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Vincent Commissi, Individually and On Behalf of All Others Similarly Situated v. Pricewaterhousecoopers Llp

July 27, 2012

VINCENT COMMISSI, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
PRICEWATERHOUSECOOPERS LLP, DEFENDANT.



The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge

MEMORANDUM AND ORDER

Plaintiff Vincent Commissi brings this diversity action against defendant PricewaterhouseCoopers LLP ("PwC"), seeking unpaid overtime under the New York Labor Law (the "NYLL") on behalf of himself and a class of similarly situated individuals. PwC has moved pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction, and, in response, Commissi has moved pursuant to Federal Rule of Civil Procedure 15(a)(2) for leave to amend his complaint to add Peter Vicario as an additional named plaintiff asserting violations of the Fair Labor Standards Act (the "FLSA").

For the reasons discussed herein, we deny Commissi's motion for leave to amend and grant PwC's motion to dismiss.

BACKGROUND*fn1

I. The Instant Action

On August 16, 2011, Commissi, a New York resident, filed a complaint (the "Complaint") against PwC, which is a Delaware limited liability partnership headquartered in New York. Commissi had been employed by PwC as an Associate without a Certified Public Accountant license or other advanced training (an "Unlicensed Associate") in PwC's Assurance line of service in New York, from approximately August 2005 to approximately October 2007. The Complaint was filed on behalf of both Commissi and all others similarly situated -- i.e., Unlicensed Associates who worked in Assurance, in New York, at any time within the six years preceding the filing of the Complaint through the date of judgment -- and alleges that PwC wrongly classified them as exempt from overtime under the NYLL. Because PwC and Commissi are both residents of New York and the Complaint alleges only a single claim under New York state law, Commissi has premised subject matter jurisdiction on the diversity provisions of the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d)(2), by alleging that other class members are not New York residents.

PwC answered the Complaint on November 17, 2011, and we held a conference with the parties on December 13, 2011. At that conference, PwC discussed its intention to move to dismiss the Complaint for lack of subject matter jurisdiction based on the makeup of the putative class. Commissi made no mention of an intention to amend the Complaint and attain federal subject matter jurisdiction through the addition of an FLSA claim. Subsequent to that conference, on December 28, 2012, we entered a briefing schedule for PwC's motion. Accordingly, PwC filed its motion to dismiss on January 27, 2012, contending -- as discussed further below -- that the number of New York residents in the putative class brings the case within one of the exceptions to CAFA's grant of diversity jurisdiction.

Nearly two months later on March 21, 2012, in lieu of filing an opposition -- after having received a two-week extension for filing his opposition -- Commissi filed an amended complaint, without having requested leave to do so, that added Vicario as a new named plaintiff. Vicario had, like Commissi, worked for PwC as an Unlicensed Associate in New York, though during a later period -- approximately September 2007 to December 2009. The amended complaint asserted an FLSA claim on behalf of Vicario and a nationwide collective of Unlicensed Associates in PwC's Assurance line who are not already members of Kress v. PricewaterhouseCoopers LLP, No. 2:08-cv-00965 (LKK/GGH) (E.D. Cal.), an FLSA collective action currently pending against PwC, to which Commissi has indisputably opted in. The FLSA claim in the amended complaint, like the NYLL claim, seeks unpaid overtime, alleging that PwC improperly classified Unlicensed Associates as exempt from the protections of the FLSA.

During a telephone conference with the parties on March 27, 2012, we indicated that the amended complaint was improperly filed*fn2 and that Commissi would need to proceed by formal motion if he desired leave to amend the Complaint. Pursuant to that discussion and a subsequent letter from the Court, Commissi filed his motion for leave to amend on April 23, 2012, indicating that the earlier-filed amended complaint should be treated as the proposed amended complaint (the "PAC"). Briefing on that motion concluded on May 14, 2012.

II. The Kress Action

As noted, Kress, an FLSA collective action alleging improper withholding of overtime of a nationwide group of Unlicensed Associates in PwC's Assurance line of service,*fn3 is currently pending against PwC in the Eastern District of California.*fn4 Kress is a consolidation of Le v. PricewaterhouseCoopers LLP, No. 3:07-cv-05476 (MMC) (N.D. Cal.), filed October 26, 2007 and transferred to the Eastern District of California on April 16, 2008, and Kress v. PricewaterhouseCoopers LLP, No. 2:08-cv-01234 (SVW-CW) (C.D. Cal.), filed January 18, 2008 in Los Angeles Superior Court, removed to the Central District of California on February 22, 2008, and transferred to the Eastern District of California on May 5, 2008.

The consolidated collective action was conditionally certified on November 25, 2009, see Kress v. PricewaterhouseCoopers LLP, 263 F.R.D. 623, 631 (E.D. Cal. 2009), and the court subsequently set a June 28, 2010 deadline for opting in to the collective action. Commissi, along with a number of other individuals, opted in to the Kress FLSA collective action before the court-ordered deadline had passed. Kress, 2:08-cv-00965 (LKK/GGH), docket no. 131, Notice of Consent to Become Party Pl. (E.D. Cal. May 18, 2010). Vicario also filed a consent, but not until over two weeks past the deadline. Id., docket no. 162, Notice of Consent to Become Party Pl. (E.D. Cal. July 14, 2010). Since that time, no motion to exclude Vicario from Kress has been filed (Thomasch Decl. ¶ 8),*fn5 and PwC has represented -- both on the March 27, 2012 telephone conference and by affidavit (id. ¶ 9) -- that it will not challenge Vicario's consent as untimely.

DISCUSSION

I. The Motion for Leave ...


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