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FUDALI v. PIVOTAL CORPORATION

February 26, 2004.

MARJORIE FUDALI Plaintiff
v.
PIVOTAL CORPORATION, Defendant



The opinion of the court was delivered by: EMMET SULLIVAN, District Judge

MEMORANDUM OPINION

Plaintiff Marjorie Fudali was, at the time of the events giving rise to the instant action, an employee of Defendant Pivotal Corporation ("Pivotal"), a Washington state corporation registered to do business in the District of Columbia.*fn1 Plaintiff was hired by Pivotal in May 2000, and was employed as a Senior Sales Executive with a starting base salary of $85,000, plus commissions. Compl. ¶ 5. After numerous disputes with Pivotal as to her responsibilities and compensation, as well as a change in Pivotal management, plaintiff resigned from Pivotal on Page 2 June 4, 2002. Plaintiff then commenced this action to recover commission payments she asserts Pivotal still owes her.

Plaintiff originally alleged two causes of action: violation of the D.C. Wage and Hour Law, D.C. Code § 32-1001, et seq. (2003)("B.C. Wage Law") and breach of contract. Plaintiff's claims are based on defendant's alleged failure to pay plaintiff "commissions and other compensation." Compl. ¶ 7. Both parties concede that upon her resignation plaintiff received her final paycheck and was reimbursed for unpaid vacation; the main dispute is whether any commission payments are still owed. Compl. ¶¶ 28, 29.

  Pending before the Court are defendant's Motion to Dismiss Count I of the Complaint and plaintiff's Motion for Leave to File a First Amended Complaint. Upon careful consideration of the motions, the responses and replies thereto, as well as the governing statutory and case law, and for the following reasons, it is by the Court hereby

  ORDERED that defendant's Motion to Dismiss Count I of the Complaint is GRANTED; and it is

  FURTHER ORDERED that plaintiff's Motion for Leave to File a First Amended Complaint is GRANTED IN PART and DENIED IN PART. Page 3

 I. Motion to Dismiss Count I of the Original Complaint

  Defendant argues that plaintiff has failed to state a claim under the District of Columbia Wage and Hour Law, D.C. Code § 32-1001 et seq., and thus Count I of the Complaint must be dismissed pursuant to FED. R. CIV. P. 12(b)(6). The Court will not grant a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Accordingly, at this stage of the proceedings, the Court accepts as true all of the complaint's factual allegations. See Does v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985). Plaintiff is entitled to "the benefit of all inferences that can be derived from the facts alleged." Kowal, 16 F.3d at 1276.

  Defendant argues that plaintiff's claim is precluded under the Act because (1) plaintiff alleged that she was a "Senior Sales Executive," placing her squarely within § 32-1004(a)'s exclusion of "bona fide executives" from D.C. Wage Law protection, and (2) plaintiff was paid approximately eight times the minimum wage, placing her entirely outside the Act's purview. Page 4 In response to the motion to dismiss, plaintiff makes no attempt to defend Count I as pleaded, but rather states that she

 
mis-cited the statutory provision of the D.C. Code which forms the basis for her statutory wage claim. In particular, Plaintiff cited to section 32-1001 et seq. [D.C. Wage and Hour Law] as the statutory basis for Count I of her Complaint rather than section 32-1301 et seq. [B.C. Wage Payment and Collection Law]. Plaintiff, by separate motion, has sought leave of the Court to file a First Amended Complaint to address this error in her pleading.
Pl.'s Opp. to Def.'s Mot. to Dismiss Count I at 1.

  As evidenced by plaintiff's response to the Motion to Dismiss Count I, and plaintiff's subsequent attempt to amend Count I of the Complaint to reflect a new statutory cause of action, it is clear that plaintiff simply cannot state a claim under the B.C. Wage and Hour Act. While not overtly agreeing to dismiss the original Count I, plaintiff has in effect conceded that she cannot state a claim under the B.C. Wage and Hour Law.

  This implied concession is borne out by an examination of the statute, which quite clearly confines itself to minimum wage issues and thus precludes plaintiff's claim. See B.C. Code § 32-1001(a) (stating that the policy of the subchapter to ensure the elimination of the payment of wages not "sufficient to provide adequate maintenance and to protect health."). To ensure that minimum wages are paid to B.C. employees, the Act establishes a private right of action against "[a]ny employer who pays an Page 5 employee less than the wage to which that employee is entitled under this subchapter." B.C. Code § 32-1012(a) (emphasis added). Given that the only wages an employee is entitled to under the Act are minimum wages, plaintiff's admission that she was paid over $85,000 per year at all relevant times clearly places her outside of the class of people contemplated by the Act.*fn2 D.C. Code § 32-1003(a)(establishing the minimum wage). Thus, both because plaintiff fails to defend Count I, and because plaintiff's admitted salary places her outside of the Act's protections, the Motion to Bismiss Count I for failure to state a claim should be granted.

 II. Plaintiff's Motion for Leave to File First Amended Complaint

  Plaintiff seeks to amend the Complaint in three respects: (1) to change the statutory basis of Count I to B.C. Code § 32-1301, et seq, rather than the originally pled B.C. Code § 32-1001, Page 6 et seq; (2) to clarify that Pivotal Corporation is a Washington state corporation rather than, as stated in the original Complaint, a Canadian corporation;*fn3 and (3) to make clear that plaintiff was a senior sales person with Defendant, rather than an "executive." Mem. of P. & A. in Supp. of Pl.'s Mot. to File First Am. Compl. at 1. Plaintiff argues that her proposed amendment to Count I of the Complaint falls within the classic realm of cases where leave to amend should be "freely given." See FED.R.CIV.P. 15(a) (leave to amend pleadings "shall be freely given when justice so requires"); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend should be freely given absent enumerated circumstances). This case does not, plaintiff avers, fall into the "limited circumstances" that warrant a court's refusal to grant leave to amend-namely "undue delay, bad faith on the part of the moving party, or undue prejudice to the opposing party." Pl.'s Mem. of P. & A. in Supp. of Pl.'s Mot. to File First Am. Compl. at 2 (quoting Sinclair v. Kliendienst, 645 F.2d 1080, 1085 (D.C. Cir. 1981)); see also Atchinson v. District of Columbia, 73 F.3d 418, 425-26 (D.C. Cir. 1996) (listing these same reasons as ones that may warrant a Page 7 court's denial of leave to amend). Defendant does not allege that plaintiff is acting in bad faith in seeking leave to amend,*fn4 but counters that "FED. R. CIV. P. 15(a) and D.C. Circuit precedent do not compel the grant of leave to amend a complaint in every instance." Def.'s Opp. to Mot. to Amend Compl. at 3 (quoting Nat'l Wrestling Coaches Ass'n. v. U.S. Dep't. of Educ., 263 F. Supp.2d 82, ...


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