Wong et al v. HSBC Mortgage Corporation (USA) et al

Filing 294

ORDER APPROVING STIPULATION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT. Signed by Judge Maxine M. Chesney on November 19, 2010. (Attachment: # 1 Exhibit A)(mmclc1, COURT STAFF) (Filed on 11/19/2010)

Wong et al v. HSBC Mortgage Corporation (USA) et al

Doc. 294 Att. 1

Exhibit A

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Donald H. Nichols, MN State Bar No. 78918 [e-mail] (admitted pro hac vice) Paul J. Lukas, MN State Bar No. 22084X [e-mail] (admitted pro hac vice) Rebekah Bailey, CA Bar No. 258551 [e-mail] NICHOLS KASTER, PLLP 4600 IDS Center 80 S. 8th Street Minneapolis, MN 55402 Telephone: [phone] Facsimile: 612-215-6870 Matthew C. Helland, CA State Bar No. 250451 [e-mail] NICHOLS KASTER, LLP One Embarcadero Center, Ste. 720 San Francisco, CA 94111 Telephone: [phone] Facsimile: 415-277-7238 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Philip Wong, Frederic Chaussy, Ryan Kanazawa, Stephany Hor a/k/a Guec Muy Hor, and Christine Lim, Plaintiffs, vs. HSBC Mortgage Corporation (USA); HSBC Bank USA, N.A.; and DOES 1 through 50, inclusive, Defendants. Case No.: 3:07-cv-2446 MMC THIRD AMENDED COMPLAINT FOR DAMAGES (1) Violations of Fair Labor Standards Act, 29 U.S.C. Section 201, et seq. DEMAND FOR JURY TRIAL

THIRD AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. 1.

PRELIMINARY STATEMENT This action is brought by Plaintiffs Philip Wong, Frederic Chaussy, Ryan

Kanazawa, Stephany Hor a/k/a Guec Muy Hor, and Christine Lim (collectively "Plaintiffs"). Plaintiffs were employed by Defendants: HSBC Mortgage Corporation (USA); HSBC Bank USA, N.A.; and certain Doe Defendants, or their predecessors-in-interest. Plaintiffs were or are employed as "Retail Mortgage Lending Consultants," and/or "Senior Retail Mortgage Lending Consultants," (collectively known as "loan officers"), who were misclassified as exempt and therefore erroneously denied overtime compensation as required by federal wage and hour laws. Plaintiffs are similarly situated under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). 2. During the relevant statutory period, Defendants failed to pay overtime

compensation to Plaintiffs as required by federal law. Plaintiffs seek relief under the Fair Labor Standards Act. THE PARTIES Plaintiff Philip Wong resides in San Francisco County, California. He was

employed by Defendants from approximately December 2005 to March 2008 as a loan officer working in San Francisco, San Mateo, and Alameda Counties, California. 4. Plaintiff Frederic Chaussy resides in Contra Costa County, California. He was

employed by Defendants from approximately April 2006 to April 2007 as a loan officer working in San Francisco, Santa Clara, San Mateo, and Alameda Counties, California. 5. Plaintiff Ryan Kanazawa was employed by Defendants as a loan officer working

in the State of California from approximately December 2005 through September 2006. 6. Plaintiff Stephany Hor, also known as Guec Muy Hor, was employed by

Defendants as a loan officer working in the State of California prior to the start of the statutory period in this case, through July 2006. 7. Plaintiff Christine Lim was employed by Defendants as a loan officer working in

the State of California from approximately March 2006 through December 2006. 8. Defendant HSBC Mortgage Corporation (USA) is a corporation doing business in

and maintaining places of business in several states throughout the United States, including 2
THIRD AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

locations in San Francisco, Redwood City, San Mateo, Palo Alto, Milpitas, Cupertino, Oakland, and Fremont, California, around New Jersey, and around New York. 9. Defendant HSBC Bank USA, N.A., is a corporation doing business in and

maintaining places of business in several states throughout the United States facilities in San Francisco, Redwood City, San Mateo, Palo Alto, Milpitas, Cupertino, Oakland, and Fremont, California. 10. Defendants Does 1-50, inclusive, are sued herein under fictitious names. Their

true names and capacities are unknown to Plaintiffs. When their true names and capacities are ascertained, Plaintiffs will amend this complaint by inserting their true names and capacities herein. Plaintiffs are informed and believe and thereon allege that each of the fictitiously-named Defendants is responsible in some manner for the occurrences herein alleged, and that the damages of Plaintiffs and the putative class members herein alleged were proximately caused by such Defendants. 11. Plaintiffs are informed, believe, and thereon allege that each of the Defendants

herein was, at all times relevant to this action, an agent, employee, representing partner, integrated enterprise with, and/or joint venturer of the remaining Defendants and was acting within the course and scope of the relationship. Plaintiffs are further informed, believe, and thereon allege that each of the Defendants herein gave consent to, ratified and authorized the acts alleged herein to the remaining Defendants. JURISDICTION AND VENUE 12. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 as this

case is being brought under the FLSA, 29 U.S.C. § 207 et seq. Each representative Plaintiff has signed a consent form to join this lawsuit, which have previously been filed with the Court. 13. Venue is proper in the United States District Court, Northern District of California

pursuant to 28 U.S.C. § 1391, because Defendants operate or have operated facilities in San Francisco, Redwood City, San Mateo, Palo Alto, Milpitas, Cupertino, Oakland, and Fremont, California, and because a substantial part of the events giving rise to the claims occurred in this district. 3
THIRD AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

14.

