Gupta v. Wipro Limited et alREPLY BRIEF to Opposition to MotionD.N.J.June 16, 2017UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ARVIND GUPTA Plaintiff, v. WIPRO, LTD., et al. Defendants. Case No.: 3:17-cv-01954-FLW-DEA Motion Date: June 19, 2017 DEFENDANTS WIPRO, LTD. AND AZIM H. PREMJI’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS PURSUANT TO RULE 12(b)(1) AND 12(b)(6) Carmon M. Harvey LECLAIRRYAN 1818 Market Street Suite 2600 Philadelphia, PA 19103 Telephone: (215) 383-0912/0913 Facsimile: (215) 383-0916 Email: Carmon.Harvey@leclairryan.com Attorneys for Defendants Wipro Limited and Azim H. Premji Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 1 of 19 PageID: 1618 i TABLE OF CONTENTS PAGE I. INTRODUCTION ........................................................................................... 1 II. ARGUMENT ................................................................................................... 2 A. Claims Relating to Gupta’s 2015 WHD Complaint Should be Dismissed. ............................................................................................. 2 1. The WHD’s Decision Not to Investigate Gupta’s 2015 Complaint Is Not Reviewable. .................................................... 2 2. There Is No Private Right of Action Pursuant to the INA. ......... 3 B. Gupta’s Case Is Barred by the Doctrine of Res Judicata. ..................... 5 C. A Labor Condition Application (“LCA”) Is Not A Contract.............. 10 D. Gupta’s California Labor Law Claims Are Invalid. ........................... 11 III. CONCLUSION .............................................................................................. 13 Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 2 of 19 PageID: 1619 ii TABLE OF AUTHORITIES PAGE Cases Aguilar v. Zep. Inc., 2014 WL 425988 (N.D. Cal. Aug. 27, 2014) .......................................................12 Compunnel Software Group, Inc. v. Gupta, No. 14 Civ. 4790 (SAS), 2015 WL 1224298 (S.D.N.Y. Mar. 17, 2015) (Scheindlin, J.) ........................................................................................... 4, 10, 13 Cotter v. Lyft, Inc., 60 F. Supp. 3d 1059 (N.D. Cal. 2014) .................................................................12 Gupta v. Headstrong, Inc., No. 12 Civ. 6652 (RA), 2013 WL 4710388 (S.D.N.Y. Aug. 30, 2013) (Abrams, J.) ........................................................................................................................4, 5 Gupta v. Perez, 101 F. Supp. 3d 437 (D.N.J. 2015).......................................................... 4, 6, 8, 10 Gupta v. Perez, et al, Docket No. 5:14-cv-01102-HRL, Doc. I.D. No. 44 ............................................... 7 Gupta v. Perez, No. 3:14-cv-4054-FLW-DEA, 2015 WL 5098173 (D.N.J. Aug. 31, 2015) (Wolfson, J.) .................................................................................................. 4, 5, 8 Gupta v. Sec’y Dep’t of Labor, 649 Fed. Appx. 119 (3d Cir. 2016) ............................................................. 4, 8, 10 Gupta v. Wipro, Ltd., No. 5:16-cv-05283-EJD, 2017 WL 1113316 (N.D. Cal. Mar. 24, 2017) (Davila, J.) ......................................................................................................................6, 11 Hubicki v. ACF Indus., Inc., 484 F. 2d 519 (3d Cir. 1973) .................................................................................. 9 Kamdem-Ouaffo v. Colgate Palmolive Co., No. 15-7902, 2016 WL 6398517 (D.N.J. Oct. 26, 2016) (Cecchi, J.) ................... 9 Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 3 of 19 PageID: 1620 iii Kausal v. Educational Prods. Information Exchange Institute, 105 A.D. 3d 909 (N.Y. App. Div. 2d Dep’t 2013) ...............................................11 Khanna v. Grandparents Living Theater, Inc., Civ. A. No. 96APE12-1744, 1997 WL 599930 (Ohio Ct. App. Sept. 25, 1997) 10 Schuchardt v. President of the United States, 839 F. 3d 336 (3d Cir. 2016) ................................................................................12 Shibeshi v. Philander Smith Coll., No. 4:11CV00513JMM, 2011 WL 4529455 (E.D. Ark. Sept. 30, 2011), aff’d, 467 Fed. Appx. 544 (8th Cir. 2012) .....................................................................10 Sullivan v. Oracle Corp., 662 F.3d 1265 (9th Cir. 2011) ..............................................................................12 Takamiya v. DNP America, LLC, No. 14 Civ. 10301 (VEC), 2016 WL 4030861 (S.D.N.Y. July 25, 2016) (Caroni, J.) ............................................................................................................................ 