Oram v. Soulcycle, L.L.C. et al, No. 1:2013cv02976 - Document 27 (S.D.N.Y. 2013)
Court Description: OPINION re: 9 MOTION to Dismiss. MOTION to Sever. Re: 18 MOTION to Dismiss. Upon the conclusions set forth above, the motion of the Defendants to sever the California claims is denied at this time without prejudice to renewal, the motion of the Defendants to dismiss the First, Second and Third causes of action is granted, the motion of the Defendants to dismiss the Tenth cause of action is denied and the motion to strike allegations from the AC is granted in part and denied in part as set forth above. (Signed by Judge Robert W. Sweet on 10/28/2013) (cd)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ~ .ISDC SDl\T)' OOCUMENT --x \! FLECfRONICALLY FILED , I NICK ORAM, on behalf of himself and on behalf of all other similarly situated persons, PIa iff, SOULCYCLE LLC, SOULCYCLE HOLDINGS LLC, SOULCYCLE 384 LAFAYETTE STREET, LLC, SOULCYCLE 350 AMSTERDAM, LLC, SOULCYCLE 609 GREENWICH STREET, LLC, SOULCYCLE BRIDGEHAMPTON, LLC, SOULCYCLE EAST 18 TH STREET, LLC, SOULCYCLE EAST 63 RD STREET, LLC, SOULCYCLE EAST HAMPTON, LLC, SOULCYCLE ROSLYN LLC, SOULCYCLE SCARSDALE LLC, SOULCYCLE TRIBECA, LLC, SOULCYCLE WEST 1 STREET, LLC, SOULCYCLE BRENTWOOD, LLC, SOULCYCLE SANTA MONICA, LLC, AND SOULCYCLE WEST HOLLYWOOD, LLC, Defendants. -------------------------- --- -- -x A P PEA RAN C E S: aintiff THOMPSON WIGDOR LLP 85 fth Avenue New York, NY 10003 By: Douglas H. Wigdor, Esq. David E. Gottlieb, Esq. Attorne for Defendants JACKSON LEWIS LLP 666 Third Avenue New York, NY 10017 By: William J. Anthony, Esq. Joana S. Smith, Esq. ?B. 10·":=<;13: .' DI\TE FILh6~ \ i 13 Civ. 2976 OPINION -against- At DOC #: Sweet, D.J. , Soul Cycle Holdings, LLC, Defendants Soul Cycle SoulCycle 384 Lafayette Street, LLC, Soul Cycle 350 Amsterdam, LLC, Soul Cycle 609 Greenwich Street, LLC, SoulCycle Bridgehampton, LLC, SoulCycle East 18th Street, LLC, SoulCycle East 63 Street, LLC, Soul Cycle East Hampton, LLC, SoulCycle Roslyn, LLC, SoulCycle Scarsdale, LLC, SoulCycle Tribeca, LLC, SoulCycle West 19th Street, LLC, SoulCycle Brentwood, LLC, SoulCycle Santa Monica, LLC, and SoulCycle West Hollywood, LLC hereinafter "Defendants" or "SoulCycle") have lect moved to sever the Plaintiff Nick Oram's ("Oram" or "Plaintiff") California CIa di and Parties pursuant to Fed. R. C . P. 21, to ss the New York Claims in the Amended Complaint ("AC") pursuant to Fed. R. to stri portions of P.12 (b) (6) ("Defendants' Motion") and AC pursuant to Fed. R. Civ. P. 12(1). Upon the conclusions set forth below, t motion to sever is denied, the motion to dismiss is granted in part and den in part, and the motion to strike is granted in part and denied in part. 1 .------------ ... -~.-~---- Prior Proceedings Oram fi his initial complaint in this putative class action on May 2, 2013. The Defendants moved to di Complaint and on July 2, 2013 Oram filed the alle AC, which contained tions described below. Oram has alleged that he commenced employment ~ th ling instructor on or about April 16, SoulCycle as an indoor 2009 (AC ss the 132) and that taught sses at many SoulCycle locations, including but not limited to, Tribeca, Upper East Side, Upper West S , Union Square, SoHo, Scars Bridgehampton and East Hampton West Hollywood in California. le, New York and Santa Monica and (AC ~ 35). In addition to the classes he taught, Oram had to pe rm a va ety of r tasks, including but not limit to, "training, preparing for classes, developing routines, compiling p ylists, communicating with customers, attending meetings, leading special event classes and enga ~ 37). These tasks week of his time (AC ng in marketing." (AC an additional 15 to 25 hours per ~ 45) and was not compensated for time spent on these additional tasks. (AC 2 ~ 39). Oram was paid "strictly on a per c ~ ss basis" (AC paid "far exceeded the minimum wage." 38) and the rate he was (AC ~ 88). Oram also alleged that he was required to incur to perform his job business expenses for "items necessa ayers, ipods [sic], music, including but not limited to MP3 CDs, computers, ~ xing software, and travel expenses" (AC 40) r these business expenses. and that he was never reimbursed Oram referenced the terms of his agreement with Defendants in Paragraph 37 his AC, but any written agreements into the AC. Oram's employment April IS, 2013. (AC ~ (AC ~ d not incorporate 37). th SoulCycle ended on or about 32). Approximately three weeks after his employment with Soul Cycle ended, on or about May 2, 2013, aintiff filed his initial complaint (AC ~ 33). Several weeks after the filing of the initial complaint, both Plaintiff and his counsel, Douglas Wigdor ("Wigdor"), were "explicitly told that they were not permitted on SoulCycle's premises." (AC ~ 34) . The AC contains the First Claim Pay Minimum Wage in violation of NYLL 3 § Relief (Failure to 650 et. seq. (AC ~~ 77 83), the Second Claim for Relief (Failure to Pay Wages in violation of NYLL § 191) Relief (Unlaw (AC ~~ 84 91), the Third Claim for 1 Deductions in violation of NYLL § 193 and 12 N.Y.C.R.R. § 142-2.10) (AC ~~ 92-100), the Fourth Cause of Action (Failure to provide Wage Statements under the NYLL) ~~ 