C:.-ise l:14 -c" ..0 830 7-AT '_) Document 42 Filed 0~ 1''f .L6 Page l of 10 _.; UNITED STATES DISTRIC T COURT SOUTHERN DlSTRICT OF NEW YORK ALEXIA PALMER, individually and on behalf of others similarly situated, USDC SONY DOCUMENT ELECTRONICAU .Y FILED DOC#: ________ DATE FILED: 3/23/2016 _ Plaintiff, -against - 14 Civ. 8307 (AT) TRU:v:lP MODEL MANAGEMEl\T, LLC, CORRTNE NICOLAS, individually, and JANE OR JOHN DOE, individually, MEMORANDUM AND ORDER Defendants. ANALISA TORRES, District Judge: Plaintiff, Alex ia Palmer, brings this putative class action against Defendants, Trump Model Management, LLC ("Trump"), Corinne Nicolas, 1 President of Trump, and John or Jane Doe, CEO of Trump, alleging violations of the Fair Labor Standards Act, the Immigra tion and Nationality Act, and the Racketeer Influenced and Co1rupt Organizations Act. Second Am. Comp!. (the "complaint" or "Compl.") ~11-2, ECF No. 24. Plaintiff also asserts claims for breach of contract, unjust enrichment, fraud, and conversion. Id. ~168 -93. Plaintiff alleges that, for years, Defendants have engaged in a fraudulent scheme whereby they lure foreign models to the United States with false promises of "a life of glamour in Soho clu~s and on catwalks," lie to the federal government in order to obtain H-1B visas for the models, and then cheat the mode ls out of their pay. Comp 1.~, 58-63; Pl. Opp. 5, 11, ECF No. 38. Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure I2(b)(6) . For the reasons stated below , Defendants' motion is GRJu"\'TED. 1 Nicolas' first name is misspelled in the caption and body of the complaint. Second Am. Compl. I, 13, ECF No. 24; Def. Mem. 1, ECF No . 37. The Clerk of Court is d irected to amend the caption to reflect the correct spelling . Ca se l :l--+-c-11-08307-Ar <) Doc um ent 42 f-'." ile cl 03''"'3/ 16 BACKGROU!\D ) Page 2 o f 10 2 Pursuant to a contract between Trump and Plaintiff, from January 2011 to May 2014, Plaintiff "worked as a model on modeling contracts " arranged by Defendants. Comp!. i130; Pl. Opp. Ex . F. Plaintiff claims that she signed, "under duress," a "separate contract," the Trump "Model's Loan Agreement," which obligates her to pay for certain expenses and pennits Trump to deduct unpaid amounts from her paycheck. Compl. 37, 38, 44; Rosen Deel. Ex. E, ECF No. 36-5. When Trump offered the modeling opportunity to Plaintiff, she resided in Jamaica, her native country. Pl. Opp. 6. On April 15, 2011, Defendan ts submitted to the U.S. Department of Home land Security a letter requesting an H-1 B visa for Plaintiff - a visa which permits U.S. employers to temporarily employ foreign "fashion model [s] ... of distinguished merit and ability." 8 U.S.C. § l 10l(a)(i5)(H)(i)(b); Comp!. ~ 36; Pl. Opp. Ex . D. Attached to the letter was a Labor Condition Application for Nonimmigrant Workers certified by the U.S. Department of Labor, a fonn employers must file to obtain an H-IB visa for prospective workers. 3 Pl. Opp. Ex. B. The labor application states that Defendants will pay Plaintiff $75,000 per year, and that the "prevailing wage" 4 is $45,490. Compl. 36; Pl. Opp. Ex. B. 2 The following facts are primarily taken from the compla int and accepted as true for the purposes of this motion. See ATS! Commc 'ns, Inc. v. Shaar Fund, ltd, 493 F.3d 87, 98 (2d Cir. 2007). Some background facts are also drawn from Plaintiff's opposition papers. In addition, the Court has considered Exhibit E to the Dec laration of Lawrence S. Rosen in Support of Defe ndants' Motion to Dismiss ("Rosen Deel."), ECF No. 36, and the exhibits to Plainti ffs oppos ition brief, because Plaintiff relies on these documen ts in framing her complaint or incorporates them in the complaint by reference . See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). 3 See 8 U.S.C. § l l 82(n); 20 C.F.R. § 655 .700. 4 The "prevailing wage" is defined generally as the "arithmetic mean of the wages of workers similarly employed." 20 C.F.R. § 655.73 l(a)(2)(ii). 