Fiorito v. Prodigal Company, The
U.S. District Court, District of Minnesota
Fiorito v. Prodigal Company, The
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MICHAEL FIORITO, individually and on Case No. 24-CV-3757 (PJS/TNL)
behalf of all others similarly situated,
Plaintiff,
ORDER
v.
THE PRODIGAL COMPANY,
Defendant.
Plaintiff Michael Fiorito brings this action against defendant The Prodigal
Company (“Prodigal”), for whom he used to work, alleging that Prodigal failed to pay
Fiorito (and others) minimum-wage and overtime compensation and failed to offer
them a range of benefits in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201et seq. andMinn. Stat. § 181.722.1
ECF No. 1 [hereinafter Compl]. Fiorito seeks
class certification under Fed. R. Civ. P. 23, as well as damages and injunctive relief.
Fiorito has not paid the filing fee and asks, instead, to proceed in forma pauperis
(“IFP”). ECF No. 2. Fioritos’s complaint and IFP application are therefore before the
Court for pre-service review pursuant to 28 U.S.C. § 1915(e)(2). Based on that review,
the Court dismisses all of Fiorito’s claims and denies his IFP application as moot.
1The complaint also makes a single, passing reference to “benefits” that Prodigal
“illegally denied” Fiorito and others under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601et seq., and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”),38 U.S.C. § 4301
et seq. Compl. ¶ 24.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), an IFP application will be denied, and an action will be dismissed, when an IFP applicant has filed a complaint that fails to state a claim on which relief may be granted. See Atkinson v. Bohn,91 F.3d 1127, 1128
(8th Cir. 1996) (per curiam). In reviewing whether a complaint states a claim for which relief may be granted, a court must accept the complaint’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. Varga v. U.S. Bank Nat’l Ass’n,764 F.3d 833, 838
(8th Cir. 2014). The factual allegations need not be detailed, but they must be sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,550 U.S. 544, 555
(2007). The complaint must also “state a claim to relief that is plausible on its face.”Id. at 570
. Pro se complaints are to be construed liberally, but they must nevertheless allege enough facts to support the claims advanced. Stone v. Harry,364 F.3d 912, 914
(8th Cir. 2004).
II. ANALYSIS
Fiorito asserts causes of action under both federal and state law and requests
class certification. The Court addresses the class-certification request before turning to
Fiorito’s claims.
-2-
A. Class-Action Allegations
Fiorito purports to bring this lawsuit on behalf of himself and “all individuals
who were misclassified as independent contractors by [Prodigal].” Compl. ¶ 25. He
seeks class certification under Fed. R. Civ. P. 23. Id. ¶¶ 25–31.
As a threshold matter, Rule 23 class certification is unavailable in FLSA actions.
The FLSA provides that an action “may be maintained . . . by any one or more
employees for and in behalf of himself or themselves or other employees similarly
situated,” but only if the similarly situated employees “consent in writing to become”
parties to the action. 29 U.S.C. § 216(b). “There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA [§ 2]16(b).” Schmidt v. Fuller Brush Co.,527 F.2d 532, 536
(8th Cir. 1975); cf. Genesis Healthcare Corp. v. Symczyk,569 U.S. 66
, 73–75 (2013). Rule 23(c) provides for “opt-out”
class actions, whereas FLSA collective-action members must opt in. See id.; FLSA
§ 216(b). Thus, Rule 23 class certification is theoretically available only for Fiorito’s
state-law claims.
The more fundamental problem is that Fiorito may not represent either a
collective-action class or a Rule 23 class because he is not a lawyer, and “[i]t is well
established that a non-attorney pro se plaintiff cannot adequately represent a class.”
Greene v. Lake, No. 17-cv-3551(SRN/KMM), 2018 WL 3105446 , at *2 (D. Minn. June 25,
-3-
2018) (collecting Fourth, Sixth, Ninth, Tenth, and D.C. Circuit cases); see also Knoefler v.