5 Walia v. Veritas HealthCare Solutions, LLC, No. 13 Civ. 6935 (KPF), 2014 WL 7330440 (S.D.N.Y. Dec. 23, 2014) (Failla, J.) ................................................................................................................................ 5 Watson v. Chief Administrative Law Judge, No. 10-40411, 2010 WL 4033991 (5th Cir. 2010)................................................. 3 Regulations 20 C.F.R. § 655.806(a)(2) .......................................................................................... 3 Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 4 of 19 PageID: 1621 1 I. INTRODUCTION Plaintiff Arvind Gupta’s (“Gupta”) argument in support of this case is based on the demonstrably – by reference to Gupta’s own representation – false premise that Gupta remains employed with Wipro Ltd. (“Wipro”). Gupta’s two complaints before the WHD in May and June of 2009 and his related filings leave no question that Gupta resigned from Wipro in March of 2006 to pursue another job. Based on these representations, the Wage and Hour Division (“WHD”) declined to investigate the complaint in his own right because, inter alia, it was time-barred and found that Gupta otherwise lacked standing to assert claims on behalf of others. After learning that his individual claim was time-barred, Gupta for the first time argued to the DOL that his employment end-date should instead be considered June 10, 2008, which was the end of the period for which the government had authorized Wipro to employ Gupta. The DOL was not persuaded, and the dismissal of Gupta’s complaints was affirmed at every level of the DOL’s administrative review process. Gupta brought suit in federal court challenging the DOL’s decisions. This Court entered summary judgment against Gupta’s case, finding, inter alia, that Gupta’s DOL complaints against Wipro were clearly time- barred. This Court’s decision was ultimately affirmed on appeal by the Court of Appeals for the Third Circuit. Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 5 of 19 PageID: 1622 2 After suffering defeat in this Court on the basis of, inter alia, the time-bar against his claims, Gupta (in September of 2015) filed a third complaint against Wipro at the DOL. This time, he alleged that he never resigned from Wipro; that he is a current employee of the company and has been employed in uninterrupted fashion since 2003. He claims that the September 2015 WHD Complaint has “cured” the “defects” in his prior DOL complaints, and thus that his case is now timely and must proceed afresh, mooting seven years of prior litigation. Gupta’s assertion of these knowingly frivolous claims under these circumstances warrants the imposition of sanctions. For the following reasons, the Court should dismiss the instant Complaint in its entirety: II. ARGUMENT A. Claims Relating to Gupta’s 2015 WHD Complaint Should be Dismissed. 1. The WHD’s Decision Not to Investigate Gupta’s 2015 Complaint Is Not Reviewable. Gupta alleges that in September 2015, he filed a third complaint against Wipro with the WHD (the “2015 WHD Complaint”). He alleges that the WHD has improperly declined to investigate the complaint. See Compl. at ¶ 290. 1 1 Both Gupta and the DOL have, in subsequent filings in this case, confirmed that the WHD has declined to investigate the 2015 WHD Complaint. See, e.g., Gupta v. Wipro, No. 3:17-cv-1954-FLW, Doc. I.D. Nos. 35 (at pp. 4-5); 48 (at pp. 1, 7, 11, 23-27); 52 (at p. 13); 74 (at Exhibit A); and 76 (at pp. 6, 8, 9, 11, 19, 34- 40). Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 6 of 19 PageID: 1623 3 Pursuant to crystal clear federal regulations: “No hearing or appeal pursuant to this subpart shall be available where the Administrator determines that an investigation on a complaint is not warranted.” See 20 C.F.R. § 655.806(a)(2) (emphasis added); see also Watson v. Chief Administrative Law Judge, No. 10- 40411, 2010 WL 4033991, at *2 (5th Cir. 2010) (citation omitted) (“By the terms of the INA . . . WHD’s determination that there was no reasonable cause to investigate [the plaintiff’s] allegations . . . are decisions that are committed to the discretion of the federal agency under the statute and, therefore, are unreviewable.”). Indeed, Gupta himself has acknowledged that the WHD “has not issued an appealable determination.” See Opposition at p. 19. In accordance with black letter law, the WHD’s decision not to investigate the 2015 WHD Complaint is not subject to judicial review. In other words, all claims relating to the 2015 WHD Complaint should be dismissed. 