2 Cnse l :14 -cv-0830 7-/:, r Docu111em42 Filed 03/)/1 6 Page 3 of 10 .) From approxima tely January 2011 to December 2013, Plaintiff wor ked on 21 diffe rent projects arranged by Trump. Comp!. 30-31 . Defendants withhe ld the "twenty pe rce nt (20%) agency fee[] and charged[] Plaintiff' for "obscure expenses ." Id. ,i 32. Plaintiff was required to pay for "walking lessons," "numerous, unnecessary cosmetics kits," and "expensive limousines ." ld. '] 34 . "A fter the deduction of all agency fees, expenses, and allowance[s]," Plaintiff was paid $3,880 .75 for her wo rk from 2011 to 2013. Id.~ 35. Plaintiff alleges that, "as evidenced in the [labor] application," Defendants "promis[ed] to pay her $7 5,000 per year," id.~ 41, but instead "took more than 80% of[] Plaintiff's hard earned money by cloaking it as 'expenses,"' id. , 40. She also claims that "Defendants failed to pay her even the prevailing wage of $45,490 pe r year as required by [i]mmigration laws ." Id ,i 41 . DISCUSSION I. Motion to Dismiss Standard To withst and a Rule 12(b)(6) 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."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A plaintiff is not required to provide "deta iled factual allegations" in the complaint, but must assert "more than labels and conclusions ." Tv,;ombly,550 U.S. at 555. Ult imate ly, the "[f]actual allegations must be enough to raise a right to relief above the speculat ive level." Id. On a Rule 12(b)(6) motion, the court may consider only the complaint, documents attached to the complaint or incorporated in it by reference, matters of which a court can take judicial notice, 3 J'-0330 7-/\ T C:2 1se 1:1-~ Document 42 r iled ('"'23/16 .J Page -1 of 10 or documents that the plaintiff knew about and relied upon in bringing the suit. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002 ). The court must accept the allegations in the complaint as true and draw all reas onable inferences in the non-movant's favor . ATS! Commc 'ns, Inc. v. Sha ar Fund , Ltd, 493 F.Jd 87, 98 (2d Cir. 2007). II. FLSA Claim Plaintiff claims she was not paid the minimum wag e required by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. Compl. 46-53 . The FLSA provides that every emp loyer must pay each employee a minimum of $7.25 an hour. 29 U.S .C. § 206(a). An employee can.not state a claim for a minimum ,vage violation unless she alleges facts showing that her "average hourly wage falls below the federal minimum wage." L undy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 115 (2d Cir. 2013) . A plaintiffs average hourly wage is deten11ined "b y dividing [her] total remuneration for emp loyment . .. in any workweek by the total number of hours actually worked by [her} in that workweek for which such compensation was pai d." 29 C.F.R . § _778.109 . The FLSA also obligates employers to reimburse employees for costs incurred "primaril y for the benefit or convenience of the employer" if such expenses "cut[ J into the mini mum or overtime wages required to be paid ... under the Act." 29 C.F.R. §§ 53 l.32 (c), 531.35; see also Guan 1\1ingLin. v. Ben ihana Nat'! Corp., 755 F. Supp. 2d 504, 5 11-12 (S.D.N.Y. 2010). Plaint iffs minimum wage claim fails. Plaintiff alleges only that Defendants paid her $3,880.75 for work she performed over a period of three years . Comp!. ~ 49. She does not specify the number of hours worked. Fmiher, Plaintiff does not dispute Defendant s' claim that 4 Case l :14-r" -08307-/\ T Oocu1nt::nt-12 r iled O? "1..3/16 1 ,) Page 5 of 10 she was paid above the minimum v,,1age.See Def. Mem. 5-6. Indeed, Plaintiff merely responds, in oppositi on to Defendants' motion to dismiss, that she ·'expected that she would be given sufficient hours to work [but] was not. . . . Defendants promised . .. Plain ti ff a certain amount of work, and promised that she would be compensated fairly-graciously, in fact-for the work. The n, for reasons unstated, they failed to prov ide that much work; they failed, in fact, to prov ide work almost at all. ... such calculation." [T]hey just stopped giving her the hours which would lend themselves to Pl. Opp. 9-10. Because Plaintiff does not "allege facts about her salary and working hours, such that a simple arithmetical calculation [could] be used to determine the amount owed per pay period," Casci v. Nat 'l Fin. Network , LLC, No. 13 Civ. 1669, 2015 WL 94229, at *4 (E.D.N.Y . Jan. 7, 2015) (quot ing Tackie v. Ke,ffEnrers. LLC, No. 14 Civ. 2074, 2014 \VL 4626229, at *3 (S.D.N. Y. Sept. 16, 2014 )), her conclusory minimum wage allegations are insufficient to raise "more than a mere possibility of a right to relief," Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 197 (2d Cir . 