United Bank of Bismarck, 20 F.3d 347, 348(8th Cir. 1994) (“A nonlawyer . . . has no right to represent another entity.”). Fiorito therefore cannot represent a collective-action class under the FLSA, and he cannot represent a Rule 23 class as to hisMinn. Stat. § 181.722
claims.2 Fiorito’s request for class certification is therefore denied.
Accordingly, the Court considers Fiorito’s allegations only for the purpose of
evaluating the plausibility of his individual federal and state-law claims.
B. FLSA Claims
Fiorito claims that Prodigal misclassified him as an “independent contractor,”
when he was actually an “employee” for purposes of the FLSA. Fiorito further claims
that, because he was an “employee,” Prodigal was required to (1) provide Fiorito with
benefits, including (but not limited to) “pension and retirement coverage, health and
insurance coverage, Family Medical Leave Act [sic] (FMLA) and the benefits of the
Uniformed Employment Rights Act [sic] (USERRA),” Compl. ¶ 24; (2) pay Fiorito
overtime; and (3) pay Fiorito minimum wage—all of which Prodigal failed to do.
Misclassification of an employee as an independent contractor does not, by itself,
give rise to a cause of action under the FLSA. Rather, such misclassification is not
2The complaint does not appear to request class certification as to Fiorito’s FMLA
or USERRA claims. Obviously, though, if Fiorito were to seek Rule 23 class certification
as to either of those claims, he would be unsuccessful for the same reason.
-4-
actionable unless it results in the employee being deprived of minimum-wage or
overtime compensation to which he is entitled. 29 U.S.C. §§ 206, 207, 216(b). The Court
now turns to Fiorito’s claims that he was deprived of such compensation by virtue of
being misclassified.
1. “Employment Benefits”
The FLSA does not provide a cause of action for “employment benefits.” The
FLSA was designed to protect workers from “the evil of overwork as well as
underpay,” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739(1981) (citation and internal quotation marks omitted), and thus § 216(b) provides employees an express private right of action only for “unpaid minimum wages[] or . . . overtime compensation.”29 U.S.C. § 216
(b). Accordingly, Fiorito’s allegations that Prodigal
denied him benefits “such as, but not limited to, pension and retirement coverage [and]
health and insurance coverage,” Compl. ¶ 24, fail to state a claim under the FLSA.3
3Fiorito makes a passing reference to Prodigal’s denying Fiorito and others
benefits under the “Family Medical Leave Act [sic] (FMLA) and the Uniformed
Employment Rights Act [sic] (USERRA).” Compl. ¶ 24. But the complaint does not
contain a single factual allegation relevant to either of these claims. For example, the
complaint does not mention the type or amount of leave to which Fiorito—or anyone
else—believes he was entitled under the FMLA or the nature of his FMLA claims (i.e.
entitlement or discrimination) with respect to that leave, nor does the complaint suggest
that Fiorito—or anyone else—is a veteran or member of the uniformed services. The
complaint thus fails to state a claim under either the FMLA or the USERRA.
-5-
2. Overtime Compensation
“The FLSA requires that covered employees receive at least one and one-half
times their regular hourly rate for hours worked over forty per week.” Rapp v. Network
of Cmty. Options, Inc., 3 F.4th 1084, 1087(8th Cir. 2021) (emphasis added) (citing29 U.S.C. § 207
(a)(1)). Fiorito, however, alleges that he worked exactly 40 hours during
the week of May 12, 2024 and less that 40 hours during the week of June 14, 2024, and
that he “routinely worked in excess of 35 hours per week” for Prodigal. Compl. ¶¶ 9–11
(emphasis added). Nowhere does Fiorito allege that he worked over 40 hours for
Prodigal during any given week. Therefore, even assuming that Fiorito should have
been classified as an “employee,” Fiorito has failed to state a claim that Prodigal did not
pay him overtime compensation in violation of the FLSA.
