UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARIO MENJIVAR GARCIA, et al.,

Plaintiffs,

v.

SKANSKA U.S.A. BUILDING INC,

et al.

Defendants.

Civil Action No.

1:17-cv-0629 (RMC/GMH)

MEMORANDUM OPINION AND ORDER 

This action has been referred to the undersigned to resolve discovery disputes. The case 

concerns the wages that Plaintiffs were paid for work they performed for Defendants on certain 

public construction contracts in the District of Columbia. Plaintiffs allege that Defendants failed 

to pay their prevailing wages, fringe benefits, and overtime pay in violation of the Fair Labor 

Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the D.C. Minimum Wage Act Revision Act 

(“DCMWA”), D.C. Code § 32-1001 et seq., and the D.C. Wage Payment and Collection Law

(“DCWPCL”), D.C. Code § 32-1301 et seq. Defendants have moved to dismiss the complaint, 

but Plaintiff seeks to take certain discovery during the pendency of the motion. Upon consideration of the parties’ submissions and the entire record herein,

1 Plaintiffs’ request for discovery is 

denied.

 1 For the purposes of this Memorandum Opinion and Order, the relevant docket entries are: (1) First Amended Complaint (“Am. Compl.”) [Dkt. 13]; (2) Defendants’ Motion to Amended Dismiss (“Def. Mot.”) [Dkt. 17] (3) Plaintiffs’ 

Opposition to Defendants’ Motion to Dismiss the Amended Complaint (“Pl. Opp.”) [Dkt. 20]; (4) Defendants’ Reply 

to Plaintiffs’ Opposition to Defendants’ Motion to Dismiss the Amended Complaint (“Def. Reply”) [Dkt. 23]; (5) 

Letter of Omar Vincent Melehy dated Oct. 23, 2017 (“Pl. Ltr.”) [Dkt. 24]; and (6) Letter of Albert Wilson, Jr., dated 

Oct. 25, 2017 (“Def. Ltr.”) [Dkt. 25]. All citations to page numbers within a particular document are to the ECF 

docket page numbers for the document.
2

BACKGROUND

Defendant Skanska U.S.A. Inc. (“Skanska”) was the general contractor performing construction work on a number of public schools and other public buildings in the District of Columbia. Am. Compl., ¶¶ 1, 8, 111. Defendant P.O.S.T. LLC, a limited liability company of which 

defendant Alvin Smith is the sole member, served as a labor broker for Skanska. Am. Compl., ¶¶ 

3, 17–18. Plaintiffs are five carpenters who Defendants hired to work on those public projects. 

Id., ¶¶ 2, 19, 23, 38, 42, 56, 60, 75, 79, 93, 97, 111–112. Each Plaintiff alleges that he was not 

paid an overtime wage for hours worked in excess of 40 per workweek, and that he was not paid 

the prevailing wage and fringe benefits that he was promised and to which he was entitled as a

carpenter. Am Compl., ¶¶ 27, 33, 36, 46, 52, 54, 64, 70, 73, 83, 89, 91, 101, 107, 109. The threecount Amended Complaint alleges violations of the FLSA, DCMWA, and DCWPCL. Am. 

Compl. ¶¶ 136–156.

This discovery dispute arose prior to the commencement of discovery, during the briefing 

on Defendants’ motion to dismiss the Amended Complaint; it is therefore necessary to understand 

the parties’ arguments regarding dismissal. Defendants seek to dismiss this case for failure to state 

a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. They contend that the 

Amended Complaint must be dismissed because Plaintiffs’ claims are covered by the Davis-Bacon 

Act (“DBA”), 40 U.S.C. § 3141 et seq. According to Defendants, the DBA “requires that all 

laborers working on construction projects to which the federal [g]overnment or the District of 

Columbia is a party must be paid not less than the prevailing wage in the locality where the work 

is performed.” Def. Mot. at 8. The regulations promulgated under the DBA allow the government’s contracting officer to withhold payments to the employer where the employer has not paid 

its laborers the prevailing wage. Id. at 8–9. However, the Defendants assert that the DBA does 
3

not confer a private right of action on an affected laborer until after there has been an administrative 

determination by the Department of Labor that money is owed and that any money withheld is 

insufficient to compensate him or her. Id. at 9-10. Plaintiffs conceded that there has been no such 

determination here. Pl. Opp. at 13. Accordingly, Defendants argue that Plaintiffs are trying to 

