Raniere v. Citigroup Inc.

Decision Date22 November 2011
Docket NumberNo. 11 Civ. 2448.,11 Civ. 2448.
Citation827 F.Supp.2d 294,18 Wage & Hour Cas.2d (BNA) 1048
PartiesTara RANIERE, Nichol Bodden, and, Mark A. Vosburgh, on behalf of themselves Individually, and on behalf of all similarly-situated persons, Plaintiffs, v. CITIGROUP INC., Citibank, N.A., and Citimortgage, Inc., Defendants.
CourtU.S. District Court — Southern District of New York


Thompson Wigdor LLP, by: Douglas Wigdor, Esq., David Gottlieb, Esq., Kenneth Thompson, Esq., Stephen Vargas, Esq., New York, NY, for Plaintiffs.

Morgan, Lewis, & Bockius LLP, by: Sam Shaulson, Esq., Ellyn Pearlstein, Esq., New York, NY, for Defendants.


SWEET, District Judge.

In this action, the plaintiffs Tara Raniere (Raniere), Nichol Bodden (Bodden), and Mark Vosburgh (Vosburgh) (collectively, the Plaintiffs) have brought this action against Citigroup Inc., Citibank, N.A., and CitiMortgage Inc. (together, Defendants or “Citi”) to recover allegedly uncompensated overtime wages as well as liquidated damages. Plaintiffs also seek certification of a putative nationwide collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. as well as a New York class action under the New York Labor Law (“NYLL”) § 190 et seq.

This opinion addresses three motions: (1) Defendants' motion to dismiss or, in the alternative, transfer or stay this action; (2) Plaintiffs' motion for conditional FLSA certification, Court-facilitated notice to similarly situated persons, and expedited disclosure of potential collective members' contact information; and (3) Defendants' motion to compel arbitration of the claims brought by plaintiffs Bodden and Raniere.

Based upon the following, Defendants' motion to dismiss, transfer, or stay is denied; and Defendants' motion to compel arbitration is denied; and Plaintiff's motion for conditional collective certification and related relief is granted.

Prior Proceedings

This action was commenced by Plaintiffs on April 8, 2011. On May 3, 2011, Defendants filed a motion to dismiss, or in the alternative, stay or transfer this action. On May 6, 2011, Plaintiffs filed a motion for conditional collective certification and related relief. On May 13, 2011, Defendants filed a motion to compel arbitration. These motions were marked fully submitted on June 7, 2011.

Facts Alleged 1

This suit was brought by Raniere, who has been employed by Defendants as a “Home Lending Specialist” since June 8, 1981,2 Bodden, who has been employed by Defendants as a “Home Lending Specialist” since February 6, 1987, and Vosburgh, who was employed by Defendants as a “Loan Consultant” between October 30, 2002 and February 2, 2009. The Complaint alleges that each of the named Plaintiffs is a resident of Suffolk County, New York.

According to the Complaint, Defendant Citigroup Inc. is a global financial services holding company providing financial products and services, including consumer banking and credit, corporate and investment banking, securities brokerage, and wealth management. (Compl. ¶ 18.) As alleged, Defendant Citibank, N.A. is a subsidiary of Citigroup Inc. and a global financial services company that offers financial products and services, banking, lending and investment services. Defendant CitiMortgage Inc. is likewise a subsidiary of Citigroup Inc. and provides mortgage products and services and other financial services including banking, insurance, asset management, and credit cards. Both Citigroup Inc. and Citibank, N.A. are Delaware corporations with principal places of business at 399 Park Avenue, New York, New York (Compl. ¶ 18–19), while CitiMortgage Inc. is a New York corporation (Compl. ¶ 20).

Plaintiffs allege that Citi willfully violated the FLSA by failing to pay Plaintiffs and other members of the putative FLSA collective the prevailing one and one-half times their regular rates of pay for hours worked in excess of 40 hours per week. Plaintiffs assert that pursuant to Citi's policies and practices, the members of the putative collective were improperly classified as exempt from the provisions of the FLSA and improperly denied overtime compensation to which they were entitled.

