DISANTIS et al v. ALLIED CONSTRUCTION, LLC et al

Filing 26

OPINION. Signed by Judge Jerome B. Simandle on 7/31/18. (dd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOHN DISANTIS and VICTOR
HUNTER, on behalf of
themselves and those similarly
situated,
Plaintiffs,

HONORABLE JEROME B. SIMANDLE
Civil Action
No. 17-11379 (JBS-KMW)

v.
OPINION
ALLIED CONSTRUCTION, LLC and
JOHN DOES 1-10.
Defendants.
APPEARANCES:
Joshua S. Boyette, Esq.
Travis B. Martindale-Jarvis, Esq.
SWARTZ SWINDLER LLC
101 Kings Highway North, Suite 402
Cherry Hill, NJ 08034
Attorneys for Plaintiff
Matthew Adam Green, Esq.
Lisa Michelle Koblin, Esq.
OBERMAYER REBMANN MAXWELL & HIPPELL LLP
200 Lake Drive East, Suite 110
Cherry Hill, NJ 08022
Attorneys for Defendants
SIMANDLE, District Judge:
INTRODUCTION
This is an action brought by Plaintiffs John DiSantis
(“DiSantis”) and Victor Hunter (“Hunter” and, collectively,
“Named Plaintiffs”), on behalf of themselves and others
similarly situated, against their former employer, Defendant

Allied Construction, LLC (“Allied” or “Defendant”). Plaintiffs
generally allege that Allied failed to fully compensate them for
overtime work performed and owed commissions and/or nondiscretionary bonuses in violation of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et seq., the New Jersey Wage
Payment Law (“NJWPL”), N.J.S.A. § 34:11-4.1 et seq., the New
Jersey Wage and Hour Law (“NJWHL”), N.J.S.A. § 34:11-4.1 et
seq., and the common law. Pending before the Court are three
motions filed by Defendant: (1) a motion to dismiss the
Complaint pursuant to Fed. R. Civ. P. 12(b)(2), 12(b)(4), and
12(b)(5) [Docket Item 6]; (2) a motion to dismiss the Complaint
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) [Docket Item
14]; and (3) a motion to dismiss the Amended Complaint pursuant
to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). [Docket Item 19.] For
the following reasons, the first and second motions will be
denied as moot, and the third motion will be granted in part.
BACKGROUND
A.

Factual Background

Allied is an energy efficiency specialization company that
informs its customers of government incentive programs for
improving their homes’ energy efficiencies, assesses existing
energy uses, and then creates programs to increase the homes’
efficiencies. [Docket Item 25 (“Am. Compl.”) at ¶¶ 11, 40-41.]
During the relevant period, Allied’s sales team included
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Surveyors, Community Representatives, Technicians and Auditors.
(Id. at ¶¶ 16, 26, 42.) Community Representatives first canvass
neighborhoods to promote Allied’s services and set up
appointments.1 (Id. at ¶¶ 46-47.) Then, Technicians attend these
appointments to inform homeowners about Allied’s services and
the government programs, conduct a “mini-audit,” and schedule a
second appointment with an Auditor. (Id. at ¶ 44.) At these
second appointments, Auditors assess each home’s energy
efficiency and acquire installation agreements for implementing
a customized program. (Id. at ¶ 45.) Allied employed DiSantis as
a Technician from May 2015 until April 2017, and Hunter as a
Community Representative from February 2017 to August 2017. (Id.
at ¶¶ 7-8, 38-39.)
In the Amended Complaint, Plaintiffs allege that Allied
failed to fully compensate the “Collective Action Plaintiffs”2 –
which includes the “Overtime Class Plaintiffs”3 for overtime work

Initially, Surveyors acted as the first point of contact, but
they were replaced by Community Representatives in early 2017.
(Am. Compl. at ¶ 46.)
1

As defined in the Amended Complaint, the “Collective Action
Plaintiffs” are “a class of all persons presently and formerly
employed by Defendants who worked/work for Defendants as
Community Representatives, Surveyors, Technicians, and in
similar capacities . . . .” (Am. Compl. at ¶ 17.)
2