2. There Is No Private Right of Action Pursuant to the INA. Gupta asserts that because the WHD refused to investigate the 2015 WHD Complaint, he is now entitled to engage in private enforcement of the INA, and to present the allegations contained in the 2015 WHD Complaint to a federal court as private, “INA” causes of action. Gupta has already been informed by three different District Judges, as well as a three-judge panel of the Third Circuit, that he Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 7 of 19 PageID: 1624 4 cannot do this and that no such private right of action exists. 2 Gupta’s own litigation history aside, a body of unanimous federal case law – of which Gupta is fully aware – holds that there is no private right of action pursuant to the INA, and that a federal court’s only role with respect to alleged INA violations is to review a final, appealable agency determination on the same. See, e.g., Motion to Dismiss (Doc. I.D. No. 73) at pp. 16-18. In addressing the vast array of case law cited on pages 16-18 of the Wipro Defendants’ Memorandum, Gupta argues that two of those cases are distinguishable because they involved “INA” claims brought by American citizens. Gupta argues that, as a foreign national, these cases do not apply to his claims. This is a distinction without any bit of difference. Federal law is clear that there is no private right of action pursuant to the INA, regardless of whether the claimant is an American citizen or a foreign national. To the extent, however, that Gupta requires citations to cases in which a court has held that foreign nationals have no private right of action pursuant to the INA, Wipro points Gupta to his own cases 2 See Gupta v. Sec’y Dep’t of Labor, 649 Fed. Appx. 119 (3d Cir. 2016); Gupta v. Perez, No. 3:14-cv-4054-FLW-DEA, 2015 WL 5098173, at *5 (D.N.J. Aug. 31, 2015) (Wolfson, J.); Gupta v. Perez, 101 F. Supp. 3d 437, 460-61 (D.N.J. 2015); Compunnel Software Group, Inc. v. Gupta, No. 14 Civ. 4790 (SAS), 2015 WL 1224298, at *3-4 (S.D.N.Y. Mar. 17, 2015) (Scheindlin, J.); Gupta v. Headstrong, Inc., No. 12 Civ. 6652 (RA), 2013 WL 4710388, at *4 (S.D.N.Y. Aug. 30, 2013) (Abrams, J.). Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 8 of 19 PageID: 1625 5 against Wipro, Headstrong, and Compunnel. 3 Further, although Gupta argues that the ARB held in Gupta v. Headstrong, Inc., No. 11-008, 2012 WL 2588596, that “workers can exercise private right of action in ‘another forum if the Administrator refuses to investigate the complaint,’” see Opposition at p. 19, the ARB made no such statement in that decision. There simply is no private right of action pursuant to the INA, as established by the INA itself and an overwhelming and unanimous body of case law. Gupta’s INA claims must be dismissed. B. Gupta’s Case Is Barred by the Doctrine of Res Judicata. All of Gupta’s causes of action are plainly barred by the doctrine of res judicata. In 2014, Gupta filed an 80-page complaint in the Northern District of California (subsequently transferred to this Court) against Wipro, in which he alleged that Wipro had made unauthorized deductions from his wages, or otherwise failed to pay him wages, between 2003 and 2008. See Gupta v. Perez, et al, No. 3:14-cv-04054-FLW. In his Complaint, Gupta argued that Wipro owed him these sums pursuant to the INA, as well as pursuant to a breach of contract 3 See also Takamiya v. DNP America, LLC, No. 14 Civ. 10301 (VEC), 2016 WL 4030861 (S.D.N.Y. July 25, 2016) (Caroni, J.) (no private right of action pursuant to INA in claim brought by Japanese national); Walia v. Veritas HealthCare Solutions, LLC, No. 13 Civ. 6935 (KPF), 2014 WL 7330440, at *3 (S.D.N.Y. Dec. 23, 2014) (Failla, J.) (no private right of action pursuant to INA in case brought by Indian national). Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 9 of 19 PageID: 1626 6 theory. This Court ultimately entered summary judgment against Gupta’s entire Complaint. See Gupta v. Perez, 101 F. Supp. 3d 437 (D.N.J. 2015). After this Court’s judgment was affirmed by the Third Circuit, Gupta filed a new case in the Northern District of California (the case that is now pending before this Court). Gupta now alleges that Wipro took unauthorized deductions from his wages, or otherwise failed to pay him wages, between 2003 and the present day (as opposed to the period of 2003 to 2008). 4 He once again asserts causes of action pursuant to the INA, as well as pursuant to breach of contract theories. He has also tacked on causes of action for unjust enrichment, quantum meruit, promissory estoppel, and violations of the FLSA and California Labor Code. These are not truly new claims. All that Gupta has done is add a new spin on the same facts, with new labels and alternate legal theories for claims that were litigated to final judgment in the Wipro Defendants’ favor in this Court. The claims presented in this case either were already brought, or indisputably could have been brought in Gupta’s prior federal lawsuit against Wipro. Gupta presents a number of arguments as to why res judicata should not 4 In his Order transferring this case from the Northern District of California to this Court, Judge Edward Davila observed that the two cases are “nearly identical,” and that the instant Complaint “seeks to reassert many of the same claims, against the same Defendants, arising from essentially the same operative facts.” See Gupta v. Wipro, Ltd., No. 5:16-cv-05283-EJD, 2017 WL 1113316, at *1-2 (N.D. Cal. Mar. 24, 2017) (Davila, J.). Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 10 of 19 PageID: 1627 7 apply to his Complaint. None has any merit. First, Gupta presents a bizarre argument that this Court does not have jurisdiction over him (rather, the Ninth Circuit does) and, therefore, this Court’s prior decisions are inapplicable to him and his claims. See Opposition at p. 20. This case is before this Court pursuant to a valid and unappealable transfer order, rendering any suggestion that this Court may not hear this case baseless. Second, Gupta argues that Wipro and Mr. Premji have “waived” any res judicata argument by not appealing an October 19, 2016 Order by Judge Howard Lloyd of the Northern District of California, which denied Wipro’s motion to consider this case as related to Gupta’s prior lawsuit against Wipro. See Opposition at pp. 21-22. On October 12, 2016, as required by the Local Rules of the Northern District of California, Wipro did indeed file an Administrative Motion in the prior docket, asking Judge Lloyd to consider the two cases to be related. See Gupta v. Perez, et al, No. 5:14-cv-01102-HRL, Doc. I.D. No. 44. On October 17, 2016, Gupta objected to the Motion on the dispositive ground that he did not consent to a Magistrate Judge (i.e., Judge Lloyd) presiding over the case. See id. at Doc. I.D. Nos. 45-46. On October 19, 2016, Judge Lloyd denied Wipro’s Motion for that sole reason. Id. Wipro raised the issue of res judicata in its very first responsive pleading in this case and, therefore, has not waived the argument. Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 11 of 19 PageID: 1628 8 Third, Gupta repeatedly argues that this Court permitted him to file the instant lawsuit in the Northern District of California, and that Wipro waived any objection by asking the Third Circuit to affirm the decision. See Opposition at p. 24. The record reflects that is simply not what happened. Before this Court granted the Wipro Defendants’ Motion for Summary Judgment, Gupta filed a Motion for Leave to Add Supplemental Claims, namely, for breach of implied-in- fact contract, unjust enrichment, quantum meruit, promissory estoppel, and violation of the FLSA. See Gupta v. Perez, No. 3:14-cv-04054, at Doc. I.D. No. 71. This Court thereafter granted summary judgment in the Wipro Defendants’ favor and denied Gupta’s Motion for Leave. See Gupta v. Perez, 101 F. Supp. 3d 460 (D.N.J. 2015). After the Third Circuit affirmed this Court’s decision, Gupta asked this Court to reopen his case and transfer it to the Northern District of California for further proceedings. See Gupta, 2015 WL 5098173 (D.N.J. Aug. 31, 2015); Gupta, 649 Fed. Appx. 119 (3d Cir. 2016); Gupta v. Perez, No. 3:14-cv- 04054, at Doc. I.D. No. 97. On July 27, 2016, this Court denied the Motion, and held: “Insofar