Winfield et al v. Citibank, N.A.

Filing 29

MEMORANDUM OPINION AND ORDER: #100202 The plaintiffs' time to file an amended complaint is extended to April 29, 2011. The defendant's time to move or answer any amended complaint is May 13, 2011. The parties may submit an appropriate motion schedule. The motion to dismiss is denied without prejudice. The Clerk is directed to close Docket No. 13 . SO ORDERED. (Signed by Judge John G. Koeltl on 4/13/2011) (lnl) Modified on 4/14/2011 (ajc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
FREDRICK L. WINFIELD, ET AL.,
Plaintiffs,
- against CITIBANK, N.A.,

10 Civ. 7304 (JGK)
MEMORANDUM OPINION
AND ORDER

Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The defendant has moved to dismiss this case, which alleges
claims under the Fair Labor Standards Act, ERISA, and various
state laws.

The plaintiffs have responded by arguing that the

case should not be dismissed, but seek leave to amend if the
Court is inclined to grant the motion to dismiss.

In the course

of their papers, the plaintiffs acknowledge a fundamental error
in their complaint.

The complaint alleges that the plaintiffs

were treated as exempt employees under the Fair Labor Standards
Act when in fact they were non-exempt employees, and the
plaintiffs now allege, not that they were mis-classified, but
that they were not paid overtime even though they worked
overtime and should have been paid for that overtime work.

At

the very least, the plaintiffs seek leave to amend their
complaint to correct the incorrect allegations.

It is troubling

that the complaint could have been based on such a fundamental
misconception of the facts.

The plaintiffs' application to file an amended complaint is
granted.

However, the plaintiff is now on not

the defects

in the complaint as explained in the motion to dismiss.

If any

claims in the amended complaint are dismissed, the dismissal
will be with prejudice.

See, e.g., Abu Dhabi Commercial Bank v.

Morgan Stanley & Co., No. 08 Civ. 7508, 2009 WL 3346674, at *2 &
n.14

(S.D.N.Y. Oct. 15, 2009)

(" [A] dismissal with prejudice is

generally appropriate where a court puts a plaintiff on notice
of a complaint's deficiencies and the plaint

f fails to correct

those deficiencies after amendment.I!).
The plaintiffs' time to file an amended complaint is
extended to April 29, 2011.
answer any amended complaint

The defendant's time to move or
May 13, 2011.

The parties may

submit an appropriate motion schedule.
The motion to dismiss is denied without prejudice.

The

Clerk is directed to close Docket No. 13.
SO ORDERED.
Dated:

New York, New York
April ~, 2011
G. Koeltl
tes District Judge

tJ

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