As defined in the Amended Complaint, “Overtime Class
Plaintiffs” are “current and/or former employees of [Allied] who
worked more than forty (40) hours.” (Am. Compl. at ¶ 10.)
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performed and the “Unpaid Wages Class Plaintiffs”4 for
commissions and/or non-discretionary bonuses - in violation of
the FLSA, the NJWPL, the NJWHL, and the common law.
Specifically, Plaintiffs bring claims against Allied for: 1)
failure to properly compensate DiSantis, Hunter, and the
Collective Action Plaintiffs for overtime work in violation of
the FLSA (Count One); 2) failure to properly compensate
DiSantis, Hunter, and the Overtime Class Plaintiffs for overtime
work in violation of the NJWHL (Count Two); 3) failure to
properly compensate DiSantis, Hunter, and the Unpaid Wages Class
Plaintiffs for their owed commissions and/or non-discretionary
bonuses in violation of the NJWPL (Count Three); and 4) breach
of contract for failure to pay DiSantis, Hunter, and the Unpaid
Wages Class Plaintiffs owed commissions and/or non-discretionary
bonuses (Count Four). (Id. at ¶¶ 49-89.)
B.

Procedural History

On November 17, 2017, Plaintiffs filed the initial
Complaint. [Docket Item 1.] Plaintiffs first attempted to serve
Allied by delivering a copy of the Summons and Complaint to
Ellen McDowell (“McDowell”), whom Plaintiffs believed was an
attorney for Allied, on December 5, 2017. [Docket Item 5 at 1.]

As defined in the Amended Complaint, “Unpaid Wages Class
Plaintiffs” are “current and/or former employees of [Allied] who
earned commissions and/or non-discretionary bonuses within the
last six (6) years.” (Am. Compl. at ¶ 9.)
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On December 26, 2017, Allied moved to dismiss the Complaint for
insufficient process pursuant to Fed. R. Civ. P. 12(b)(4), for
insufficient service of process pursuant to Fed. R. Civ. P.
12(b)(5), and for lack of personal jurisdiction pursuant to Fed.
R. Civ. P. 12(b)(2) because, according to Allied, McDowell was
neither Allied’s representative nor authorized to accept service
on Allied’s behalf. [Docket Item 6 at 2.] On January 17, 2018,
Plaintiffs served Allied again, this time by delivering a copy
of the Summons and Complaint to Allied’s managing agent. [Docket
Item 8.] Allied agreed that the January 17th service was proper
but declined to withdraw its first motion to dismiss. [Docket
Item 12 at 4.] Plaintiffs subsequently filed a response brief in
opposition to Allied’s motion to dismiss [Docket Item 10] and
Allied filed a reply brief. [Docket Item 12.]
Allied next moved to dismiss the Complaint in part pursuant
to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing, inter alia,
that Plaintiffs’ breach of contract claim was preempted by the
FLSA and that Plaintiffs had failed to set forth a claim for
Auditors upon which relief can be granted. [Docket Item 14.]
Rather than respond to the second motion to dismiss, Plaintiff
filed a consent motion (i.e., a motion with Defendant’s consent)
for leave to file an Amended Complaint. [Docket Item 16.] The

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Court granted the unopposed motion [Docket Item 17], and the
Amended Complaint was filed.5 [Docket Item 25.]
Thereafter, Allied filed a motion to dismiss the Amended
Complaint in part pursuant to Fed R. Civ. P. 12(b)(1) and
12(b)(6). [Docket Item 19.] In this motion, Allied avers that
Plaintiffs’ FLSA claim preempts the breach of contract claim in
the Amended Complaint and so the latter should be dismissed.
[Id. at 5-7.] Further, Allied asserts that claims on behalf of
the Auditors should be dismissed because DiSantis and Hunter
lack standing to represent them and because, as currently plead,
the Amended Complaint does not assert any wrongful conduct by
Allied towards Auditors. [Id. at 7-12.] Plaintiffs filed a
response brief in opposition to Allied’s motion to dismiss in
part [Docket Item 21] and Allied filed a reply brief in support
of its motion to dismiss in part. [Docket Item 24.]
The motions to dismiss are now fully briefed and will be
decided without oral argument pursuant to Fed. R. Civ. P. 78.6

