Judge Paul Engelmayer
Painting contractor JTC is a member of an industry group that itself is a party to a collective bargaining agreement providing for a 35-hour workweek, with weekly hours exceeding that amount being paid at a rate of time-and-a-half. Plaintiffs Boutros and Zuniga, painters employed by JTC, sought conditional collective action certification, and court-approved notice, in their lawsuit charging JTC's violation of the Fair Labor Standards Act (FLSA). In their first amended complaint, and declarations, plaintiffs stated that they regularly worked in excess of 40 hours weekly, but were paid straight time wages. They also claimed that JTC would regularly pay them by payroll check for the first 35 hours worked in a week, and by cash or a nonpayroll check for hours exceeding 35 hours weekly. The court denied plaintiffs' motion and dismissed—sua sponte—their FLSA overtime claims without prejudice. It found plaintiffs' allegations akin to the "vague [and] conclusory" pleadings in Lundy v. Catholic Health Sys. of Long Island. Nowhere did plaintiffs refer to any particular week in which either worked more than 40 hours. Thus plaintiffs' pleadings lacked sufficient particularity to state a plausible FLSA claim.
