The opinion of the court was delivered by: Arnold C. Rapoport United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Presently pending before me in this action under the Fair
Labor Standards Act ("FLSA") is Plaintiff Joni Wright's Motion for Leave to File a Second Amended Complaint ("proposed SAC"). For the reasons that follow, the Motion is denied.
After a responsive pleading is filed, Rule 15(a) only permits an amended pleading upon the written consent of the opposing party, or with leave of court. See Fed. R. Civ. P. 15(a)(2). The rule directs the court to "freely give leave when justice so requires." Id. Under this liberal standard, courts will grant a party leave to amend unless the opposing party can establish prejudice, undue delay, bad faith on the part of the movant or futility of amendment. See Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006); see also Forman v. Davis, 371 U.S. 178, 182 (1962). An amendment is futile if "the complaint, as amended, would fail to state a claim upon which relief could be granted." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)). In making the futility assessment, I use the same standard of legal sufficiency employed under Federal Rule of Civil Procedure 12(b)(6). Id.
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the complaint must plead sufficient factual allegations, that, taken as a whole, state a facially plausible claim to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint satisfies the threshold of facial plausibility if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are insufficient to establish plausible allegations to survive the motion. Id. at 1949 (citing Twombly, 550 U.S. at 555). The court must "'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). However, the court may disregard any legal conclusions in the complaint. Id. at 210--11 (citing Iqbal, at 1949).
Like the earlier iterations of her complaint, Wright asserts in the proposed SAC that she and other similarly situated registered nurses are employed by Lehigh Valley Hospital and Health Network, Lehigh Valley Hospital, Lehigh Valley Hospital -- Muhlenberg, Lehigh Valley Hospital -- 17th Street, and Lehigh Valley Hospital -- Cedar Crest (collectively "the institutional defendants"), who failed to accurately track and record hours actually worked by registered nurses and failed to pay compensation and overtime compensation in accordance with the mandates of FLSA for compensable work performed before and after scheduled shifts. (SAC ¶¶ 22-26.) With the proposed SAC, Wright seeks to join as additional defendants Ronald W. Swinfard, whom Wright identifies as the current chief executive officer of the institutional defendants, and Elliot J. Sussman, who is identified as the immediate past chief executive officer of the institutional defendants. (SAC ¶ 13.) Additionally, she seeks to join as additional defendants the individual members of the institutional defendants' board of trustees. (SAC ¶ 15.) She alleges "[u]pon information and belief, Mr. Sussman and Mr. Swinford are her 'employers' for purposes of the FLSA because, as CEOs, they both had/have operational control over significant aspects of [the institutional defendants'] day-to-day functions during the time period giving rise to this action, and were ultimately responsible for ensuring [the institutional defendants'] compliance with FLSA." (SAC ¶ 14.) She makes the identical allegation with respect to the individual board members. (SAC ¶ 16.) She makes no other specific allegation with regard to Sussman, Swinford or the twenty-two individual board members she seeks to join as defendants regarding their personal participation in the actions that led her to file suit.
Defendants argue that Wright's "information and belief" assertions, which allege no facts showing how each additional defendant personally participated in the events giving rise to the alleged FLSA violation, are legally insufficient to satisfy the Twombly / Iqbal plausibility standard. I agree.
A defendant subject to FLSA as an "employer" is "any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." 29 U.S.C. § 203(d). The Supreme Court has instructed courts to construe the terms "employer" and "employee" expansively to effect Congress's remedial intent in enacting the FLSA. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992); Rutherford Food Corp. v. McComb, 331 U.S. 722, 728--29 (1947). In determining whether an individual or entity is an "employer," courts must focus on the "economic reality" of the employment relationship, rather than on "technical concepts" of agency law. Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33 (1961).
The FLSA "contemplates there being several simultaneous employers who may be responsible for compliance with the FLSA." Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir. 1991) (citing Falk v. Brennan, 414 U.S. 190, 195 (1973)). While the concept of multiple employers is an accepted one for purposes of the FLSA, the question of whether a particular defendant is an "employer" under the FLSA, "must focus upon the totality of the circumstances, underscoring the economic realities of the [employees'] employment." Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983). Thus, a person "'with operational control of a corporation's enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.'" Donovan v. Grim Hotel Co., 747 F.2d 966, 971-72 (5th Cir. 1984) (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983).
Although the United States Court of Appeals for the Third Circuit has not addressed the issue, other Courts of Appeals have held that a corporate officer may be deemed to be an "employer" under the FLSA and held jointly and severally liable for unpaid wages. See Chao v. Hotel Oasis, Inc., 493 F.3d 26, 34 (1st Cir. 2007); Agnew, 712 F.2d at 1511; Grim Hotel Co., 747 F.2d 966, 971-72 (5th Cir. 1984) (quoting Agnew). These courts have held that the "economic reality" test also governs the analysis for determining whether individuals are employers under the FLSA, but focuses on "the role played by the corporate officers in causing the corporation to undercompensate employees and to prefer the payment of other obligations and/or the retention of profits." Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 678 (1st Cir. 1998).
In addition to analyzing corporation administration in determining FLSA employer liability, courts also look to whether an individual undertakes "managerial responsibilities" relating to the corporation or exerts "substantial control" over its operation. Falk v. Brennan, 414 U.S. 190, 195 (1973); see Reich v. Circle C Inv. Inc., 998 F.2d 324, 329 (5th Cir. 1993)(noting that defendant was the "driving force" behind the corporation and thus met the definition of an employer). The factors deemed relevant to the personal liability analysis include the officer's (1) ownership interest in the corporation, (2) degree of operation control over the corporation's daily functions, financial affairs, and compensation practices, and (3) ...