Pursuant to Civil L.R. 3-2(c) and (d), this action is properly assigned to the

Northern District of California because a substantial portion of the events giving rise to this dispute occurred in San Francisco, San Mateo, Santa Clara, and Alameda Counties, California. FACTUAL ALLEGATIONS 15. Plaintiffs were primarily engaged in the sale of mortgage loan products for

Defendants. Plaintiffs' customer conduct usually occurred at Defendants' offices or in other fixed locations, if it occurred in person. Much of the customer contact took place over the phone or via email. 16. Defendants suffered and permitted Plaintiffs to work more than forty hours per

week without overtime compensation. In addition to working regular work day hours, Plaintiffs often worked in the mornings, in the evenings, and on the weekends. 17. Defendants knew that Plaintiffs performed work that required overtime pay.

Defendants have operated under a scheme to deprive these employees of overtime compensation by failing to properly compensate them for all hours worked. 18. Defendants were aware of their obligations under the FLSA but failed to meet

those obligations with respect to Plaintiffs. Defendants' unlawful conduct has been widespread, repeated and consistent. 19. Defendants' conduct, as set forth in this Complaint, was willful and in bad faith,

and has caused significant damages to Plaintiffs. 20. Each of the Defendants is and was engaged in interstate commerce by, among

other things, offering loan and banking products in different states. 21. Since 2004, each Defendant corporation has had gross operating revenues in

excess of $500,000. FIRST CLAIM FOR RELIEF (Failure to Pay Overtime Compensation in Violation of the Fair Labor Standards Act) 22. paragraphs. 4
THIRD AMENDED COMPLAINT FOR DAMAGES

Plaintiffs allege and incorporate by reference the allegations in the preceding

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

23.

Plaintiffs consent in writing to be a part of this action, pursuant to 29 U.S.C. §

216(b). Plaintiffs' written consent forms have previously been filed with the Court. 24. At all relevant times, Defendants have been, and continue to be, "employers"

engaged in interstate commerce and/or in the production of goods for commerce, within the meaning of the FLSA, 20 U.S.C. § 203. At all relevant times, Defendants have employed and continue to employ employees including Plaintiffs. At all relevant times, upon information and belief, each Defendant corporation has had gross operating revenues in excess of $500,000.00. 25. The FLSA requires each covered employer such as Defendants to compensate all

non-exempt employees at a rate of not less than one and one-half times the regular rate of pay for work performed in excess of forty hours per work week. 26. During their employment with Defendants, within the applicable statute of

limitations, Plaintiffs worked in excess of forty hours per workweek without overtime compensation. Despite the hours worked by Plaintiffs, Defendants willfully, in bad faith, and in knowing violation of the Federal Fair Labor Standards Act, failed and refused to pay them overtime compensation. 27. By failing to accurately record, report, and/or preserve records of hours worked by

Plaintiffs, Defendants have failed to make, keep, and preserve records with respect to each of their employees sufficient to determine their wages, hours, and other conditions and practice of employment, in violation of the FLSA, 29 U.S.C. § 201, et seq. 28. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA,

within the meaning of 29 U.S.C. § 255(a). 29. Plaintiffs seek damages in the amount of their respective unpaid overtime

compensation, liquidated damages from three years immediately preceding the filing of this action, plus interests and costs as allowed by law, pursuant to 29 U.S.C. §§ 216(b) and 255(a), and such other legal and equitable relief as the Court deems just and proper. 30. Plaintiffs seek recovery of their attorneys' fees and costs to be paid by Defendants,

as provided by the FLSA, 29 U.S.C. § 216(b). 5
THIRD AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: ________________ 32. 31.

PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows: A. Judgment that Defendants are found to have violated the overtime provisions of the FLSA as to Plaintiffs; B. That Defendants' violations as described above are found to be willful; C. Judgment against Defendants for an amount equal to Plaintiffs' unpaid back wages at the applicable overtime rate; D. An equal amount to the overtime damages as liquidated damages; E. An award of reasonable attorneys' fees and costs incurred prosecuting this claim, pursuant to 29 U.S.C. section 216; F. Pre-judgment and post-judgment interest, as provided by law; G. For such other relief as this Court may deem just and proper. JURY DEMAND Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs,

individually and on behalf of all others similarly situated, demand a trial by jury.

NICHOLS KASTER, LLP By, Matthew C. Helland NICHOLS KASTER, PLLP Attorneys for Plaintiffs

6
THIRD AMENDED COMPLAINT FOR DAMAGES