2013). Therefore, Plaintiff's FLSA claim canrtot stand. 5 See Bajaj v. f.1oro Food Co,p., No. 13 Civ. 9202, 2014 WL 6055771, at *3 (S.D.N .Y. Nov . 13, 2014) (dismissing FLSA and state law minimum wage claims where complaint alleged "neither the hours of (the plaintiff's] employment with [the defendan t], nor the 5 Defendants also dispute that Plaintiff qualifies as an "employee" under the FLSA. Def. Mem . 4; Def. Reply 4 n.3, ECF No. 41; see also Comp!. ii 47 (alleging that "there was an employer-empl oyee relations hip between [] Plain tiff and[] Defendants"). Only employees may sue under the FLSA. See 29 U.S.C. § 216. The FLSA defines an "employee" as "any indiv idual employed by an employer," and to "employ" as "co suffer or permit to work." 29 U.S.C . §§ 203(e)(l), 203 (g). "The definition is necessarily a broad one in accordance with the remedial purpose of the Act." Brock v. Superior Care, Inc., 840 F.2d 1054, 1058 (2d Cir. 1988). Because the Court concludes that Plaintiff's failure to allege the hours she worke d is fatal to her FLSA minimum wage claim, the Court need not reach this question. 5 C3se 1 ·14:r50830 7-AT Documen t 42 Filed 0()1/16 Page 6 of 10 payments that amounted to compensation below the state or federal minimwn wag e" ); Casci, 20 15 WL 94229, at *4. Accordingly, Plaintiffs III. FLSA claim is DISMISSED. RICO Claim Plaintiffs second cause of action alleges violations of the Rackete er Influenced and Corrupt Organizations Act ("RICO") , 18 U.S.C. §§ 1961 et seq. 6 Compl. 54-67 . Specifically, Plaintiff claims that Defendants devised and canied out a fraudulent scheme to deprive her and other foreign models of a promised salary of $75,000 per year. Id. ii~57-59, 62-64. To accomplish their sch eme, Plaintiff alleges, Defendants submitted to the federa l government sham H-lB visa applications stating that Defendants would pay the models $75,000 when "Defendants had no intention of doing so ." 7 Id fl~61-63 . Plaint iff claims that, instead of paying Plain tiff the promised \1..1ages , Defendants "took more than 80% of [her] hard earned money by cloaking it as 'expenses."' Id. ~,r59, 63. Plaintiff alleges that she relied to her detriment on the promised $75,000 salary by forgoing other work. Id. 60. Unde r the Immigration and Nationality Act ("INA''), 8 U.S .C. §§ 1101 et seq., an employe r seeking to hire an "alien' ' 8 in a "specialty occupation .. . or as a fashion model," may obtain an H-1B visa for the prospective worker by satisfying certain requirements . Id. § 6 Plaintiff alleges that Defendants also violated provisions of the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq., see Comp!. 2, but does not bring a separate cause of action under that statu te. ; Plaintiff a!leges that the mailing of these fraudulent visa app lications constituted acts of mail fraud, which serve as the predicate acts underlying her RICO claim. Comp!. i«J56-57, 61, 67; see Sedima, S.P.R.L. v. l mrex Co., Inc., 47 3 U.S. 479 , 48 I (1985 ) ("RJCO takes aim at ' racketeering activity,' which it defines as," imer aha, "any act 'indictabl e ' under numerous specific federal criminal provi sions, including mail and wire fraud" (citing 18 U.S.C. § 1961( 1))). . 8 The INA defines "alien " as "any person not a cit?zen or natio nal of the United States." 8 U .S.C. § 110 l(a)(3) . 