UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David Camp and Keith Hadmack, on behalf of themselves and all others similarly situated, Plaintiffs

v. Case No. 18-cv-378-SM Opinion No.

Bimbo Bakeries USA, Inc. and Bimbo Foods Bakeries Distribution, LLC, Defendants

O R D E R

Plaintiffs bring this wage and hour class action, asserting

that defendants unlawfully treated them as independent

contractors when, in fact, they were employees. As a

consequence, say plaintiffs, they were wrongfully denied

overtime pay, denied reimbursement for work-related expenses,

and subjected to unlawful withholdings from their pay.

Defendants deny plaintiffs allegations and move to dismiss their

class action complaint, asserting that none of plaintiffs’

claims states a viable cause of action. The motion is

necessarily denied.

Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences

in favor of the pleader.” SEC v. Tambone,

(1st Cir. 2010). Although the complaint need only contain “a

short and plain statement of the claim showing that the pleader

is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege

each of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face,” Ashcroft v.

Iqbal,

(2009) (citation and internal

punctuation omitted).

In other words, “a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitlement to relief’ requires more than

labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly,

(2007). Instead, the facts alleged

in the complaint must, if credited as true, be sufficient to

“nudge[] [plaintiff’s] claims across the line from conceivable

to plausible.”

. If, however, the “factual

allegations in the complaint are too meager, vague, or

conclusory to remove the possibility of relief from the realm of

mere conjecture, the complaint is open to dismissal.” Tambone,

.

2 Background

Accepting the factual allegations set forth in plaintiffs’

complaint as true - as the court must at this juncture - the

relevant background is as follows. The Defendants, Bimbo

Bakeries USA and Bimbo Foods Bakeries Distribution, are in the

business of manufacturing, selling, and delivering baked goods

under brand names that include Sara Lee and Nature’s Harvest.

Complaint (document no. 1) at para. 11. In New Hampshire, they

operate out of terminals located in Hooksett, Lebanon, and

Keene.

at para. 12. Defendants employ approximately 50

people to deliver their products and stock the shelves at

various stores. Defendants designate those individuals,

including the named plaintiffs, as “independent contractors,”

rather than “employees,” and refer to them as “distributors.”

at paras. 13-14.

According to plaintiffs, during a typical week they work at

least forty hours delivering baked goods for defendants

(plaintiff Camp, for example, alleges that he typically works

six or seven days each week, for 45-50 hours).

at para. 31.

Distributors’ work consists mainly of driving to stores within

their designated territories, delivering defendants’ products,

and arranging products on the store shelves according to

defendants’ display standards.

at para. 17. To secure

3 their employment with defendants, plaintiffs and other

distributors were required to pay a substantial sum of money to

purchase “distribution rights” and then enter into a

“distribution agreement” with defendants. Based upon the

limited record before the court, those agreements appear to have

been between plaintiffs and defendant Bimbo Foods Bakeries

Distribution (or its predecessor). See Exhibits A and B to

Defendants’ Motion to Dismiss (documents no. 16-2 and 16-3).

Most distributors finance the acquisition of those distribution

rights through loans facilitated by defendants. Complaint at

para. 20. Often, defendants deduct loan payments directly from

the pay provided to distributors.

at para. 27.

The distribution agreements classify the distributors as

“independent contractors,” but defendants retain (and exercise)

substantial control over the work performed by the distributors.

at paras. 23-24. According to plaintiffs, that control

includes maintaining supervisory and disciplinary authority over

the distributors; determining the price at which distributors

must sell all food products; dictating the frequency of

deliveries, the manner in which deliveries are conducted, and

the dates by which stale products must be removed; requiring

express approval before a distributor may sell his or her route

(or arrange for a substitute driver); prohibiting distributors

4 from exercising independent business judgment, such as

determining when a store is no longer profitable and should no

longer receive deliveries; and prohibiting distributors from

participating in activities, or working for entities, that

defendants consider competitive.

at para. 25.

Plaintiffs also assert that, even if they were not

contractually prohibited from serving defendants’ “competitors,”

given the substantial time required to make their deliveries on

behalf of defendants, they would be precluded, as a practical

matter, from making deliveries for any other companies.

