DIALLO v. ALO ENTERPRISE CORP. et al
OPINION filed. Signed by Judge Anne E. Thompson on 9/7/2017. (mmh)
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NOT FOR PUBLICATION
SEP 0 7 2017
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM T. WALSH
Civ. No. 15-6336
ALO ENTERPRISE CORP., TRENTON
AUTO SALES, INC., FAJ RENTAL I
CORP., THUNDER ENTERPRISE, INC.,
This matter comes before the Court upon the motion by Plaintiff Omar Diallo
("Plaintiff') for Partial Summaey Judlent. (ECF No. 100). Defendants ALO Enterprises Corp.
and Trenton Auto Sales, Inc.
("~efenJnts") opposed. (ECF No. 107). The Court will decide
the motion based upon the written subLssions and without oral argwnent pursuant to Fed. R.
Civ. P. 78(b). For the reasons set forth below, Plaintiff's motion for partial summaryjudgment
will be denied.
This case concerns an emplo}'lllent dispute between Plaintiff and Defendants. The
uncontroverted facts are as follows:
used cars overseas. (Pl.'s
fendant ALO Enterprises operated a business to ship
o£Material Facts ("SOF") if 1). Defendant Trenton Auto
While Faj Rental Corporation .and Thunder Enterprise, Inc., are also remaining defendants in
this case, Plaintiff only moved for sumbary judgment against ALO Enterprises Corporation and
Trenton Auto Sales, Inc. Individual D~fendant Amr Rihan was dismissed from the case without
prejudice on May 20, 2015. (ECF No. 48).
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Sales is an automobile reseller that purcchases cars at auctions for later resale. (Id. , 3). At all
times relevant to this action, Amr
practices for both Defendants..
had power over personnel decisions and payroll
Vd. 1f 51. When Plaintiff was required to travel for work,
Defendants would provide Plaintiff with. money for hotel rooms and transportation for Plaintiff
and for the customers Plaintiff Was sJcing. (Id.
At the end of each workday, Amr
Rihan or Fida Dahrouj drove Plaintiff from the office to the train station for Plaintiff to go home.
(Id. , 40). The parties further agree on the federal minimum wage at all times relevant to the
action, and the fact that Plaintiff was nr paid the minimum wage. (Id.
The parties dispute
whether Plaintiff was an employee or an independent contractor with his own business, and
whether Defendants contracted with PlLntiff and promised to pay him a commission for cars
obtained on their behalf.
Plaintiffs Amended Complaint delineates four counts against four corporate defendants
and an individual defendant. Individual Defendant Amr Rihan was dismissed from the case
without prejudice on May 20, 2015. (ECF No. 48). Plaintiff alleges violations of: 1) the Fair
Labor Standards Act ("FLSA") ,overtije wage provisions, 2) the FLSA minimum wage
provisions, 3) breach of contract by Tlton Auto Sales, and 4) breach of contract by ALO
Enterprises. (Am. Compl., ECF No. 20). Following the conclusion of discovery, Plaintiff
moved for summary judgment on all junts against Defendants ALO Enterprises and Trenton
Auto Sales. (ECF No. 100). This motiln is presently before the Court.
Summary judgment shall be grited 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 oflaw." Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is "genuine" if it could lead
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a "reasonable jury [to] return a verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact ls "material" if it will "affect the outcome of the suit
under the governing law." Id. When driding the existence of a genuine dispute of material fact,
a court's role is not to weigh the evidence; all reasonable "inferences, doubts, and issues of
credibility should be resolved against le moving party." Meyer v. Riegel Prods. Corp., 720
F.2d 303, 307 n.2 (3d cir. 1983). In reliving a motion for summary judgment, a district court
considers the facts drawn from j'the pl+lings, the discovery and disclosure materials, and any
affidavits." Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (internal quotations omitted).
The court must determine ''whether thj evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). More precisely, summary judgment
should be granted if the evidence availlble would not support a jury verdict in favor of the
nonmoving party. Id. at 248-49. The Court must grant summary judgment against any party
''who fails to make a showing sufficienl to establish the existence of an element essential to that
party's cas.e, and on which that party wm bear the burden of proof at trial." Celotex, 477 U.S. at
A. Counts I-IV
The FLSA prohibits any covercll employee from working more than a forty-hour
workweek unless the employee receivel overtime compensation at a rate not less than time and a
half. 29 U.S.C. § 206. Defendant arJes that Plaintiff cannot prevail on his FLSA claims
because Plaintiff was not an employee rho was covered by the FLSA. Rather, Defendant argues
that Plaintiff was an independent contractor.
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In determining the existence of an employment relationship for purposes of the FLSA,
the Court does not solely rely upon "is lated factors but rather upon the 'circumstances of the
whole activity."' Martin v. Selker Bro., Inc., 949 F.2d 1286, 1293 (3d Cir. 1991). The Court
must consider ''whether, as a matter of economic reality, the individual [is] dependent upon the
business to .which [he] render[s]
s~cj." D~nov~n v. Dia/America ~ktg., Inc.,
757 F.2d 1376,
1382 (3d Crr. 1985). ·Though the entrre relationship should be examined, courts have developed
certain criteria to assist them in this exLation. The Third Circuit has specifically enumerated
the following factors:
1) the degree of the alleged employer's right to control the manner in which the
work is to be performed; 2) thJ alleged employee's opportunity for profit or loss
depending upon his manageriJl skill; 3) the alleged employee's investment in
equipment or materials requirdd for his task, or his employment of helpers; 4)
whether the service rendered re}iuires a special skill; 5) the degree of permanence
of the working relationship; 6) rhether the service rendered is an integral part of
the alleged employer's business.
