GAVIRIA et al v. COLUMBUS BAKERY INC. et al
Filing
56
OPINION. Signed by Judge Jose L. Linares on 11/12/2013. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FREDY GAVIRIA, et al.
I
Civil Action No. 11-6999 (JLL) (JAD)
j
OPINION
Plaintiffs,
v.
COLUMBUS BAKERY, INC., et al.
Defendants.
LINARES, District Judge.
This matter comes before the Court by way of Defendants Columbus Bakery, Inc. and
Jack Gambino’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
The Court has considered the submissions made in support of and in opposition to Defendants’
motion and decides this matter without oral argument pursuant to Federal Rule of Civil
Procedure 78. For the reasons set forth below, Defendants’ motion is DENIED.
I.
BACKGROUND’
Plaintiffs Jorge Acuna and Fredy Gaviria filed this Fair Labor Standards Act (“FLSA”)
action against Defendants on November 30, 2011.
jurisdiction over this action under 28 U.S.C.
Compl., ECF No. 1.
The Court has
§ 1331. It centers on Plaintiffs’ allegations that
The background section is drawn largely from Plaintiffs’ Supplemental 56.1 Statement. Defendants’
Response
56.1 Statement attempts to deny many of the facts contained in the numbered paragraphs of Plaintiffs’ Supplementa
l
56.1 Statement with one word: “Denied.” Defendants’ denial without citation to the record is insufficient.
Local
Civil Rule 56.1(a) provides that the movant shall respond to each paragraph of a supplemental statement
of disputed
material facts by “indicating agreement or disagreement and, if not agreed, stating each material
fact in dispute and
citing to the affidavits and other documents submitted in connection with the motion
As Defendants have
failed to provide such citations to the record in support of their disagreement, many of Plaintiffs’
facts are deemed
undisputed for purposes of this summary judgment motion. See L. Civ. R. 56.1(a); see, e.g., Friedman
v. Bank of
Am., NA., No. 09-2214, 2012 WL 1019220, at *6 n.2 (D.N.J. Mar. 26, 2012) (citation omitted) (“[T]he
court will
consider any statement of fact which was not denied by the Plaintiffs with a citation to the record as undisputed
for
the purposes of this motion for summary judgment.”).
.
1
.
.
.“
Defendants underpaid them as employees of Defendant Columbus Bakery and, thereby, violated
the statutory minimum wage and overtime provisions of the FLSA. The Court does not discuss
these specific allegations any further, however, since Defendants’ motion for summary judgment
centers on only two issues. First, whether Plaintiffs, as employees of Columbus Bakery, handled
goods or merchandise that were previously moved or produced in interstate commerce. Second,
whether Columbus Bakery had annual gross sales of at least $500,000.
Columbus Bakery and its owner, Defendant Gambino, operate a bakery located at 197
Bloomfield Avenue, Bloomfield, New Jersey. See Defs.’ 56.1 Stmt.
Resp. 56.1 Stmt.
¶ 1, ECF No. 52-1. Columbus Bakery employed Acuna from approximately
1998 until February 2013. Pls.’ Supplemental 56.1 Stmt.
Stmt.
¶ 1, ECF No. 46-1; Pis.’
¶ 1, ECF No.
558.2
¶ 1, ECF No. 52-1; Defs.’ Resp. 56.1
It also employed Gaviria from approximately June 2006 until
September 2011, and then again from November 2012 until February 2013. Pls.’ Supplemental
56.1 Stmt.
¶ 9; Defs.’ Resp. 56.1 Stmt. ¶ 9. Acuna and Gaviria worked as a baker and baker’s
assistant, respectively. Defs.’ 56.1 Stmt.
¶ 2; Pls.’ Resp. 56.1 Stmt. ¶ 2. In these roles, Plaintiffs
allege that they regularly handled baking supplies, including poppy and sesame seeds. See P1.
Acuna’s Deci.
¶ Ii, ECF No. 52-3; P1. Gaviria’s Decl. ¶ 9, ECF No. 52-2. Columbus Bakery
purchased its baking supplies from a supplier located in New Jersey and did not sell its products
outside of New Jersey. Defs.’ 56.1 Stmt.
¶J 8-9; Pls.’ Resp. 56.1 Stmt. ¶J 8-9.
Plaintiffs also allege that they moved throughout Columbus Bakery during their workday
and observed the amounts of goods it produced.
P1. Acuna’s Deci.
¶J 7, 10; P1. Gaviria’s Decl.
¶J 5, 8. On a typical day, Plaintiffs claim to have observed Columbus Bakery produce
approximately 350 subs, 360 bruno subs, 240 pizza pies, 50 French loaves, 50 Bastone loaves,
80
2
The Court deems this fact and many of the facts that follow as undisputed since Defendants did not
cite to
affidavits or other documents in the record to support their denial. See supra note 1.