“circumvent the DBA” by seeking unpaid wages under the FLSA, DCMWA, and DCWPCL. Id.

at 11. Defendants rely, in part, on Danielson v. Burnside-Ott Aviation Training Ctr., 941 F.2d

1220, 1227–29 (D.C. Cir. 1991), in which the D.C. Circuit held that administrative proceedings 

under the Service Contract Act, a statute similar to the DBA, provided the exclusive remedy for 

violations of the statute. Def. Mot. at 8–9. They similarly cite Johnson v. Prospect Waterproofing 

Co, 813 F. Supp. 2d 4, 5 (D.D.C. 2011), which dismissed claims under the DCMWA and 

DCWPCL seeking prevailing wages established under the DBA because the plaintiffs had not 

exhausted their administrative remedies. Def. Mot. at 11–12. 

In their opposition to the motion to dismiss, Plaintiffs contend, among other things, that 

the DBA does not supplant the FLSA or the D.C. wage laws under which they have sued, but 

rather “operate[s] in concert” with them. Pl. Opp. at 8–11. Plaintiffs assert that Danielson and 

Johnson are distinguishable because those cases were based on allegations that the defendants had 

misclassified the plaintiff laborers in order to pay them a lower prevailing wage than they were 

entitled to, rather than claims, like those asserted here, that Plaintiffs were correctly classified, but 

were not paid what they were promised. Id. at 13–14. Misclassification cases are, they claim, 

what the regulatory scheme of the DBA was designed to address, whereas claims that an employee 

was not paid his promised wage are what the FLSA and similar statutes were enacted to remedy. 

Id. at 14. Plaintiffs further insist that they “have not and do not intend to challenge the classification decisions in this case.” Id. 
4

In light of the fact that Defendants cite misclassification cases in their motion papers, Plaintiffs, in their opposition to the motion, request discovery of Defendants’ certified payroll records. 

Pl. Opp. at 21–22; Pl. Ltr. at 1. These, they assert, “will show how the contractors classified the 

workers,” as well as the pay rate that Defendants informed the government they were paying. Pl. 

Opp. at 21. This, in turn, will purportedly help to resolve the motion to dismiss by clarifying

whether the classification of Plaintiffs is in fact at issue here. Pl. Ltr. at 2.

DISCUSSION

Generally, “[i]n evaluating the sufficiency of Plaintiff’s Complaint under Rule 12(b)(6), 

the Court may consider ‘the facts alleged in the complaint, any documents either attached to or 

incorporated in the complaint[,] and matters of which [the court] may take judicial notice.’” Vasaturo v. Peterka, 177 F. Supp. 3d 509, 511 (D.D.C. 2016) (quoting Equal Emp’t Opportunity 

Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). Because such 

a motion “does not require a court to ‘assess the truth of what is asserted or determine whether a 

plaintiff has any evidence to back up what is in the complaint,’” a plaintiff is typically “not entitled 

to discovery before [a] court rule[s] on [a] motion to dismiss.” Herron v. Fannie Mae, 861 F.3d 

160, 173 (D.C. Cir. 2017) (quoting Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). 

There is, however, authority supporting the notion that a court has discretion to allow limited discovery to aid in determining the sufficiency of a complaint.2

 See, e.g., Menard v. CSK Transp., 

Inc., 698 F.3d 40, 45 (1st Cir. 2012) (“Where modest discovery may provide the missing link, the 

 2 Plaintiffs also contend that, because Defendants’ Rule 12(b)(6) motion to dismiss for failure to state a claim relies 

on whether Plaintiffs exhausted their administrative remedies, it is more akin to a motion to dismiss for lack of jurisdiction under Rule 12(b)(1). Pl. Ltr. at 1. And a “district court has discretion to allow discovery if it ‘could produce 

[facts] that would affect [its] jurisdictional analysis.’” de Csepel v. Republic of Hungary, 75 F. Supp. 3d 380, 385 

(D.D.C. 2014) (quoting Al Maqaleh v. Hagel, 738 F.3d 312, 325 (D.C. Cir. 2013)). There is no need to address the

procedural question of whether this motion is more properly characterized as a 12(b)(1) motion because, as explained 

below, the application fails on its merits. 
5

district court has discretion to allow limited discovery and, if justified, a final amendment of the 

complaint.”).

Assuming the undersigned has that authority, Plaintiffs’ request still fails on its merits. 

