Buglak v. Wells Fargo Bank, N.A.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or To Strike Plaintiff's Claims and Allegations

E.D. Pa.September 23, 2016

28680791v.1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ROBERT JOSEPH BUGLAK JR., Individually and on behalf of other employees similarly situated 893 Jason Drive Bensalem, PA 19020, Plaintiff v. WELLS FARGO BANK, N.A., Defendant. § § § § § § § § § § § § § CASE NO.: 2:16-cv-04546-BMS DEFENDANT’S MOTION TO DISMISS OR STRIKE PLAINTIFF’S CLAIMS AND ALLEGATIONS Defendant Wells Fargo Bank, N.A. files this Motion to Dismiss or Strike Plaintiff’s Claims and Allegations, pursuant to Rule 12(b)(6) and 12(f). 1. Plaintiff asserts claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and the Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa. Stat. §333.101, et seq. Plaintiff’s claims under the FLSA and the PMWA include a minimum-wage claim, a claim for unpaid overtime wages, and a claim that Wells Fargo miscalculated his regular rate of pay when it calculated his overtime wages. Plaintiff also asserts a claim for “wages” and “unlawful deductions” under the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43 Pa. Stat. § 260.1 et seq. Pursuant to Rule 12(b)(6), Wells Fargo moves to dismissal all of Plaintiff’s claims, except his individual claims for overtime wages under the FLSA and PMWA. 2. As explained in the attached memorandum of law, Plaintiff’s minimum-wage claims are subject to dismissal because—even assuming his allegations are true—his effective wage rate was always higher than the required minimum wage of $7.25. Plaintiff’s regular-rate claim is not supported by any factual allegations, and thus, it falls well short of the required Case 2:16-cv-04546-BMS Document 3 Filed 09/23/16 Page 1 of 4 2 28680791v.1 pleading standards. And Plaintiff’s claims under the WPCL are not sufficiently plead because he has failed to identify any contract giving rise to his claims. 3. In addition, Plaintiff fails to adequately define the purported Rule 23 classes under the PMWA and WPCL. Plaintiff uses a number of undefined terms towards the end of his Complaint, such as the “Pennsylvania Class,” (See Complaint at ¶98) the “Pennsylvania Plaintiffs,” (See Complaint, at ¶ 106) and the “Pennsylvania State Law Class.” (See Complaint at Prayer for Relief), but he never defines what these terms mean, which claims pertain to which terms, or which employees supposedly belong in each group. As a result, Wells Fargo has not been provided with fair notice of the Rule 23 claims. 4. Lastly, Plaintiff makes inconsistent allegations regarding the scope of his proposed FLSA collective action. At various places in his Complaint, he refers to a proposed nationwide collective action.1 In other places, he references a statewide collective action.2 Given the uncertainty created by Plaintiff’s inconsistent allegations regarding the scope of his proposed FLSA collective action, the Court should strike Plaintiff’s allegations and require him to re-plead his collective-action allegations in more precise terms. DATED: September 23, 2016. Respectfully submitted, /s/ Jacob Oslick Jacob Oslick PA Bar. No. 311028 SEYFARTH SHAW LLP 620 Eighth Avenue, 32nd Floor New York, NY 10018 joslick@seyfarth.com 1 See Complaint at p. 1, referring to “his nationwide FLSA claims” and ¶ 90, referring to the “National Collective Plaintiffs.” 2 See Complaint, at ¶ 5, defining the “collective action members” without any geographic limitation and ¶ 16, limiting the putative FLSA collective action to Pennsylvania. Case 2:16-cv-04546-BMS Document 3 Filed 09/23/16 Page 2 of 4 3 28680791v.1 Timothy M. Watson (pro hac vice forthcoming) Texas Bar No. 20963575 Dennis A. Clifford (pro hac vice forthcoming) Texas Bar No. 24050431 Rachel M. Hoffer (pro hac vice forthcoming) Texas Bar No. 24065432 SEYFARTH SHAW LLP 700 Milam Street, Suite 1400 Houston, Texas 77002 (713) 225-2300 – Telephone (713) 225-2340 – Facsimile twatson@seyfarth.com dclifford@seyfarth.com rhoffer@seyfarth.com ATTORNEYS FOR DEFENDANT WELLS FARGO BANK, N.A. Case 2:16-cv-04546-BMS Document 3 Filed 09/23/16 Page 3 of 4 4 28680791v.