than a 2-year – limitations period in the event of a “willful” FLSA violation.  See 29 U.S.C. § 255(a).  Referencing this provision, Defendant has filed a motion to dismiss (Doc. 3) asserting that Plaintiff’s complaint does not sufficiently plead “willfulness.”

Defendant’s motion should be denied.  As a matter of law, Plaintiff has absolutely no obligation to plead “willfulness” with any specificity.  See Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 903 (9th Cir. 2013) (“At the pleading stage, a plaintiff need not allege willfulness with specificity.”); Woodards v. Chipotle Mexican Grill, Inc., 2015 U.S. Dist. LEXIS 69606, *11 (D. Minn. April 3, 2015) (“general allegations are sufficient to ‘satisfy the requirements of pleading a willful violation of the FLSA’”); Goodman v. Port Authority of New York and New Jersey, 850 F. Supp. 2d 363, 381 (S.D.N.Y. 2012) (“Whether or not a violation of the FLSA is ‘willful’ is a fact-intensive inquiry not appropriately resolved on a motion to dismiss.”); LePage v. Blue Cross and Blue Shield of Minnesota, 2008 U.S. Dist. LEXIS 49298, *7-10 (D. Minn. June 25, 2008) (“general assertions satisfy the requirements of pleading a willful violation of the FLSA” because “the applicability of the statute of limitations is an affirmative defense” and “plaintiffs are not required to negate an affirmative defense in their complaint”); Moran v. GTL Construction, LLC, 2007 U.S. Dist. LEXIS 55098, *11 (S.D.N.Y. July 24, 2007) (“whether a defendant’s actions were willful is a factual question that cannot be decided on a motion to dismiss”); Colon v. Wyeth Pharmaceuticals Co., 363 F. Supp. 2d 24, 29 (D.P.R. 2005) (“to make a factual finding regarding whether defendant’s actions were willful is inappropriate at a motion to dismiss stage in the proceedings”).

The above rule has been applied by district courts within the Third Circuit.  For example, in Burroughs v. MGC Services, Inc., 2009 U.S. Dist. LEXIS 29700 (W.D. Pa. April 7, 2009), the plaintiff – represented by the undersigned – alleged willfulness in an entirely conclusory manner.  Yet, the employer’s motion to dismiss was denied.  Judge Standish explained:  “After consideration, the Court concludes that the issue of willfulness also may not be resolved at this early stage of the litigation.”  Id. at *18.

Likewise, in Gallagher v. Lackawanna County, 2008 U.S. Dist. LEXIS 43722 (M.D. Pa. May 30, 2008), the plaintiffs – represented by the undersigned – alleged willfulness in an entirely conclusory manner.  Judge Vanaskie had no problem with the conclusory pleading, observing:  “Facts regarding willfulness must be explored during discovery, and the County may challenge the three-year statute of limitations at a later date.”  Id. at *30.

In sum, Defendant’s motion to dismiss should fail because it rests on the incorrect argument that Plaintiff is required to plead “willfulness” with specificity.

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