United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE
action has been referred to the undersigned to resolve
discovery disputes. The case concerns the wages that
Plaintiffs were paid for work they performed for Defendants
on certain public construction contracts in the District of
Columbia. Plaintiffs allege that Defendants failed to pay
their prevailing wages, fringe benefits, and overtime pay in
violation of the Fair Labor Standards Act ("FLSA"),
29 U.S.C. § 201 etseq., the D.C. Minimum Wage
Act Revision Act ("DCMWA"), D.C. Code §
32-1001 et seq., and the D.C. Wage Payment and
Collection Law ("DCWPCL"), D.C. Code § 32-1301
etseq. Defendants have moved to dismiss the
complaint, but Plaintiff seeks to take certain discovery
during the pendency of the motion. Upon consideration of the
parties' submissions and the entire record herein,
Plaintiffs' request for discovery is denied.
Skanska U.S.A. Inc. ("Skanska") was the general
contractor performing construction work on a number of public
schools and other public buildings in the District of
Columbia. Am. Compl., ¶¶ 1, 8, 111. Defendant
P.O.S.T. LLC, a limited liability company of which defendant
Alvin Smith is the sole member, served as a labor broker for
Skanska. Am. Compl., ¶¶ 3, 17-18. Plaintiffs are
five carpenters who Defendants hired to work on those public
projects. Id., ¶¶ 2, 19, 23, 38, 42, 56,
60, 75, 79, 93, 97, 111-112. Each Plaintiff alleges that he
was not paid an overtime wage for hours worked in excess of
40 per workweek, and that he was not paid the prevailing wage
and fringe benefits that he was promised and to which he was
entitled as a carpenter. Am Compl., ¶¶ 27, 33, 36,
46, 52, 54, 64, 70, 73, 83, 89, 91, 101, 107, 109. The
three-count Amended Complaint alleges violations of the FLSA,
DCMWA, and DCWPCL. Am. Compl. ¶¶ 136-156.
discovery dispute arose prior to the commencement of
discovery, during the briefing on Defendants' motion to
dismiss the Amended Complaint; it is therefore necessary to
understand the parties' arguments regarding dismissal.
Defendants seek to dismiss this case for failure to state a
claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. They contend that the Amended Complaint must be
dismissed because Plaintiffs' claims are covered by the
Davis-Bacon Act ("DBA"), 40 U.S.C. § 3141
et seq. According to Defendants, the DBA
"requires that all laborers working on construction
projects to which the federal [g]overnment or the District of
Columbia is a party must be paid not less than the prevailing
wage in the locality where the work is performed." Def
Mot. at 8. The regulations promulgated under the DBA allow
the government's contracting officer to withhold payments
to the employer where the employer has not paid its laborers
the prevailing wage. Id. at 8-9. However, the
Defendants assert that the DBA does not confer a private
right of action on an affected laborer until after there has
been an administrative determination by the Department of
Labor that money is owed and that any money withheld is
insufficient to compensate him or her. Id. at 9-10.
Plaintiffs conceded that there has been no such determination
here. PI. Opp. at 13. Accordingly, Defendants argue that
Plaintiffs are trying to "circumvent the DBA" by
seeking unpaid wages under the FLSA, DCMWA, and DCWPCL.
Id. at 11. Defendants rely, in part, on
Danielson v. Burnside-Ott Aviation Training Ctr.,
941 F.2d 1220, 1227-29 (D.C. Cir. 1991), in which the D.C.
Circuit held that administrative proceedings under the
Service Contract Act, a statute similar to the DBA, provided
the exclusive remedy for violations of the statute. Def Mot.
at 8-9. They similarly cite Johnson v. Prospect
Waterproofing Co, 813 F.Supp.2d 4, 5 (D.D.C. 2011),
which dismissed claims under the DCMWA and DCWPCL seeking
prevailing wages established under the DBA because the
plaintiffs had not exhausted their administrative remedies.
Def. Mot. at 11-12.
their opposition to the motion to dismiss, Plaintiffs
contend, among other things, that the DBA does not supplant
the FLSA or the D.C. wage laws under which they have sued,
but rather "operate[s] in concert" with them. PI.
Opp. at 8-11. Plaintiffs assert that Danielson and
Johnson are distinguishable because those cases were
based on allegations that the defendants had misclassified
the plaintiff laborers in order to pay them a lower
prevailing wage than they were entitled to, rather than
claims, like those asserted here, that Plaintiffs were
correctly classified, but were not paid what they were
promised. Id. at 13-14. Misclassification cases are,
they claim, what the regulatory scheme of the DBA was
designed to address, whereas claims that an employee was not
paid his promised wage are what the FLSA and similar statutes
were enacted to remedy. Id. at 14. Plaintiffs
further insist that they "have not and do not intend to
challenge the classification decisions in this case."
light of the fact that Defendants cite misclassification
cases in their motion papers, Plaintiffs, in their opposition
to the motion, request discovery of Defendants' certified
payroll records. PI. Opp. at 21-22; PI. Ltr. at 1. These,
they assert, "will show how the contractors classified
the workers, " as well as the pay rate that Defendants
informed the government they were paying. PI. Opp. at 21.