3. Minimum-Wage Compensation
Fiorito’s minimum-wage claim consists of the conclusory allegation that Prodigal
“failed” or “willful[ly] refus[ed]” to pay Fiorito minimum-wage compensation. Compl.
¶¶ 13, 33. A claimant must “show[],” rather than make “a blanket assertion[] of[,]
entitlement to relief.” Twombly, 550 U.S. at 555–56 n.3. “Without some factual
allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only fair notice of the nature of the claim, but also
grounds on which the claim rests.” Id. (citation and internal quotation marks omitted).
-6-
Here, the complaint does not identify either the hourly wage that Fiorito was paid or
the minimum wage to which he believes he was entitled. Nor does the complaint
identify the dates or total number of hours during which Fiorito worked for Prodigal
but did not receive minimum-wage compensation. Fiorito’s threadbare allegations do
not cross “the line between the conclusory and the factual,” id.at 557 n.5,4 and he therefore fails to state a claim for relief under the FLSA.5 See also Zanders v. Wells Fargo Bank N.A.,55 F. Supp. 3d 1163, 1179
(S.D. Iowa 2014) (“[A]n FLSA minimum wage
complaint should, at least approximately, allege the hours worked for which
[minimum] wages were not received.” (citation and internal quotation marks omitted)).
4See Pruell v. Caritas Christi, 678 F.3d 10, 13(1st Cir. 2012) (finding allegation that plaintiffs “regularly worked hours over 40 in a week and were not compensated for such time” to be a phrase “so threadbare” as to fail to “cross ‘the line between the conclusory and the factual’” (quoting Peñalbert-Rosa v. Fortuño-Burset,631 F.3d 592, 595
(1st Cir. 2011) (quoting Twombly, 440 U.S. at 557 n.5))).
5The Court also notes that Fiorito’s IFP application, which he signed under
penalty of perjury, estimates that his gross monthly pay was $2,600 when he was
working for Prodigal. See ECF No. 2. Assuming that there are approximately 4.2 weeks
in each month, Fiorito earned approximately $619 per week. Fiorito alleges that he
worked 35–40 hours per week, which means his hourly wages ranged from
$15.47–$17.68 per hour. The federal minimum wage under the FLSA is $7.25. Thus,
Fiorito appears to have been paid more than double the minimum wage while working
for Prodigal.
-7-
C. State-Law Claims
Because Fiorito has failed to plead a viable federal claim, this Court declines to
exercise supplemental jurisdiction over any of his state-law claims. See 28 U.S.C.
§ 1367(c).
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. All federal claims in plaintiff’s complaint [ECF No. 1] are DISMISSED as
follows:
a. Plaintiff’s claim for misclassification as an independent contractor is
DISMISSED WITH PREJUDICE.
b. Plaintiff’s claims for “pension and retirement coverage” and
“health and insurance coverage” under the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et seq., are DISMISSED WITH
PREJUDICE.
c. Plaintiff’s claims under the Family and Medical Leave Act, 29
U.S.C. § 2601 et seq., and the Uniformed Services Employment and
Reemployment Rights Act, 38 U.S.C. § 4301 et seq., are DISMISSED
WITHOUT PREJUDICE.
-8-
d. Plaintiff’s claims for overtime and minimum-wage compensation
under the FLSA are DISMISSED WITHOUT PREJUDICE.
2. Plaintiff’s collective-action and class-action allegations, made on behalf of
other workers similarly situated, are DISMISSED WITHOUT PREJUDICE.
3. Pursuant to 28 U.S.C. § 1367(c), the Court declines to exercise
supplemental jurisdiction over plaintiff's state-law claims, and those
claims are DISMISSED WITHOUT PREJUDICE.
4, Plaintiff's IFP Application [ECF No. 2] is DENIED AS MOOT.
