Case 1:14-cv-08307-AT Document 42 Filed 03/23/16 Page 1 of 10
`Case 1:14-cv-O8307-AT Document 42 Filed 03/23/16 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`USDC SDNY
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`DOCUMENT
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`ELECTRONICALLY FILED
`DOC #:
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`ALEXIA PALMER, individually and on behalf
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`DATE FILED: 3/23/2016
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`of others Similarly Sltuated,
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`Plaintiff,
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`-against-
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`14 Civ. 8307 (AT)
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`TRUMP MODEL MANAGEMENT, LLC,
`CORRINE NICOLAS, individually, and
`JANE OR JOHN DOE, individually,
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`Defendants.
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`MEMORANDUM
`AND ORDER
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`ANALISA TORRES, District Judge:
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`Plaintiff, Alexia Palmer, brings this putative class action against Defendants, Trump
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`Model Management, LLC (“Trump”), Corinne Nicolas,l President of Trump, and John or Jane
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`Doe, CEO of Trump, alleging violations of the Fair Labor Standards Act, the Immigration and
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`Nationality Act, and the Racketeer Influenced and Corrupt Organizations Act. Second Am.
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`Compl. (the “complaint” or “Compl.”) W 1—2, ECF No. 24. Plaintiff also asserts claims for
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`breach of contract, unjust enrichment, fraud, and conversion.
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`Id. W 68-93. Plaintiff alleges that,
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`for years, Defendants have engaged in a fraudulent scheme whereby they lure foreign models to
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`the United States with false promises of “a life of glamour in Soho clubs and on catwalks,” lie to
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`the federal government in order to obtain H-1B visas for the models, and then cheat the models
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`out of their pay. Compl. W 58-63; Pl. Opp. 5, ll, ECF No. 38. Defendants move to dismiss the
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`complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below,
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`Defendants’ motion is GRANTED.
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`1 Nicolas’ first name is misspelled in the caption and body ofthe complaint. Second Am. Compl. W 1, 13, ECF No.
`24; Def. Mem. 1, ECF No. 37. The Clerk of Court is directed to amend the caption to reflect the correct spelling.
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`BACKGROUND2
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`Pursuant to a contract between Trump and Plaintiff, from January 2011 to May 2014,
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`Plaintiff “worked as a model on modeling contracts” arranged by Defendants. Compl. 1] 30; P1.
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`Opp. Ex. F. Plaintiff claims that she signed, “under duress,” a “separate contract,” the Trump
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`“Model’s Loan Agreement,” which obligates her to pay for certain expenses and permits Trump
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`to deduct unpaid amounts from her paycheck. Compl. {[11 37, 38, 44; Rosen Decl. Ex. E, ECF
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`No. 36-5.
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`When Trump offered the modeling opportunity to Plaintiff, she resided in Jamaica, her
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`native country. Pl. Opp. 6. On April 15, 2011, Defendants submitted to the US. Department of
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`Homeland Security a letter requesting an H—1 B visa for Plaintiff—a visa which permits U.S.
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`employers to temporarily employ foreign “fashion model[s] .
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`.
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`. of distinguished merit and
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`ability.” 8 U.S.C. § 1101(a)(15)(H)(i)(b); Compl. 1] 36; Pl. Opp. Ex. D. Attached to the letter
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`was a Labor Condition Application for Nonimmigrant Workers certified by the US. Department
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`of Labor, a form employers must file to obtain an H—1B visa for prospective workers.3 Pl. Opp.
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`Ex. B. The labor application states that Defendants will pay Plaintiff $75,000 per year, and that
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`the “prevailing wage”4 is $45,490. Compl. 1] 36; Pl. Opp. Ex. B.
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`2 The following facts are primarily taken from the complaint and accepted as true for the purposes of this motion.
`See ATSI Commc’ns, Inc. v. Shaar Funa’, 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 Declaration of
`Lawrence S. Rosen in Support of Defendants’ Motion to Dismiss (“Rosen Decl.”), ECF No. 36, and the exhibits to
`Plaintiff’s opposition brief, because Plaintiff relies on these documents 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).