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served upon the counsel of record listed below by the ECF system, on the 23rd day of September, 2016. James W. Sutton , III Law Offices of James W. Sutton, III 1014 Mill Creek Drive Feasterville, PA 19053 jsutton@vslaws.com Trang Q. Tran Tran Law Firm L.L.P. 2537 S. Gessner Rd., Suite 104 Houston, TX 77063 ttran@tranlawllp.com Joel M. Rubenstein German Rubenstein LLP 19 West 44th Street, Suite 1500 New York, NY 10036 Jrubenstein@germanrubenstein.com /s/ Jacob Oslick Jacob Oslick Case 2:16-cv-04546-BMS Document 3 Filed 09/23/16 Page 4 of 4 28680580v.4 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ROBERT JOSEPH BUGLAK JR., Individually and on behalf of other employees similarly situated 893 Jason Drive Bensalem, PA 19020, Plaintiff v. WELLS FARGO BANK, N.A., 123 S. Broad Street, Philadelphia, PA 19109 Defendant. § § § § § § § § § § § § § CASE NO.: 2:16-cv-04546-BMS DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS OR STRIKE PLAINTIFF’S CLAIMS AND ALLEGATIONS Dated: September 23, 2016 SEYFARTH SHAW LLP Jacob Oslick 620 Eighth Avenue, 32nd Floor New York, NY 10018 Telephone: (212) 218-5500 Facsimile: (212) 218-5526 Timothy M. Watson (pro hac vice forthcoming) Dennis A. Clifford (pro hac vice forthcoming) Rachel M. Hoffer (pro hac vice forthcoming) 700 Milam Street, Suite 1400 Houston, Texas 77002 (713) 225-2300 – Telephone (713) 225-2340 – Facsimile ATTORNEYS FOR DEFENDANT WELLS FARGO BANK, N.A. Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 1 of 16 i 28680580v.4 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 ARGUMENT.................................................................................................................................. 3 I. Legal Standards Under Rules 12(b)(6) And 12(f) .............................................................. 3 A. Standard For Dismissal Under Rule 12(b)(6) ......................................................... 3 B. Standard For Motion To Dismiss Or Strike Collective And Class Allegations .............................................................................................................. 4 II. Buglak’s Allegations Do Not Sufficiently Support A Minimum-Wage Claim Under The FLSA Or The PMWA....................................................................................... 4 III. Buglak’s Regular-Rate Claim Is Not Supported By Any Factual Allegations................... 6 IV. Buglak Has Not Plead An Essential Element Of His WPCL Claim—A Contract For Wages ........................................................................................................................... 7 V. The Rule 23 Class Allegations Should Be Dismissed Or Stricken Because Buglak Uses Several Undefined Terms And Fails To Define Any Ascertainable Classes............. 9 VI. Buglak Should Be Required To Clarify Whether He Is Seeking A Statewide Or Nationwide Collective Action........................................................................................... 10 CONCLUSION............................................................................................................................. 11 Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 2 of 16 ii 28680580v.4 TABLE OF AUTHORITIES Page(s) Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009).......................................................................................................2, 3, 4, 6 Barvinchak v. Indiana Regional Med. Center, Civ. No. 3:2006-69, 2007 U.S. Dist. LEXIS 72805 (W.D. Pa. Sept. 28, 2007)....................8, 9 Barvinchak v. Indiana Regional Med. Center, Civ. No. 3:2006-69, 2008 U.S. Dist. LEXIS 33385 (W.D. Pa. April 23, 2008)........................9 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).......................................................................................................2, 3, 4, 6 Bowe v. Enviro Pro Basement Sys., Civ. No. 12-2099, 2015 U.S. Dist. LEXIS 170496 (D.N.J. Dec. 22, 2015) ..............................6 Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003)....................................................................................................4 Davis v. Abington Mem’l Hosp., 765 F.3d 236 (3d Cir. 2014)...........................................................................................3, 4, 5, 6 De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3rd Cir. 2003) .....................................................................................................7 Drummond v. Herr Foods, Inc., Civ. No. 13-5991, 2014 