Consequently, distributors are not customarily engaged in an

independently established trade, occupation, or business of the

same nature as the services they provide to defendants.

at

para. 29. Moreover, say plaintiffs, defendants require them to

assume many of defendants’ general business expenses, including

the cost of fuel and lease payments for their delivery vehicles,

as well as insurance and maintenance costs for those vehicles.

Finally, defendants do not provide workers’ compensation

insurance for plaintiffs and the other distributors.

In their complaint, plaintiffs advance five claims against

defendants, under both state and federal law: failure to pay

overtime wages, in violation of the Fair Labor Standards Act;

unlawful withholdings and deductions from wages, in violation of

5 N.H. Rev. Stat. Ann. (“RSA”) 275:48; failure to reimburse

plaintiffs for various employment-related expenses, in violation

of RSA 275:57; failure to pay overtime wages, in violation of

RSA 279:21; and unjust enrichment, in violation of New Hampshire

common law. As noted above, defendants assert that none of

those claims states a viable cause of action.

Discussion

I. Claims Against Bimbo Bakeries USA.

As a preliminary matter, defendants move to dismiss all

claims against Bimbo Bakeries USA (“BBUSA”), asserting that

plaintiffs have failed to specifically identify any alleged

wrongdoing on its part. Instead, the complaint simply groups

the named defendants together and routinely ascribes allegedly

wrongful conduct to “defendants,” without identifying which

defendant engaged in which conduct. Moreover, defendants point

out that BBUSA is not a party to either of the distribution

agreements at issue in the case. Plaintiff David Camp executed

his agreement with Bestfood Baking Distribution Company (not a

party, but apparently the predecessor to one of the named

defendants), and plaintiff Keith Hadmack executed his agreement

with defendant Bimbo Foods Bakeries Distribution, Inc.

Consequently, say defendants, the complaint fails to adequately

6 allege the factual predicate necessary to state any viable

claims against BBUSA. The court disagrees.

Plaintiffs’ complaint is sufficient - albeit barely - to

survive a motion to dismiss. Plaintiffs’ primary complaint is

that they were improperly treated as independent contractors,

rather than employees. If they prevail on that claim, it will

be necessary to determine which entity acted as their employer -

that is, which entity exercised control over the details of the

performance of plaintiffs’ work and the means by which they

performed that work. At this juncture, the complaint adequately

alleges that one or both named defendants may be liable as

plaintiffs’ “employer.” See generally Scott v. Bimbo Bakeries,

USA, Inc.,

at *2 n.2 (E.D. Pa. Feb. 29, 2012)

(citing cases).

If discovery reveals that is not the case, defendants are

free to raise the issue again, in the context of a properly

supported motion for summary judgment.

II. Plaintiffs’ FLSA Overtime Claims.

Defendants assert that plaintiffs have failed to adequately

plead sufficient facts to properly state a claim for overtime

wages under the FLSA. Specifically, they say that “to survive a

7 motion to dismiss an FLSA claim, a plaintiff must, at a minimum,

specify a single workweek in which he or she worked at least

forty hours and was not compensated for such time.” Defendants’

memorandum (document no. 16-1) at 11. To be sure, some courts

have required such specificity in pleading. So, for example,

the Court of Appeals for the Third Circuit has observed:

The level of detail necessary to plead a FLSA overtime claim poses a more difficult question - one that has “divided courts around the country.” Nakahata v. N.Y.–Presbyterian Healthcare Sys., Inc.,

(2d Cir. 2013). Some courts have required plaintiffs to allege approximately the number of hours worked for which wages were not received. See, e.g., Jones v. Casey’s Gen. Stores,

, 1102–03 (S.D. Iowa 2008) (holding that a complaint alleging that the plaintiffs “regularly worked regular time and overtime each week but were not paid regular and overtime wages” was “implausible on its face” (quotation marks omitted)). Other courts have adopted a more lenient approach, holding that, “[w]hile Defendants might appreciate having Plaintiffs’ estimate of the overtime hours worked at [the pleading stage],” a FLSA complaint will survive dismissal so long as it alleges that the employee worked more than forty hours in a week and did not receive overtime compensation. Butler v. DirectSat USA, LLC,

(D.Md. 2011).