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`3 See 8 U.S.C. § 1182(n); 20 C.F.R. § 655.700.
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`4 The “prevailing wage” is defined generally as the “arithmetic mean of the wages of workers similarly employed.”
`2O C.F.R. § 655.731(a)(2)(ii).
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`2
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`From approximately January 2011 to December 2013, Plaintiff worked on 21 different
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`projects arranged by Trump. Compl. W 30-31. Defendants withheld the “twenty percent (20%)
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`agency fee[] and charged [] Plaintiff’ for “obscure expenses.” Id ll 32. Plaintiff was required to
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`pay for “walking lessons,
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`numerous, unnecessary cosmetics kits,” and “expensive limousines.”
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`37 (6
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`Id. 1] 34.
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`“After the deduction of all agency fees, expenses, and allowance[s],” Plaintiff was paid
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`$3,880.75 for her work from 2011 to 2013.
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`Id. 11 35. Plaintiff alleges that, “as evidenced in the
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`[labor] application,” Defendants “promis[ed] to pay her $75,000 per year,” id. 1] 41, but instead
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`“took more than 80% of [] Plaintiff s hard earned money by cloaking it as “expenses,” id. 11 40.
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`She also claims that “Defendants failed to pay her even the prevailing wage of $45,490 per year
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`as required by [i]mmigration laws.” Id. 1] 41.
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`1.
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`Motion to Dismiss Standard
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`DISCUSSION
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`To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
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`factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcroft
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`v. Iqbal, 556 US. 662, 678 (2009) (quoting BellAl‘Z. Corp. v. Twombly, 550 US. 544, 570
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`(2007)). A plaintiff is not required to provide “detailed factual allegations” in the complaint, but
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`must assert “more than labels and conclusions.” Twombly, 550 US. at 555. Ultimately, the
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`“[f] actual allegations must be enough to raise a right to relief above the speculative level.” Id.
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`On a Rule 12(b)(6) motion, the court may consider only the complaint, documents attached to
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`the complaint or incorporated in it by reference, matters of which a court can take judicial notice,
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`or documents that the plaintiff knew about and relied upon in bringing the suit. See Chambers v.
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`Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). The court must accept the allegations
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`in the complaint as true and draw all reasonable inferences in the non—movant’s favor. ATSI
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`Commc ’ns, Inc. v. Shaar Fund, Ltd, 493 F.3d 87, 98 (2d Cir. 2007).
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`II.
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`FLSA Claim
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`Plaintiff claims she was not paid the minimum wage required by the Fair Labor Standards
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`Act (“FLSA”), 29 U.S.C. §§ 201 et seq. Compl. W 46—53. The FLSA provides that every
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`employer must pay each employee a minimum of $7.25 an hour. 29 U.S.C. § 206(a). An
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`employee cannot state a claim for a minimum wage violation unless she alleges facts showing
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`that her “average hourly wage falls below the federal minimum wage.” Lundy v. Catholic
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`Health Sys. ofLong Island Inc, 711 F.3d 106, 115 (2d Cir. 2013). A plaintiffs average hourly
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`wage is determined “by dividing [her] total remuneration for employment .
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`.
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`. in any workweek
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`by the total number of hours actually worked by [her] in that workweek for which such
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`compensation was paid.” 29 C.F.R. § 778.109. The FLSA also obligates employers to
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`reimburse employees for costs incurred “primarily for the benefit or convenience of the
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`employer” if such expenses “cut[ ] into the minimum or overtime wages required to be paid .
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`.
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`.
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`under the Act.” 29 CPR. §§ 531.32(c), 531.35; see also Guan Ming Lin v. Benihana Nat’l
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`Corp, 755 F. Supp. 2d 504, 511-12 (S.D.N.Y. 2010).
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`Plaintiffs minimum wage claim fails. Plaintiff alleges only that Defendants paid her
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`$3,880.75 for work she performed over a period of three years. Compl. 11 49. She does not
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`specify the number of hours worked. Further, Plaintiff does not dispute Defendants’ claim that
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`she was paid above the minimum wage. See Def. Mem. 5-6. Indeed, Plaintiff merely responds,
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`in opposition to Defendants’ motion to dismiss, that she “expected that she would be given
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`sufficient hours to work [but] was not.