101-106), the Fi (AC h Cause of Action (Failure to pay wages in violation of California Labor Code §§ 204, 223, 1194, 1194.2, 1197, 1197.1 and 1198 (AC ~~ 107-121), the Sixth Cause of Action (Failure to provide accurate wage statements in violation of California Labor Code § 226(A) (AC ~~ 121-129), the Seventh Cause of Action (Failure to reimburse expenses in violation of CLC §2802 (AC ~~ 130-134), the Eighth Cause of Action (Failure to timely pay all final wages in violation of CLC §§ 201-203) (AC ~~ 135-144), t Ninth Cause of Action (violations of the unfair competition and business Practices Act) (AC ~~ 145, 157), and the Tenth Cause of Action (retaliation in violation of NYLL § 215) (AC ~~ 158-163). The instant motions were heard and marked lly submitted on September 28, 2013. The Motion To Sever The California Claims Is Denied At This Time A. The icable Standa 4 Fed. R. . P. Rule 21 provides t: Part s may be dropped or added by order of the court on motion of any party or of its own initiative at any stage the action and on such terms as are just. Any im against a pa may be severed and proceeded with separately. Id. "[S]eve claims become entirely independent actions to be thereon, independent." Cestone v. tried, and judgment ente s General Ci Inc., 00 . 3688 (RCC) (DF), 2002 U.S. st. LEXIS 4504, *6 (S.D.N.Y. Mar. 18, 2002) omitted). The trial court s broad discretion in determining whether to sever claims under Fed. R. C Courts in this Cir (internal citat consider the . P. Rule 21. Id. llowing factors rmining if severance is appropriate: (1) whether the arise out of the same transaction or occurrence; ims (2) whether the aims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether documenta proof are required for the separate claims. Id. at *7. "Severance requires the condit fferent witnesses and sence of only one of these s." Id.; see also _ _ _ _ _ _L -_ _ _ _ _ _ Eraus -'-_ _ _-'--_L....:.t....:.d-'-, 806 F. Supp.2d 7 , 720 ~~~~~~~~~~~~ (S.D.N.Y. 2011). "The Federal courts view severance as a procedural device to be 5 employed only in exceptional circumstances." r Constr. Co. (S.D.N.Y. August 23, 2001) No. 99 Civ. 0682, 2001 WL 963943, *1 (internal cations omitted). sfer is Premature Severance B. Bus. Ins. As a threshold matter, De ndants have introduced extrinsic evidence in the context of the motion to sever, including the employment contract between Soul Cyc cialists Sec. See -------------~~--------------------~In re NYSE ("the Contract"). F.3d 89, Cons 95 rat and Oram (2d Cir. 2007) cert. denied, 552 u.S. 1291 (2008). of Plaintiff's employment contract and re ed cuments are also appropriate with respect to the motion to di ss Plaintiff's NYLL claims as they are integral to the AC. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Co., Int'l Audiotext Network v. American Tel. 62 F.3d 69, 72 take a document (2d Cir. 1995) & Tel. (holding that a court may consideration without convert a motion to dismiss to a summary judgment motion, even if the document was not attached to the complaint, when said document is integral to the complaint). It appears that Oram's employment contract was entered into by Oram and Soul Cycle LLC, the sumably rent company, as were the employment contracts of members of the putative class. 6 The Defendants in arguing severance have pointed out that courts have 0 iffs who en severed the claims of pia reside and were injured out of the court's jurisdiction. See Costello v. Home U.S.A. Inc. ~~~~~~~~~~~~,~~~----~------ (D. Conn. 2012) 888 F. Supp.2d 258, 264 66 (finding that the relevant factors, substantial factual nces between the dif f plaintiffs, despite t including the rent ir sharing a job description, as well as concerns for jury confusion favored severance of non-Connecticut Civ. claims into separate actions). In Wilkes v. Genz No. WMN-I0-1683, 2011 U.S. 2011), st. LEXIS 49881 instance, plaintif (D. Mel. May 10, alleged wage and hour olations solely under state law, on behalf of plaintiffs who were employed by defendant six dif rent states. District Court in Wilkes severed t plaintiffs and Coleman v. 2000) cla The Maryland of all out-of state smissed them from the case. Id. at *7 8, citing ker Oats Co., 232 F.3d 1271, 1296-97 (holding that the scretion when (9th Cir. strict court did not abuse its severed the claims of three of the ten plaintiffs, as, among other reasons, not severing their claims would lead to potential judice to the fendants in part due to legal confusion as the jury would have had to evaluate state law cia under t differing laws of each see also Boschert v. Pfi aintiff's state); No. 4:08-CV-1714 (CAS), 2009 7 U.S. st. LEXIS 41261 (E.D. Mo. May 14, 2009) (granting severance of the non-resident state plaintiffs, in part because multiple sets of jury instructions would be requi to encompass the laws from multiple states, and allowing the severed plaintiffs to re-file their separate complaints against the defendant in the court of ir choosing, provided they could meet jurisdictional and venue requirements). The Defendants here have similarly noted the existence of the California Defendants and the differences between the statutes of Cali rnia and New York, as well