Deac v. IL Postino, Inc. et al

Filing 84

ORDER ADOPTING REPORT AND RECOMMENDATIONS WITH MODIFICATIONS. Consistent with Judge Mann's recommendations as modified herein, Defendants' motion is GRANTED IN PART and DENIED IN PART, see Order. As discovery in this matter is clos ed, trial may proceed on Plaintiff's FLSA and NYLL claims subject to the limitations outlined herein. The parties are DIRECTED to file a proposed joint pretrial order consistent with the court's Individual Rules of Practice within sixty (60) days of entry this Memorandum and Order. So Ordered by Judge Nicholas G. Garaufis on 9/4/2014. (c/m to pro se) (certified copy mailed to NYS Supreme Ct, Queens County, Index No. 22716/2012) (Lee, Tiffeny)

IJ/rUNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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OVIDIU MARCEL DEAC,

ORDER
Plaintiff,

12-CV-5952 (NGG) (RLM)

-againstIL POSTINO, INC., LUIGI RUSSO, ALFIO
RUOCCO, and MAURO JEREZ,
Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.

On November 9, 2012, Plaintiff Ovidiu Marcel Deac ("Plaintiff' or "Deac") initiated this
pro se action against Defendants 11 Postino, Inc. ("11 Postino"), Luigi Russo, Alfio Ruocco, and
Mauro Jerez (collectively, "Defendants"), in the Supreme Court of the State of New York,
Queens County, alleging claims for unpaid overtime wages in violation of the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New York State Labor Law
("NYLL"). (Not. of Removal., Ex. A (Summons & Compl.) (Dkt. 1-1).) Plaintiff additionally
asserted claims for failure to provide leave and retaliation under the Family and Medical Leave
Act ("FMLA"), 29 U.S.C. § 2601 et seq., claims for employment discrimination and retaliation
under the New York State Human Rights Law ("NYSHRL"), N. Y. Exec. L. § 296, and the New
York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code§ 8-107, and a common law
claim for assault and battery. (Id.) On November 30, 2012, Defendants removed the case to this
court pursuant to 28 U.S.C. §§ 1441 and 1446. (Not. of Removal (Dkt. 1).)
On January 27, 2014, pursuant to the briefing schedule set by the court, Defendants filed
a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Not. of Mot.
(Dkt. 60).) On April 14, 2014, the court referred Defendants' motion to Magistrate Judge
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Roanne L. Mann for a Report and Recommendation ("R&R") pursuant to 28 U.S.C.
§ 636(b)(l)(B) and Federal Rule of Civil Procedure 72(b)(l). (Dkt. 68.) Because further
briefing was required from the parties, the motion was not fully briefed until July 11, 2014.
(Dkt. 81.)
On August 15, 2014, Judge Mann issued an R&R recommending that the court grant
Defendants' motion in part and deny it in part. (See R&R (Dkt. 59).) With regard to Plaintitrs
two FMLA claims, Judge Mann found on the basis of undisputed facts that II Postino did not
qualify as a covered "employer" under the statute and recommended the court dismiss the FMLA
claims with prejudice. (See id. at 8-9.) On the FLSA claims, Judge Mann first determined that
there was no genuine dispute among the parties that Plaintiff had, in fact, been properly
compensated during the roughly two-year period from November 1, 2010, to November 9, 2012,
when this action was imitated. (Id. at 10-12.) The R&R therefore recommended that the court
grant Defendants' motion as it related to any alleged underpayments during that period. For the
period prior to November 1, 2010, however, Judge Mann concluded that a genuine dispute of
material fact remained regarding Plaintiffs overtime compensation. (Id. at 12-17.) As such, the
R&R recommended that the court deny Defendants' motion as it related to any pre-November I,
20 I 0, underpayments subject to the applicable statute of limitations. Finding Plaintitr s federal
wage claims to be subject to the FLSA's three-year statute of limitations, Judge Mann concluded
that the court should deny the motion as it related to unpaid overtime wages during the period
November 9, 2009, to October 31, 2010. (Id. at 18, 24.)
As Judge Mann aptly noted, there is some confusion in Defendants' papers as to whether
they intended to move for summary judgment on Plaintitr s state law wage claims under the
NYLL. (R&R at 9 n.7.) While Defendants' notice of motion and reply brief indicated an