U.S. Dist. LEXIS 2409 (E.D. Pa. Jan. 9, 2014) ..................................7 Ford-Greene v. NHS, Inc., 106 F. Supp. 3d 590 (E.D. Pa. 2015) .........................................................................................5 Fowler v. UPMC Shadyside, 578 F.3d 203 (3rd. Cir. 2009) ....................................................................................................3 Innovative Physical Therapy, Inc. v. MetLife Auto & Home, 2008 U.S. Dist. LEXIS 69377 (D.N.J. Aug. 26, 2008)..........................................................4, 9 Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106 (2d Cir. 2013)...................................................................................................3, 4 Madison v. Resources for Human Dev., Inc., 39 F. Supp. 2d 542 (E.D. Pa. 1999) ...........................................................................................6 Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 3 of 16 iii 28680580v.4 Masterson v. Fed. Express Corp., 2008 U.S. Dist. LEXIS 99622 (M.D. Pa. Dec. 10, 2008)..........................................................5 Rosario v. First Student, Inc., Civ. No. 15-6478, 2016 U.S. Dist. LEXIS 108172 (E.D. Pa. Aug. 15, 2016)...........................7 Swank v. Wal-Mart Stores, Inc., 2015 U.S. Dist. LEXIS 41789 (W.D. Pa. Mar. 31, 2015) ...................................................4, 10 United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2d Cir. 1961).......................................................................................................5 Zhong v. August August Corp., 498 F. Supp. 2d 625 (S.D.N.Y. 2007)........................................................................................4 Statutes 29 U.S.C. § 201, et seq........................................................................................................... passim 43 Pa. Stat. § 260.1 et seq. .....................................................................................................2, 7, 10 43 Pa. Stat. § 333.101, et seq. ................................................................................................ passim Other Authorities Rule 12(b)(6)................................................................................................................................2, 3 Rule 12(f) .................................................................................................................................2, 3, 4 Rule 23 ...................................................................................................................................2, 9, 10 Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 4 of 16 1 28680580v.4 Defendant Wells Fargo Bank, N.A. files this memorandum of law in support of its motion to dismiss or strike plaintiff’s claims and allegations, pursuant to Rule 12(b)(6) and 12(f). INTRODUCTION Plaintiff Robert Buglak, worked for Wells Fargo for less than seven months as a Home Mortgage Consultant (“HMC”), selling home loans to Wells Fargo customers. Buglak alleges in this lawsuit that his manager violated Wells Fargo’s well-established, well-documented policy requiring hourly employees to record all hours worked in Wells Fargo’s timekeeping system. Instead of following that policy, Buglak claims, his manager pressured or instructed him not to record all of the hours he actually worked—i.e., to work “off the clock”—and as a result, he claims, he is entitled to unpaid overtime compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and the Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa. Stat. §333.101, et seq. Moreover, according to Buglak, every other manager of HMCs in the Commonwealth of Pennsylvania also pressured every other HMC to work off the clock. Thus, Buglak purports to bring a statewide class action for unpaid overtime compensation under PMWA. Buglak also purports to bring an FLSA collective action on behalf of other HMCs; however, the scope of this proposed collective is unclear. At times in his Complaint he refers to a nationwide collective,1 and at other times, he refers to a statewide collective.2 Thus, although his Complaint does not make clear, Buglak may also contend that every other manager of HMCs across the entire country similarly pressured every other HMC to work off the clock. Regardless, Buglak has failed to provide Wells Fargo with fair notice of the scope of his FLSA collective claims. 