Francisco v. Exclusive Management Solution Group, Inc.
- Analisa Torres
- 1:24-cv-03928
- U.S. District Court · Southern District of New York
- 27
In Francisco v. Exclusive Management Solution Group, Inc., Judge Torres recommended partly granting and partly denying employers’ dismissal motion, keeping most wage claims alive.
The recommendation affects Herlinda Francisco and Javier Bravo, their proposed collective and class members, and Exclusive Management Solution Group, Inc., the unidentified corporate defendants, and Dmitriy Berezovsky.
What happened
In Francisco v. Exclusive Management Solution Group, Inc., Herlinda Francisco and Javier Bravo alleged that their former employers failed to pay overtime and other wages, filed inaccurate tax forms, and failed to provide required wage information. The defendants asked the court to dismiss all federal wage claims and several state and common-law claims.
The magistrate judge recommended dismissing the claims for call-in pay, breach of contract, and unjust enrichment because the plaintiffs did not respond to the defendants’ arguments about those claims. He recommended allowing the claims involving unpaid overtime, allegedly false tax information, and New York wage notices and statements to continue. The opinion did not address the plaintiffs’ spread-of-hours or late-payment claims because the defendants did not brief them.
Judge Torres referred the matter to Magistrate Judge Robert W. Lehrburger, who recommended that the motion to dismiss be denied in part and granted in part. The opinion gives the parties 14 days to object, and it does not state whether Judge Torres later adopted the recommendation.
The detailed version
- Francisco v. Exclusive Management Solution Group, Inc. · No. 1:24-cv-03928
- Analisa Torres
- July 7, 2025
Background
Herlinda Francisco and Javier Bravo brought a collective action under the Fair Labor Standards Act (FLSA) and a proposed class action under New York law against Exclusive Management Solution Group, Inc., unidentified corporations, and Dmitriy Berezovsky, also identified as Dmitry Berezovskiy. They alleged that the defendants operated 28 laundromats as one integrated business and that Francisco and Bravo worked for that business.
The plaintiffs alleged several wage-and-hour violations, including unpaid time worked before and after scheduled shifts, unpaid overtime, unpaid spread-of-hours premiums, unpaid call-in pay, and late payment of wages. They also alleged that the defendants issued tax forms that reported only wages paid by check and omitted wages allegedly paid in cash. In addition, they alleged that the defendants failed to provide accurate wage notices and pay statements. The complaint also asserted breach-of-contract and unjust-enrichment claims.
The defendants moved under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not adequately state a legal claim, and under Rule 12(b)(1), which concerns federal subject-matter jurisdiction. They sought dismissal of all FLSA claims, some New York Labor Law claims, and the common-law claims.
Analysis
The magistrate judge concluded that the plaintiffs plausibly alleged that the defendants were covered by the FLSA. The allegations that the laundromats shared employees, payroll systems, wage policies, management, and ownership were sufficient at the pleading stage to support treating them as one integrated enterprise. The allegations also plausibly showed that the business handled goods that moved across state lines and had annual sales exceeding the FLSA’s statutory threshold.
The court also concluded that the plaintiffs plausibly alleged unpaid overtime under both the FLSA and New York law. Francisco alleged specific weeks in which she worked more than 40 hours and lost about 45 minutes of pay per day. Bravo alleged that he regularly worked 50 hours per week, had time removed from his recorded work, and was paid through separate checks that allegedly concealed overtime hours. The court held that these allegations were sufficient to proceed past a motion to dismiss.
The court recommended denying dismissal of the claim under 26 U.S.C. § 7434, a federal statute allowing a person to sue for a willfully filed fraudulent information return. The plaintiffs alleged that the defendants filed Forms 1099 and W-2 that omitted cash wages. The court found those allegations sufficient to plead that the returns were issued, false, and filed willfully.
The court also recommended denying the defendants’ argument that the plaintiffs lacked standing to pursue claims under New York Labor Law § 195. Standing is the requirement that a plaintiff show a concrete injury connected to the defendant’s conduct and capable of being remedied by the court. The court found that the plaintiffs plausibly alleged more than technical violations because inaccurate or missing wage information allegedly prevented them from recognizing and challenging underpayment.
The court treated the claims for call-in pay, breach of contract, and unjust enrichment as abandoned because the plaintiffs did not address the defendants’ arguments concerning those claims in their opposition brief. The court further stated that, even absent abandonment, the complaint did not plausibly assert those claims. It therefore recommended dismissing them. The court did not decide the spread-of-hours and late-payment claims because the defendants did not brief arguments for dismissing them.
Recommendation and Next Steps
The recommendation was to deny in part and grant in part the motion to dismiss. Specifically, it recommended granting the motion as to the call-in-pay, breach-of-contract, and unjust-enrichment claims, which should be dismissed, and denying it in all other respects. Magistrate Judge Robert W. Lehrburger issued the recommendation for Judge Analisa Torres. The parties were given 14 days to file objections, but the opinion text does not state whether Judge Torres later adopted the recommendation.
Read the full 27-page opinion on CourtListener, the free public archive maintained by the Free Law Project.