as the potential inconvenience to out of state Defendants and witnesses in this matter. (Memo in Support, p. 8-9). It is at this early stage uncertain as to possible witnesses and cuments out of state. No showing s been adduced concerning the putative class as to numbers, location and contracting parties. instances, appropr Further, courts, appropriate tely apply two sets of laws in wage claims in the same action, such as the FLSA and corresponding state wage law, without prejudice to any party. As such, an analogous ctual scenario was presented in Dare v. Comcast No. 09 4175 (N:::"H) (JS), 2010 WL 2557678 (D.N.J. June 23, 2010). See also In 812 F. Supp. 2d 390,396 (S.D.N.Y. 2011) (holding that claims brought under 8 antitrust laws of fourteen other states and the Dist ct of Columbia could proce because the conduct was alleged to be the same no matter where any plaintiff resided). As to the possibility of jury confusion" presumpt re is a that jurors will follow the Court's instructions." Todaro v. Si No. 04 Civ. 2939 (JS) (WDW), 2008 WL 682596 (E.D.N.Y. Ma 3, 2008) lining to sever where defendants argued trying two individual discrimination-re confusion) ; ed claims at the same time would cause jury chardson v. Marsh, 481 U.S. 200,206 (1987) (explaining gene ly the "assumption of the law that jurors follow their instructions"). Indeed, many courts have found "any prejudice or confusion [that might occur from trying plaintiffs' claims before a single jury] can be remedi by a carefully drafted jury instruction." ies, 210 F. Supp.2d 308, 320 (S.D.N.Y. 2002) -~--- clini to sever where four plaintiffs brought individual discrimination claims toget r). In addition, courts often focus in determining if severance is appropriate on whether t same transaction or occurrence. claims arise out of the While inquiries as to whether claims arise from the same transaction are case specific, "the 9 same transaction or occurrence factor routinely has been found to exist where emp plaintiffs with varying factual circumstances allege the common denominator of a policy or practice . . ., No. 05 Civ. 655 ." Gerace v. Cliffstar (WMS) , 2009 WL 5042621 (W.D.N.Y. Dec. 15, 2009) i see also No. 95 Civ 4445 (SJ), 1996 WL 468660 (E.D.N.Y. Aug. 7, 1996) (finding that plaintiffs' claims related to the same transaction where they were based on a common "pattern of severe disciplinary measures"); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1422 (S.D.N.Y. 1989) (holding claims arose out of the same transaction where "[a] company-wi policy purportedly designed to discriminate against females in employment arises out of the same series of transaction or occurrences"); Duke v. Oni Cir. 1991) , 928 F.2d 1413, 1421(4th (holding plaintiffs' claims arose out of the same transaction where they were based on "a uniform policy adopted for selecting employees for discharge."); MosIe Motors Co ., 497 F.2d 1330, 1333-1334 v. General (8th Cir. 1974) (finding transaction factor satisfied where ten plaintiffs brought individual Title VII claims together against their employer based on a company-wide policy). Oram has adequately that the claims of the New York and Cali from a common practice of the Defendants. 10 leged rnia classes result (AC <]I 6.) cause of the uncertainty as to Defendants, thi party witnesses and documents at this time and based on the authorities cited above, the motion to sever is denied without prejudice to renewal or to a further motion to sever and transfer. See Martinez v. Robinson r No. 99 Civ.11911 2002 WL 424680, at *2 (S.D.N.Y. Mar.19, 2002) a consequence, in rmation necessary to evaluate t factors was not yet avail Automotive Inc. (W.D.N.Y. July 18, 2002) relevant e); see also Cramer v. Fedco 2002 WL 1677694, at *2 ----------------~----------~----- be (denying severance rely begun, and, as use discovery had motion as premature (DAB), (declining to grant severance motion discovery was completed). The First, Second And Third Causes Of Action Are Dismissed A. e Standard The On a motion to dismiss under Fed. R. Civ. P. 12(b) (6), a court must a moving t factual allegations made by the non rty as true and "draw all inferences in t favorable to the non-movi party's favor. u light most In re NYSE 503 F.3d 89, 95 (2d Cir. 2007) cert. denied 552 U.S. 1291 (2008). While the pleading standard is flexible, is not thout boundaries. The court need not 11 "accord legal cone ions, deductions or opinions couched as factual allegations ... a sumption of truthfulness." rd. 1 conclusions (internal citations omitted). Accordingly, 1 "must be supported by factual allegations." 