6 Case 1:14-J08307-A T Document -12 File d 0')'}'3 /1 6 Page 7 uf 10 l 10l (a)( l5 )(H)(i)(b) . First, the emp loyer is ob ligated to file with the U.S. Depa rtment of Labor ("DOL"), and obtain the DOL's certificat ion of, a Labor Condition Applicat ion for Nonimmigrant Work ers. 20 C.F.R. § 655.700(b )(l ). The labor application must specify , among other th ings, the "wage rate and conditions under which [the worker] will be employed." 8 U.S.C. § l 182(n)(l). Seco nd, after securing DOL certification, the employer is required to submit an H-1 B visa peti tion, together with the certified labor application, to the Departm ent of Homeland Security ("DHS" ) for approval. 20 C.F.R. § 655 .700(b)(2). 9 A worker, such as Plaintiff, who believes that her employer lied on a labor application by overstating her wages, may seek redress by following the specific steps laid out in Section 1 J 82(n) of the INA, the secti on that governs labor applications. 10 Under Section l l 82(n), an aggrieved 11 worker must file a complaint with the Wage and Hour Division of the DOL, which investigates the complain t and then issues a determina tion as to whether the employer has violated the labor application rnles. See 8 U.S.C. § 1182(11)(2);20 C.F.R. §§ 655.805-655.806 , 655.815. If the worker is dissatisfied with the result, she may request a hearing before an administra tive law judge who will issue a decision. 20 C.F.R. §§ 655.815, 655.820, 655 .840. Thereafter, either party may pet ition for review by the Secretary of Labor ("SOL"). Id §§ 9 The determination of whether the H-1 B visa will be issued is delegated to the DHS and is governed by OHS regulations. See 20 C.F. R. § 655.7 00(b)(2)- (3). 10 Subsection I l 82(n)(2)(C) specifically prov ides for remedies if an employer is found by the Secretary of Labor to have failed to meet a condition, or made a misrepresentation of material fact, in the labor application. The DOL de legates authority to the DOL Administrator to investigate, among other things, the failure of an employe r to pay required wages. 20 C.F.R . §§ 655.800, 655.805 (a)(2). 11 An "aggriev ed party" includes " [a] worker whose job, wages, or working conditions are adversely affected by the employer's alleged non-comp liance with the labor[] application." 20 C.F.R. § 655.715. 7 C.::ise 1:14 '"'"-08307-A r Docu111i.=11 t ·12 Filed Q':>)3/16 Page 8 of 10 655.840 , 655.845. The SO L's decision may then be appea led to the appropriate federal dishic t court. Id. § 655.850 . Plaintiff did not attempt to voice her grieva nces against Defendants by utilizin g the fNA 's complaint procedures described above. i :i Instead , in this lawsuit she casts Defendants' alleged violation of the INA- lying on the labor application about the wages Defendants intended to pay Plaintiff-as a RICO violation. The RICO statute, however, is not the proper avenue for relief. Rather , INA Section l l 82(n) sets forth the specific administrative remedies availab le to an H-1 B worker. As courts in this Circuit have held, the INA 's complaint process "indicate[s] Congress' clear intent to limit enforcement of alleged violations to administrative mechanisms before resort can be had to a court action." Biran v. JP Morgan Chase & Co., No. 02 Civ. 5506, 2002 WL 31040345, at *2 (S.D .N.Y. Sept. 12, 2002). 13 Because she has fajled to exhaust the administrative procedures set forth in Section 1182(11),Plaintiff is barred from asserting an INA claim in this court. Moreover, it is well-established that "a precisely drawn , detailed statute pre-em pts more general remedies." Hinck v. United States, 550 U.S. 501, 506 (2007). Where Congress has devised a law , such as the INA, with a "careful blend of administrative and judicial enforcement 12 Plaintiff states only that she ··intends to pursue those remedies as well." Pl. Opp. I I. 13 See also Biran, 2002 WL 31040345, at *3 ("Not only do comprehensive administra tive mechanisms exist, but also the legislative history of the [INA] yields no support for the proposition that Congress intended to create a private right of action in [S]ection[] 1182(n)."); Slzalzv. Witco Sys., Inc.; 126 F. Supp. 2d 641, 647-48 (S.D.N.Y. 2000) (describ ing the "comprehensive regulatory enforcement scheme" containe d in Section l I 82(n) for the investigation of complaints "c oncerning an employe r's alleged failure to satisfy the enumerated requ irements of a labor condition application," and find ing no "private right of action in federal court in the first instance for" such complaints). 