as Plaintiff believes he has further claims to assert that were not dismissed on the merits in the present case, he may file a new case in the appropriate venue.” Gupta v. Perez, No. 3:14-cv-04054, at Doc. I.D. No. 98 (emphasis added). Wipro did not, as Gupta argues, ask the Third Circuit to Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 12 of 19 PageID: 1629 9 confirm this Order. Nor could the Order in any way be construed as a blanket grant of authority for Gupta to re-litigate claims that are barred by res judicata. Fourth, citing to decisions from the D.C. Circuit and the Third Circuit, Gupta argues that a Court’s dismissal of a case for lack of subject matter jurisdiction is not a disposition on the merits, and thus does not have res judicata effect. See Opposition at pp. 22-23. Gupta’s prior case, however, was not dismissed for lack of jurisdiction; rather, this Court entered summary judgment in the Defendants’ favor, which was affirmed by the Third Circuit. Summary judgment was entered against all claims, including Gupta’s claim for breach of contract (a fact that Gupta curiously does not discuss). Gupta scrupulously avoids mentioning the term “summary judgment,” which is a mischaracterization in an attempt to avoid the well-established rule that “[S]ummary judgment is a final judgment on the merits sufficient to raise the defense of res judicata in a subsequent action between the parties.” See Hubicki v. ACF Indus., Inc., 484 F. 2d 519, 524 (3d Cir. 1973) (citation omitted); see also Kamdem-Ouaffo v. Colgate Palmolive Co., No. 15-7902, 2016 WL 6398517, at *6 (D.N.J. Oct. 26, 2016) (Cecchi, J.) (dismissing a “virtually identical” complaint on res judicata grounds where the pro se plaintiff’s prior lawsuit against the same defendants was defeated on summary judgment). Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 13 of 19 PageID: 1630 10 Gupta’s prior INA and breach of contract claims against Wipro, asserting that Wipro made unauthorized deductions from his wages or otherwise failed to pay him wages, were defeated on summary judgment. Gupta’s prior eleventh-hour (while summary judgment motions were pending) request to amend his Complaint to assert the claims that he is presently asserting was denied. To allow Gupta to bring the proposed additional claims now, in a separate lawsuit, after suffering an adverse judgment on the merits at the appellate level, would be a severe injustice to Wipro and Mr. Premji, and would fly squarely in the face of the doctrine of res judicata. The claims are precluded, and must be dismissed. C. A Labor Condition Application (“LCA”) Is Not A Contract. Judicial decisions on the topic of whether an LCA constitutes a contract between the employer and employee are unanimous: an LCA is not an employment contract. See, e.g., Gupta v. Perez, 101 F. Supp. 3d 437, 461 n.32 (D.N.J. 2015), aff’d, 649 Fed. Appx. 119 (3d Cir. 2016); Compunnel Software Group, Inc. v. Gupta, No. 14 Civ. 4790 (SAS), 2015 WL 1224298, at *5 (S.D.N.Y. Mar. 17, 2015) (Scheindlin, J.); Shibeshi v. Philander Smith Coll., No. 4:11CV00513JMM, 2011 WL 4529455, at *2 (E.D. Ark. Sept. 30, 2011), aff’d, 467 Fed. Appx. 544 (8th Cir. 2012); Khanna v. Grandparents Living Theater, Inc., Civ. A. No. 96APE12-1744, 1997 WL 599930, at *3 (Ohio Ct. App. Sept. 25, 1997). Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 14 of 19 PageID: 1631 11 Once again, Gupta relies on Kausal v. Educational Prods. Information Exchange Institute, 105 A.D. 3d 909 (N.Y. App. Div. 2d Dep’t 2013), a decision of the New York state Appellate Division, asserting that the New York state courts have held that an LCA constitutes an employment contract. As Gupta has been informed on multiple occasions by multiple federal judges, including this Court, his reliance on this case is unfounded. Gupta’s repeated pursuit of this argument, aside from being legally meritless, is sanctionable. D. Gupta’s California Labor Law Claims Are Invalid. Gupta alleges in his Complaint that he is a resident of India, and that while employed by Wipro, he worked physically in India, New York, Georgia, and Nebraska; the exhibits to his Complaint also indicate that Gupta lived in New Jersey while employed by Wipro. The Complaint contains no reference to any work performed by Gupta or residence in California, a fact confirmed by Judge Davila of the Northern District of California when he transferred the instant case to this Court. See Gupta v. Wipro, Ltd., 2017 WL 1113316, at *4 (“The record demonstrates that Plaintiff does not work, nor has he ever worked, in California. Plaintiff’s job duties had no meaningful connection to California, and none of the underlying facts applicable to Plaintiff’s claims occurred in California.”). Yet, Gupta has asserted in the Complaint that California’s statutory labor laws apply to Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 15 of 19 PageID: 1632 12 this dispute. 