Biamby et al v. Hamza Meat Corporation et al

Filing 14

MEMORANDUM AND ORDER. It is Ordered that defendants' 9 motion to dismiss is deemed withdrawn pending the outcome of renewed proceedings before the DOL. If the matter is still pending before the DOL as of 6/29/12, the plaintiffs shall file a st atus report concerning what has transpired administratively. depending on what the DOL determines, this Court may reinstate the motion following conclusion of the administrative proceedings. In that event, this Court will afford the parties an opportunity to file revised motion papers and to present all the material that is pertinent to the motion. So Ordered by Judge Sandra L. Townes on 2/24/2012. (Manuel, Germaine)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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IN CLERr\'S

·k FEB 2 J 2012

ADANA JEFFREY BIAMBY and PAULETTE
McBURNETT£, individually and on behalf of
others similarly situated,
Plaintiffs,

MEMORANDUM AND ORDER
11-CV-4608 (SLT) (RML)

-againstHAMZA MEAT CORPORATION d/b/a
FINE FARE and MUSTAFA ABU SAAB,
Defendants.

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TOWNES, United States District Judge:

In September 2011, plaintiffs Adana Jeffrey Biamby and Paulette McBurnette
commenced this action on behalf of themselves and their fellow employees at the Fine Fare
Market in Brooklyn ("Fine Fare"), alleging that their employer, defendant Hamza Meat
Corporation d/b/a Fine Fare, and its owner, defendant Mustafa Abu Saab, violated the Fair Labor
Standards Act ("FLSA") and analogous State law provisions by not paying the minimum wage or
time-and-a-half for overtime. Plaintiffs' complaint e]{pressly alleges that federal jurisdiction in
the action is based on 29 U.S.C. § 216(b), which provides a private right of action for violations
of the FLSA. However, that private right of action is qualified by 29 U.S.C. § 216(c), which
provides, in pertinent part:
The Secretary [of Labor] is authorized to supervise the payment of
the unpaid minimum wages or the unpaid overtime compensation
owing to any employee or employees under section 206 or section
207 of this title, and 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) of this
section to such unpaid minimum wages or unpaid overtime
compensation and an additional equal amount as liquidated
damages.

Defendants now move to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6). alleging
that plaintiffs waived their rights to sue under § 216(b). Specifically, defendants allege that the
Department of Labor ("DOL") investigated plaintiffs' claims and calculated the amount of back
wages due to plaintiffs; that plaintiffs signed WH-58 forms acknowledging receipt of a check for
those amounts and the waiver of their rights to sue; and that plaintiffs' cashed defendants'
checks. Since none of these facts were alleged in plaintiffs' complaint, defendants rely upon
exhibits attached to the Memorandum of Law in Support of Defendants' Motion to Dismiss and
upon an affidavit executed by defendant Saab to substantiate their allegations. In response,
plaintiffs have submitted affidavits stating that Mr. Saab personally presented the WH-58 forms
to plaintiffs for their signature, did not explain that plaintiffs would be waiving their right to sue
by signing, and refused to permit plaintiffs to consult with others or to retain a copy of the form.
On February 16, 2012- one week after defendants' motion was fully briefed- plaintiffs'
counsel sent this Court a letter, attaching a copy of a letter sent to plaintiffs' counsel on February
13,2012, by Brian W. Johnson, the Director of Enforcement for the Northeast Region's Wage
and Hour Division. Mr. Johnson's letter responded to a letter addressed to DOL Secretary Hilda
L. Solis in which plaintiffs' counsel asserted, inter alia, that there was an "implied threat" that

plaintiffs would lose their jobs if they refused to sign the WH-58 forms presented to them for
signature by Mr. Saab. In his letter, Mr. Johnson stated:
You state in your letter that when they received their back wage
payments and were asked to sign the Form WH-58, there was "an
implied threat" that if they did not sign, the employees would lose
their jobs. If these employees signed the forms under duress, it
could render the waiver null and void. Please contact me as soon
as possible if you have further information in this specific matter.

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Letter to Richard Soto, Esq., from Brian W. Johnson, dated Feb. 13, 2012 (attached as Exhibit A
to Letter to District Judge Sandra L. Townes from Richard Soto, dated Feb. 16, 2012) at 2.
Because defendants' motion relies on matters outside the pleadings, this Court could not
adjudicate the motion without converting it into a motion for summary judgment and giving all
parties a reasonable opportunity to present all the material that is pertinent to the motion. See
Fed. R. Civ. P. 12(d). However, since Mr. Johnson's letter suggests that the DOL may be willing
to reopen its investigation and/or reconsider the adequacy of the DOL-supervised resolution of
plaintiffs' claims, it would be premature and potentially wasteful to continue with motion
practice before the administrative process is completed. Accordingly, it is hereby

ORDERED that defendants' motion to dismiss is deemed withdrawn pending the
outcome of renewed proceedings before the DOL. Plaintiffs shall inform the Court of the
outcome of further proceedings before the DOL and, if the matter is still pending before the DOL
as of June 29,2012, shall file a status report concerning what has transpired administratively.
Depending on what the DOL determines, this Court may reinstate the motion following
conclusion of the administrative proceedings. In that event, this Court will afford the parties an
opportunity to file revised motion papers and to present all the material that is pertinent to the
motion.

SO ORDERED.

s/ SLT
(SANDRA L. TOWNES
United States District Judge

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Dated: February
2012
Brooklyn, New York

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