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`.
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`.
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`. Defendants promised .
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`.
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`. Plaintiff a certain amount
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`of work, and promised that she would be compensated fairly—graciously, in fact—for the work.
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`Then, for reasons unstated, they failed to provide that much work; they failed, in fact, to provide
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`work almost at all.
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`.
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`.
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`[T]hey just stopped giving her the hours which would lend themselves to
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`such calculation.” Pl. Opp. 9—10.
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`Because Plaintiff does not “allege facts about her salary and working hours, such that a
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`simple arithmetical calculation [could] be used to determine the amount owed per pay period,”
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`Cascz' v. Nat ’Z Fin. Network, LLC, No. 13 Civ. 1669, 2015 WL 94229, at >“4 (E.D.N.Y. Jan. 7,
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`2015) (quoting Tackz'e v. KeflEmerS. LLC, No. 14 Civ. 2074, 2014 WL 4626229, at *3
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`(S.D.N.Y. Sept. 16, 2014)), her conclusory minimum wage allegations are insufficient to raise
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`“more than a mere possibility of a right to relief,” Nakahata v. New York-Presbyterian
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`Healthcare Sys., Inc, 723 F.3d 192, 197 (2d Cir. 2013). Therefore, Plaintiffs FLSA claim
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`cannot stand.5 See Bojaj v. Moro Food Corp, No. 13 Civ. 9202, 2014 WL 6055771, at *3
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`(S.D.N.Y. Nov. 13, 2014) (dismissing FLSA and state law minimum wage claims where
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`complaint alleged “neither the hours of [the plaintiffs] employment with [the defendant], nor the
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`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 Compl. fl 47 (alleging that “there was an employer-employee relationship between [] Plaintiff
`and [] Defendants”). Only employees may sue under the FLSA. See 29 U.S.C. § 216. The FLSA defines an
`“employee” as “any individual employed by an employer,” and to “employ” as “to suffer or permit to work.” 29
`U.S.C. §§ 203(c)(1), 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
`Plaintiffs failure to allege the hours she worked is fatal to her FLSA minimum wage claim, the Court need not reach
`this question.
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`5
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`payments that amounted to compensation below the state or federal minimum wage”); Cascz',
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`2015 WL 94229, at *4.
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`Accordingly, Plaintiffs FLSA claim is DISMISSED.
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`III.
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`RICO Claim
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`Plaintiffs second cause of action alleges violations of the Racketeer Influenced and
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`Corrupt Organizations Act (“RICO”), l8 U.S.C. §§ 1961 et seq.6 Compl. W 54—67. Specifically,
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`Plaintiff claims that Defendants devised and carried out a fraudulent scheme to deprive her and
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`other foreign models of a promised salary of $75,000 per year. Id W 57-59, 62-64. To
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`accomplish their scheme, Plaintiff alleges, Defendants submitted to the federal government sham
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`H-1B visa applications stating that Defendants would pay the models $75,000 when “Defendants
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`had no intention of doing so.”7 Id. W 61-63. Plaintiff claims that, instead of paying Plaintiff the
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`promised wages, Defendants “took more than 80% of [her] hard earned money by cloaking it as
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`‘expenses.”’ Id. W 59, 63. Plaintiff alleges that she relied to her detriment on the promised
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`$75,000 salary by forgoing other work. Id 1] 60.
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`Under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq. , an
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`employer seeking to hire an “alien”8 in a “specialty occupation .
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`.
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`. or as a fashion model,” may
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`obtain an H—1B visa for the prospective worker by satisfying certain requirements. Id. §
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`6 Plaintiff alleges that Defendants also violated provisions of the Immigration and Nationality Act, 8 U.S.C. §§ 1101
`et seq, see Compl. 1] 2, but does not bring a separate cause of action under that statute.