Plaintiff filed the Amended Complaint without referring to or
adopting the earlier Complaint. The Amended Complaint thereby
supersedes the original Complaint. West Run Student Housing
Assocs., LLC v. Huntington Nat'l Bank, 712 F.3d 165, 171 (3d
Cir. 2013). Accordingly, and for good cause shown, Defendant’s
second motion to dismiss [Docket Item 14] will be denied as
moot.
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The Court exercises subject matter jurisdiction over
Plaintiffs’ FLSA claim pursuant to 28 U.S.C. § 1331 and
supplemental jurisdiction over Plaintiffs’ remaining claims
pursuant to 28 U.S.C. § 1367.
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STANDARD OF REVIEW
A.

Rule 12(b)(1)

A party may move under Fed. R. Civ. P. 12(b)(1) to dismiss
a complaint for lack of subject matter jurisdiction. Because
federal courts are courts of limited jurisdiction, the party
seeking to invoke the court's jurisdiction bears the burden of
proving the existence of subject matter jurisdiction. See
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377
(1994). Under Fed. R. Civ. P. 12(b)(1), the court's jurisdiction
may be challenged either facially (based on the legal
sufficiency of the claim) or factually (based on the sufficiency
of a jurisdictional fact). Gould Elecs. v. U.S., 220 F.3d 169,
178 (3d Cir. 2000); see also A.D. v. Haddon Heights Bd. of
Educ., 90 F. Supp. 3d 326, 334 (D.N.J. 2015) (explaining the
same distinction).
Here, Defendant's 12(b)(1) motion appears to be a facial
attack on the subject matter jurisdiction of the Court. [See
Docket Item 19 at 13-16.] On a facial attack, the Court
considers only the allegations of the Complaint and documents
referenced therein, construing them in the light most favorable
to plaintiff. Pearson v. Chugach Gvt. Svcs. Inc., 669 F. Supp.
2d 467, 469–70 (D. Del. 2009).

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B.

Rule 12(b)(2)

To defeat a motion to dismiss for lack of personal
jurisdiction under Fed. R. Civ. P. 12(b)(2), “the plaintiff
bears the burden of establishing with reasonable particularity
sufficient contacts between the defendant and the forum state to
support jurisdiction.” Flagship Interval Owner's Ass'n, Inc. v.
Philadelphia Furniture Mfg. Co., No. 09–1173, 2010 WL 1135736,
at *3 (D.N.J. Mar. 22, 2010) (quoting Provident Nat'l Bank v.
Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987)).
The plaintiff “must sustain its burden of proof in establishing
jurisdictional facts through sworn affidavits or other competent
evidence.” Turner v. Boyle, No. 12–7224, 2013 WL 1409903, at *3
n. 1 (D.N.J. Apr. 8, 2013) (citing Time Share Vacation Club v.
Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984)); Patterson
by Patterson v. F.B.I., 893 F.2d 595, 603—04 (3d Cir. 1990).
Courts may rely upon matters outside the pleadings to determine
jurisdictional facts. Turner, 2013 WL 1409903, at *3 n. 1.
C.

Rules 12(b)(4) and 12(b)(5)

Rules 12(b)(4) and 12(b)(5) respectively govern Defendant’s
motion to dismiss for insufficient process and for insufficient
service of pleadings. [Docket Item 6.] “Before a federal court
may exercise personal jurisdiction over a defendant, the
procedural requirements of service of summons must be
satisfied.” Omni Capital Int'l Ltd. v. Rudolf Wolff & Co., 484
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U.S. 97, 104 (1987). Under Fed. R. Civ. P. 12(b)(4), a party may
file a motion asserting insufficient process as a defense.
Additionally, under Fed. R. Civ. P. 12(b)(5), a party may file a
motion asserting insufficient service of process as a defense.
“When a party moves to dismiss under Rule 12(b)(5), the party
making the service has the burden of demonstrating its
validity.” Laffey v. Plousis, No. 05-2796, 2008 WL 305289, at *3
(D.N.J. Feb. 1, 2008), aff'd, 364 F. App’x 791 (3d Cir. 2010).
Fed R. Civ. P. 4 establishes the procedural requirements that
must be met for proper service under Fed. R. Civ. P. 12(b)(4)
and 12(b)(5). Among other conditions, Fed. R. Civ. P. 4(m)
requires that service be effected within 90 days after the
Complaint is filed.
D.