1 See Complaint at p. 1, referring to “his nationwide FLSA claims” and ¶ 90, referring to the “National Collective Plaintiffs.” 2 See Complaint, at ¶ 5, defining the “collective action members” without any geographic limitation and ¶ 16, limiting the putative FLSA collective action to Pennsylvania. Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 5 of 16 2 28680580v.4 In addition to his overtime claims, Buglak also asserts class and collective claims under the FLSA and the PMWA based on his contention that Wells Fargo miscalculated his regular rate of pay and failed to pay him the required minimum wage. He also appears to assert class and collective claim for “wages” and “unlawful deductions” under the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43 Pa. Stat. § 260.1 et seq. As explained below, Buglak’s Complaint does not meet the minimum standards required in order to state a claim and avoid dismissal under Rule 12(b)(6). Buglak’s minimum-wage claims are subject to dismissal because—even assuming his allegations are true—his effective wage rate was always higher than the required minimum wage of $7.25. Buglak’s regular-rate claim lacks any factual allegations to support it, and thus, it fails to comply with the minimum pleading requirements established by the Supreme Court’s Twombly and Iqbal decisions, as well as the many cases in the Third Circuit applying those decisions. Similarly, Buglak’s WPCL claim fails because his Complaint does not allege that Buglak had a “contract for wages,” as required in order to state a claim under the WPCL.3 Buglak’s Complaint also fails to adequately define the purported Rule 23 classes he seeks to represent under the PMWA and WPCL. His Complaint uses a number of terms with capital letters which normally would contain definitions, such as the “Pennsylvania Class” (See Complaint at ¶98), the “Pennsylvania Plaintiffs” (See Complaint, at ¶ 106), and the “Pennsylvania State Law Class ” (See Complaint at Prayer for Relief). Yet Buglak never defines these terms, and he never explains how or whether the terms apply to any particular claim he asserts. As a result, like his FLSA collective claim, Buglak’s Rule 23 class claims fail to provide Wells Fargo with fair notice of the scope and extent of those claims. Thus, both Buglak’s class 3 Wells Fargo is not moving to dismiss Plaintiff’s individual claims for overtime wages under the FLSA and PMWA. Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 6 of 16 3 28680580v.4 and collective claims should be stricken under Rule 12(f). ARGUMENT I. Legal Standards Under Rules 12(b)(6) And 12(f) A. Standard For Dismissal Under Rule 12(b)(6) Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a cause of action should be dismissed if it fails to state a claim upon which relief may be granted.4 A motion to dismiss under Rule 12(b)(6) should be granted when the plaintiff can prove no set of facts that would entitle him to relief under a particular cause of action, or when the plaintiff has failed to plead sufficient factual allegations “to raise a right to relief above the speculative level.”5 A motion to dismiss requires a two-part analysis.6 First, the court must separate the factual and legal elements of the claim. The court must accept all of the complaint’s well- pleaded facts as true, but may disregard any legal conclusions.”7 Second, the court must determine whether the well-pleaded facts alleged in the complaint demonstrate that the plaintiff has a “plausible claim for relief.”8 Under Twombly and Iqbal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”9 A claim is insufficiently pleaded under Iqbal if the pleading contains nothing “more than an unadorned, the-defendant-unlawfully- harmed-me accusation.”10 In Davis, the Third Circuit “agree[d] with the middle-ground approach taken by the Court of Appeals for the Second Circuit in Lundy v. Catholic Health 4 Fed. R. Civ. P. 12(b)(6). 5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 6 Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3rd. Cir. 2009). 7 Id. (emphasis added). 