United States District Court, S.D. New York
LEIGH SHAFIR, on behalf of herself and all others similarly situated, Plaintiff,
CONTINUUM HEALTH PARTNERS, INC. and ST. LUKE'S-ROOSEVELT HOSPITAL CENTER, Defendants
For Plaintiff: Jeffrey L. Koenig, HECHT, KLEEGER & DAMASHEK, PC, New York, New York.
For Plaintiff: Daniel C. Levin, LEVIN, FISHBEIN, SEDRAN & BERMAN, Philadelphia, PA.
For Plaintiff: Christopher Hayes, THE LAW OFFICE OF CHRISTOPHER G. HAYES, ESQUIRE, West Chester, PA.
For Defendants: Edward Cerasia II, Aaron Warshaw, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., New York, New York.
MIRIAM GOLDMAN CEDARBAUM, United States District Judge.
By: Edward Cerasia II
Defendants Continuum Health Partners, Inc. and St. Luke's-Roosevelt Hospital Center (" Defendants" ) move to dismiss Plaintiff Leigh Shafir's Third Amended Complaint (" Complaint" ) pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, I will convert that motion to one for summary judgment under Fed.R.Civ.P. 56.
Fed. R. Civ. P. 12(d) provides that if " matters outside the pleadings are presented to and not excluded by the court" on a motion under 12(b)(6), " the motion must be treated as one for summary judgment under Rule 56." Rule 12(d) addresses the " problem [that] arises when a party seeks to introduce affidavits, depositions or other extraneous documents not set forth in the complaint for the court to consider on a Rule 12(b)(6) motion." Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). As the Second Circuit has noted, Rule 12(d) allows courts to " direct a pretrial motion to the vehicle most appropriate for its resolution," thereby " ensuring that the motion is governed by the rule specifically designed for the fair resolution of the parties' competing interests at a particular stage of the litigation." Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006). Summary judgment " is the proper procedural
device to consider matters outside the pleadings, such as facts unearthed in discovery, depositions, affidavits, statements, and any other relevant form of evidence." Id. It is left to my discretion whether or not to consider " matters outside the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).
Here, Plaintiff attached to the Complaint the depositions of St. Luke's employees Ken Barritt and Nicole Hargraves, and an affidavit from former employee Charles Keenan. Defendants responded with their 12(b)(6) motion, a declaration from St. Luke's employee Ken Barritt, and a deposition of Plaintiff. The declaration and deposition attached to Defendants' motion constitute " matters outside the pleadings." Global Network Commc'ns, 458 F.3d at 155. Thus, I have the option to convert the motion under Rule 12(d). Because so much evidentiary support is already available in this case, the most efficient course of action is for me to take that evidence into consideration. I will therefore treat Defendants' motion as one for summary judgment. Conversion is particularly appropriate in this instance where not only do Defendants present a declaration and deposition with their 12(b)(6) motion, but Plaintiff also attaches depositions and an affidavit to the Complaint itself. See Rose v. Bartle, 871 F.2d 331, 340 n.3 (3d Cir. 1989) (affidavit attached to complaint " constitutes a matter outside the pleading" and if not excluded when considering a Rule 12(b)(6) motion then the motion must be treated as one for summary judgment).
Defendants include within their 12(b)(6) motion an additional argument for dismissal based on what they label lack of standing. Although I may consider evidence outside the pleadings to resolve a proper jurisdictional challenge, Zappia Middle East Constr. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000), Defendants confuse lack of standing with failure to state a claim. See Defs.' Br. at 15 (" Because Shafir has failed to allege any plausible violation of the FLSA or NYLL against her . . . she lacks standing . . . ." ). Plaintiff has alleged an injury sufficient for Article III standing -- that she was an hourly employee who worked overtime for which she did not receive overtime wages. Whether Plaintiff can ...