“The Court should deny Defendant International Creative Management Partners LLC’s motion to dismiss the Fair Labor Standards Act claims of Plaintiff Jason Rindenau because the motion is premature and cannot be decided at the pleading stage before the parties have engaged in discovery,” said the opposition filing of September 19 (read it here). The two ex-ICM interns are claiming that they performed duties that were like those of paid employees while at the agency on the East and West coasts, respectively. To that end, they, like other interns in similar recent cases, want to be paid. In a class action, that could come to include hundreds of ex-interns; that’s something ICM does not want to see occur, so it is trying to stop this potentially sprawling matter fast.
ICM, in its September 5 motion to dismiss the amended complaint, has cited the statute of limitations to get the case thrown out. When the amended complaint was filed on August 15, more than three years had passed since Rindenau’s May 23-August 5, 2011, internship in the ICM L.A. office. The interns’ lawyers say no way and that this isn’t something to be decided at the pleading stage. “ICM relies on a declaration from its Vice President of Human Resources, Karen Abrams,” says the 10-page filing in federal court in NY. “The Court should not rely on the declaration because it is evidence outside the pleading with respect to which Plaintiffs have not had an opportunity to take discovery, and thus cannot support a motion.”
This is actually ICM’s second attempt to have the case dismissed. Back in late July, the agency filed a motion “dismissing this action because all claims contained in the Complaint are subject to arbitration under a valid arbitration agreement.” While that addressed Behzadi’s action filed on June 17, it was before Rindenau joined the case. His presence meant the plaintiffs had to file an amended complaint was filed in federal district court in mid-August. That was followed on August 26, when Behzadi and Rindenau filed a motion for reclassification (read it here) of the suit — a move that could dramatically expand the matter.
Another way ICM has tried to have the case dealt with is to say a California court should handle Rindenau’s claims because he was stationed in the L.A. office. Again, no dice, say the plaintiffs’ lawyers, who want everything to stay in federal court in NYC. “The fact that Rindenau worked in California one year before Behzadi is irrelevant because the claim is the same regardless of where and when they worked,” attorney Rachel Bien of NYC’s Outten & Golden. “The court has supplemental jurisdiction over Rindenau’s California claims because they ‘are so related to’ the FLSA claim ‘that they form part of the same case or controversy,’ and use the same legal standard as the FLSA claim,” she adds “The claims rest on the very same allegation — that ICM had a policy of failing to pay its interns based on its unlawful determination that they are not covered by minimum wage protection.”
Bien is joined by Justin Swartz and Sally Abrahamson of the labor-issues firm Outten & Golden representing the plaintiffs and any future additions to the action. Swartz also is handing legal duties on a class action launched against NBCUniversal by a former MSNBC intern and an ex-Saturday Night Live intern. ICM Partners are represented by Elise Michelle Bloom and Steven Hurd of Proskauer Rose’s NYC office and Michelle Annese of the firm’s Newark office.