8 Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 9 Davis v. Abington Mem’l Hosp., 765 F.3d 236, 240 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 7 of 16 4 28680580v.4 System of Long Island Inc., 711 F.3d 106 (2d Cir. 2013).”11 As Lundy explained, “invited speculation does not amount to a plausible claim.”12 “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”13 B. Standard For Motion To Dismiss Or Strike Collective And Class Allegations For collective action allegations to survive a motion to dismiss, Twombly requires the complaint to “indicate who [the collective and class action members] are, and allege facts that would entitle them to relief.”14 Federal Rule of Civil Procedure 12(f) permits a court “to strike class action allegations prior to discovery in those rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.”15 The Complaint must “adequately define[] [the class] so that the individual class members may be easily identified.”16 “Where it is facially apparent from the pleadings that there is no ascertainable class, a district court may dismiss the class allegation on the pleadings.”17 II. Buglak’s Allegations Do Not Sufficiently Support A Minimum-Wage Claim Under The FLSA Or The PMWA In Counts II and IV of the Complaint, Buglak alleges that Wells Fargo failed to pay him the minimum wage required under the FLSA and the PMWA. Courts analyze the FLSA and the 11 765 F.3d at 241. 12 711 F.3d at 115. 13 Iqbal, 556 U.S. at 678. 14 Zhong v. August August Corp., 498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007). 15 Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n.3 (D.N.J. 2003) (citations omitted). 16 Innovative Physical Therapy, Inc. v. MetLife Auto & Home, 2008 U.S. Dist. LEXIS 69377, at *16 (D.N.J. Aug. 26, 2008) (citing In re School Asbestos Litig., 789 F.2d 996, 1005 (3d Cir. 1986), cert. denied 479 U.S. 852 (1986)). 17 Swank v. Wal-Mart Stores, Inc., 2015 U.S. Dist. LEXIS 41789, at *7 (W.D. Pa. Mar. 31, 2015) (quoting John v. Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007)). Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 8 of 16 5 28680580v.4 PMWA the same way, and both statutes require the same minimum wage of $7.25.18 Under the FLSA and the PMWA, the minimum-wage requirement is satisfied when the employee’s total compensation for the week, divided by the total hours worked, results in an effective wage of at least $7.25.19 In this case, Buglak alleges he was paid $12.00 per hour for his 40 scheduled hours, but that he and others “typically [worked] 50 to 60 (or more) hours per workweek ….”20 Even accepting these allegations as true, Buglak fails to state a plausible minimum-wage claim because his effective wage exceeded $7.25, based on his own allegations. Buglak alleges he received $12.00 per hour for 40 hours of work, which results in weekly compensation of $480. Assuming Buglak worked 60 hours during the week (which is the highest specific number of hours that he alleges he worked), Buglak’s effective wage would be $8.00 ($480 / 60 hours). Therefore, Buglak has failed to adequately plead a minimum-wage claim under the FLSA and the PMWA. Buglak may argue his claim should survive because he used the phrase “or more” when alleging the number of hours he worked.21 The Third Circuit has rejected this argument. In Davis, the court held that a plaintiff’s failure to allege that he worked more than the specific number of hours necessary to support an overtime claim in a workweek (i.e., 40 hours) is 18 43 P.S. § 333.104(a.1); Ford-Greene v. NHS, Inc., 106 F. Supp. 3d 590, 612-13 (E.D. Pa. 2015). 19 See Masterson v. Fed. Express Corp., 2008 U.S. Dist. LEXIS 99622, at *5-18 (M.D. Pa. Dec. 10, 2008); see also United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 493 (2d Cir. 1961) (“We concluded that [the FLSA’s minimum wage provision] was not violated, because each employee received during each week compensation equal to or exceeding the product of the total number of hours worked and the statutory minimum hourly rate.”). 20 Complaint, at ¶¶ 44, 49, 81. 21 See Complaint at ¶ 81 (“Plaintiff … typically [worked] 50 to 60 (or more) hours per workweek.”) (emphasis added). Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 9 of 16 6 28680580v.4 grounds for dismissal of his overtime claim.22 Similarly, here, Buglak has failed to allege that he ever worked a specific number of hours in any workweek that would give rise to a minimum- wage claim. Thus, under Davis, the Court should dismiss Buglak’s minimum-wage claims. III. Buglak’s Regular-Rate Claim Is Not Supported By Any Factual Allegations Under the FLSA and the PWMA, a nonexempt employee is entitled to 1.5 times his “regular rate” for any hours worked over 40 in a workweek. An employee’s “regular rate” includes all forms of compensation, such as hourly pay, non-discretionary bonuses, and commissions.23 In his Complaint, Buglak alleges Wells Fargo “fail[ed] to properly calculate the regular rate of pay when calculating overtime premiums due.”24 But Buglak provides no factual basis for his allegation. He does not explain what type of compensation Wells Fargo allegedly failed to include in his regular rate. Nor does he allege when this alleged miscalculation occurred or how many times it allegedly happened. In fact, Buglak alleges that Wells Fargo did not pay him overtime compensation; thus, according to Buglak, Wells Fargo never calculated his regular rate of pay when calculating overtime compensation. Buglak’s threadbare allegation that Wells Fargo “fail[ed] to properly calculate the regular rate of pay when calculating overtime premiums due” is exactly the type of unsupported pleading that Twombly and Iqbal prohibit. Bulgak has not offered any factual support for his conclusory allegation. Accordingly, the Court should dismiss or strike his regular-rate claim from the Complaint. 22 765 F.3d at 243. 23 See, e.g., Madison v. Resources for Human Dev., Inc., 39 F. Supp. 2d 542, 551-52 (E.D. Pa. 1999) (bonuses); Bowe v. Enviro Pro Basement Sys., Civ. No. 12-2099, 2015 U.S. Dist. LEXIS 170496, at *13-14 (D.N.J. Dec. 22, 2015) (commissions). 24 See Complaint at ¶¶ 21, 31. Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 10 of 16 7 28680580v.4 IV. Buglak Has Not Plead An Essential Element Of His WPCL Claim—A Contract For Wages In Count III of the Complaint, Buglak alleges that he is entitled to “wages” under the Pennsylvania Wage Payment and Collection Law (“WPCL”).25 It is well settled that the WPCL “does not create a right to compensation.”26 Rather, the WPCL “provides a statutory remedy when the employer breaches a contractual obligation to pay earned wages [and] the contract between the parties governs in determining whether specific wages are earned.”27 As this Court has observed, the contract can be written or oral, express or implied.28 Here, Buglak asserts he is owed “wages” for work he performed outside of his “scheduled” hours of “Monday through Friday from 9:00 a.m. to 5:00 p.m.,” which he refers to as “pre-shift and post-shift activities.”29 Buglak also alleges, without providing any context or explanation, that his WPCL claim is based on unidentified “unlawful deductions.”30 Buglak has failed to allege the existence of any contract that would require Wells Fargo to pay for the unreported hours that he allegedly worked during his “pre-shift and post-shift activities.” He has also failed to allege the existence of any contract that would prevent Wells Fargo from making the alleged “unlawful deductions” that he alleges in his Complaint. These pleading deficiencies alone are grounds for dismissal of his claim. 25 Complaint at ¶¶ 96-103. 26 De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3rd Cir. 2003) (citations and internal quotations omitted); see also Rosario v. First Student, Inc., Civ. No. 15-6478, 2016 U.S. Dist. LEXIS 108172, at *25 (E.D. Pa. Aug. 15, 2016) (collecting cases). 27 De Asencio, 342 F.3d at 309. 28 See Drummond v. Herr Foods, Inc., Civ. No. 13-5991, 2014 U.S. Dist. LEXIS 2409, at *8-9 (E.D. Pa. Jan. 9, 2014). 29 Id. at ¶¶ 44, 101. 30 Complaint at ¶ 27. Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 11 of 16 8 28680580v.4 Moreover, Buglak’s allegations, which the Court must accept as true, actually show that Wells Fargo did not have an implied agreement with Buglak to pay for unrecorded hours. Buglak alleges the following facts: " He worked eight-hour shifts, Monday - Friday, resulting in 40 hours a week.31 " He recorded his time in the timekeeping system.32 " Recording his time was “the only way to get paid.”33 " He was required to obtain approval from his supervisor before he could record more than 40 hours.34 " His supervisor never gave him permission to record more than 40 hours.35 Notably, Buglak does not allege that he has ever been compensated for the hours he worked but did not record in the timekeeping system. Under these alleged facts, there can be