Castellanos v. Saints & Santos Construction, LLC et al
ORDER AND REASONS DENYING 32 Motion for Summary Judgment without prejudice to reurge as set forth in document. IT IS FURTHER ORDERED that Plaintiff will be allowed additional discovery, limited to determining whether there is a material factual dispute relative to Plaintiff's contention that Defendant movant is Plaintiff's employer or joint-employer.Signed by Judge Ivan L.R. Lemelle on 10/26/2016. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SAINTS & SANTOS CONSTRUCTION,
L.L.C., ET AL.
ORDER AND REASONS
SECTION “B” (2)
Before the Court is Defendant Palmisano, LLC’s (hereinafter
“Palmisano” or “Defendant”) “Motion for Summary Judgement” (Rec.
Doc. 32) seeking to dismiss Plaintiff’s claims against it on the
basis that Palmisano is not the employer or joint employer of
Plaintiff under the Fair Labor Standards Act (“FLSA”). Also before
the Court is Plaintiff Jose Castellanos’ “Plaintiff’s Memorandum
in Support of Motion to Allow Time for Discovery Under Rule 56 (d)
and in Opposition to Defendant’s Motion for Summary Judgement”
(Rec. Doc. 36.).
Palmisano’s “Motion for Summary Judgement” (Rec. Doc. 32) is DENIED
without prejudice to reurge.
overtime wages violating 28 U.S.C. §§ 207 and 216(b), the FLSA
(Rec. Doc. 14). Palmisano is a general contractor performing a
construction projection in New Orleans, Louisiana (“the project”)
Rufino’s Painting and Construction, Inc. (“Rufino’s”) (Rec. Doc.
32-2). In turn, Rufino’s contracted out a portion of the project
to Saints & Santos Construction, LLC (“S&S”)(Rec. Doc. 32-3). S&S,
as part of the subcontract, was required to use its own labor and
equipment (Rec. Doc. 32-3).
S&S hired Plaintiff as a construction worker to perform labor
at the project (Rec. Doc. 14). He was paid at a rate of $16 per
hour in checks bearing the name “Saints & Santos Construction.”
(Rec. Doc. 14). In receiving pay, Plaintiff would receive two
checks: an initial check was for the first 40 hours worked at the
standard rate and another check issued at an overtime rate for any
hours in excess of 40 (Rec. Doc. 14). Plaintiff alleges his
overtime checks were not issued at the overtime rate (Rec. Doc.
Plaintiff’s original complaint named S&S, but not Palmisano,
as a defendant (Rec. Doc. 1). The complaint was later amended to
include Palmisano alleging that it had a sufficient employment
relationship with Plaintiff regarding the overtime pay (Rec. Doc.
14). Plaintiff’s counsel conducted Rule 26(f) conferences with and
propounded written discovery to S&S’s counsel, but not Palmisano.
(Rec. Doc. 39.) Palmisano moved for summary judgement on the basis
that it was not Plaintiff’s employer under the FLSA (Rec. Doc.
Under Federal Rules of Civil Procedure 56, summary judgment
is appropriate only if “the pleadings, depositions, answers to
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). See also TIG Ins. Co. v. Sedgewick James of Washington,
276 F.3d 754, 759 (5th Cir. 2002). A genuine issue exists if the
evidence would allow a reasonable jury to return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The movant must point to “portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
absence of genuine issue of material fact.” Celotex, 477 U.S. at
Under Federal Rules of Civil Procedure 56(d), when a nonmovant
shows for specified reasons that it cannot present facts essential
considering the motion for summary judgement. A non-moving party
“may not simply rely on vague assertions that additional discovery
will produce needed, but unspecified facts.” Raby v. Livingston,
600 F.3d 552, 561 (5th Cir. 2010). Instead, it must show (1) why
additional discovery is needed and (2) how the additional discovery
will create a genuine issue of fact. Krim v. BancTexas Grp., Inc.,
989 F.2d 1435, 1442 (5th Cir. 1993). The rule was designed to
“safeguard non-moving parties from summary judgement motions that
they cannot adequately oppose,” and should be “liberally granted.”
Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006).
Plaintiffs assert, by declaration, that Palmisano has not
Plaintiff’s claim, will reveal insight into Palmisano’s precise
nature of record-keeping (Rec. Doc. 36). Plaintiff, a construction
laborer, is not in possession of potential employment or payroll
records (Rec. Doc. 36). Plaintiff has had no opportunity to review
the scope of Palmisano’s supervision over the project or powers to
fire in relation to the Plaintiff (Rec. Doc. 36). Each of these
considering whether Palmisano is a joint-employer. Under the test,
Plaintiff need not demonstrate that every factor be present to
potentially find Palmisano as a valid joint-employer. Grey v.
Powers, 673 F.3d 352, 357 (5th Cir. 2012). Thus, Plaintiff has
shown how additional discovery might create genuine issues of
material fact rendering the motion for summary judgement premature
at this stage.
relationship with solely their own testimony. (Rec. Doc. 36).
Contrary to Plaintiff’s Amended Complaint, Defendants assert no
factor of the economic reality test has been satisfied (Rec. Doc.
39). Plaintiff received checks in the name of S&S Construction,
agreements (Rec. Doc. 32-3). These facts lend to the inference
that Palmisano did not pay or supervise Plaintiff’s work on the
project. However, Plaintiff cannot be barred from asserting facts
without requisite discovery since the motion for summary judgement
appears to be premature. However, conclusory statements, standing
alone, will not foreclose summary judgement in the future.
For the aforementioned reasons,
IT IS ORDERED that Defendant Palmisano’s “Motion for Summary
Judgement” (Rec. Doc. 32) is DENIED without prejudice to reurge.
The record does not sufficiently show that the Plaintiff was lax
in pursuing discovery in its original complaint or when it added
Defendant in its amended complaint. IT IS FURTHER ORDERED that
Plaintiff’s employer or joint-employer.
New Orleans, Louisiana, this 26th day of October, 2016.
SENIOR UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?