According to Plaintiffs, while their “job titles changed frequently throughout their employment,” “their job duties have never materially changed.” (Compl. ¶ 24.) 3 As part of their duties while employed by Defendants, Plaintiffs “would complete mortgage applications for CitiMortgage's customers,” which were “primarily referred to Plaintiffs by other Citi employees.” (Compl. ¶ 25.) Plaintiffs “would collect financial information and documents from a particular customer and would enter the financial information into Defendants' computer software,” termed “Contact Manager,” which would then identify whether the customer was conditionally approved for a particular mortgage based on the provided financial information. (Compl. ¶ 26.) Plaintiffs would “notify the customer whether he or she was conditionally approved for the particular mortgage” and [i]f the customer was conditionally approved for the mortgage, Plaintiffs would request additional financial documents from the customer to satisfy the conditions set forth from Contact Manager.” (Compl. ¶ 27.) Plaintiffs would then notify a Processor to review the customers' mortgage application,” and [a]fter a review of the mortgage application and documents, the Processor would forward the mortgage application to an Underwriter for approval.” (Compl. ¶ 28.) According to the Complaint, Plaintiffs had no authority to approve or disapprove a mortgage application; instead, Plaintiffs followed Citi's internal processes to gather necessary information and documents for a customer's mortgage application to be processed.” (Compl. ¶ 29.) Additionally, Plaintiffs assert that they “did not customarily or regularly direct two or more persons” and they had no management responsibilities.” (Compl. ¶ 30.)

According to the Complaint, prior to July 18, 2010, Plaintiffs were not required to record their time spent working, and as such Defendants did not maintain records concerning Plaintiffs' hours worked. (Compl. ¶ 35.) However, Plaintiffs allege that throughout their course of employment, they “worked substantially in excess of 40 hours per week, frequently working between 50 and 70 hours per week” (Compl. ¶ 36.), and that Defendants offered or permitted Plaintiffs to work such overtime hours. (Compl. ¶ 37.)

Plaintiffs contend that until on or about September 1, 2010, they were not paid overtime compensation for hours worked in excess of 40 hours per week (Compl. ¶ 38). [O]n or about September 1, 2010, Plaintiffs began receiving some compensation for overtime hours worked,” however, “this compensation falls short of what is required under the FLSA and NYLL overtime provisions.” (Compl. ¶ 39.)

Following the commencement of this action, four additional individuals—Allison Singer, David Hind, David Halasz, and Lori Lesser—filed notices of consent to opt-in to this action. ( See Gilly Aff., Ex. C (Dkt. No. 18).) As of the date of the filing of this Order, four additional notices of consent have been filed: by Edward Gajdosik (Dkt. No. 65), Bissera Paskaleva (Dkt. No. 70), Karen Shuldiner (Dkt. No. 71), and Kimmy Jackson (Dkt. No. 72).

DiscussionI. Defendants' Motion to Dismiss or, in the Alternative, Stay or Transfer this Action is Denied

Defendants have moved to dismiss or, in the alternative, stay or transfer this action on the basis that before Plaintiffs tiled their complaint, a different plaintiff in the Southern District of Florida filed an action styled as a nationwide collective under the FLSA, likewise claiming that CitiMortgage loan officers were denied overtime compensation for all hours worked over forty per work week. (Defs. MTD Mem. 1 (citing Ursula Corgosinno, on her own behalf and others similarly situated v. CitiMortgage, Inc., No. 11–60613–CIV–COHN, S.D. Fla.) (Dkt. No. 13).) 4

According to Defendants, the two complaints assert “nearly identical FLSA claim[s], overlapping purported class definitions and claims, and the same legal issues.” ( Id.) As such, Defendants argue that this action should be dismissed under the first-filed rule or alternately transferred to the Southern District of Florida or stayed until the Corgosinno litigation is concluded. ( Id.) For this proposition, Defendants cite 800–Flowers Inc. v. Intercontinental Florist, Inc., 860 F.Supp. 128, 131 (S.D.N.Y.1994); Goldberger v. Bear, Stearns & Co., No. 98 Civ. 8677, 2000 WL 1886605, at *2, 2000 U.S. Dist. LEXIS 18714, at *5 (S.D.N.Y. Dec. 28, 2000); and Comedy Partners v. Street Players Holding Corp., 34 F.Supp.2d 194, 196 (S.D.N.Y.1999). The rule referenced by Defendants, however, is not so rigid as they would have it and does not warrant dismissal, a stay, or transfer here.

As a general rule, [w]here there are two competing lawsuits, the first suit should have priority.’ First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir.1989) (quoting Motion Picture Lab. Technicians Loc. 780 v. McGregor & Werner, Inc., 804 F.2d 16, 19 (2d Cir.1986)) (alteration in original). This rule “embodies considerations of judicial administration and conservation of resources” by avoiding duplicative litigation and honoring the plaintiff's choice of forum. Id. at 80.

“As part of its general power to administer its docket, a district court may stay or dismiss a suit” where it is “duplicative of another federal court suit.” Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir.2000). 5 In considering the “complex problems” that multiple federal filings can produce, the Second Circuit has noted that there is no “rigid test” but instead that a district court is required to “consider the equities of the situation when exercising its discretion.” Id. “A court faced with a duplicative suit will commonly stay the second suit, dismiss it without prejudice, enjoin the parties from proceeding with it, or consolidate the two...

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