5 The law is clear, however, that California’s statutory labor laws cannot apply to a claim brought by a non-resident of California, regarding activity that occurred wholly outside of California. See Cotter v. Lyft, Inc., 60 F. Supp. 3d 1059, 1062 n.1, 1063-64, (N.D. Cal. 2014); Aguilar v. Zep. Inc., 2014 WL 425988, at *11 (N.D. Cal. Aug. 27, 2014) (citing Sullivan v. Oracle Corp., 662 F.3d 1265, 1271 (9th Cir. 2011)). Indeed, the federal courts in California have held that it would be unconstitutional to apply California statutory law in such a case. See Cotter, 60 F. Supp. 3d at 1063-64. In a desperate attempt to save the claim, Gupta argues in his Opposition, for the first time during the long course of his litigation against Wipro, that he lived in California for “several months” in 2007. See Opposition at p. 32. First, putting aside the veracity of this statement for the moment, the Court may not consider it in ruling on a Rule 12(b) motion in any event, since Gupta does not allege it in his Complaint. See, e.g., Schuchardt v. President of the United States, 839 F. 3d 336, 353 (3d Cir. 2016). Second, even if the assertion was true, it is of no import. By Gupta’s own admission, he was not working for Wipro in 2007; indeed, he last performed work for Wipro in 2006. See Compl. at ¶¶ 37; 39; 124; 125. Third, if it is true that Gupta had lived in California for a brief spell in 2007, then one wonders 5 Gupta also has asserted that New York law applies to his breach of contract claim. Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 16 of 19 PageID: 1633 13 why Gupta has never alleged this at any point in this nearly eight-year-old litigation. Most notably, Gupta never mentioned this in either 2014 or 2016, when the Wipro and federal defendants moved to transfer Gupta’s cases against them from California to New Jersey. Wipro presumes that this is because, in 2007, Gupta was employed by Compunnel Software, and not Wipro, a fact that Gupta has gone to great lengths to hide from this Court. See, e.g., Compunnel Software Group, Inc., 2015 WL 1224298, at *1. 6 This is a blatant fraud on the Court; yet another knowing factual misrepresentation by Gupta that is further deserving of sanctions. In short, Gupta’s Complaint does not allege any ties to California; accordingly, his claims pursuant to the California Labor Laws must be dismissed. III. CONCLUSION In accordance with the foregoing, Wipro and Mr. Premji respectfully ask that the Court grant their Motion and dismiss Gupta’s Complaint in its entirety. 6 This Court may take judicial notice of the fact that in a December 30, 2016 filing in the Compunnel case, Gupta asserted that he was briefly in San Francisco in 2007 at the direction of Compunnel, and working for Compunnel (a New Jersey company) on an off-site client project there. See Compunnel Software, Case No. 1:14-cv-04790-RA (S.D.N.Y., Abrams, J.), Doc. I.D. No. 146 at ¶¶ 28-34. Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 17 of 19 PageID: 1634 14 Dated: June 16, 2017 /s/ Carmon M. Harvey Carmon M. Harvey, Esq. NJ Attorney ID No. 001632011 LECLAIRRYAN 1818 Market Street Suite 2600 Philadelphia, PA 19103 p: (215) 383-0912 f: (215) 383-0916 carmon.harvey@leclairryan.com Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 18 of 19 PageID: 1635 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, the foregoing Wipro Limited and Azim H. Premji’s Reply Brief in support of Motion to Dismiss was filed electronically and is available for downloading and viewing from the Court’s electronic filing system. Notice of this filing will be sent to all registered counsel and parties of record by operation of the Court’s electronic filing system. Dated: June 16, 2017 /s/ Carmon M. Harvey Carmon M. Harvey, Esq. Case 3:17-cv-01954-FLW-DEA Document 79 Filed 06/16/17 Page 19 of 19 PageID: 1636