This, in turn, will purportedly help to resolve the motion to
dismiss by clarifying whether the classification of
Plaintiffs is in fact at issue here. PI. Ltr. at 2.
"[i]n evaluating the sufficiency of Plaintiff s
Complaint under Rule 12(b)(6), the Court may consider
'the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint[, ] and matters
of which [the court] may take judicial notice.'"
Va-saturo v. Peterka, 177 F.Supp.3d 509, 511 (D.D.C.
2016) (quoting Equal Emp 't Opportunity Comm'n v.
St. FrancisXavier ParochialSch., 117 F.3d 621, 624 (D.C.
Cir. 1997)). Because such a motion "does not require a
court to 'assess the truth of what is asserted or
determine whether a plaintiff has any evidence to back up
what is in the complaint, '" a plaintiff is
typically "not entitled to discovery before [a] court
rule[s] on [a] motion to dismiss." Herron v. Fannie
Mae, 861 F.3d 160, 173 (D.C. Cir. 2017) (quoting
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002)). There is, however, authority supporting the notion
that a court has discretion to allow limited discovery to aid
in determining the sufficiency of a complaint. See, e.g.,
Menard v. CSK Transp., Inc., 698 F.3d 40, 45 (1st Cir.
2012) ("Where modest discovery may provide the missing
link, the district court has discretion to allow limited
discovery and, if justified, a final amendment of the
the undersigned has that authority, Plaintiffs' request
still fails on its merits. Plaintiffs assert that the limited
discovery they seek will allow them to learn whether
Plaintiffs were classified as carpenters. PI. Ltr. at 2. If
Plaintiffs were so classified, then there is no
classification issue, "and Defendants' arguments on
this subject are a red herring." Id. That
ignores a number of salient points.
Defendants do not argue that this case must be dismissed
because it is a classification case. Defendants' position
is that any action by a private party that
(explicitly or implicitly) implicates the DBA cannot be
sustained unless the Department of Labor has completed the
administrative procedures outlined in the regulations.
See, e.g., Def Mot. at 5 n.6 (noting regulation
setting out administrative procedure "for resolution of
disputes of fact or law concerning payment of prevailing
wage rates, overtime pay, or proper classification"
(emphasis in original) (quoting 29 C.F.R. § 5.11));
id. at 6 ("The DBA does not confer a private
right of action."); Def. Reply at 16 (same). Knowledge
gained from the requested records would not, then,
"eliminate one of Defendants' arguments, " PI.
Ltr. at 2, because classification is irrelevant to those
arguments. Moreover, the cases Defendants cite, like
Danielson and Johnson, make clear that the
question of whether the DBA provides a private right of
action is a purely legal question that does not require
development of facts outside the Complaint. See
Danielson, 941 F.2d at 1227 ("[T]he question
whether a private right of action is conferred by a federal
statute is essentially one of interpreting congressional
intent." (quoting Miscellaneous Serv. Workers v.
Philco-Ford Corp., 661 F.2d 776, 780 (9th Cir. 1981));
Johnson, 813 F.Supp.2d at 6-9 & n.5
("[N]either the language, the history, nor the structure
of the statute supports the implication of a private right of
action in this case." (quoting United States ex rel.
Glynn v. Capeletti Bros., 621 F.2d 1309, 1317 (5th Cir.
if the Court were to accept Plaintiffs' argument that
only misclassification cases require administrative
exhaustion,  the discovery would still be irrelevant
because Plaintiffs have-repeatedly and explicitly-disavowed
that this is a misclassification case. See PI. Opp.
at 13 ("In this case . . . Plaintiffs are neither
alleging that they were misclassified nor challenging the
rates set by DOL for their classifications . . . .");
id. at 14 (Plaintiffs in this case have not and do
not intend to challenge the classification decisions in this
case."); PI. Ltr. at 2 (noting that "this is not
one of th[e] cases" that "challenges the
classification of the plaintiffs"). Confirmation of the
fact that Plaintiffs were properly classified, then, would
put Plaintiffs in no better a position than if they merely
rested on their Amended Complaint (as is typical in the case
of a 12(b)(6) motion to dismiss), which itself indicates that
they were properly classified. See, e.g., Am.
Compl., ¶¶ 21-23 (stating that plaintiff Mario
Menjivar Garcia was hired as a carpenter, worked as a
carpenter, and was to be paid as a carpenter); Def Ltr. at 2
("Plaintiffs did not allege misclassification in their
Amended Complaint. Instead, in their Amended Complaint,
Plaintiffs allege . . . that they were not paid the
[promised] wages of a carpenter"). Learning that
Plaintiffs were misclassified would similarly have no effect:
Plaintiffs have alleged that they will not pursue any such
claims and, again, the allegations in the Amended Complaint,
which are taken as true for the purposes of this motion,
indicate that Plaintiffs were properly classified. The
requested discovery is therefore unnecessary to resolve the
motion to dismiss.
reasons stated above, it is hereby ORDERED
that Plaintiffs' request to engage in limited discovery
during the pendency of ...