2
Panella loaves, 150 dozen long rolls, 150 dozen round rolls, 40 dozen Kaiser rolls, 40 dozen box
rolls, and 100 dozen semolina rolls. P1. Acuna’s Deci.
¶J 7, 10; P1. Gaviria’s Dccl. ¶J 5, 8.
Another former employee of Columbus Bakery, Angelo Rodriguez, claims to have made the
same observations. Rodriguez’s Dccl.
¶ 10, ECF No. 52-4. Columbus Bakery’s invoices note
that it charged customers as low as $0.40 per sub or bruno sub, $0.50 per pizza pie, $1.00 per
French or Bastone loaf, $1.50 per Panella loaf, $2.05 per dozen long rolls, and $2.65 per dozen
round, Kaiser, box, or semolina rolls. Pis.’ Supplemental 56.1 Stmt.
Stmt.
¶ 18; Defs.’ Resp. 56.1
¶ 18. These amounts and prices led “Plaintiffs to estimate that Columbus Bakery regularly
did over $1,650.00 in gross sales every day,” or over $600,000 in gross sales every year. See
Pis.’ Resp. 56.1 Stmt.
¶ 3. In contrast, Columbus Bakery’s federal income tax returns state that
Columbus Bakery had annual gross sales of $484,439 in 2008, $385,825 in 2009, $348,914 in
2010, and $296,032 in 2011. Def.’ 56.1 Stmt.
¶J 3-6. Plaintiffs challenge the veracity of these
tax returns. Id.; Pis.’ Resp. 56.1 Stmt. ¶J 3-6.
In light of the foregoing, Plaintiffs filed this FLSA action.
Compi., ECF No. I.
Defendants now move for summary judgment on the basis that Plaintiffs have failed to establish
enterprise coverage pursuant to 29 U.S.C.
II.
§ 203(s)(1)(A).
LEGAL STANDARD
A court shall grant summary judgment under Rule 56 of the Federal Rules of Civil
Procedure if the materials in the record show that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On a
summary judgment motion, the moving party must first show that there is no genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
nonmoving party to present evidence that a genuine dispute of material fact compels a trial.
3
Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999) (citations
omitted). To do so, the nonmoving party must offer specific facts that establish such an issue,
and may not simply rely on unsupported assertions, bare allegations, or speculation. Id. (citation
omitted). The Court must consider all facts and the reasonable inferences therefrom in the light
most favorable to the nonmoving party. Pennsylvania Coal Ass ‘n v. Babbitt, 63 F.3d 231, 236
(3d Cir. 1995).
IlL
DISCUSSION
Plaintiffs contend that Defendants owe them unpaid wages under the statutory minimum
wage and overtime provisions of the FLSA. See Pis.’ Opp’n Br. 1, ECF No. 52. Said provisions
allow a plaintiff employee to recover such unpaid wages when he either “[1] is engaged in
commerce or in the productions of goods for commerce, or [2] is employed in an enterprise
engaged in commerce or in the production of goods for commerce
207(a)(1).
.
.
.
.“
29 U.S.C.
§ 206(a),
Plaintiffs do no claim coverage under the first category, known as “individual
coverage.” Pls.’ Opp’n Br. 6 n. 1; Jacobs v. New York Foundling Hosp., 577 F.3d 93, 96 (2d
Cir. 2009) (citation omitted). Instead, they claim coverage under the second category, known as
“enterprise coverage.” Jacobs, 577 F.3d at 96.
A defendant enterprise must satisfy two prongs for an employee to qualify for enterprise
coverage.
First, it “has employees engaged in commerce or in the production of goods for
commerce,” or “handling, selling, or otherwise working on goods or materials that have been
moved in or produced for commerce by any person.
.
.
.“
has “annual gross volume of sales made or business done.
29 U.S.C.
.
.
§ 203(s)(1)(A). Second, it
not less than $500,000
.
.
.
.“
Id.
Here, Defendants argue that there is no genuine dispute of fact that Defendant Columbus Bakery
4
does not satisfy either prong. See Defs.’ Br. 4, ECF No. 46-2. The Court will address each
prong, in turn.
A.
Whether Plaintiffs, as Employees of Columbus Bakery, Engaged in Commerce or
in the Production of Goods for Commerce or Handled, Sold, or Otherwise
Worked on Goods or Materials That Were Moved in or Produced For Interstate
Commerce
Defendants argue that Columbus Bakery does not satisfy the first prong of enterprise
coverage because Plaintiffs, as employees, “did not participate in interstate instrumentalities of
commerce as required by the FLSA.” Id. They note that Columbus Bakery “did not sell its
bread interstate and all of its suppliers/customers were within the State of New Jersey.” Id. at 7.