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`7 Plaintiff alleges that the mailing of these fraudulent visa applications constituted acts of mail fraud, which serve as
`the predicate acts underlying her RICO claim. Compl. W 56-57, 61, 67; see Sedima, S.P.R.L. v. Imrex Co., Inc, 473
`US. 479, 481 (1985) (“RICO takes aim at ‘racketeering activity,’ which it defines as,” inter alia, “any act
`‘indictable’ under numerous specific federal criminal provisions, including mail and wire fraud” (citing 18 U.S.C. §
`1961(1)».
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`8 The INA defines “alien” as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3).
`6
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`1101(a)(15)(H)(i)(b). First, the employer is obligated to file with the US. Department of Labor
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`(“DOL”), and obtain the DOL’s certification of, a Labor Condition Application for
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`Nonimmigrant Workers. 20 C.F.R. § 655.700(b)(1). The labor application must specify, among
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`other things, the “wage rate and conditions under which [the worker] will be employed.” 8
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`U.S.C. § 1182(n)(l). Second, after securing DOL certification, the employer is required to
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`submit an H~1B visa petition, together with the certified labor application, to the Department of
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`Homeland Security (“DHS”) for approval. 20 C.F.R. § 655 .700(b)(2).9
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`A worker, such as Plaintiff, who believes that her employer lied on a labor application by
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`overstating her wages, may seek redress by following the specific steps laid out in Section
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`1182(n) of the INA, the section that governs labor applications.10 Under Section 1182(n), an
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`aggrieved11 worker must file a complaint with the Wage and Hour Division of the DOL, which
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`investigates the complaint and then issues a determination as to whether the employer has
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`violated the labor application rules. See 8 U.S.C. § ll82(n)(2); 20 C.F.R. §§ 655,805—655,806,
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`655.815. If the worker is dissatisfied with the result, she may request a hearing before an
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`administrative lawjudge who will issue a decision. 20 C.F.R. §§ 655.815, 655.820, 655.840.
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`Thereafter, either party may petition for review by the Secretary of Labor (“SOL”). Id. §§
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`9 The determination of whether the H-1B Visa will be issued is delegated to the DHS and is governed by DHS
`regulations. See 20 C.F.R. § 655.700(b)(2)—(3).
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`‘0 Subsection 1182(n)(2)(C) specifically provides 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
`delegates authority to the DOL Administrator to investigate, among other things, the failure of an employer to pay
`required wages. 20 C.F.R. §§ 655.800, 655.805(a)(2).
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`1‘ An “aggrieved party” includes “[a] worker whose job, wages, or working conditions are adversely affected by the
`employer’s alleged non-compliance with the labor [] application.” 20 C.F.R. § 655.715.
`7
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`655.840, 655.845. The SOL’s decision may then be appealed to the appropriate federal district
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`court. Id. §655.850.
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`Plaintiff did not attempt to voice her grievances against Defendants by utilizing the
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`INA’s complaint procedures described above.I2 Instead, in this lawsuit she casts Defendants”
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`alleged violation of the INA——lying on the labor application about the wages Defendants
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`intended to pay Plaintiff—as a RICO violation. The RICO statute, however, is not the proper
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`avenue for relief.
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`Rather, INA Section 1182(n) sets forth the specific administrative remedies available to
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`an H-lB worker. As courts in this Circuit have held, the lNA’s complaint process “indicate[s]
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`Congress’ clear intent to limit enforcement of alleged violations to administrative mechanisms
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`before resort can be had to a court action.” Biran v. JP Morgan Chase & Co., No. 02 Civ. 5506,
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`2002 WL 31040345, at *2 (S.D.N.Y. Sept. 12, 2002).13 Because she has failed to exhaust the
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`administrative procedures set forth in Section 1182(n), Plaintiff is barred from asserting an INA
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`claim in this court.
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`Moreover, it is well-established that “a precisely drawn, detailed statute pre—empts more
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`general remedies.” Hinck v. United States, 550 US. 501, 506 (2007). Where Congress has
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`devised a law, such as the INA, with a “careful blend of administrative and judicial enforcement
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`12 Plaintiff states only that she “intends to pursue those remedies as well.” Pl. Opp. ll.
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`‘3 See also Biran, 2002 WL 31040345, at *3 (“Not only do comprehensive administrative 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)”); Shah v. Wilco Sys., Inc, 126 F. Supp. 2d 641, 647—48 (S.D.N.Y.
