(KM)(MAH)

Plaintiff,

V. OPINION & ORDER

REAL ESTATE MORTGAGE NETWORK,

INC., Security Atlantic Mortgage

Company, Inc., Noel Chapman, and

Samuel Lamparello,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Patricia Thompson sues her former employers for allegedly

failing to compensate her for overtime work, in violation of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 20 1—219 and the New Jersey Wageand Hour Law (“NJWHL”), N.J. Stat. Ann. § 34:1 1—56a—34: 1 1—56a38.

Her employers seek to dismiss the state-law claim only. This matter

comes before the Court on the motion (ECF No. 52) of Defendants Real

Estate Mortgage Network, Inc. (“REMN”), Security Atlantic Mortgage

Company, Inc. (“SAMC”), Noel Chapman, and Samuel Lamparello

(collectively, the “Employers”) for partial judgment on the pleadings as to

Count II of the Amended Complaint, pursuant to Fed. R. Civ. P. 12(c).

For the reasons set forth below, Defendants’ motion is DENIED.

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from February 2010 to August 5, 2010. (Id.)

Thompson alleges that she and other similarly situated

individuals 2were employees of REMN and SAMC within the meaning ofthe FLSA, 29 U.S.C. § 203(e)(1), (g) and the NJWHL, N.J. Stat. Ann.

34:11—56a1(i), (g), (h). (Id. ¶J6—7.)

Defendants REMN and SAMC, both New Jersey corporations, are

nationwide direct mortgage lenders. (Id. ¶9, 12.) REMN and SAMC are

alleged to be employers or joint employers within the meaning of the

FLSA, 29 U.S.C. § 203(a), (d), (r), (s)(1)(A), and the NJWHL, N.J. Stat.

Ann. 34:11—56a1(g). (Id. ¶1J10—11, 13—14.)

Defendant Chapman, a New Jersey resident, was at all relevant

times the co-owner and Executive Vice President and officer of SAMC. (Id.

¶17.) In 2011, Chapman became an Executive Vice President of REMN.

(Id.)

Defendant Lamparello, a New Jersey resident, was at all relevant

times the co-owner and President of SAMC. (Id. ¶22.) Lamparello became

an officer of REMN in 2011. (Id.)

Thompson alleges that the REMN and SAMC failed to properly

compensate her with overtime pay for time worked in excess of forty

house in a work week. (Id. ¶J34, 67.) Specifically, she states that her

The facts that follow are taken from the Amended Complaint. (ECF No.

25.) Solely for the purposes of this motion, they are assumed to be true.

2 This Opinion does not address any issues regarding class certification,

consideration of which would be premature.

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Thompson brings claims under the FLSA, 29 U.S.C. § 207 (Count I)

and the NJWHL, N.J. Stat. Ann. § 34:1 1—56a--34: 1 1—56a38 (Count II).

This Court has subject matter jurisdiction over the federal-law

claim pursuant to 28 U.S.C. § 1331 and the FLSA, 29 U.S.C. § 2 16(b).

This Court exercises supplemental jurisdiction over Thompson’s state—

law claim pursuant to 28 U.S.C. § 1367(a).

b. Procedural history

Thompson first filed her complaint on March 16, 2011. On

December 30, 2011, District Judge Dennis M. Cavanaugh 3granted the

Employers’ motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6)

for failure to plead with the requisite specificity. (ECF Nos. 23, 24.)

On January 26, 2012, Thompson filed her amended complaint.

(ECF No. 25.) On August 31, 2012, Judge Cavanaugh once again

dismissed Thompson’s complaint for failure to plead with the requisite

specificity. (ECF Nos. 38, 39.)

On April 3, 2013, the Third Circuit vacated and remanded Judge

Cavanaugh’s January 26, 2012 opinion. Thompson v. Real Estate

Mortgage Network, 748 F.3d 142 (3d Cir. 2014) (ECF No. 44). This Court

entered an order implementing the Third Circuit’s mandate on May 22,

2014. (ECF No. 47.)

The Employers now move for judgment on the pleadings as to the

second count of the amended complaint, brought under the New Jersey

3 On May 15, 2014, after the retirement of Judge Cavanaugh, the case was

reassigned to me. (ECF No. 45.)