no implied understanding that Wells Fargo would pay Buglak for unapproved and unrecorded hours. To cure this defect, Buglak would have to plead that Wells Fargo had an agreement with Buglak (and each class member) that required it to pay for all hours worked, even hours that he worked “off the clock.” Buglak would also have to allege that individual managers engaged in conduct that caused Wells Fargo to breach its agreement. But Buglak has made no such allegations. Under nearly identical circumstances, Judge Gibson held that the plaintiff’s pleadings foreclosed an implied-contract claim for wages under the PWCL.36 In Barvinchak, the plaintiff 31 Complaint at ¶ 44. 32 Id. at ¶¶ 50-51. 33 Id. at ¶ 52. 34 Id. at ¶ 53. 35 Id. 36 See Barvinchak v. Indiana Regional Med. Center, Civ. No. 3:2006-69, 2007 U.S. Dist. LEXIS 72805 (W.D. Pa. Sept. 28, 2007). Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 12 of 16 9 28680580v.4 argued that an implied contract required her employer to pay her for hours that she worked but did not record. The court correctly noted that the plaintiff’s allegations did not support her PWCL claim for unrecorded hours: Plaintiff’s own allegations … do not support her argument that an implied contract existed regarding unreported hours. … As Plaintiff makes no allegation that Defendant ever compensated her for unrecorded hours, the employment relationship between the parties would not create a reasonable expectation by Plaintiff that she would be compensated for any unreported hours. … Further, because Plaintiff has specifically alleged that Defendant only paid her for hours which were recorded, an intention on the part of Defendant to pay Plaintiff for unreported hours cannot be inferred from Plaintiff’s allegations. … As such, Plaintiff’s own allegations contradict her theory that an implied contract existed between the parties regarding Plaintiff’s unreported hours.37 In a subsequent opinion, the court also explained that plaintiff’s allegation that she could only record hours in the system if she first obtained permission from management precluded her from alleging that she had an implied contract requiring payment for unrecorded hours.38 The same logic applies in this case. According to Buglak, Wells Fargo agreed to pay him for time that was approved by individual managers and recorded in the timekeeping system. As a result, Buglak cannot also contend that he had an implied agreement with Wells Fargo requiring the company to pay him for unapproved and unrecorded hours. Therefore, like the plaintiff in Barvinchak, Buglak has not sufficiently plead a claim for relief under the PWCL. V. The Rule 23 Class Allegations Should Be Dismissed Or Stricken Because Buglak Uses Several Undefined Terms And Fails To Define Any Ascertainable Classes Buglak’s class allegations should be dismissed or stricken because Buglak has failed to “adequately define[] [the class] so that the individual class members may be easily identified.”39 37 Id. at *30. 38 Barvinchak v. Indiana Regional Med. Center, Civ. No. 3:2006-69, 2008 U.S. Dist. LEXIS 33385, at *5-6 (W.D. Pa. April 23, 2008). 39 Innovative Physical Therapy, 2008 WL 4067316, at *5 (citing In re School Asbestos Litig., 789 F.2d 996, 1005 (3d Cir. 1986), cert. denied 479 U.S. 852 (1986)). Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 13 of 16 10 28680580v.4 “Where it is facially apparent from the pleadings that there is no ascertainable class, a district court may dismiss the class allegation on the pleadings.”40 In this case, Buglak refers to several undefined groups in the last few pages of his Complaint. He refers to the “Pennsylvania Class,”41 the “Pennsylvania Plaintiffs,”42 and the “Pennsylvania State Law Class.” 