Davis v. Abington Mem’l Hosp.,

(3d Cir. 2014).

In support of their view that a viable FLSA claim must

identify at least one specific week during which a plaintiff

worked more than 40 hours, defendants rely upon the court of

appeals’ opinion in Pruell v. Caritas Christi,

(1st

8 Cir. 2012). In that case, the court affirmed the district

court’s dismissal of FLSA claims on grounds that they were

insufficiently detailed, “although not by a large margin.”

. 1 In support of that decision, the court observed that the

plaintiffs’ complaint failed to “provide examples (let alone

estimates as to the amounts) of such unpaid time for either

plaintiff or describe the nature of the work performed during

those times.”

More recently, the court distinguished its holding in

Pruell and concluded that a complaint adequately set forth the

essential elements of a viable FLSA claim despite its failure to

identify a specific workweek during which each plaintiff worked

more than 40 hours.

In affirming the dismissal of a complaint raising similar allegations, our recent opinion in Pruell observed that “the amended complaint does not provide examples (let alone estimates as to the amounts) of such unpaid time for either plaintiff or describe the nature of the work performed during those times.”

. Defendants level a similar contention against this complaint, asserting that it fails to allege that plaintiffs engaged in compensable work with sufficient specificity.

While we agree that some of the complaint’s allegations straddle the line between the conclusory and the factual, the pleading contains enough

1 The Pruell court vacated the district court’s order dismissing the FLSA claims with prejudice and remanded the case to give plaintiffs an opportunity to file an amended complaint.

9 substantive content to elevate the FLSA claims above the mere possibility of defendants’ liability. As discussed above, the complaint’s gist is that because the employees’ assigned tasks often need to be completed by certain times, and because of understaffing and lack of relief during meal and work breaks, BMC employees must frequently complete their regular working activities during their meal breaks or before and after their scheduled shifts. For example, Manning and Williams, who worked as nurses, spent this time charting, performing administrative tasks, monitoring patients, and providing treatment. Rivers, a registered nurse, similarly used this time to assist patients who had difficulty sleeping. McCarthy, an administrative assistant, spent her uncompensated time placing and answering phone calls, drafting correspondence, and filing paperwork.

This work was essentially indistinguishable from work performed during the employees’ regularly scheduled hours and “[s]uch work from [their] standpoint [was] fungible.” Gotham Registry, 514 F.3d at 286. The fact that this assertion is not accompanied by a detailed list of each and every activity the plaintiffs and their fellows performed without compensation does not mandate the complaint’s dismissal. “Work is work, after all,” id., and we see no reason to demand such exhaustive detail.

Manning v. Boston Med. Ctr. Corp.,

, 45–46 (1st Cir.

2013) (emphasis supplied). See also Gould v. First Student

Mgmt., LLC, No. 16-CV-359-PB,

, at *7 (D.N.H.

Aug. 29, 2017) (“Thus, plaintiffs need not detail the specific

number of hours beyond forty that they worked, the sum of

overtime wages due, or the exact dates they worked overtime.

Nor must plaintiffs keep careful records and plead their hours

with mathematical precision.”) (citations and internal

punctuation omitted). See generally Hall v. DIRECTV, LLC, 846

, 777 (4th Cir. 2017) (“[W]e emphasize that the standard

we today adopt does not require plaintiffs to identify a

particular week in which they worked uncompensated overtime

hours. Rather, this standard is intended to require plaintiffs

to provide some factual context that will ‘nudge’ their claim

‘from conceivable to plausible.’ Thus, to state a plausible

FLSA overtime claim, plaintiffs must provide sufficient detail

about the length and frequency of their unpaid work to support a

reasonable inference that they worked more than forty hours in a

given week.”) (citations and internal punctuation omitted).

To the extent defendants’ assert that plaintiffs’ complaint

is deficient because it fails to identify a specific workweek

during which each plaintiff worked more than 40 hours without

receiving overtime compensation, that view is inconsistent with

circuit precedent. For that reason, defendants’ motion to

dismiss plaintiffs’ FLSA claims is denied.