556 U.S. 662, 678 (2009). To survive a motion to di contain suf reI cient factual matter . f that is plausible on plausibil ss, "a compla must . to state a claim to s face." Id. "A claim has ial y when the plaintiff pleads factual content that allows the court to draw the reasonable in renee that the defendant is liable for the misconduct alleged." Desilva v. North Shore Inc., 770 F. Supp.2d Island Jewish Health S ----------------~~------------------------~--~----- 497, 506 (E.D.N.Y. 2011) citing to Bell Atl. 550 U.S. 544, 555 (2007) the grounds of ("[AJ pIa s entitlement to reI . v. Twombl , iff's obligation to provi f ires more than labels and conclusions, and a formulaic recitation of t elements of a cause of action cons 11 not do."). "A court ring a motion to dismiss may begin by identifying allegations , because they are mere cone entitled to the assumption of truth." - - - - " ' - I sions, are not 556 U.S. at 664. The factual allegations must instead "possess enough show that the pleader is entitled to relief." at 557. Twombl ft to 550 U.S. Therefore, unless a plaintiffs well-pleaded allegations 12 have "nudged [his] plausible, aims across the 1 from conceivable to [the plaintiff's] complaint must be dismissed." Id. at 570i see also Iqbal, 556 U.S. at 680i Lundy, 711 F.3d at 115 (finding that plaintiffs sparse allegations which theoretically could put her over the 40-hour mark in one or another unspecified week(s) were insufficient to support her claims of overtime violations and "suppl[ied] nothing but low-octane fuel for speculation, not the plausible claim that is required."). B. The Plaintiff Has Not Adequately Violation of New York Minimum irements In an action to recover unpaid wages under the NYLL, a plaintiff must show that the statute; (1) he was an "employee" as defined by (2) the defendant was his "employer" as defined by the statute; and (3) he was paid a wage of less than the applicable statutory minimum wage for each hour worked. See NYLL § 652. The NYLL does not require that employees be paid by the hour, only that the total wages paid to the employee are equal or greater to the total sum of the applicable minimum wage rate times the number of hours worked by the employee. See NYLL § 190 (1) (defining wages as "the earnings of an employee for labor services rendered, regardless of whether the amount of 13 , piece, commission or other earnings is determined on a t basis"); see also N.Y. COMPo CODES R. & REGS. tit. 12, § 142 2.16 ("The term regular rate shall mean the amount that the employee is regularly paid for each hour of work. When an employee is paid on a piece-work basis, salary, or any basis other than hourly rate, the regular hourly wage rate rmined by dividing the total hours worked duri 11 be the week into the employee's total earnings."); Severin V. Inc., 10 Civ. 9696 ect OHR (DLC), 2012 U.S. Dist. LEXIS 85705, *35 (S.D.N.Y. Jun. 20, 2012) (finding that as putative a class action were paid $136.95 ea shi aintiffs in totaling a potential 16 compensable hours, putative plaintiffs rate of compensation was $8.55 appli r hour which was greater e minimum wage rate). AC saIl an hourly rate but work week (AC i that the Plaintiff was paid not at sed on the number of classes he taught in 38), that the rate he was paid "far exceeded minimum wage" (AC i teaching classes, tra ing, prepa 88) and his duties included for classes, compiling playlists, attending meetings, and communicating (AC i the customers 37) and that he was not paid the minimum wage forming these duties outside the classes he taught. 39.) 14 (AC i However, to survive a motion to dismiss, Plaintiff's claim for minimum wage violations under the NYLL must be supported by factual allegations sufficient to establish t t his weekly per class rate divided by his hours worked fell under that of the applicable minimum wage for specified workwee . See 550 U.S. at 555; see also N.Y. COMPo CODES R. & REGS. tit. 12, § 142-2.16; see also ~________~~ ____~__ I_n_c _, _. v. Catholic Health 711 F.3d 106 (2d Cir. 2013) (granting smissal of plaintiffs' claims for alleged unpaid overtime several times due to the pauc y of cts alleged and the conclusory nature of allegations such as plaintiff "occasionally" worked an additional shift or meal breaks were "typically" missed or interrupted which did not specify which weeks such actions occurred) . though Plaintiff has alleged that his "per class compensation was not intended to and did not compensate Oram for time spent performing other tasks that were required of him as a SoulCycle employee," (AC ~ 39) including training, preparing r classes, compiling playlists, attending meetings, and communicating with customers (AC ~ stated that his compensation was 37), Plaintiff's Contract "all services rendered by employee in connection with employee's employment" and 15 scribed such services as including, but not limited to, teaching no less than 11 classes per week, attending regular staff meetings, attending continuing education sessions, compiling playlists and contributing to the Company's mus library, offering content r the Company's website, and setting up new riders class. (See Morris AfL Ex. "1".) the This list of Services, enumerated in the Contract, included the same list of tasks to perform in Paragraph 37 of Plaintiff concedes he was requi the AC, which he has alleged his compensation was not intended to cover. The AC fails to state Plaintiff's actual rate of pay (per class or otherwise), or his total number of hours worked per week. The offer letter of Soul Cycle LLC, dated January 4, 2010 (a copy of which is attached to the Morris f. as Exhib "1"), stated that Plaintiff was initially paid at a rate of $130 per class with a schedule of at (See Morris Aff. Ex. "I".) st eleven classes per