The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendant Gentiva Health Services' ("defendant" or "Gentiva") motion to transfer plaintiff Catherine Wilkie's ("plaintiff" or "Wilkie") Federal Labor and Standards Act ("FLSA") claim and various state law claims*fn1 to the same federal district court in which the "first-filed action" is pending.*fn2 Plaintiff asserts her claims for relief in this action as a putative nation- and California-wide class action against Gentiva, plaintiff's former employer.
By its motion, defendant moves to transfer plaintiff's complaint under the "first-to-file rule," on the ground plaintiff's claims are the subject of the Rindfleisch action. Plaintiff opposes the motion, arguing the parties and claims are not substantially similar in the two actions and other equitable factors militate against transfer under the first-to-file rule.
For the reasons set forth below,*fn3 the court DENIES Gentiva's motion; plaintiff's complaint is not properly transferred under the first-to-file rule.
Gentiva is a corporation which provides home health services in various parts of the United States. (Def.'s Answer, ¶ 29).
On May 10, 2010, plaintiffs Lisa Rindfleisch, Tiffany Melendez, Michelle Gentile, Laurie Baker and Christina Nelmes filed a complaint against Gentiva in the United States District Court, Eastern District of New York, on behalf of all "visiting health care providers" who were, are, or will be employed by Gentiva nationwide, during the period of three years prior to the date of commencement of the action through the date of judgment in the action. (Gentiva's Request for Judicial Notice [Docket #13], filed July 23, 2010 ["RJN"], Ex. A, ¶ 6). The Rindfleisch plaintiffs' definition of "visiting health care providers" includes registered nurses, physical therapists, and occupational therapists. (Id. at Ex. A, ¶ 3). They assert a nationwide class action under FLSA based on Gentiva's alleged policy of paying its visiting health care providers pursuant to an unlawful hybrid compensation plan, which includes "per visit" payments for some work and hourly pay for other work. (Id.)
The Rindfleisch plaintiffs also seek certification of two state law, sub-classes under Federal Rule of Civil Procedure 23, one on behalf of North Carolina visiting health care providers and one on behalf of New York visiting health care providers. (Id. at Ex. A, ¶¶ 9-13). Both sub-classes seek respective state law overtime remedies for misclassification of employees. (Id.)
On June 11, 2010, plaintiff filed the instant action against Gentiva. (Id. at Ex. B.) Like in Rindfleisch, plaintiff also alleges a FLSA claim, on behalf of a nation-wide class of similarly situated persons, asserting that Gentiva maintains a policy of paying employees pursuant to an unlawful "mixed per visit and hourly compensation scheme." (Id. at Ex. B, ¶ 1). Plaintiff contends that by compensating employees in such a manner defendant fails to pay plaintiff and the class for all hours worked, as well as overtime pay. Plaintiff's class definition for her FLSA claim is as follows:
[A]ll persons who are or were formerly employed by Defendant in the United States at any time since June 11, 2007 to the entry of judgment in this case, as clinical associates, including but not limited to registered nurse case managers, and similarly situated employees holding comparable positions with different titles. (Id. at Ex. B, ¶¶ 1,18).
Plaintiff also alleges state law claims for failure to (1) pay overtime, (2) pay for all hours worked, (3) provide timely and accurate itemized statements, and (4) provide meal and rest breaks in violation of the California Labor Code ("Labor Code") § 201, et seq., and (5) for violation of California Business and Professions Code § 17200, et seq. Plaintiff seeks to represent the following California class:
[A]ll persons who were, are, or will be employed by Defendant in California, as clinical associates, including but not limited to registered nurse case managers and similarly situated employees holding comparable positions with different titles (the 'California Class'), at any time within four years prior to the date of the filing of this complaint ...