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