week. The AC has alleged that each class was 45 minutes long and that Oram worked an additional 15 to 25 hours per wee k in addition to his class schedule. From these allegations, then, at the least, (AC <Jl 45). Plaintiff worked a total of 23.25 to 33.25 hours a week and was paid at least $1,430 each week, and that his rate of pay ranged anywhere from $43.00 to $60.55 per hour, dependent on the total number of 16 hours worked per week. The Plaintiff's allegations thus fail to adequately describe a minimum wage violation as a matter of law. r relief has alleged t The second claim PIa iff id "all their wages with the and the New York Class were not rests on Plaintiff's allegations requisite frequency," and his non class-time work. was not paid a proper wage that t that Because Plaintiff has not adequately was not paid the appropriate minimum wa under the NYLL for all hours worked, Plaintiff's second aim for relief is likewise smiss for failure to state a claim. Accordingly, P first and c ims for relief Plaintiff's thi intiffs il as a matter of law. claim for relief has alleged unlawful deductions from his wages (AC ~ 94) in that his allegedly unreimbursed business expenses "for items necessary to rm his job mus luding but not limited to MP3 players, ipods, , CDs, computers, mix equated to an software, and travel expenses," awful deduct and 12 N.Y.C.R.R. New York law, empl § 142-2.10. of his wages under NYLL (AC ~~ § 193 40, 93-98). However, under rs do not have to reimburse employees business expenses, including "tools of the trade," so long as not doing so does not reduce the employee's wage minimum wage. See Lin v. Benihana Nat'l Corp., 10 17 low the 1335 r (VM) (JC F), 2010 U. S . 9, 2010) (finding t st. LEXIS 132871, *15 17 (S.D.N.Y. Nov. t as employers can require employees to bear the costs of tools of the trade as long as it does not reduce their wages below minimum wage, plaintiffs failed to present ir allegations with suffi ent specificity because they did not provide details regarding the cost of the tools each purchased, nor did they state whether those costs reduce their wages below the minimum threshold); see also Maldonado v. La Nueva 10 Civ. 8195 (LLS) (JLC), 2012 U.S. Dist. LEXIS 67058, *25 (S.D.N.Y. May 14, 2012) (holding that employees could recover the costs of their equipment and repairs because such costs dropped the employees low the minimum wage.) As concluded above, Plaintiff's Offer letter and Contract, when read in conjunction with Plaintiff's AC, establish that Plaintiff earned more than the applicable minimum wage. Plaintiff's conclusory allegations that he was never reimbursed for alleged bus as to outs ss expenses, without any allegation cost of these expenses or how they remove his salary of minimum wage requirements, inadequately allege his third claim under the NYLL. Plaintiff has provided no support for his contention that part (a) of 12 NYCRR § 142-2.10 provides a "blanket 18 protection" and prohibits deductions for business and above t protection provided part (b) of 12 NYCRR § 142 2.10, thereby making part (b) superfluous. Courts (PI. . at 13) read § 142-2.10(a) specifically as prohibiting "deductions for spoil short ses over s or losses; or brea [or tions for cash ing] fines or penalt s for lateness, misconduct or quitting by an employee without notice" and have found §142-2.10(b) to prohibit empl the "minimum rs from ing by an employee in for expenses incur carrying out duties assigned by an employer." Lewis v. Alert ette Servo C 6269, *14 11 CV-442(JBW), 2012 U.S. Dist. LEXIS (E.D.N.Y. Jan. 19, 2012). Plaintiff has not offered rs to have always earned allegation of spoilage and above minimum wage for all hours wor that Plaintiff's conclusory allegat alleged ly, was never reimbursed iness expenses are not enough to support a claim under the NYLL § 193. Plaintiff's Thi there Acco also di Claim Relief is ssed. The Motion To Dismiss The Tenth Cause Of Action For Retaliation Is Denied NYLL § 215 states with re 19 to retaliation: No employer or his agent, or the officer or agent of any corporation, shall discharge, penalize, or in any other manner discriminate a inst any employee because such employee has made a complaint to his employer, or to the commissioner or his authorized representative, that the employer has vi ated any provision of this chapter, or because such employee has caused to be instituted a proceeding under or related to this chapter, or because such employee has testifi or is about to testify in an investigation or proceeding under this chapter. NYLL § 215. The Defendants have contended that the Plaintiff must have made a good faith complaint about his employer's alleged wage and hour violations during his employment with the defendant employer in order to raise a colorable at 16-17) (citing NYLL § 215, which "provi aim. (Opp. s that neither an employer nor its agent may discharge, threaten, penalize, or in any ot r manner discriminate or retaliate against any emplo because such employee has made a complaint . that the employer has engaged in conduct that the employee, reasonably and good faith, believes chapter."; Paz v. Piedra, olates any provision of 90 Civ. 03977 (LAK) (GWG), 2012 Dist. LEXIS 4034, *30 (S.D.N.Y. Jan. 12, 2012).J is u.s. Defendants cite in support case law establishing that to make a prima facie case under NYLL Section 215, "the plaintiff must adequately plead that while employed by the defendant, 20 [he] made a complaint of the law and, as a result, was about the employer's violat terminated or otherwise penali , discriminated against, or subjected to an adverse employment action." Copant orio, 2011) Inc., 788 F. S . 