III. Plaintiffs’ State Statutory Claims.

A. Unlawful Withholdings and Deductions.

In addition to their FLSA claims, plaintiffs also advance

three state statutory claims. In the first, plaintiffs say

defendants violated RSA 275:48 which, generally speaking,

prohibits employers from withholding or diverting any portion of

11 an employee’s wages unless authorized by law or by written

agreement of the employee. Defendants move to dismiss asserting

that: (1) plaintiffs are properly viewed as independent

contractors, so RSA 275:48 does not apply to them; and (2) even

if the statute does apply, it specifically permits the

deductions identified by plaintiffs because plaintiffs provided

written authorization for such deductions.

In response, plaintiffs contend that they are employees,

subject to the provisions of RSA 275:48 - an issue that cannot

be resolved at this preliminary stage of the litigation.

Moreover, say plaintiffs, because defendants are attempting to

avail themselves of one or more exceptions to that statute’s

general prohibition, defendants will bear the burden of proving

that such an exception (or exceptions) apply. Finally, say

plaintiffs, the statute only permits “deductions for a lawful

purpose.” RSA 275:48, I(b). And, the deductions at issue in

the case are, according to plaintiffs, unlawful.

Again, the factual allegations set forth in plaintiffs’

complaint are, if accepted as true, sufficient to plausibly

state the essential elements of a viable claim under RSA 275:48.

At this juncture, they need do no more.

12 B. Reimbursement of Employee Expenses.

Next, plaintiffs assert that defendants violated RSA

275:57, which provides:

An employee who incurs expenses in connection with his or her employment and at the request of the employer, except those expenses normally borne by the employee as a precondition of employment, which are not paid for by wages, cash advance, or other means from the employer, shall be reimbursed for the payment of the expenses within 30 days of the presentation by the employee of proof of payment.

N.H. Rev. Stat. Ann. 275:57, I. Defendants assert that even if

plaintiffs are properly viewed as employees and are, therefore,

subject to the provisions of that statute, they have been fully

reimbursed for all such expenses pursuant to the terms of their

distribution agreements.

Whether plaintiffs have been properly and fully reimbursed

for work-related expenses in accordance with RSA 275:57 would

seem to be a disputed factual question. At a minimum, whether

defendants could lawfully contract to shift the burden of

assuming work-related expenses to plaintiffs is an issue better

resolved at summary judgment, with the benefit of a complete

record. See generally Gennell v. FedEx Corp., No. 05-cv-145-PB,

(D.N.H. Mar. 19, 2014).

13 C. Overtime Pay Pursuant to New Hampshire Law.

In their third state statutory claim, plaintiffs assert

that defendants violated the provisions of RSA 279:21 by failing

to pay them overtime wages for those weeks during which

plaintiffs worked in excess of forty hours. That statute

provides that “Unless otherwise provided by statute, no person,

firm, or corporation shall employ any employee at an hourly rate

lower than that set forth in the federal minimum wage law, as

amended.” Defendants assert that “the FLSA is the exclusive

remedy for enforcement of rights created by the FLSA” and,

therefore, plaintiffs’ state statutory claims for overtime are

preempted. Defendants’ Memorandum at 17 (citing Roman v.

Maietta Constr., Inc.,

, 77 (1st Cir. 1998)).

But, the holding in Roman may not sweep as broadly as

defendants suggest. For example, the United States District

Court for the District of Maine has observed that Roman stands

for a far narrower proposition of law:

National also contends that this Court must grant summary judgment on Bolduc’s claim brought under 26 M.R.S.A. § 664 because the FLSA precludes Bolduc’s claim under the state overtime law. Citing Roman v. Maietta Constr., Inc.,

(1st Cir. 1998), National argues that Bolduc’s claim under the FLSA precludes his ability to bring a claim under state law. National mischaracterizes the Roman decision. The Court in Roman forbid the plaintiff recovery under

14 section 664 of the M.R.S.A. for overtime violations when he had already received compensation under the FLSA for this claim. Roman, 147 F.3d at 74 (noting with approval that “[t]he trial court ruled that under both the FLSA and state law, [plaintiff] was entitled to liquidated damages in the amount of unpaid overtime. . ..”). Thus, the Roman court held that a plaintiff is not entitled to a double recovery when he pleads both federal and state claims for the same overtime pay. It did not hold that a claim made for over overtime under the FLSA precludes a claim for overtime under state law.