`2000) (describing the “comprehensive regulatory enforcement scheme” contained in Section 1182(n) for the
`investigation of complaints “concerning an employer’s alleged failure to satisfy the enumerated requirements of a
`labor condition application,” and finding no “private right of action in federal court in the first instance for” such
`complaints).
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`8
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`powers,” this principle leads “unerringly to the conclusion that [the statute] provides the
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`exclusive judicial remedy for claims” falling within its scope. Brown v. GSA, 425 US. 820, 833—
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`35 (1976). Courts in this Circuit have routinely precluded RICO claims where the alleged
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`conduct is already covered by a more detailed federal statute. See, e. g. , Norman v. Niagara
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`Mohawk Power Corp, 873 F.2d 634, 637—38 (2d Cir. 1989) (affirming dismissal of RICO claim
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`where complaint, “distilled to its essence, alleges no more than that appellants were
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`discriminated against for having made complaints about safety at a nuclear plant,” after
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`concluding that Section 210 of the Energy Reorganization Act was the exclusive federal remedy
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`for such a claim).14 Here, Plaintiff s RICO claim, which is based on Defendants’ alleged
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`misrepresentations in her labor application, fails squarely within the scope of the INA. Allowing
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`Plaintiff to use the civil RICO statute to redress substantive violations of the INA “would thwart
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`Congress’[] careful, comprehensive scheme to remedy” violations falling within the INA’s
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`scope. Gordon v. Kaleida Health, 847 F. Supp. 2d 479, 490 (W.D.N.Y. 2012).
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`Accordingly, Plaintiff’ s RICO claim is DISMISSED.
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`IV.
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`State Common Law Claims
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`Plaintiff also asserts common law claims for breach of contract, unjust enrichment, fraud,
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`and conversion. Compl. W 7, 68—93. Having dismissed Plaintiff’ 5 federal law claims, the Court
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`14 See also DeSilva v. North Shore—Long Island Jewish Health 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 RICO claim grounded in
`the same facts as plaintiffs’ FLSA 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 provisionsl”); Eldred v. Comforce Corp, No. 08 Civ. 1171, 2010 WL 812698, at
`* 10 (N.D.N.Y. Mar. 2, 2010) (finding RICO claim precluded as duplicative of FLSA claim, and noting that “[t]his
`approach ensures that the ‘[a]rtful invocation of controversial civil RICO, particularly when inadequately pleaded’
`does not endanger the uniform administration of core concerns of the primary enforcement scheme” (quoting
`Norman, 873 F.2d at 637)).
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`9
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`declines to exercise supplemental jurisdiction over these state law claims pursuant to 28 U.S.C.
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`1367(0). See Pension Benefit Guar. Corp. ex rel. Saint Vincent Catholic Med. Ctrs. Ret. Plan v.
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`Morgan Stanley Inv. Mgmt. Inc, 712 F.3d 705, 727 (2d Cir. 2013) (“[l]n the usual case in which
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`all federal-law claims are eliminated before trial, the balance of factors to be considered under
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`the pendent jurisdiction doctrine——judicia1 economy, convenience, fairness, and comity———will
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`point toward declining to exercise jurisdiction over the remaining state-law claims”); Powell v.
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`Gardner, 891 F.2d 1039, 1047 (2d Cir. 1989) (“[l]n light of the proper dismissal of the § 1983
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`claim against the County, the district court should have declined to exercise pendent jurisdiction
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`over [the plaintiffs] state-law claims against the County”).
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`Accordingly, Plaintiff s breach of contract, unjust enrichment, fraud, and conversion
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`claims are DISMISSED without prejudice to renewal in state court.
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`CONCLUSION
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`For the reasons stated above, Defendants’ motion to dismiss is GRANTED. The Clerk of
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`Court is directed to (l) terminate the motion at ECF No. 35, (2) amend the caption to reflect the
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`correct spelling of Nicolas’ name, and (3) close the case.
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`SO ORDERED.
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`Dated: March 23, 2016
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`New York, New York
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`Q42»
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`ANALISA TORRES
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`United States District Judge
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`10
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