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II. DISCUSSION

a. Standard for judgment on the pleadings

A motion for judgment on the pleadings pursuant to Federal Rule

of Civil Procedure Rule 12(c) is often indistinguishable from a motion todismiss, except that it is made after the filing of a responsive pleading.

Federal Rule of Civil Procedure 12(h)(2) “provides that a defense of failureto state a claim upon which relief can be granted may also be made by a

motion for judgment on the pleadings.” Turbe v. Gov’t of Virgin Islands,938 F.2d 427, 428 (3d Cir. 1991). Accordingly, when a Rule 12(c) motion

asserts that the complaint fails to state a claim, the familiar Rule 12(b)(6)

standard applies. Id.

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or

in part, if it fails to state a claim upon which relief can be granted. The

defendant, as the moving party, bears the burden of showing that noclaim has been stated. Animal Science Products, Inc. v. China Minmetals

Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the purposes of a

motion to dismiss, the facts alleged in the complaint are accepted as trueand all reasonable inferences are drawn in favor of the plaintiff. N.J

Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J, 760

F.3d 297, 302 (3d Cir. 2014).

b. Analysis of the NJWHL

The Employers make a pure argument of law. They contend that

the NJWHL provides a private right of action only for minimum wage

violations, not for overtime compensation violations like the ones alleged

here. (Defs. Mot. 5, ECF No. 52.) They cite to the text of the statute,

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paid to him or her by the employer.

N.J. Stat. Ann. § 34:1 l-56a25 (West). The Employers argue that thephrase “minimum fair wage” excludes overtime compensation, and that

therefore there is no private right of action to recover unpaid overtime

compensation. The Employers make their argument solely under the

NJWHL; they concede that such a private right of action exists under the

FLSA. (Defs. Mot. 5-6).

New Jersey courts have not directly ruled on the issue presented

by the Employers. This Court must therefore “predict how the New

Jersey Supreme Court would resolve this case.” See Trcwelers Indem. Co.

v. Dammann & Co., 594 F.3d 238, 244 (3d Cir. 2010) (diversity case;

citation omitted). “In making such a prediction, [this Court mayj considerrelevant state precedents, analogous decisions, considered dicta,

scholarly works, and any other reliable data tending convincingly to

show how the highest court in the state would resolve the issue at hand.”

Id. at 244 (internal quotation and citation omitted).

Based on (1) the language of the NJWHL; (2) New Jersey’s broad

interpretation of the NJWHL; and (3) numerous New Jersey cases that

assume such a private right exists, I find that the New Jersey Supreme

Court would find an express right in the NJWHL to recover unpaid

overtime compensation.

i. The language of the NJWHL

Although the cited section of the NJWHL does not use the word

“overtime,” the same statute’s limitations provision does. That strongly

suggests that the New Jersey legislature intended for the NJWHL to

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private right o

p

cannot stretch that term to include overtime compensation. N.J. Stat.

Ann. § 34:1 1-56a25 (West). It is not immediately apparent to me that a

“minimum fair wage” excludes overtime.

Be that as it may, the NJWHL’s statute of limitations section—

titled “Limitations; commencement of action”—does refer explicitly to

overtime compensation:

No claim for unpaid minimum wages, unpaid overtime

compensation, or other damages under this act shall be valid

with respect to any such claim which has arisen more than 2

years prior to the commencement of an action for the

recovery thereof. In determining when an action is

commenced, the action shall be considered to be commenced

on the date when a complaint is filed . . .; or, where an auditby the Department of Labor and Industry discloses a

probable cause of action for unpaid minimum wages, unpaid

overtime compensation [etc.} . . .; or where a cause of action

is commenced in a court of appropriate jurisdiction.

N.J. Stat. Ann. § 34:11-56a25.1 (West) (emphasis added).

If the State legislature did not intend to create a private right of

action for overtime compensation, this language is inexplicable. The New

Jersey legislature would not have prescribed a limitations period for a

nonexistent cause of action.

ii. NJWHL interpreted broadly and in parallel

New Jersey courts have repeatedly emphasized that the NJWHL is

to be construed broadly, and that it was purposely drafted in parallel

with the FLSA.

The New Jersey Supreme Court has declared that the NJWHL

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establishes not only a 

g

rate for each hour of work in excess of forty hours in any

week for certain employees.

Hargrove u. Sleepy’s, LLC, 106 A.3d 449, 458 (N.J. 2015) (internal

quotations and citations omitted); see also New Jersey Dep’t ofLabor v.