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intention to seek summary judgment on the NYLL claims (see Not. of Mot. (seeking summary
judgment with regard to "the Complaint"); Defs.' Reply Mem. of Law (Dkt. 81) at 7-8 (arguing
"Plaintiffs [sic] FLSA and New York Labor Law claims must be dismissed"), their opening brief
did not offer any argument on Plaintiffs NYLL claims and only mentioned the statute in the
preliminary statement (Defs. Mem. of Law (Dkt. 62) at 1, 13-16). Nonetheless, the court is
satisfied that Defendants intended to seek summary judgment on the NYLL claims and
concludes that their failure to argue the point was an oversight. The court accordingly modifies
the R&R to the extent necessary to clarify that Defendants' motion for summary judgment on the
NYLL claims is granted in part and denied in part. (See R&R at 9 n.7.) For the same reasons
cited by Judge Mann in regard to Plaintiffs FLSA claim, Defendants' motion for summary
judgment on the NYLL claims is granted as it relates to the roughly two-year period from
November 1, 2010, to November 9, 2012. (See id. at 10-12 (discussing the absence of any
dispute concerning the propriety of Plaintiffs compensation during this period).) However, as
noted in the R&R, because Plaintiffs NYLL claims are subject to a six-year statute of
limitations, see Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 338 (S.D.N.Y. 2005)
(citing N.Y. Labor Law§ 198(3)), the motion is denied as it relates to violations that occurred
between November 9, 2006, and October 31, 2010, a longer period than that covered by the
FLSA. (See id. at 12-18 & n.19.) See also Yang, 427 F. Supp. 2d at 338 (noting the NYLL's
overtime provisions cover "violations that accrued during the six years that preceded the filing of
the complaint").
Finally, based upon Judge Mann's determination that Plaintiffs employment
discrimination claims and common law assault and battery claim did not "form part of the same
case or controversy" as the federal wage claims, see 28 U.S.C. § 1367(a), the R&R found

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Plaintiff's non-wage claims to be outside the court's supplemental jurisdiction and therefore
recommended that the court sever and remand them to the New York State Supreme Court,
Queens County, as required by 28 U.S.C. § 1441(c)(2). (R&R at 21-23.) Even if remand were
not mandatory, Judge Mann recommended the court decline to exercise supplemental jurisdiction
over the non-wage claims in Plaintiff's Complaint under 28 U.S.C § 1367(c)(2). (Id. at 23-24.)
The R&R did recommend, however, that the court retain jurisdiction over Plaintiff's NYLL
wage claims as they "clearly derive from a common nucleus of operative fact as the federal
FLSA claim." (Id. at 21; see also id. at 9 n.7, 19 n.19, 24.)
No party has objected to Judge Mann's R&R, 1 and the time to do so has passed. See
28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b). Therefore, the court reviews the R&R for clear
error. See Gesualdi v. Mack Excavation & Trailer Serv., Inc., No. 09-CV-2502 (KAM) (JO),
2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010); La Torres v. Walker, 216 F. Supp. 2d 157,
159 (S.D.N.Y. 2000).
Finding no clear error, the court ADOPTS the R&R subject to the modification discussed
above relating to Plaintiff's NYLL claims. See Porter v. Potter, 219 F. App'x 112 (2d Cir.
2007). Consistent with Judge Mann's recommendations as modified herein, Defendants' motion
is GRANTED IN PART and DENIED IN PART:
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Plaintiff's FLSA claim is DISMISSED WITH PREJDUCE as it relates to
underpayments occurring on or after November 1, 2010, but Defendants' motion is
DENIED as it relates to violations occurring between November 9, 2009, and October
31, 2010 (Claim 1);
Plaintiff's NYLL claims are DISMISSED WITH PREJUDICE as they relate to
underpayments occurring on or after November 1, 2010, but Defendants' motion is
DENIED as it relates to violations occurring between November 9, 2006, and October
31, 2010 (Claims 2 & 3);

On August 22, 2014, Plaintiff filed a notice informing the court that he "HAS NO OBJECTION TO [THE]
REPORT AND RECOMMENDATIONS" and that he would "OBEY THE COURT DECISION." (Pl. Resp. to
R&R (Dkt. 83).) Defendants did not file a response to the R&R within the applicable period.

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•

Plaintiffs FMLA claims are DISMISSED WITH PREJUDICE (Claims 4 & 5); and

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Plaintiffs NYSHRL claims, NYCHRL claims, and common law claim for assault
and battery are SEVERED AND REMANDED to the New York State Supreme
Court, Queens County (Claims 6-12) pursuant to 28 U.S.C. § 144l(c)(2), but the
court will exercise its supplemental jurisdiction over Plaintiffs NYLL claims.

As discovery in this matter is closed, trial may proceed on Plaintiffs FLSA and NYLL
claims subject to the limitations outlined herein. The parties are DIRECTED to file a proposed
joint pretrial order consistent with the court's Individual Rules of Practice within sixty (60) days
of entry this Memorandum and Order.
SO ORDERED.

s/Nicholas G. Garaufis
1jncHOLAS G. GARAUFij
United States District Judge

Dated: Brooklyn, New York
September
2014

!t-•

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