LET JUDGMENT BE ENTERED ACCORDINGLY.
i Sot
Dated: November 7, 2024 _f{ C \
Patrick J. Schiltz, Chief Judge
United States District Judge
-9- Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MICHAEL FIORITO, individually and on Case No. 24-CV-3757 (PJS/TNL)
behalf of all others similarly situated,
Plaintiff,
ORDER
v.
THE PRODIGAL COMPANY,
Defendant.
Plaintiff Michael Fiorito brings this action against defendant The Prodigal
Company (“Prodigal”), for whom he used to work, alleging that Prodigal failed to pay
Fiorito (and others) minimum-wage and overtime compensation and failed to offer
them a range of benefits in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201et seq. andMinn. Stat. § 181.722.1
ECF No. 1 [hereinafter Compl]. Fiorito seeks
class certification under Fed. R. Civ. P. 23, as well as damages and injunctive relief.
Fiorito has not paid the filing fee and asks, instead, to proceed in forma pauperis
(“IFP”). ECF No. 2. Fioritos’s complaint and IFP application are therefore before the
Court for pre-service review pursuant to 28 U.S.C. § 1915(e)(2). Based on that review,
the Court dismisses all of Fiorito’s claims and denies his IFP application as moot.
1The complaint also makes a single, passing reference to “benefits” that Prodigal
“illegally denied” Fiorito and others under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601et seq., and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”),38 U.S.C. § 4301
et seq. Compl. ¶ 24.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), an IFP application will be denied, and an action will be dismissed, when an IFP applicant has filed a complaint that fails to state a claim on which relief may be granted. See Atkinson v. Bohn,91 F.3d 1127, 1128
(8th Cir. 1996) (per curiam). In reviewing whether a complaint states a claim for which relief may be granted, a court must accept the complaint’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. Varga v. U.S. Bank Nat’l Ass’n,764 F.3d 833, 838
(8th Cir. 2014). The factual allegations need not be detailed, but they must be sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,550 U.S. 544, 555
(2007). The complaint must also “state a claim to relief that is plausible on its face.”Id. at 570
. Pro se complaints are to be construed liberally, but they must nevertheless allege enough facts to support the claims advanced. Stone v. Harry,364 F.3d 912, 914
(8th Cir. 2004).
II. ANALYSIS
Fiorito asserts causes of action under both federal and state law and requests
class certification. The Court addresses the class-certification request before turning to
Fiorito’s claims.
-2-
A. Class-Action Allegations
Fiorito purports to bring this lawsuit on behalf of himself and “all individuals
who were misclassified as independent contractors by [Prodigal].” Compl. ¶ 25. He
seeks class certification under Fed. R. Civ. P. 23. Id. ¶¶ 25–31.
As a threshold matter, Rule 23 class certification is unavailable in FLSA actions.
The FLSA provides that an action “may be maintained . . . by any one or more
employees for and in behalf of himself or themselves or other employees similarly
situated,” but only if the similarly situated employees “consent in writing to become”
parties to the action. 29 U.S.C. § 216(b). “There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA [§ 2]16(b).” Schmidt v. Fuller Brush Co.,527 F.2d 532, 536
(8th Cir. 1975); cf. Genesis Healthcare Corp. v. Symczyk,569 U.S. 66
, 73–75 (2013). Rule 23(c) provides for “opt-out”
class actions, whereas FLSA collective-action members must opt in. See id.; FLSA
§ 216(b). Thus, Rule 23 class certification is theoretically available only for Fiorito’s
state-law claims.
The more fundamental problem is that Fiorito may not represent either a
collective-action class or a Rule 23 class because he is not a lawyer, and “[i]t is well
established that a non-attorney pro se plaintiff cannot adequately represent a class.”
Greene v. Lake, No. 17-cv-3551(SRN/KMM), 2018 WL 3105446 , at *2 (D. Minn. June 25,
-3-
2018) (collecting Fourth, Sixth, Ninth, Tenth, and D.C. Circuit cases); see also Knoefler v.
