AHMAD v. DANIYAL ENTERPRISES LLC et al
OPINION. Signed by Judge Susan D. Wigenton on 11/9/15. (cm )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANIYAL ENTERPRISES, LLC and WASEEM :
Civil Action No. 2:14-1142-SDW-SCM
November 9, 2015
WIGENTON, District Judge.
Before this Court is a Motion for Partial Summary Judgment filed by Defendants Daniyal
“Defendants”) pursuant to Federal Rule of Civil Procedure 56 seeking dismissal of Plaintiff’s
claims under the Fair Labor Standards Act (“FLSA” or the “Act”), 29 U.S.C. § 210 et seq. for the
time period prior to January 1, 2012, and under the New Jersey Wage and Hour Law (“NJWHL”),
N.J.S.A. 34:11-56a et seq. for the period prior to February 21, 2012. This Court has jurisdiction
over this action pursuant to 28 U.S.C §§ 1331 and 1367. Venue is proper pursuant to 28 U.S.C. §
1391. This Court, having considered the parties’ submissions, decides this matter without oral
argument pursuant to Federal Rule of Civil Procedure 78.
For the reasons set forth below, this Court GRANTS Defendants’ Motion for Partial
Plaintiff Afzaal Ahmad (“Plaintiff”) is a resident of New Jersey. (Collective and Class
Action Compl. (“Compl.”) ¶ 23.) Defendant Daniyal is a New Jersey limited liability company
with its principal offices in New Jersey. (Compl. ¶ 10, Decl. of James M. Turtletaub (“Turtletaub
Decl.”) Ex. B at 1-2.) 1 Defendant Chaudhary is a resident of New Jersey and the managing
member of Daniyal during the time period at issue. (Compl. ¶¶ 14-15; Turtletaub Decl. Ex. B at
3.) Between July 2009 and December 2012, Defendants employed Plaintiff as a gas station
attendant. (Compl. ¶ 24.) During that time, Plaintiff worked in excess of forty hours per week,
but was not paid overtime. (Compl. ¶¶ 26-29.)
On February 14, 2013, the Secretary of Labor (“Secretary”) filed a complaint (“DOL
Action”) against Daniyal and Chaudhary on behalf of Plaintiff and other named employees
pursuant to Sections 216(c) and 217 of the FLSA. 2 (Defs.’ Statement of Material Facts (”Defs.’
SOMF”) ¶ 1.); Turtletaub Decl. Ex. B and Ex. A thereto.) The DOL Action sought back-wages,
including overtime pay, for the period prior to January 1, 2012 and was resolved via Consent
Judgment on February 22, 2013. (Defs.’ SOMF ¶ 1; Turtletaub Decl. Exs. B, C, D.) The Consent
Judgment required Defendants to pay $2 million in wage and overtime compensation, $1 million
in liquidated damages, and $91,000.00 in penalties. (Turtletaub Ex. C.)
$2,560.41 pursuant to the Consent Judgment. (Turtletaub Ex. E.)
As of December 25, 2011, “the businesses operated by Daniyal were transferred to another New Jersey limited
liability company named Madison Petroleum, L.L.C. (‘Madison’) which also has its principal offices” in New
Jersey. (Defs.’ Mot. Summ.J. 3.) Madison employed Plaintiff in 2012, but is not named as a defendant in this
The Secretary’s complaint named both Daniyal and Madison as defendants. (Turtletaub Decl. Ex. B.)
On February 21, 2014, Plaintiff filed a two-count Complaint against Defendants, alleging
that Defendants denied him overtime in violation of the FLSA and the NJWHL. (Dkt. No. 1.) On
July 10, 2015, Defendants filed the instant Motion for Partial Summary Judgment. Defendants
seek dismissal of Plaintiff’s FLSA claim for the period prior to January 1, 2012, arguing it is
precluded by the DOL Action, and of the NJWHL claim for the period prior to February 21, 2012,
arguing it is barred pursuant to the NJWHL’s statute of limitation. Plaintiff filed a Brief in
Opposition on August 3, 2015 and Defendants filed their Reply on August 10, 2015. 3
Summary judgment is appropriate “if the movant shows 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). The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A
fact is only “material” for purposes of a summary judgment motion if a dispute over that fact
“might affect the outcome of the suit under the governing law.” Id. at 248. A dispute about a
material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. The dispute is not genuine if it merely involves “some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
Plaintiff did not submit a Statement of Material Facts as a separate document as required by Local Rule 56.1.
Plaintiff’s response to Defendants’ Statement of Material Facts does not contain citations to the record as required
by Rule 56.1. Further, Plaintiff’s brief lacks a Table of Contents, a complete Table of Authorities and is improperly
The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the nonmovant who must set forth specific facts
showing a genuine issue for trial and may not rest upon the mere allegations, speculations,
unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir.
