DECISION AND ORDER This action was brought by Mark Antonacci against his former employer, KJT Group, Inc. (“KJT”) and Michaela Gascon, KJT’s President and Chief Executive Officer, asserting claims under New York law arising out of the termination of plaintiff’s employment in or about June 2021. Jurisdiction is premised on diversity of citizenship pursuant to 28 U.S.C. §1332. This Court referred this case to Magistrate Judge Mark W. Pedersen for all nondispositive pretrial matters (Dkt. #9). On January 25, 2022, plaintiff filed a motion for leave to file an amended complaint. (Dkt. #25). On March 14, 2022, Magistrate Judge Pedersen issued a Report and Recommendation (“R & R”) together with a Decision and Order (Dkt. #31), which: (1) recommended that this Court deny plaintiff’s motion to amend the complaint to add a claim for failure to pay wages in the form of commissions and stock in violation of New York Labor Law §190, on the ground that such amendment would be futile; and (2) granted plaintiff’s motion to amend to the extent that he sought to add claims for a failure to pay wages in the form of bonuses pursuant to Labor Law §190, and for unjust enrichment, and to add certain factual allegations. Plaintiff has filed an objection to the R & R, to the extent that it recommends denial of plaintiff’s motion to add a claim for unpaid commissions under the Labor Law. Plaintiff does not object to the recommendation to deny amendment to add a claim for failure to pay stock. See Dkt. #34 at 2 n.1. DISCUSSION I. Standard of Review Under 28 U.S.C. §636(b)(1), if a party files written objections to a magistrate judge’s recommendations, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” In addition, Rule 72 of the Federal Rules of Civil Procedure provides that a magistrate judge’s rulings as to nondispositive matters, i.e., matters which would not dispose of a party’s claim or defense, are to be set aside only if “clearly erroneous or contrary to law,” while findings and recommendations on dispositive matters are subject to de novo review. The statute and rules do not explicitly state whether a motion to amend a complaint should be considered dispositive or nondispositive. The Second Circuit has not expressly ruled on that question, and district courts from within this circuit have reached inconsistent results. See Lubavitch of Old Westbury, Inc. v. Incorporated Village of Old Westbury, No. 08-cv-5081, 2021 WL 4472852, at *9 (E.D.N.Y. Sept. 30, 2021) (surveying cases). A number of courts have concluded that a magistrate judge’s grant of (or recommendation to grant) a motion to amend should be treated as nondispositive, while a denial should be treated as dispositive, particularly where the denial is based on grounds of futility due to the proposed new claim’s lack of merit. Id. (citing cases). That approach finds some support from the Court of Appeals. See Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015) (“when denial of leave to file a revised pleading is based on a legal interpretation, such as futility, a reviewing court conducts a de novo review”); IBEW Loc. Union No. 58 Pension Tr. Fund & Annuity Fund v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015) (“A finding of futility is a legal conclusion, which we review de novo, applying the same standard as for a motion to dismiss”) (citation omitted). I adopt that approach here. Magistrate Judge Pedersen’s decision itself implicitly distinguishes between his grant of plaintiff’s motion to amend the complaint to add certain claims, and his recommendation that this Court deny the motion insofar as it seeks to add certain other claims. In addition, since a finding that amendment should be denied on the ground of futility amounts to a conclusion that the proposed amendment would not withstand a motion to dismiss under Rule 12(b)(6), the decision can be said to be dispositive of the proposed new claim. See HCC, Inc. v. R H & M Mach. Co., 39 F.Supp.2d 317, 321-22 (S.D.N.Y. 1999). The Court therefore undertakes a de novo review of Magistrate Judge Pedersen’s recommendation that the motion to add a claim for unpaid commissions be denied. II. Factual and Procedural Background The relevant factual background is laid out in the R & R, familiarity with which is assumed, but in short, plaintiff was hired by KJT in January 2020, as Executive Vice President, Commercial Operations. His employment was terminated in June 2021. In the original complaint, plaintiff brought claims under New York law for unlawful discrimination, breach of contract, and breach of the implied covenant of good faith and fair dealing. In the proposed amended complaint, plaintiff alleges, inter alia, that pursuant to KJT’s written offer of employment (“offer letter”), which he accepted, plaintiff was “tasked with a total target for the next 9 months $1.125 million in gross revenue,” and that “[t]o the extent Plaintiff reached 100 percent achievement of gross revenue targets, KJT projected that Plaintiff would be entitled to approximately $20,790 in personal commission and $54,800 in team sales commission.” Commissions would increase proportionately to the amounts by which plaintiff exceeded his revenue targets. Proposed Amended Complaint (“PAC”) (Dkt. #25-1) at 4, 14. Plaintiff further alleges that he achieved extraordinary sales growth for the company, and that during the 2020 fiscal year, sales rose to over $16 million, far in excess of his target goal. PAC 15. Despite that record sales growth, however, defendants never paid him commissions. Plaintiff alleges that, contrary to the terms of his offer letter, KJT amended the terms of his commission structure by increasing the target goals, making it more difficult if not impossible for plaintiff to earn commissions. KJT also unilaterally dropped any reference to team commissions, which had been promised to plaintiff in his offer letter. PAC
19, 20. Based on these and other allegations, the proposed amended complaint would add a cause of action for failure to pay wages, including commissions, under the New York Labor Law. PAC
