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Lusk v. Serve U Brands Inc.

FLSA Claim Not Stated; Failure to Pay Minimum Wage Cannot Be Determined

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DECISION AND ORDERI. INTRODUCTION

*1 Named Plaintiffs Skyler Lusk, Tia Council, Viktoria O’Brien, and Justin Byroad (collectively “Named Plaintiffs”), former delivery drivers for Defendant Insomnia Cookies, LLC (“Insomnia Cookies”), commenced the instant action on July 11, 2017, alleging violations of the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. §201 et seq., as well as violations of the state laws of New York, Michigan, and Indiana. Docket No. 1. Currently pending before the Court are Named Plaintiffs’ motion for conditional certification of the case as a collective action pursuant to the FLSA (Docket No. 8) and defendants Serve U Brands, Inc. (“Serve U”), Insomnia Cookies, and Seth Berkowitz’s (“Berkowitz”) (collectively “Defendants”) motion to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docket No. 35). For the reasons discussed below, Defendants’ motion to dismiss is granted and Named Plaintiffs’ motion for conditional certification is denied.*2

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