2d 253 1 la v . 302 (S.D.N.Y. (emphasis added); see also Paz, 2012 U. S. st. LEXIS 4034 at *30 (finding that plaintiff must have made the complaint "while employed by the defendant" to establish a prima facie case); Reill 2d420, 427 Inc., 178 F. Supp. v. Natwest Markets (S.D.N.Y. 20l1) Labor Law ("New § 215(1) appl s to retaliatory actions taken by an employer against an employee") . PIa SoulCyc iff has alleged that (AC 1 32) and ended on April 1S, 2013 2013 1 he filed his Complaint in the that a r Plaintiff fil the s employment with t in May of stant action (AC 1 33) and rst Complaint, Soul Cycle "explicitly told [Plaintiff and his counsel, Douglas WigdorJ that they were not 1 34). rmitted on SoulCycle's ses." (AC Because the alleged violations of the law did not occur until wee after Plaintiff's employment Defendants contend that PIa for relief. iff has (AC 11 32-34). 21 h SoulCyle ended, iled to state a claim However, former cove by NYLL § 215. See loyees have ____ recognized as ~L__ _ v~.~C~o_n_-_W_a~~~I~n~c~., l__ 08 C 4076 (JG) (JO), 2009 WL 1362965 (E.D.N.Y. May IS, 2009). In ------'~- and , the court concluded that NYLL § 215 paralleled state ral antidis nation law in coveri Id. at * 11; see also Robinson v. Shell (1997) 1 Co., (finding former employees covered a fai former employees. 519 U.S. 337 r Title VII cause to do so would conflict with "a primary purpose of anti retaliation provisions: Maintaining unfette access to statutory remedial mechanisms"); Boland v. Town of New No. 3:05 Civ. 01739 (VLB) , 2007 WL 2071630, at *2 16, 2007) (holdi former employees protected (D. Conn. July inst retaliation under the ADEA); Ballen-Stier v. Hahn & Hessen, L.L.P., 727 N.Y.S.2d 421, 422 term 'employee' as used in the dis (1st Dep't 2001) ~New York State and City] anti- nation statutes encompasses former ition taken by the (noting that lithe fendants that NYLL loyees lf ) § ¢ 215 covered only current employees as "unpersuasive," because it failed to provide any employee. employees, anat for its chosen defi In concluding instead that NYLL tion of an § 215 covers former court in Liverpool noted: [T]he right-to-sue provision of Section 215(2) provides that "[a]n oyee may bri a ci 1 action" against an employer who violates this section. This 22 language strongly suggests that the term employee in this section includes former emplo es. If it did not, an employee who was discharged r filing a complaint aga his employer for a Labor Law violation would not have a right of action under the law. is cannot be the ent of the statutory provision, as a wrongful discharge is the archetypal example of the kind of adverse action retaliation provisions are draft to prevent. Live -----'~- , 2009 WL 1362965, at *12; see also Ballen-Stier v. Hahn & Hessen, L.L.P., 727 N.Y.S.2d 421, 422 (citing Rob (1st Dep't 2001) son in a case involving retaliation under the New York City Human Rights Law for the proposition that "the term 'employee' as used in encompasses antidiscrimination statutes r employees). characterized Live --.----*~- Though the Defendants have as an outlier (Memo Further Support, p. 7), there are few if any New York cases on point in this issue and only Live the language of t Live 1 attempts to resolve the ambiguity in statute concerning the term "employee. 2009 WL 1362965, at *12. 1 -----'~- cases cited As L -------*~~ H explains, the Defendants, which interpret the statute's language "while employed by the defendant H to preclude former employees, offer no reasoning for this limiting definition. See, , Reill 2d420, 427 v. Natwest Markets (S.D.N.Y. 2011); itla v. Fis 178 F. Supp. rdo Estiatorio Inc., 788 F. Supp.2d 253, 302 (S.D.N.Y. 2011); Paz v. Piedra, Civ. 03977 (LAK) (GWG), 2012 U.S. Dist. LEXIS 4034, 23 90 *30 (S.D.N.Y. Jan. 12, 2C12) The Supreme Court addressed this issue in antiretaliation provis context of t of Title VII of the Civil Rights Act of 1964 in Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Although the Supreme Court noted that the term "employees" suggested "an existing employment relationship," id. at 341, it ult tely concluded that an analogous antiretaliation provision in Title VII was ambiguous, and should be read to encompass former employees to further "a imary purpose of antiretaliation provisions: Maintaining unfettered access to statutory remedial mechanisms." Id. at 346. court found in -'----'---"-:......::.....::... Li 1 persuas As the reasoning of the unanimous Court in Robinson 1 suggests an identical res t in this 1 The ion at issue in it unlawful "'for an to discriminate against any of ... ' who have either availed themselves of Title VII's protections or assisted others in so " Id. at 339 (cit 42 U.S.C. § 2000e-3(a) ). the