Martin, 949 F.2d at 1293.
The parties dispute every fact relating to the parties' employment relationship, except that
when Plaintiff was required to travel fol work, Defendants would provide Plaintiff with money
for hotel rooms and transportation for Taintiff and for the customers Plaintiff was servicing and,
at the end of each workday, Amr Rihan or Fida Dahrouj drove Plaintiff from the office to the
train station for Plaintiff to go home. (Pl.'s SOF ~~ 39-40). All facts regarding Defendants'
control over the manner in which work was performed, Plaintiffs opportunity for profit or loss
depending oil his skill, Plaintiff or Defendants' provision of the tools of the trade, the degree of
permanence, and whether Plaintiff's s1ce was an integral part of Defendants' business are in
dispute. Therefore, summary judgmenl on Counts One and Two is inappropriate.
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Similarly, Trenton Auto Sales dies that it promised to pay Plaintiff a commission and
rather asserts that Plaintiff promised to pay Trenton Auto Sales some amount for each car he
purchased while operating under their license. (Def. 's SOF 1 12, ECF No. 107). Therefore,
material facts are in dispute regarding (fount Three Breach of Contract.
Regarding Count IV, DefendanJ ALO Enterprises does not dispute that it and Plaintiff
had an agreement whereupon ALO agrL to pay Plaintiff a $25.00 per car commission (Def. 's
SOF, 11) nor does Defendant provide Ly support for its objection to Plaintiff's statement of
fact claiming that Defendant did not pJ that commission (id. , 1). However, the parties dispute
the type of
relationshi~whether Plainlff shipped "on behalf of ALO" or "through ALO," or
"facilitated or participated in the shipmLt of [cars] on behalfof [ALO]" (Pl.' s SOF inf 58, 61,
63; Def.' s SOF , 11; Arn. Comp!. ,
69~d that dispute will affect the number of cars that
Defendant could be liable for. TherefoL, there is a dispute of material fact and summary
judgment is inappropriate.
B. Concerns about Form
Plaintiff argues that Defendants did not cite to the record when they disputed Plaintiffs
Statement of Material Facts, as required by the Local Rules. Plaintiff argues, therefore, that the
Court must consider all facts
Factual assertions must be set oli in separately numbered paragraphs and each fact must
be properly cited to the affidavits and +er documents submitted in support of or in opposition
to the motion. Local Civil Rule 56.1; see, e.g., Graham v. Hathaway Lodge, 2015 WL 8490934
(D.N.J. Dec. 9, 2015) (court declined tj consider statements that relied upon a deposition, when
the transcript was not included); Avataj Bus. Connection v. Uni-Marts, 2007 WL 1574054, at *3
n.6 (D.N.J. May 30, 2007) (considering only "the facts ... that are specifically cited to the record
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of this case"). Furthermore, the statement of undisputed facts must be a document separate and
apart from the legal briefs, and failure Jo comply with this requirement could result in the
adversary's statement of undisputed fjts being deemed admitted. Cruse v. State ofNew Jersey,
2013 WL 6909911, at *1 n.2 (D.N.J.
31, 2013) (accepting as true all of the moving party's
statement of facts, where opposing pany failed to address each paragraph of the statement of
undisputed facts). However, this court has excused issues of form and accepted factual disputes
where the "submission meets the princilple embodied by the rule-that the parties narrow the key
issues so the Court can adjudicate the lotion without embarking on a judicial scavenger hunt for
relevant facts." Schecter v. &heeler, 2108 WL 5054343, at *7 (D.N.J. Nov. 26, 2008).
Defendants did not provide a response to Plaintiffs Statement of Facts in a document
separate and apart from their legal brief, nor did they provide citations to support their objections
to Plaintiff's Statement of Material F+. (ECF No. 107 at 5-7). However, Defendants did
provide their own, responsive statement of facts (id.), with citations to exhibits (ECF No. 107-1)
ac~ into doubt regarding Counts One, Two, and Three.
Specifically, Defendants allege that Pl~ntiff was an independent contractor who was pennitted
that throw Plaintiff's Statement of F
to operate his own automobile resale blsiness under Trenton Auto Sales' auction license and
using ALO Enterprises to ship his vehilles abroad. (Defs.' SOF irlf 2-12, ECF No. 107). The
relationship and contract terms betwj Plaintiff and Trenton Auto Sales are in dispute. (Pl.' s
SOF iMf 59, 62; Defs.' SOF, 12). Th4efore, the Court will not grant summary judgment on the
basis that the proper format was not folllowed. See Schecter, 2008 WL 5054343, at *7.
However, the parties are directed to pjperly comply with the Local Civil Rules in connection
w1·th any future submissions to thi s colilrt.
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For the foregoing reasons, Plaintiff's Motion for Partial Summary Judgment will be
denied. A corresponding order will fol ow.
q J1 / I 1-
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