Recovery under both a federal and state statute for the enforcement of the same right is clearly prohibited. However, parties are entitled to pursue claims under both state and federal law to vindicate the same right unless the federal law preempts the state claim.

Bolduc v. Nat’l Semiconductor Corp.,

(D.

Me. 1998).

Moreover, as plaintiffs point out, the test for whether a

person is an “employee” differs under state and federal law.

Consequently, it is conceivable that plaintiffs may meet the

definition of “employee” under one statute, and fail to meet

that definition under the other. At this stage, it is simply

premature to make such a determination.

Defendants have failed to demonstrate that, as a matter of

law, plaintiffs are precluded from pursuing their claims under

New Hampshire’s statute governing wages and overtime. And,

15 while it is true that plaintiffs cannot recover twice for the

same injuries under federal and state overtime statutes,

plaintiffs are plainly entitled to plead their claims for relief

in the alternative. See generally Maccabees Mut. Life Ins. Co.

v. Perez-Rosado,

(1st Cir. 1981).

IV. Common Law Unjust Enrichment.

Finally, defendants move to dismiss plaintiffs’ common law

claim of unjust enrichment. “The doctrine of unjust enrichment

is that one shall not be allowed to profit or enrich himself at

the expense of another contrary to equity.” Pella Windows and

Doors v. Faraci,

(1990). To state a viable

claim, a plaintiff must plausibly allege that the defendant was

enriched at the plaintiff’s expense through either: (1) wrongful

acts; or (2) “passive acceptance of a benefit that would be

unconscionable to retain.” Kowalski v. Cedars of Portsmouth

Condo. Ass’n,

(2001). Importantly, however,

“[o]ne general limitation is that unjust enrichment shall not

supplant the terms of an agreement. It is a well-established

principle that the court ordinarily cannot allow recovery under

a theory of unjust enrichment where there is a valid, express

contract covering the subject matter at hand.” Clapp v.

Goffstown Sch. Dist.,

, 210–11 (2009) (citing 42

C.J.S. Implied Contracts § 38 (2007)).

16 Defendants assert that because their relationship with

plaintiffs is governed by a written contract, plaintiffs are

precluded from pursuing any claim for unjust enrichment. In

other words, says defendants, plaintiffs’ sole avenue of relief

is a potential breach of contract claim. Plaintiffs, on the

other hand, say the underlying contracts between them and

defendants, which require them “to buy their jobs and bear the

employer’s expenses (such as worker’s compensation insurance,

which must be supplied by an employer) are likely void and

unenforceable as against public policy.” Plaintiffs’ Memorandum

(document no. 17) at 22. If those contracts are, as plaintiffs

claim, unenforceable, a claim for unjust enrichment is likely

viable. As the New Hampshire Supreme Court has observed,

“Unjust enrichment may be available to contracting parties where

the contract was breached, rescinded, or otherwise made invalid,

or where the benefit received was outside the scope of the

contract.” Clapp,

(citations omitted).

And, of course, at the pleading stage, a plaintiff is

permitted to advance “as many separate claims . . . as it has,

regardless of consistency.” Fed. R. Civ. P. 8(d)(3). See also

Lass v. Bank of Am., N.A.,

(1st Cir. 2012)

(“Although the [defendant] is correct that damages for breach of

contract and unjust enrichment are mutually exclusive, it is

17 accepted practice to pursue both theories at the pleading

stage.”) (citations omitted).

Conclusion

For the foregoing reasons, as well as those set forth in

plaintiffs’ memorandum, defendants’ motion to dismiss (document

no. 16) is denied. Many of the issues raised by defendants are

more appropriately resolved in the context of a properly

supported motion for summary judgment, when the full extent of

the evidentiary record is clear.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 17, 2018

cc: Harold L. Lichten, Esq. Matthew Thomson, Esq. Christopher B. Coughlin, Esq. William D. Pandolph, Esq. Michael J. Puma, Esq. Siobhan E. Mee, Esq.

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