2001). “In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
The nonmoving party “must present more than just ‘bare assertions, conclusory allegations
or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d
584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party
is required to “point to concrete evidence in the record which supports each essential element of
its case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). If
the nonmoving party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which . . . [it has] the burden of proof,” then the moving party
is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23. Furthermore, in
deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate
the evidence and decide the truth of the matter, but to determine whether there is a genuine issue
for trial. Anderson, 477 U.S. at 249. The nonmoving party cannot defeat summary judgment
simply by asserting that certain evidence submitted by the moving party is not credible. S.E.C. v.
Antar, 44 Fed. Appx. 548, 554 (3d Cir. 2002).
Plaintiff’s NJWHL Claim
Plaintiff’s Complaint seeks recovery under the NJWHL of overtime he alleges Defendants
owe him for hours he worked between July 2009 and December 2012. Claims brought under the
NJWHL, however, are subject to a two-year statute of limitations. The statute provides, in relevant
part: “[n]o claim for unpaid minimum wages, unpaid overtime compensation, or other damages
under this act shall be valid with respect to any such claim which has arisen more than 2 years
prior to the commencement of an action for the recovery thereof. In determining when an action
is commenced, the action shall be considered to be commenced on the date . . . where a cause of
action is commenced in a court of appropriate jurisdiction.” N.J. STAT. ANN. 34:11-56a25.1 (West
2015); Wright v. Nesor Alloy Corp., No. 03-cv-1789 (JLL), 2006 WL 2830969, at *13 (D.N.J.
Sept. 29, 2006) (recognizing the two year statute of limitations under the NJWHL). Plaintiff does
not dispute that he filed his Complaint with this Court on February 21, 2014. (Dkt. No. 1.)
Therefore, this Court will grant Defendant’s motion for summary judgment as to Plaintiff’s
NJWHL claim for wages and overtime pay prior to February 21, 2012. Plaintiff’s claim may
continue to the extent it seeks recovery of wages or overtime allegedly owed after that date.
Plaintiff’s FLSA Claim
Plaintiff also seeks recovery of overtime wages under federal law. The FLSA “regulates,
as a general matter, the minimum wages and overtime wages paid to workers.” Min Fu v. Hunan
of Morris Food, Inc., No. 12-cv-058719 (KM), 2013 WL 5970167, *4 (D.N.J. Nov. 6, 2013).
Section 216(b) of the FLSA grants employees the right to file suit “against any employer . . . in
any Federal or State court of competent jurisdiction by any one or more employees for and in [sic]
behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b)
(2008). Section 216(c) of the Act, however, provides that right may be voluntarily waived by the
employee or terminated by a suit brought by the Secretary.
Section 216(c)’s waiver provision authorizes the Secretary to supervise settlement
agreements between employees and employers for “the payment of the unpaid minimum wages or
the unpaid overtime compensation owed to any employee or employees under section 206 or
section 207 of this title” and states that “the agreement of any employee to accept such payment
shall upon payment in full constitute a waiver by such employee of any right he may have under
subsection (b)” to bring suit. 29 U.S.C. § 216(c) (2008). This provision only governs situations
in which an employee and employer enter into a private settlement agreement which is then
enforced by the Secretary. As there is nothing in the record to indicate that Plaintiff and
Defendants entered into a settlement agreement, or that the Secretary supervised such a settlement,
this provision is inapplicable to the case at hand. 4 Waiver, however, is not the only means by
which an employee’s right to sue under the FLSA may be extinguished.
Section 216(c) states that the Secretary of Labor may bring suit “in any court of competent
jurisdiction to recover the amount of unpaid minimum wages or overtime compensation and an
equal amount as liquidated damages” and that
[t]he right provided by [section 216(b)] to bring an action by or on behalf
of any employee to recover the liability specified in the first sentence of
such subsection and of any employee to become a party plaintiff to any such
action shall terminate upon the filing of a complaint by the Secretary in
an action under this subsection in which a recovery is sought of unpaid
minimum wages or unpaid overtime compensation . . . or liquidated or
other damages provided by this subsection owing to such employee by an
employer liable under the provisions of subsection (b) of this section, unless
such action is dismissed without prejudice on motion of the Secretary.
Id. (emphasis added).
Plaintiff relies largely on the waiver provision of Section 216(c) to oppose Defendants’ motion for summary
judgment. (See generally Pl.’s Br. Opp’n 8-14.) In so doing, Plaintiff ignores the remainder of Section 216(c) which
Thus, “an individual employee’s right to bring an action pursuant to § 216(b) terminates
once that employee is named in a complaint filed by the Secretary of Labor pursuant to § 216(c)
or § 217.” Calderon v. King Umberto, Inc., 892 F. Supp. 2d 456, 460-61 (E.D.N.Y. 2012). This
bar is absolute. See, e.g., Donovan v. Univ. of Texas at el Paso, 643 F.2d 1201, 1205-06 (5th Cir.