Supreme Court noted that the term "employees" suggested "an existing oyment relationship," id. at 341, the Court ultimately concluded that the language was ambiguous for three reasons. First, the court noted that "there is no temporal qualifier in the statute such as would make plain that [it] protects only persons still employed at the time of the retaliation." Id. The same is true here. The Court then observed that the statutory definition of employee ("an individual by an employer") "lacks any qualifier and is cons stent with either current or past . at 342. Again, the same is true for this sion. The definition at issue in could mean "an individual who is employed by an " but it could also mean "an individual who was employed by an employer." Similarly, the definition of in Section 2(5) could refer to "a laborer who is working for another" or "a laborer who was working for another for hire." Thus, it is "cons stent with either current or past 519 U.S. at 342. ?inally, the Court observed that a number of other provisions in Title VII use the term "employees" to mean something more inclusive or different than "current employees." For example, §§ 706(g) (1) and 71 (b) both authorize affirmative 24 case. To leave a scharged employee without remedy for retaliation because of a failure to have complained during employment de minor ats the saluta purpose of § 215. While it is view on the issue, given the Appellate Division decision, in this case it is the correct one. As Defendants correctly note, in the context of NYLL § 215, an adverse action constituting retaliation is one that "might have dissuaded a reasonable wor supporting similar charges. r from making or n Inc., 788 F. Supp.2d 253, 303 (S.D.N.Y. 2011). Courts have routinely held that this finition encompasses a broad range of retaliatory acts, including those not traditionally implicated an employer-employee relationship. Showbran Photo, Inc., No. 02 C ., Kreinik v . . 1172 (RMB) (DF), 2003 WL 22339268 at *9 (S.D.N. Y. Oct. 14, 2003 ) (defendant's filing of counterclaims constituted sufficient adverse employment action under § 215 because "counterclaims asserted against [plaintiff] could harm s reputation in his industry and negatively affect a court or EEOC, respectively) "I>lhich may include . . . reinstatement or hi of employees." 42 .S.C. §§ OOOe 5(g) (1) and 2000e 16(b). As petitioner notes, because one does not "reinstat[ej" current employees, tha language necessarily refers to former oyees. Likewise, one may hire individuals to be employees, but one does not ly hire persons who already are Id. The fact that, as Defendants point out, NYSHRL uses the term "individual" or "person" instead of "employee" as used in NYLL § 215 does not negate this 25 his prospective employment or business opportunities"); Electchester Hous. Pro Inc. v. Rosa, ------------------------~----~-------------- (2d Dep't 1996) (under s Law, contesting of plaintiff fil aintiff's unemployment a complaint with State ~ ~L- § er sion of Human Rights v. Luceno 09 Civ. 9332 CS, ("employment actions termination may ... serve as the basis 215 claim"). Sect NYLL fits a _ _ _ _ _ _ _ _ _ __ _ 2011 WL 1584593 (S.D.N.Y. Apr. 26, 2011) less severe than outri 8~9 lar provision in New York Executive constituted retaliation); Cas_ _ for a val 639 N.Y.S.2d 848, 215 makes it unlawful to" scharge or in any other way discriminate against any employee because such employee has fi a complaint." fac r NYLL pr claim "while employed by the § A plaintiff establishes a 215 if he demonstrates that fendant, he made a complaint about the employer's violation of the law and, as a result, was terminated or otherwise penaliz an ,discriminated e employment action." (S.D.N.Y. Jan. 12, 2012) 610, 625 (2d r.2001)). Paz inst, or subjected to 2012 WL 121103, at *10 (quoting Raniola v. Bratton, 243 F.3d Upon such a showing, "the burden of production shifts to the employer to demonstrate that a Ie imate, nondiscriminato Id.; see also reason exis for its action." 788 F. Supp. 2d at 303 (in determining 26 under NYLL § 215, courts have whether an action is retaliat alleged adverse employment action "might looked to whether have dissuaded a reasonable worker from making or supporting similar cha s."). Defendants contend that the alleged retaliatory act, Defendant's refus to allow aintiff and his counsel on premises, does not rise to the level of retaliation to SoulCyc trigger protection under NYLL § 215. finding viable ret iation cla Defendants cite courts where employers filed false criminal charges, discharged employees, or reduced the employees hours and pay, but do not cite any court holding that lesser forms "penaltyll or "retaliation" should not be cons under NYLL § 215. De red s have not demonstrated a "legitimate, nondiscriminatory reason ll for banning Gram and counsel from SoulC e premises. *10 (S.D.N.Y. Jan. 12, 2012) F.3d 610, 625 (2d Cir.2001)). See Paz, s 2012 WL 121103, at (quoting Raniola v. Bratton, 243 As such, this ban does on attendance, whether or not it constitutes retaliation to a reasonable wor in Gram's position, remains a tri 1e issue to warrant protection under NYLL § 215. The Motion To Strike Is Granted In Part