Pepsi-Cola Co., 784 A.2d 64, 66 (2001) (“The remedial purpose of the

Wage and Hour Law dictates that it should be given a liberal

construction.”).

The New Jersey Supreme Court has also emphasized the similarity

between the FLSA and the NJWHL:

Of greater significance, however, is the purpose of both

statutes. Like FLSA, the [NJ]WPL and [NJjWHL address the

most fundamental terms of the employment relationship. .

The [NJIWHL is designed to protect employees from unfair

wages and excessive hours. To that end, the [NJ]WHL

establishes a minimum wage for employees and the overtime

rate for each hour of work in excess of forty hours in any

week. N.J.S.A. 34:1 1—56a4. Statutes addressing similar

concerns should resolve similar issues . . . by the same

standard.

Id. at 463 (citations omitted). 4The FLSA includes a right of action to

recover withheld overtime payments; the principle of parallel

construction suggests that the NJWHL be interpreted the same way.

Putting the liberal construction and parallel construction canons

together, I find it difficult to conclude that the NJWHL gives employees

fewer or narrower rights than the FLSA.

The NJWPL is the New Jersey Wage Payment Law, N.J. Stat. Ann. §

34:11-4.1—4.14 (West).

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Numerous New Jersey courts have analyzed overtime claims in

detail without questioning whether they exist. See, e.g., Iliadis v. Wal

Mart Stores, Inc., 922 A.2d 710, 722 (N.J. 2007) (ruling that uncertainty

about damages does not foreclose claims to recover unpaid overtime

compensation under the NJWHL); Clarke v. Essex Valley Health Care,

Inc., No. A-3876-12T3, 2014 WL 4843972 (N.J. Super. Ct. App. Div. Oct.

1, 2014) (stating that the NJWHL requires overtime pay at one-and-onehalf times the regular hourly wage and that the statute of limitations for

any such claim is two years); Wagner v. Blue Sky Classic Cars, L.L.C., No.

A-4058-10T3, 2012 WL 5381720 (N.J. Super. Ct. App. Div. Nov. 5, 2012)

(affirming an award for failure to pay overtime wages under NJWHL);

Hearn v. Rite Aid Corp., No. A-2009-1OT1, 2012 WL 996603 (N.J. Super.

Ct. App. Div. Mar. 27, 2012) (discussing an exemption to the overtime

compensation requirement of the NJWHL); Anderson v. Phoenix Health

Care, Inc., No. A-2607-10T2, 2011 WL 5554518 (N.J. Super. Ct. App.

Div. Nov. 16, 2011) (concluding that nurses were not entitled to overtime

under the NJWHL “so long as they are compensated in excess of the

weekly minimum” contained in N.J.A.C. 12:56-7.3(a)(5)); Karanjawala v.

Associated Humane Societies, Inc., No. A-3560--08T2, 2010 WL 4025911

(N.J. Super. Ct. App. Div. Aug. 20, 2010) (affirming an award under the

NJWHL for a defendant’s failure to pay overtime compensation); In re

Raymour & Flanigan Furniture, 964 A.2d 830 (N.J. Super. Ct. App. Div.

2009) (finding that a furniture store’s trucking operation was not a

separate establishment and that the furniture store must pay its

trucking operation employees overtime at one-and-one-half times the

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p

App. Div. Jan. 31, 2002) (analyzing exceptions to the NJWHL’s overtime

requirement); Yellow Cab Co. of Camden v. State, 312 A.2d 870 (N.J.

Super. Ct. App. Div. 1973) (concluding that a taxicab company was not

exempt from the overtime provision of the NJWHL because it was not a

“common carrier”).

The best predictor of what New Jersey courts would do is what

they have done. These cases strongly suggest that a private right of

action to recover unpaid overtime compensation exists under the NJWHL

and would be recognized by the New Jersey courts if a challenge werebrought.

ORDER

I find that the New Jersey Supreme Court would find a private

cause of action exists under the NJWHL to recover unpaid overtime

compensation. Accordingly, based on this Opinion, and for good cause

shown;

IT IS this 22nd day of May, 2015

ORDERED that Defendants’ motion for judgment on the pleadings

as to Count II of Plaintiff’s Amended Complaint (ECF No. 52) is DENIED.

Kevin McNulty

United States DistrictJud

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