Defendants, however, misstate what the FLSA requires in order for a defendant enterprise to
satisfy the first prong of enterprise coverage. Indeed, a defendant enterprise satisfies the first
prong of enterprise coverage when its employees handle goods or materials that have been
moved or produced in interstate commerce. See Marshall v. Brunner, 668 F.2d 748, 752 (3d Cir.
1982) (“Congress intended to extend the coverage of the [FLSA] to firms, like [defendant’s]
which use materials that have been moved in or produced in, commerce.”); see also Jacobs, 577
F.3d at 99 n. 7 (noting that the first prong of enterprise coverage “is rarely difficult to establish..
because it is met by showing that two or more employees have ‘handl[ed]
have been moved in.
.
.
.
.
.
materials that
commerce[.]”) (citations omitted); Brock v. Hamad, 867 F.2d 804, 808
(4th Cir. 1989) (“[lIt is well established that local business activities fall within the FLSA when
an enterprise employs workers who handle goods or materials that have moved or have been
produced in interstate commerce.”). On this basis alone, Defendants have not met their burden
on summary judgment—to show that there is no genuine dispute of material fact—as to the first
prong of enterprise coverage.
5
Even if Defendants had applied the correct standard to satisfy the first prong, Plainti
ffs
have come forward with evidence suggesting that they handled goods or materi
als that
previously traveled in interstate commerce.
Specifically, Plaintiffs claim that they handled
poppy and sesame seeds that Columbus Bakery purchased from its New Jersey supplie that
r
they
believe previously traveled in interstate commerce. Pt. Acuna’s Deci.
9; Faillace Deci.
¶ 11; P1. Gaviria’s Deci. ¶
¶ ii, ECF No. 52-5. Plaintiffs assert that “it is highly unlikely that these seeds
were grown in New Jersey because sesame seeds are commercially grown in Texas, Oklaho
ma
and Kansas[j and it is illegal to commercially produce poppy seeds in the United States,
” and
provide supporting citations to various websites. Pis.’ Opp’n Br. 13 (citing to American Sesam
3
e
Growers
Association,
Some
Quick
Facts
About
Sesame
(Oct.
18,
http://www.sesamegrowers.org/quick%20facts.htm (“Sesame is a row crop grown.
.
.
2013)
in Texas,
Oklahoma, and Kansas.”) and United Nations Office on Drugs and Crime, The Suppression
of
Poppy Cultivation in the United States (Oct. 18, 2013) http://www.unodc.orglunodc/enlda
ta-and
analysis/bulletinlbulletinl 950-01-01 3_pageo03 .html (“The United States, however, has
no
present intention of entering the field of poppy cultivation.
On the contrary, this field was
abandoned as a matter of national policy, and commercial poppy cultivation suppressed.”) and
Daniel Engber, If You Can ‘t Grow Poppies.
.
.
Where do Poppy Seeds Come From?, Slate (Oct.
18,
2013)
http ://www.slate.com/articles/news_andpo1itics/explainer/2005/05/ifjou_cant_
growpoppies_
.html (It’s against the law to grow opium poppies in the United States, although enforcement has
been inconsistent in the case of small-time gardeners who grow them as ornamental flower
s.
According to the Controlled Substances Act, every part of the opium poppy except the seed
is
See, e.g., Grffin v. Comm ‘r ofSoc. Sec., 305 F. App’x 886, 889 n. 3 (referring generally to use of medical
websites
as evidence).
6
illegal, including the seed pods, but some companies do import dried seed pods for decorative
4
purposes.”)). Ultimately, Plaintiffs have raised a genuine dispute of fact as to whether they
handled goods or materials that were moved in or produced for commerce. See, e.g., Li v.
Cheng, No. 10-4664, 2012 WL 1004852, at *5 (E.D.N.Y. Mar. 23, 2012) (“the restaurant’s
purchase of rice and other ingredients seems enough to satisfy the first part of the statutory
requirement for enterprise coverage
. . . .“);
see also Darling v. Frank, Nos. 96-6222, 96-6296,
1997 WL 633962 (10th Cir. Oct. 15, 1997) (noting that it is irrelevant whether defendant
enterprise purchases supplies locally when said supplies were previously moved in interstate
commerce and later handled by defendant’s employees). Since Plaintiffs have shown that there
is a genuine dispute of fact concerning Columbus Bakery’s satisfaction of the first prong of
enterprise coverage, granting summary judgment in favor of Defendants under that prong would
be improper. The Court next addresses whether there is a genuine dispute of fact as to Columbus
Bakery’s satisfaction of the second prong of enterprise coverage.
B.