8 Case 1:14-)0 8307-AT Document 42 Filed Otj 3/l6Page 9 of 10 pov,1ers," this principle leads "unerringly to the conclusion that [the statute] provides the exclusive judicial remedy for claims" falling within its scope . Brown v. GSA, 425 U.S. 820, 83335 ( 1976). Courts in this Circuit have routinely precluded RICO claims where the alleged conduct is already covered by a more detailed federal statute. See, e.g., ,Vorman v. Niagara Mohawk Power Corp., 873 F.2d 634, 637-38 (2d Cir. 1989) (affom ing dismissal of RICO claim where complaint, "distilled to its essence, alleges no more than that appellants were discriminated against for having made complaints about safety at a nuclear plant," after concluding that Section 210 of the Energy Reorganization Act was the exclusive federal remedy for such a claim). 14 Here, Plaintiffs RICO claim, which is based on Defendants' alleged misrepresentations in her labor application, falls squarely within the scope of the INA. Allowing Plaintiff to use the civil RICO statute to redress substantiv e violat ions of the .INA "would thwart Congress'[] careful, comprehensive scheme to remedy" viol.a tions falli_r1gwithin the INA's scope. Gordon v. Ka/eida Health, 847 F. Supp. 2d 479,490 (W.D.N.Y. 2012). Accordingly, Plaintiffs RICO claim is DISMISSED. IV. State Common Law Claims Plaintiff also asserts common lav,1 claims for breach of contra ct, unjust enriclm1ent, fraud, and conversion. Comp!. ~,r7, 68-93. Having dismissed Pla intiffs federal Jaw claims, the Court !~ See also DeSilva v. North Shore -Long Island Jewish Heahh Sys., Inc., 770 F. Supp. 2d 497, 515 (E.D.N .Y. 2011) (finding RICO claim preempted because, inter alia, "allowing plaintiffs to pursue a civil RJCO claim grounded in the same facts as plaintiffs' FLS A claim would, essentially, create a new private right of action that would allow plaintiffs to seek treble damages-instead of ... unpaid wages and liquidated damages - and would render meaningless [the FLSA 's remedial provisions)"); Eldred v. Comfor ce Corp., No. 08 Civ. 1171, 2010 WL 812698, at "IO (N.D .N .Y. Mar. 2, 2010) (finding RICO claim precluded as duplicative ofFLSA claim, and noting that "[t]his approach ensures that the ' [a]ttful invocation of controversial civil RICO, particularly when inadequately pleaded' does not endanger the uniform administration of core concern s of the primary enforcement scheme" (quoting Norman, 873 F.2d at 637)). 9 Case 1:14-c J830 7 AT Document 1-12 Filed 03'~ ; 16 Page lO·of 10 declines to exercise supplemen tal j urisdicrion over these state law claims pu rsuant to 18 U.S.C. l 367(c). See Pension Benefit Guar. Corp. ex rel . Saint Vincem Catholic lvfed. Ctrs. Ret. Plan v. Morgan Sranley Inv . Mgmt . Inc., 712 F.3d 705, 727 (2d Cir. 2013) ("[I]n the usual case in which all federal -law claims are eliminated before t1ial, the balan ce of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity - will point toward declining to exercise juiisdiction over the remaining state -law claims."); Po w ell v. Gardner, 891 F.2d 1039, 1047 (2d Cir. 1989) ("[I ]n light of the proper dism issal of the§ 1983 claim against the County, the district court should have declined to exercise pendent jruisdiction over [the plaintiffs] state -law claims against the County.") . Accordingly, Plainti ffs breach of contract, unjust enrich ment, fraud, and conv ersion claims are DISMISSED without prejudice to renewal in state court. CONCLUSION For the reasons stated above, Defendants' motion to dismi ss is GR.Ai"\JTED.The Clerk of Court is directed to (1) terminate the motion at ECF No. 35, (2) amend the caption to reflect the correct spelling of Nicolas' name, and (3) close the case. SO ORDERED . Dated : March 23, 2016 New York, New York ANALISA TORRES Un ited States District Judge 10