And Denied In Part 27 Pursuant to Fed. R. Civ. P. Rule 12(f), a party may move to st ke from any pleading any "[r]edundant, immater impertinent, or scandalous matter." Rule 12(1) i s " 1, signed to reinforce the requirement in Rule 8(c) that pleadings be simple, se, and direct." ----------------~------~--~--------------~ In re Inc. Research 218 F. R. D. 76, 78 also Doe v. Wash. Post Co., 12 Civ. 5054 LEXIS 120876, *6 (S.D.N.Y. Aug. 24, 2012) not short and rect, ( S . D. N . Y. 2003); see (PAE), 2012 U.S. st. ("When a complaint is ain, or its averments are not concise and district court has the power, on mot sponte, to di or sua ss the complaint or to strike such parts as are redundant or imrnater ial. ff) though motions to strike are rally disfavored, "allegat no real bea s may be stricken if they have on the case, will likely judice t movant, or where they have criminal overtones." ----------~~~-------G-I Ho Inc. v. Baron & Budd, 238 F. Supp. 2d 521, 555 (S.D.N.Y. 2002) (citations omitted). St differently, a court may strike a complaint where its material is matter judicial. Id. ing Wright Miller & Marcus, Fed. Prac. & Proc.: Civil 2d § 1382, at 714 (West 1994 & Supp. 2001)) 1 often allegat to pu (" lous stricken from the pleadings in the court's files and protect the s allegations."); see also Supp.2d 302,317 th v. AVSC Int'l., (S.D.N.Y. 2001). 28 ect of Inc., 148 F. e 12(1) motions invoke t whi scret may strike any allegations it of the court erial to the causes of action pled. See Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988) (noting "when a complaint requirement that it be short and on s own initiative or in re are redundant or ."); see also Morse v. We 312, 319 (S.D.N.Y. 1991) (stri "immaterial and impert to the case" because they se the prejudicial effect t The Prel (striking immaterial all the allegations "is outweighed y would have") . iate statements prejudicial to as a eading, the AC may be jury at the trial of this matter. e subject to the "[eJach all Plaintiff rna s Statement of the AC includes certain unnecessary and i Defendants in t "no r"); Kent v. AVCO Corp., 815 F. Supp. 67, 71 (D.Conn. 1992) where the value of allowi rten, 777 F. Supp. references that were purpose except to inflame t However, t ain, the court has the power, to a motion by the fendant, to strike any portions erial s not comply with the ion The AC's first the ra Rule 8(d)-(e) which requires be simple, concise, and s no claims on behalf of customers AC states: 29 rect." is t The Ie. SoulCycle's unlawful wa practices are consistent with its mistreatment of customers - amazingly, SoulCycle does not provide any reimbursement to customers who are unable to attend classes they sign up for (unless they cancel the class by 5:00 pm t night before), even when SoulCycle is able to re-sell the vacant bike spot. As a result, Soul Cycle very often generates revenue from classes at a rate that exceeds the total number of bikes in a studio, to the detriment of its customers. (AC ~ 1). The AC's allegations to SoulCycle's al "mistreatment of customers" are immate ged al and irrelevant to this case and the alleged "mistreatment of customers" "serves no purpose except to in arne the reader" and accordingly, will be stricken. 2 See Morse, 777 F. Supp. at 319; see also Jones & Co., 02 Civ. 1029 (LMM) , 2002 U.S. (S.D.N.Y. Jul. 10, 2002) loco v. Dow st. LEXIS 12542, *5 (striking allegations of defendants' employees use of company computers to send pornography as irrelevant when the complaint only contained claims of breach a collective bargaining agreement, breach of covenant of good faith and fair dealing and fraud). The Defendants also seek to strike certain language from the AC's rst paragraph: ts only relevance may be as explanation for the retaliation discussed above. Regardless, its unnecessary udicial value any potential relevance. 30 ¢ ¢ (AC SoulCycle's wage and hour violations are 'spi ng' out of control and this lawsuit attempts t o ' t the brakes' on se unlawful ctices. Ie S Cycle has built its highly successful and profitab business on the backs of t 'best instructors' in the industry [Wl <j[ 1.) PIa iff is under no obligation to conform allegations in his complaint to Defendants' st pre istic tastes or rences. See Kehr ex reI. Kehr v. Yamaha Motor U.S.A., 596 F. Supp.2d 821 (S.D.N.Y. 2008) (denying motion to strike in spite of defendants' objections that t all ions were "narrative or contain[ed] generalized statements or matters of opi on"). These allegations encapsulate certain of the claims assert color 1 ra r t by t n prejudicial. respect to these all colloquial terms Plaintiff and are merely The motion to strike w tions is therefore denied. 31 h Conclusion Upon the USlons s the Defendants to sever t t to di without prej motion of California claims is deni this ce to renewal, the motion of the Defendants ss the First, Second and granted, the motion of of action is deni above, t rd causes of action is Defendants to smiss the Tenth cause to strike allegations and the mot the AC is granted in part and denied in part as set It is so ordered. New York, NY October ~r. 2013 32 rth above.
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