United Bank of Bismarck, 20 F.3d 347, 348(8th Cir. 1994) (“A nonlawyer . . . has no right to represent another entity.”). Fiorito therefore cannot represent a collective-action class under the FLSA, and he cannot represent a Rule 23 class as to hisMinn. Stat. § 181.722
claims.2 Fiorito’s request for class certification is therefore denied.
Accordingly, the Court considers Fiorito’s allegations only for the purpose of
evaluating the plausibility of his individual federal and state-law claims.
B. FLSA Claims
Fiorito claims that Prodigal misclassified him as an “independent contractor,”
when he was actually an “employee” for purposes of the FLSA. Fiorito further claims
that, because he was an “employee,” Prodigal was required to (1) provide Fiorito with
benefits, including (but not limited to) “pension and retirement coverage, health and
insurance coverage, Family Medical Leave Act [sic] (FMLA) and the benefits of the
Uniformed Employment Rights Act [sic] (USERRA),” Compl. ¶ 24; (2) pay Fiorito
overtime; and (3) pay Fiorito minimum wage—all of which Prodigal failed to do.
Misclassification of an employee as an independent contractor does not, by itself,
give rise to a cause of action under the FLSA. Rather, such misclassification is not
2The complaint does not appear to request class certification as to Fiorito’s FMLA
or USERRA claims. Obviously, though, if Fiorito were to seek Rule 23 class certification
as to either of those claims, he would be unsuccessful for the same reason.
-4-
actionable unless it results in the employee being deprived of minimum-wage or
overtime compensation to which he is entitled. 29 U.S.C. §§ 206, 207, 216(b). The Court
now turns to Fiorito’s claims that he was deprived of such compensation by virtue of
being misclassified.
1. “Employment Benefits”
The FLSA does not provide a cause of action for “employment benefits.” The
FLSA was designed to protect workers from “the evil of overwork as well as
underpay,” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739(1981) (citation and internal quotation marks omitted), and thus § 216(b) provides employees an express private right of action only for “unpaid minimum wages[] or . . . overtime compensation.”29 U.S.C. § 216
(b). Accordingly, Fiorito’s allegations that Prodigal
denied him benefits “such as, but not limited to, pension and retirement coverage [and]
health and insurance coverage,” Compl. ¶ 24, fail to state a claim under the FLSA.3
3Fiorito makes a passing reference to Prodigal’s denying Fiorito and others
benefits under the “Family Medical Leave Act [sic] (FMLA) and the Uniformed
Employment Rights Act [sic] (USERRA).” Compl. ¶ 24. But the complaint does not
contain a single factual allegation relevant to either of these claims. For example, the
complaint does not mention the type or amount of leave to which Fiorito—or anyone
else—believes he was entitled under the FMLA or the nature of his FMLA claims (i.e.
entitlement or discrimination) with respect to that leave, nor does the complaint suggest
that Fiorito—or anyone else—is a veteran or member of the uniformed services. The
complaint thus fails to state a claim under either the FMLA or the USERRA.
-5-
2. Overtime Compensation
“The FLSA requires that covered employees receive at least one and one-half
times their regular hourly rate for hours worked over forty per week.” Rapp v. Network
of Cmty. Options, Inc., 3 F.4th 1084, 1087(8th Cir. 2021) (emphasis added) (citing29 U.S.C. § 207
(a)(1)). Fiorito, however, alleges that he worked exactly 40 hours during
the week of May 12, 2024 and less that 40 hours during the week of June 14, 2024, and
that he “routinely worked in excess of 35 hours per week” for Prodigal. Compl. ¶¶ 9–11
(emphasis added). Nowhere does Fiorito allege that he worked over 40 hours for
Prodigal during any given week. Therefore, even assuming that Fiorito should have
been classified as an “employee,” Fiorito has failed to state a claim that Prodigal did not
pay him overtime compensation in violation of the FLSA.