Rule 12(b)(6)

Rule 12(b)(6) governs the Defendant’s partial motion to
dismiss the FLSA and NJWPL claims for failure to state a claim.
[Docket Item 19 at 16-18.] Pursuant to Rule 8(a)(2), Fed. R.
Civ. P., a complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Specific facts are not required, and “the statement
need only ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (citations omitted). While a
complaint is not required to contain detailed factual
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allegations, the plaintiff must provide the “grounds” of his
“entitle[ment] to relief”, which requires more than mere labels
and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007).
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P.,
may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that the plaintiff
failed to set forth fair notice of what the claim is and the
grounds upon which it rests. Id. A complaint will survive a
motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a
court must accept as true all factual allegations in a
complaint, that tenet is “inapplicable to legal conclusions,”
and “[a] pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will
not do.” Id. at 678.
DISCUSSION
A.

Service of Process was Proper

Defendant first asks this Court to dismiss Plaintiffs’
claims in their entirety for insufficient service of process
pursuant to Fed. R. Civ. P. 12(b)(4) and 12(b)(5) and lack of
personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
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[Docket Item 6.] Specifically, Defendant argues that Plaintiffs
failed to properly serve Allied with the Summons and Complaint
in accordance with the Federal Rules of Civil Procedure by
serving an attorney who did not represent Allied and who was
never authorized to accept service on Allied’s behalf. [Id. at
1.] Plaintiffs, in turn, argue that this motion to dismiss
should be denied because, notwithstanding that McDowell was not
actually an attorney for Allied, Allied’s registered agent, Hal
Pattolino, had actively avoided service on at least four
occasions. Moreover, they argue that McDowell had told
Plaintiff’s process server that she was Mr. Pattolino’s attorney
and that documents intended for her client should be delivered
to her personally. [Docket Item 10 at 1-2; see also Docket Item
5 at 4.] In the alternative, Plaintiffs argue that Defendant’s
first motion to dismiss is moot because of the second and
undisputedly proper service of process. [Docket Item 10 at 1.]
A second attempt at service of process is valid provided it
comports with the requirements of Fed. R. Civ. P. 4, including
Rule 4(m)’s requirement that service of process be made within
90 days. Camara v. Stevens Transp., 2016 WL 8698532, at *5-6
(D.N.J. Jan. 8, 2016); see also Umbenhauer v. Woog, 969 F.2d 25,
30 (3d Cir. 1992) (noting that a court should not dismiss a
complaint for improper service of process when it is feasible to
obtain proper service). Defendant concedes that, regardless of
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whether Plaintiffs’ service on McDowell was proper, service was
properly effectuated by January 17, 2018 [Docket Item 12 at 4],
which is well within 90 days of when the original Complaint was
filed. Thus, service was proper. In any event, and as noted
supra, the original Complaint has been superseded by the Amended
Complaint [Docket Item 25], the filing of which Defendant
consented to. [Docket Item 16.] Defendant makes no argument that
Plaintiffs failed to properly serve the Amended Complaint. For
these reasons, Allied’s first motion to dismiss for insufficient
service of process will be denied.
B.

The Breach of Contract Claim is not Preempted by the
FLSA

Defendant asks this Court to dismiss Count Four of the
Amended Complaint because Plaintiffs’ breach of contract claims
are preempted by the FLSA. [Docket Item 19 at 11-13.]
Plaintiffs, in turn, argue that Count Four is not preempted by
the FLSA because the breach of contract claims in the Amended
Complaint are premised upon Defendant’s refusal to compensate
Plaintiffs and those similarly situated for commissions and/or
non-discretionary bonuses, rather than Defendant’s failure to
pay Plaintiffs proper overtime wages. [Docket Item 21 at 7-9.]
The FLSA preempts state common law claims that “duplicate”
or are based on “the same facts” as an FLSA overtime claim.
Gutwirth v. Woodford Cedar Run Wildlife Refuge, 38 F. Supp. 3d

