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Eric Johnson, et al v. Prospect Waterproofing Company

September 21, 2011

ERIC JOHNSON, ET AL., PLAINTIFFS,
v.
PROSPECT WATERPROOFING COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Amy Berman Jackson United States District Judge

MEMORANDUM OPINION

Plaintiffs bring this proposed class action, on behalf of themselves and others similarly situated, against defendants Prospect Waterproofing Company and its owner, George Barlow, for unpaid wages based on state statutory and common law claims. Defendants moved to dismiss for failure to state a claim, arguing that plaintiffs' claims are founded on the Davis-Bacon Act (the "Act" or "DBA"), 40 U.S.C. § 3141, et seq., which does not give rise to a private right of action but instead establishes an administrative process for the recovery of unpaid wages. The Court agrees and for the following reasons will grant defendants' motion to dismiss.

I. Background

The named plaintiffs in this case -- Eric Johnson, Melvin Green, John Stelly, and Jonathan Thomas -- allege that they were each hired as roofers by Prospect Waterproofing Company ("Prospect"), a roofing contractor. Am. Compl. ¶¶ 16, 33, 36, 39, 42. Plaintiffs worked for Prospect on various federally-funded or federally-assisted construction projects in the District of Columbia. Id. ¶ 17. Those projects were allegedly subject to the Davis-Bacon Act, id. ¶ 18, which requires that employers pay prevailing wage rates for certain categories of jobs in the community. 40 U.S.C. § 3142. Plaintiffs allege that defendants failed or refused to pay them and similarly situated employees the prevailing wage rate established under the Davis-Bacon Act.

On November 29, 2010, plaintiff Eric Johnson filed a complaint in the Superior Court for the District of Columbia on behalf of himself and other similarly situated employees. Green, Stelly, and Thomas subsequently opted into the action as named plaintiffs. Plaintiffs then amended the complaint on January 12, 2011, and that same day, defendants removed the action to this Court.

Plaintiffs' amended complaint alleges that three state law causes of action arise out of defendants' failure to compensate plaintiffs and similarly situated employees according to the prevailing Davis-Bacon Act rate: (1) a claim for a violation of the District of Columbia Wage Payment and Collection Law ("DCWPCL"), D.C. Code § 32-1301, et seq.; (2) a claim for a violation of the District of Columbia Minimum Wage Act, D.C. Code § 32-1001, et seq.; and (3) a common law quantum meruit claim based on defendants' retention of the difference between the Davis-Bacon Act prevailing wage rate and what was actually paid. Plaintiffs seek, among other relief, a judgment for the difference between the wages paid and the wages owed, all back wages, liquidated damages, interest, and attorneys' fees.

Now pending before the Court is defendants' motion to dismiss the amended complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

II. Standard of Review

"To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." 129 S. Ct. at 1949. And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950.

A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id., quoting Twombly, 550 U.S. at 555, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in plaintiff's favor, and the Court should grant plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

III. Analysis

A. Private right of action under the Davis-Bacon Act

The Davis-Bacon Act requires that all laborers and mechanics working on federally funded construction projects be paid not less than the prevailing wage in the locality where the work is performed. 40 U.S.C. § 3142.*fn1 The Secretary of Labor ("Secretary") "has promulgated extensive regulations regarding the Davis-Bacon Act and its enforcement." United States ex rel. Bradbury v. TLT Constr. Corp., 138 F. Supp. 2d 237, 240 (D.R.I. 2001), citing 29 C.F.R. §§ 1, 3, 5--7. Every contract entered into pursuant to the Act must stipulate that the contractor shall pay the wages established by the Secretary. 40 U.S.C. § 3142(c)(1); see 29 C.F.R. § 5.5. The contract must also provide that if the contractor fails to pay the minimum wages specified in the contract, the government's contracting officer may withhold so much of the accrued payments as may be considered necessary to pay the laborers and mechanics the difference between the contract wages and those actually paid. 40 U.S.C. § 3142(c)(3). The Act further provides that "[i]f the accrued payments withheld under the terms of the contract are insufficient to reimburse" the laborers and mechanics for the wages owed, those "laborers and mechanics have the same right to bring a civil action and intervene against the contractor and the contractor's sureties ...


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