Plaintiffs assert that the limited discovery they seek will allow them to learn whether Plaintiffs 

were classified as carpenters. Pl. Ltr. at 2. If Plaintiffs were so classified, then there is no classification issue, “and Defendants’ arguments on this subject are a red herring.” Id. That ignores a 

number of salient points. 

First, Defendants do not argue that this case must be dismissed because it is a classification 

case. Defendants’ position is that any action by a private party that (explicitly or implicitly) implicates the DBA cannot be sustained unless the Department of Labor has completed the administrative procedures outlined in the regulations. See, e.g., Def. Mot. at 5 n.6 (noting regulation setting out administrative procedure “for resolution of disputes of fact or law concerning payment of 

prevailing wage rates, overtime pay, or proper classification” (emphasis in original) (quoting 29 

C.F.R. § 5.11)); id. at 6 (“The DBA does not confer a private right of action.”); Def. Reply at 16 

(same). Knowledge gained from the requested records would not, then, “eliminate one of Defendants’ arguments,” Pl. Ltr. at 2, because classification is irrelevant to those arguments. Moreover, 

the cases Defendants cite, like Danielson and Johnson, make clear that the question of whether the 

DBA provides a private right of action is a purely legal question that does not require development 

of facts outside the Complaint. See Danielson, 941 F.2d at 1227 (“[T]he question whether a private 

right of action is conferred by a federal statute is essentially one of interpreting congressional 

intent.” (quoting Miscellaneous Serv. Workers v. Philco-Ford Corp., 661 F.2d 776, 780 (9th Cir. 
6

1981)); Johnson, 813 F. Supp. 2d at 6–9 & n.5 (“[N]either the language, the history, nor the structure of the statute supports the implication of a private right of action in this case.” (quoting United 

States ex rel. Glynn v. Capeletti Bros., 621 F.2d 1309, 1317 (5th Cir. 1980)).

Second, if the Court were to accept Plaintiffs’ argument that only misclassification cases 

require administrative exhaustion,

3 the discovery would still be irrelevant because Plaintiffs 

have—repeatedly and explicitly—disavowed that this is a misclassification case. See Pl. Opp. at 

13 (“In this case . . . Plaintiffs are neither alleging that they were misclassified nor challenging the 

rates set by DOL for their classifications . . . .”); id. at 14 (Plaintiffs in this case have not and do 

not intend to challenge the classification decisions in this case.”); Pl. Ltr. at 2 (noting that “this is 

not one of th[e] cases” that “challenges the classification of the plaintiffs”). Confirmation of the 

fact that Plaintiffs were properly classified, then, would put Plaintiffs in no better a position than 

if they merely rested on their Amended Complaint (as is typical in the case of a 12(b)(6) motion 

to dismiss), which itself indicates that they were properly classified. See, e.g., Am. Compl., ¶¶ 

21–23 (stating that plaintiff Mario Menjivar Garcia was hired as a carpenter, worked as a carpenter, 

and was to be paid as a carpenter); Def. Ltr. at 2 (“Plaintiffs did not allege misclassification in their 

Amended Complaint. Instead, in their Amended Complaint, Plaintiffs allege . . . that they were 

not paid the [promised] wages of a carpenter”). Learning that Plaintiffs were misclassified would 

similarly have no effect: Plaintiffs have alleged that they will not pursue any such claims and, 

again, the allegations in the Amended Complaint, which are taken as true for the purposes of this 

motion, indicate that Plaintiffs were properly classified. The requested discovery is therefore unnecessary to resolve the motion to dismiss.

4

 3 The undersigned expresses no view on that assertion, as it is outside the purview of this discovery motion.

4 Plaintiffs also assert that the certified payroll records will assist in the ongoing settlement discussions by allowing 

counsel to more accurately value the case. Pl. Ltr. at 2. Plaintiffs have cited no authority, and the undersigned is 
7

 

ORDER

For the reasons stated above, it is hereby

ORDERED that Plaintiffs’ request to engage in limited discovery during the pendency of 

Defendants’ Motion to Dismiss is DENIED.

SO ORDERED.

Date: November 1, 2017 ___________________________________

G. MICHAEL HARVEY

UNITED STATES MAGISTRATE JUDGE

 

aware of none, that supports the proposition that a Court should compel discovery during the pendency of a motion to 

dismiss to aid in mediation.