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485, 489 (D.N.J. 2014) (quoting Adami v. Cardo Windows, Inc.,
2014 WL 2586933, at *8 (D.N.J. June 10, 2014)); see also Kronick
v. bebe Stores, Inc., 2008 WL 4509610, at *1 (D.N.J. Sept. 29,
2008) (holding that the FLSA preempted employees’ common law
claim alleging that their employer required them to work without
taking breaks because it is based on the same facts as the
employer’s failure to compensate them for overtime); Moeck v.
Gray Supply Corp., 2006 WL 42368, at *2 (D.N.J. Jan. 5, 2006)
(finding that the FLSA preempted the employees’
misrepresentation claim because the employer’s misrepresentation
that it would pay them overtime was based on the same facts as
the employees’ overtime claims). On the other hand, courts in
this district have found that a state common law claim is not
preempted by the FLSA when the common law claim is factually
distinguishable from an overtime compensation claim. See, e.g.,
Adami, 2014 WL 2586933, at *8 (holding that plaintiffs’ state
common law claim for unjust enrichment was not based on the same
facts and, therefore, not directly covered by the FLSA).
Here, Plaintiffs’ breach of contract claims are factually
distinguishable from their FLSA overtime compensation claims. In
Count Four, Plaintiffs are suing for Allied’s failure to pay its
employees owed commissions and/or non-discretionary bonuses in
connection with the performance of “mini-audits” and
installation agreements. Such claims are factually
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distinguishable from Plaintiffs’ unpaid overtime wages claims in
Count One because employees need not necessarily work overtime
to conduct a “mini-audit” or complete an installation agreement.
Further, Plaintiffs’ breach of contract claim seeks relief that
is unavailable under the FLSA because unpaid commissions cannot
be recovered under the FLSA. See Collins v. ARP Renovations &
Maint., LLC, 2018 WL 1293153, *4 (D.N.J. Mar. 13, 2018) (noting
that unpaid commissions cannot be recovered under the FLSA).
The FLSA does not preempt the breach of contract claims in
Count Four of the Amended Complaint because a claim for owed
commissions and/or non-discretionary bonuses is factually
distinguishable from an overtime compensation claim under the
FLSA. Defendant’s motion to dismiss Count Four will be denied.
C.

As Currently Pled, the Amended Complaint Fails to
State a Claim on Behalf of Auditors

Defendant also argues that the Amended Complaint fails to
state a claim on behalf of Auditors because the pleading is
factually deficient. [Docket Item 19 at 16-18.] In response,
Plaintiffs argue that they “have sufficiently alleged that the
Auditors were subjected to the same illicit payment scheme . . .
and the Court need not at this pre-discovery stage of litigation
decide whether such individuals were similarly situated, or
whether common issues predominate over their claims.” [Docket
Item 21 at 9.]

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To satisfy the commonality requirement of Fed. R. Civ. P.
23(a), named plaintiffs must demonstrate that their claim shares
a common question of law or fact with the putative class. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 353 (2011) (citing
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)). At the
pre-discovery, motion to dismiss stage, courts typically
exercise deference to class action pleadings when the pleadings
minimally indicate that the requirements of Fed. R. Civ. P. 23
can be satisfied, and dismissal of class action allegations
prior to discovery should be ordered only “in those rare cases
where the complaint itself demonstrates that the requirements
for maintaining a class action cannot be met.” Clark v.
McDonald’s Corp., 213 F.R.D. 198, 205 n.3 (D.N.J. 2003).
However, “legal conclusions and recitals of the elements of a
cause of action supported by mere conclusory statements” will
not suffice. Davis v. Wells Fargo, 824 F.3d 333, 341 (3d Cir.
2016) (internal citation omitted).
Named Plaintiffs seek to represent “Collective Action
Plaintiffs,” which the Amended Complaint defines as: “a class of
all persons presently and formerly employed by Defendants who
worked/work for Defendants as Community Representatives,
Surveyors, Technicians, and in similar capacities . . . .” (Am.
Compl. at ¶ 17.) Notably, the Collective Action Plaintiffs do
not include Auditors, unless the Amended Complaint otherwise
15