43 All of these terms appear, for the first time, near the end of the Complaint. Buglak uses these terms but never defines them or explains which current or former employees are members of the putative groups. For this reason alone, his Rule 23 allegations should be dismissed or stricken. Additionally, Buglak’s Rule 23 allegations should be dismissed or stricken because the allegations do not provide Wells Fargo with fair notice of which groups of current or former employees Buglak is seeking to represent. Wells Fargo cannot decipher how, if at all, the various undefined groups (i.e., the “Pennsylvania Class,” the “Pennsylvania Plaintiffs,” the “Pennsylvania State Law Class,” and “the Statewide Collective Plaintiffs”) differ from or relate to each other. Thus, Wells Fargo does not have fair notice of Buglak’s proposed Rule 23 classes under the PMWA and the WPCL. Accordingly, the Court should dismiss or strike Buglak’s class claims from the Complaint. VI. Buglak Should Be Required To Clarify Whether He Is Seeking A Statewide Or Nationwide Collective Action Buglak makes inconsistent allegations regarding the scope of his proposed FLSA collective action. At various times in his Complaint, he refers to a proposed nationwide 40 Swank v. Wal-Mart Stores, Inc., 2015 U.S. Dist. LEXIS 41789, at *7 (W.D. Pa. Mar. 31, 2015) (quoting John v. Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007)). 41 See Complaint at ¶98 42 See Complaint, at ¶ 106 43 See Complaint at Prayer for Relief. Plaintiff also refers to a group of “Statewide Collective Plaintiffs” in Count IV of his Complaint. But Count IV purportedly addresses his claims under the PMWA. Claims under the PMWA are not subject to “collective” proceedings under the FLSA. Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 14 of 16 11 28680580v.4 collective action.44 At other times, he references a statewide collective action.45 Given this inconsistency, the Court should strike both allegations and require Plaintiff to re-plead his collective-action allegations in more precise terms. CONCLUSION For the foregoing reasons, Wells Fargo Bank, N.A. respectfully requests that the Court dismiss or strike the claims and allegations in Plaintiff’s Complaint. Respectfully submitted, /s/ Jacob Oslick Jacob Oslick PA Bar. No. 311028 SEYFARTH SHAW LLP 620 Eighth Avenue, 32nd Floor New York, NY 10018 joslick@seyfarth.com Timothy M. Watson (pro hac vice forthcoming) Texas Bar No. 20963575 Dennis A. Clifford (pro hac vice forthcoming) Texas Bar No. 24050431 Rachel M. Hoffer (pro hac vice forthcoming) Texas Bar No. 24065432 SEYFARTH SHAW LLP 700 Milam Street, Suite 1400 Houston, Texas 77002 (713) 225-2300 – Telephone (713) 225-2340 – Facsimile twatson@seyfarth.com dclifford@seyfarth.com rhoffer@seyfarth.com ATTORNEYS FOR DEFENDANT WELLS FARGO BANK, N.A. 44 See Complaint at p. 1 (referring to “his nationwide FLSA claims”) and ¶ 90 (referring to the “National Collective Plaintiffs”) 45 See Complaint, at ¶ 5 (defining the “collective action members” without any geographic limitation) and ¶ 16, (limiting the putative FLSA collective action to Pennsylvania). Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 15 of 16 12 28680580v.4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served upon the counsel of record listed below by the ECF system, on the 23rd day of September, 2016. James W. Sutton , III Law Offices of James W. Sutton, III 1014 Mill Creek Drive Feasterville, PA 19053 jsutton@vslaws.com Trang Q. Tran Tran Law Firm L.L.P. 2537 S. Gessner Rd., Suite 104 Houston, TX 77063 ttran@tranlawllp.com Joel M. Rubenstein German Rubenstein LLP 19 West 44th Street, Suite 1500 New York, NY 10036 Jrubenstein@germanrubenstein.com /s/ Jacob Oslick Jacob Oslick Case 2:16-cv-04546-BMS Document 3-1 Filed 09/23/16 Page 16 of 16 28971175v.1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ROBERT JOSEPH BUGLAK JR., Individually and on behalf of other employees similarly situated 893 Jason Drive Bensalem, PA 19020, Plaintiff v. WELLS FARGO BANK, N.A., Defendant. § § § § § § § § § § § § § CASE NO.: 2:16-cv-04546-BMS ORDER Pending before the Court is Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss or Strike Plaintiff’s Claims and Allegations, pursuant to Rule 12(b)(6) and 12(f). Having reviewed the Motion, the Court has determined that the Motion should be and is hereby GRANTED. The following Claims are DISMISSED without prejudice: 1. Plaintiff’s minimum-wage and regular-rate claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and the Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa. Stat. §333.101, et seq. 2. Plaintiff’s claims under the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43 Pa. Stat. § 260.1 et seq. 3. Plaintiff’s class claims and allegations under the PMWA and WPCL. 4. Plaintiff’s collective-action claims and allegations under the FLSA. SO ORDERED Date BERLE M. SCHILLER UNITED STATES DISTRICT JUDGE Case 2:16-cv-04546-BMS Document 3-2 Filed 09/23/16 Page 1 of 1