Whether Columbus Bakery Had Annual Gross Sales of at Least $500,000
To satisfy the second prong of enterprise coverage, a defendant enterprise must have
annual gross sales of at least $500,000. 29 U.S.C.
§ 203(s)(1)(A)(ii). Defendants argue that they
are entitled to summary judgment because Columbus Bakery’s annual federal income tax returns
show that it did not meet this threshold during the years relevant to this case. Defs.’ Br. 5.
Columbus Bakery’s tax returns state that Columbus Bakery had annual gross sales of $484,439
in 2008, $385,825 in 2009, $348,914 in 2010, and $296,032 in 2011. Defs.’ 56.1 Stmt.
¶ 3-6.
Defendants contend that it is “well-settled that the total sales or business done by an ‘enterprise’
should be determined from its income tax returns.” Defs.’ Br. 6. They cite to a number of
nonbinding cases in support of this contention. For instance, Defendants cite to Stout v. St.
Defendants’ Reply Brief does not address Plaintiffs’ evidence and/or assertions concerning the seeds.
ECF No. 55.
7
Amour s Lawn Care, LLC, which states that “[a]n enterprise’s total sales or business done may
be determined from its tax returns.” No. 07-1882, 2008 WL 816818 (M. D. Fla. Mar. 25, 2008)
(emphasis added and citations omitted). By contrast, however, other district courts have stated
that “[t]here is substantial precedent suggesting that tax returns are not dispositive and the
veracity of those documents can be questioned by a Plaintiff.
.
.
.
Furthermore, there is
substantial precedent suggesting that factors other than tax returns are relevant in determining
whether the $500,000 threshold is met.” Jia Hu Qian v. Siew Foong Hui, 2013 WL 3009389, at
*3 (S.D.N.Y. June 14, 2013) (citations omitted).
Absent any binding legal authority on the issue,
the Court declines to rule as a matter of law that tax returns are dispositive for purposes of
establishing an enterprise’s gross annual sales pursuant to 29 U.S.C.
§ 203(s)(1)(A)(ii).
Moreover, the Court concludes that Plaintiffs have raised an issue of fact as to the
veracity of Columbus Bakery’s tax returns.
In particular, Plaintiffs contend that Columbus
Bakery underreported the number of people that it employed and the wages that it paid its
employees. Pis.’ Resp. 56.1 Stmt.
¶ 3. They estimate that Columbus Bakery “regularly did over
$1,650.00 in gross sales every day,” or over $600,000 in gross sales every year. See Pis.’ Resp.
56.1 Stmt.
¶ 3. To arrive at their daily estimate, Plaintiffs multiplied the amount of each type of
bread that they typically observed Columbus Bakery produce each day with the invoice price per
unit of that type of bread. See Id. They did so for each type of bread and then added these
figures together. See Id.
Plaintiffs’ method of arriving at their estimate distinguishes this case from Lopez v. Top
Chef mv., Inc., No. 07-2 1598, 2007 WL 4247646 (S. D. Fla. Nov. 30, 2007). The plaintiff
in
Lopez supported his argument that the defendant enterprise understated its income
tax returns
with only an affidavit stating: “I have personal knowledge as to earnings of $1,500.00 a
day.
8
.
including cash receipts.” 2007 WL 4247646, at *3 The Lopez court found that this statement
was conclusory and was unwilling to credit it because the plaintiff “g[ave] no indication of how
he, working only as a cook in the kitchen, ha[d] personal knowledge of the Defendants’
earnings.” Id. Here, in contrast, Plaintiffs relied on invoices and observations that they and
Rodriguez, another former employee, made of the amounts of goods that Columbus Bakery
produced to estimate Columbus Bakery’s earnings.
While there may be credibility issues
concerning Plaintiffs and Rodriguez’s observations of these amounts, it would be improper to
resolve these issues on a summary judgment motion. Suffice it to say that a reasonable jury
could conclude that Columbus Bakery earned over $500,000 in annual gross sales based on
Plaintiffs’ estimate and the evidence underlying it. See, e.g., Lin v. Yeh ‘s Bakery, Inc., No. 122146 (JG), 2013 WL 867436, at *3 (E.D.N.Y. Mar. 7, 2013) (finding that a reasonable jury could
conclude that defendant bakery earned over $500,000 annually based on plaintiff baker’s
estimate in spite of defendant’s tax returns to the contrary). Defendants’ motion for summary
judgment is therefore denied.
IV.
CONCLUSION
For the reasons discussed herein, the Court DENIES Defendants’ motion for summary
judgment.
An appropriate Order accompanies this Opinion.
DATED:
of November, 2013.
z____
--Th
//
.._
joL.
LINARES
U. DISTRICT JUDGE
9
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?