sufficiently alleged that Auditors at Allied function “in
similar capacities” to Community Representatives, Surveyors,
and/or Technicians, to satisfy the Fed. R. Civ. P. 23(a)
“commonality” requirement at the motion to dismiss stage.7 But
the Court cannot discern from the Amended Complaint whether this
might be true. In fact, the Amended Complaint barely mentions
Auditors at all (only three times, in total). And, as Defendant
correctly points out, only one paragraph in the entire Amended
Complaint sets forth a “factual averment regarding Auditors”
[Docket Item 19 at 16], namely Paragraph 45, which alleges that:
Auditors attend appointments that had previously been
scheduled by Defendants’ Technicians in order to perform
energy efficiency assessments and energy efficiency
audits on potential customers’ homes. Once a customized
assessment has been made, Defendants’ Auditors obtain
installation agreements from homeowners, permitting
Defendants to provide services to same and to complete
the paperwork required to assure that customers’ homes
qualify for the government incentive programs that
Defendants promote.
(Am. Compl. at ¶ 45.) The Amended Complaint does not set forth
any details regarding Auditors’ wages or hours, nor does the

Curiously, Plaintiffs’ FLSA collective action claims are
brought on behalf of “all persons who performed/perform work as
Community Representatives, Surveyors, Technicians, and in
similar capacities . . . ,” (Am. Compl. at ¶ 16), while the
remaining class action allegations are brought on behalf of “all
persons presently and formerly employed by Defendants who
worked/work for Defendants as Community, Representatives,
Technicians, Auditors, or in similar capacities . . . .” (id. at
¶ 27) (emphasis added). As such, the Auditors’ hypothetical FLSA
claims will not be addressed here because they have not been
pled.
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Amended Complaint allege any specific facts that indicate
Auditors were uncompensated for overtime work performed or owed
commissions and/or non-discretionary bonuses at all (let alone,
in the same manner as Named Plaintiffs).
It is certainly possible that DiSantis, a former
Technician, and Hunter, a former Community Representative, might
be able to allege common questions of fact between themselves
and unnamed Auditors who worked for Allied. However, as
currently pled, any allegations of commonality for purposes of
Fed. R. Civ. P. 23(a) appear to be no more than conclusory
statements that Allied’s alleged policy of improper compensation
applied to all employees, including Auditors. Simply, Plaintiffs
have not adequately alleged common questions of fact between the
Named Plaintiffs and unnamed Auditors for the NJWPL and NJWHL
class action claims.
For the foregoing reasons, the claims in the Amended
Complaint brought on behalf of the Auditors will be dismissed.
Because it is not clear that amendment would be futile in its
ability to address the above deficiencies of the present
pleading, the Court will dismiss these claims without prejudice.
Plaintiffs may file a motion for leave to file a Second Amended
Complaint that clarifies the Auditors’ allegations and plausibly

17

alleges common questions of fact between the Named Plaintiffs
and unnamed Auditors.8
CONCLUSION
For the foregoing reasons, the Court will deny Defendant’s
first two motions, but grant in part Defendant’s third motion
and dismiss the claims on behalf of the Auditors without
prejudice. Plaintiffs may file a motion for leave to amend the
Amended Complaint to address the deficiencies noted herein only
within 14 days from the entry of this Opinion and Order upon the
docket. Defendant must also file its Answer to the Amended
Complaint within 14 days from the entry of this Opinion and
Order upon the docket. An accompanying Order will follow.

July 31, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

In its third motion to dismiss, Defendant argued that
Plaintiffs lack standing to bring claims on behalf of unnamed
Auditors. [Docket Item 19 at 13-16.] Because Plaintiffs’ claims
brought on behalf of the Auditors will be dismissed without
prejudice, and since Plaintiffs advanced different arguments
about standing to assert unpaid wage claims on behalf of
Auditors pursuant to Fed. R. Civ. P. 23, and those claims
brought under the FLSA [Docket Item 21 at 9-16], the Court will
not address standing at this time. Should Plaintiffs seek leave
to amend the Amended Complaint with respect to Auditors,
Plaintiffs must satisfy all Article III standing requirements.
See generally In re Horizon Healthcare Servs. Inc. Data Breach
Litig., 846 F.3d 625 (3d Cir. 2017).
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