1981) (discussing the legislative history of Section 216(c) and noting that the provision
“terminating an employee’s right to sue once the Secretary files a complaint was intended ‘to
relieve the courts and employers of the burden of litigating a multiplicity of suits based on the
same violation of the Act by the employer.’”); Pritchard v. Dent Wizard Int’l Corp., 210 F.R.D.
591, 594 (S.D. Ohio 2002) (holding that § 216(c) “clearly removes a plaintiff’s right of private
action once that plaintiff is included in the Secretary of Labor’s action against an employer for the
period of time named in the Secretary’s action”); Marshall v. United States Postal Serv., 481 F.
Supp. 179, 180 (D.D.C. 1979) (stating that a suit by the Secretary “extinguishes the right of any
employee to become a party plaintiff to any action for recovery of unpaid minimum wages or
unpaid overtime compensation”). This is true whether or not the plaintiff had notice of the suit,
consented to it, or was dissatisfied with the result. See, e.g., Reich v. Stewart, 121 F.3d 400, 407408 (8th Cir. 1997) (noting that the employee consent requirement was deleted from Section 216(c)
in 1974); Reynolds v. Mark Inns of Am., No. 81-2241A, 1982 WL 1984, Fns. 1, 2 (N.D. Ga. Mar.
25, 1982) (barring private FLSA suit by an employee even where the employee had received no
compensation from the Secretary of Labor’s FLSA action); Usery v. Bd. of Public Ed., School
Dist. Of Pittsburgh, 418 F. Supp. 1037, 1039 (W.D. Pa. 1976) (finding that an employee
dissatisfied with the damages allocated to her under a suit brought by the Secretary could not
intervene to alter those damages); Wirtz v. Robert E. Bob Adair, Inc., 224 F. Supp. 750, 755 (W.D.
Ark. 1963) (finding that the filing of a suit by the Secretary “terminates the section 16(b) rights
of employees . . . regardless of the outcome of the Secretary’s suit.”). 5
Here, the DOL Action was filed prior to Plaintiff’s suit. Plaintiff was named in the DOL
Action. The DOL Action was not voluntarily dismissed by the Secretary, but rather, was resolved
by Consent Judgment. There is no dispute as to these facts. Therefore, Plaintiff’s FLSA claim is
barred as a matter of law insofar as it seeks recovery of the wages and overtime sought by the DOL
Action. This Court will grant Defendants’ motion for summary judgment as to Plaintiff’s FLSA
claim to the extent Plaintiff seeks wages or overtime allegedly owed for the period prior to January
1, 2012. Plaintiff’s claim may continue to the extent it seeks recovery of wages or overtime alleged
to have been wrongfully withheld after that date. 6 See Calderon, 892 F. Supp. 2d at 462
(dismissing plaintiff’s FLSA claim to the extent it overlapped with an action filed by the Secretary
under Section 216(c), but holding that plaintiff was “entitled to pursue any claims” against
defendants that arose after the time period covered by the Secretary’s suit).
Paragraph XXI of the Consent Judgment in the DOL Action also recognizes the right of employees such as
Plaintiff to file an action under Section 16(b) “for any violations alleged to have occurred after January 1, 2012.”
(Turteltaub Decl. Ex. C.)
Plaintiff’s assertions that dismissal of his FLSA claim would violate his due process rights are unpersuasive. (Pl.’s
Opp’n Br. 17-19). See Monahan v. Emerald Performance Materials, LLC, No. C08-1511 (RBL), 2009 WL
1172703, at *4 (W.D. Wash. Apr. 22, 2009) (finding that Section 216(c) does not violate employee’s due process
rights; and stating that its purpose of the statute was to eliminate duplicative suits and “reduce the possibility of
inconsistent judgments, reduce res judicata problems and reduce pressure on courts’ dockets by consolidating all
plaintiffs’ claims in one action.”).
Equally unavailing is Plaintiff’s claim that equitable tolling applies. Equitable tolling “requires plaintiff to
demonstrate that he or she could not, by the exercise of reasonable diligence, have discovered essential information
bearing on his or her claim.” Min Fu, 2013 WL 5970167 at *8; see also Jones v. U.S., 366 Fed. Appx. 436, 439 (3d
Cir. 2010) (noting that equitable tolling is an extraordinary remedy); Ruehl v. Viacom, Inc., 500 F.3d 375 (3d Cir.
2007) (requiring plaintiff to show that defendant actively misled him and that deception caused his late filing).
Plaintiff has not produced evidence that shows that any deception by Defendants caused him to miss the opportunity
to file his FLSA claim before the Secretary filed the DOL Action (or caused him to fail to file his NJWHL claim
before the statute of limitations had run).
For the reasons set forth above, Defendants’ Motion for Partial Summary Judgment as to
Plaintiff’s FLSA claim for violations arising prior to January 1, 2012 and Plaintiff’s NJWHL claim
for violations arising prior to February 21, 2012 is GRANTED. An order consistent with this
s/ Susan D. Wigenton, U.S.D.J.
Magistrate Judge Steven C. Mannion
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