3. Minimum-Wage Compensation
Fiorito’s minimum-wage claim consists of the conclusory allegation that Prodigal
“failed” or “willful[ly] refus[ed]” to pay Fiorito minimum-wage compensation. Compl.
¶¶ 13, 33. A claimant must “show[],” rather than make “a blanket assertion[] of[,]
entitlement to relief.” Twombly, 550 U.S. at 555–56 n.3. “Without some factual
allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only fair notice of the nature of the claim, but also
grounds on which the claim rests.” Id. (citation and internal quotation marks omitted).
-6-
Here, the complaint does not identify either the hourly wage that Fiorito was paid or
the minimum wage to which he believes he was entitled. Nor does the complaint
identify the dates or total number of hours during which Fiorito worked for Prodigal
but did not receive minimum-wage compensation. Fiorito’s threadbare allegations do
not cross “the line between the conclusory and the factual,” id.at 557 n.5,4 and he therefore fails to state a claim for relief under the FLSA.5 See also Zanders v. Wells Fargo Bank N.A.,55 F. Supp. 3d 1163, 1179
(S.D. Iowa 2014) (“[A]n FLSA minimum wage
complaint should, at least approximately, allege the hours worked for which
[minimum] wages were not received.” (citation and internal quotation marks omitted)).
4See Pruell v. Caritas Christi, 678 F.3d 10, 13(1st Cir. 2012) (finding allegation that plaintiffs “regularly worked hours over 40 in a week and were not compensated for such time” to be a phrase “so threadbare” as to fail to “cross ‘the line between the conclusory and the factual’” (quoting Peñalbert-Rosa v. Fortuño-Burset,631 F.3d 592, 595
(1st Cir. 2011) (quoting Twombly, 440 U.S. at 557 n.5))).
5The Court also notes that Fiorito’s IFP application, which he signed under
penalty of perjury, estimates that his gross monthly pay was $2,600 when he was
working for Prodigal. See ECF No. 2. Assuming that there are approximately 4.2 weeks
in each month, Fiorito earned approximately $619 per week. Fiorito alleges that he
worked 35–40 hours per week, which means his hourly wages ranged from
$15.47–$17.68 per hour. The federal minimum wage under the FLSA is $7.25. Thus,
Fiorito appears to have been paid more than double the minimum wage while working
for Prodigal.
-7-
C. State-Law Claims
Because Fiorito has failed to plead a viable federal claim, this Court declines to
exercise supplemental jurisdiction over any of his state-law claims. See 28 U.S.C.
§ 1367(c).
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. All federal claims in plaintiff’s complaint [ECF No. 1] are DISMISSED as
follows:
a. Plaintiff’s claim for misclassification as an independent contractor is
DISMISSED WITH PREJUDICE.
b. Plaintiff’s claims for “pension and retirement coverage” and
“health and insurance coverage” under the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et seq., are DISMISSED WITH
PREJUDICE.
c. Plaintiff’s claims under the Family and Medical Leave Act, 29
U.S.C. § 2601 et seq., and the Uniformed Services Employment and
Reemployment Rights Act, 38 U.S.C. § 4301 et seq., are DISMISSED
WITHOUT PREJUDICE.
-8-
d. Plaintiff’s claims for overtime and minimum-wage compensation
under the FLSA are DISMISSED WITHOUT PREJUDICE.
2. Plaintiff’s collective-action and class-action allegations, made on behalf of
other workers similarly situated, are DISMISSED WITHOUT PREJUDICE.
3. Pursuant to 28 U.S.C. § 1367(c), the Court declines to exercise
supplemental jurisdiction over plaintiff's state-law claims, and those
claims are DISMISSED WITHOUT PREJUDICE.
4, Plaintiff's IFP Application [ECF No. 2] is DENIED AS MOOT.
LET JUDGMENT BE ENTERED ACCORDINGLY.
i Sot
Dated: November 7, 2024 _f{ C \
Patrick J. Schiltz, Chief Judge
United States District Judge
-9- Reference
- Status
- Unknown