Sermuks et al v. Orion Caterers, Inc. et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS: adopted without qualification. Plaintiff's renewed motion to be filed within 30 days. SO Ordered by Judge Raymond J. Dearie on 11/28/2017. (Ramesar, Thameera)

n 2-^//^
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

EDGARS SERMUKS and OLGA OZTURK,

Individually and On Behalf Of All Others
Similarly Situated,
Plaintiffs,

REPORT AND
RECOMME

s/ RJD

-against15 CV 6461
(
ORION CATERERS,INC., EUGENE
STRASCHLOW,and TSILYA
POVELETSKIY,

FILED
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y

5

Defendants.

NOV 2 8 2017

5

-X

BROOKLYN OFFICE

LEVY,United States Magistrate Judge:

By order dated July 20, 2017,the Honorable Raymond J. Dearie, United States
District Judge, referred plaintiffs' motion for leave to amend the case caption and default

judgment,to correct alleged misspellings ofthe defendants' names, to me for a report and
recommendation. (See Order, dated July 20,2017.) This motion is somewhat unusual insofar as

it comes nearly five months after the defaultjudgment was issued. For the reasons explained

below, I respectfully recommend that plaintiffs' motion be denied, without prejudice and with
leave to file a new motion that provides sufficient, properly authenticated evidence
demonstrating that the amendments correct what they assert were mere misspellings.
Background and Facts

Plaintiffs filed this action on November 11, 2015, asserting claims under the Fair

Labor Standards Act("FLSA"),29 U.S.C. §§ 201 ^seq.. and the New York Labor Law

("NYLL"),N.Y. Lab.Law §§ 190 M seq.. 650 M s^ (See Compl. UK 1-2.) According to the
uncontested complaint, individual defendants Eugene Straschlow and Tsilya Poveletskiy owned

and operated a catering hall business at 2555 McDonald Avenue in Brooklyn, New York. (See
id.

8, 9-10,14.) Defendant Orion Caterers is a New York State domestic corporation with its

principal office and place of business located at the aforementioned address. (Id ^ 8.)
Defendants Straschlow and Poveletskiy were alleged to be the owners,chairpersons, chief
executive officers, managers, and/or operators of defendant Orion Caterers. (Id

9-10.)

Plaintiffs alleged that they were employed by defendants as banquet waiters and

bartenders in 2015. (Id

6-7.) They claimed that defendants:(1)failed to compensate them at

the rate ofone and one-halftimes their regular rate of pay for the hours they worked in excess of

forty per workweek(id

19-21,45-54);(2)retained gratuities and "charges purported to be

gratuities" in violation ofthe NYLL(id

22-26, 55-58); and(3)failed to furnish proper wage

notices and wage statements as required by the NYLL(id

27-28, 59-62).

Defendants Straschlow and Poveletskiy were served via "deliver and mail" on
November 17 and 18, 2015. (See Affirmation of Gennadiy Naydenskiy, Esq. in Support of

Request for Certificate of Default, dated Jan. 6,2015 [sic], K 2; see also N.Y. C.P.L.R. § 308(2).)
Orion Caterers was served via service on the New York State Secretary of State on January 14,

2016. (See Status Report, dated Jan. 20,2016; Affidavit of Service of Sean Warner,sworn to
Jan. 14, 2016, annexed as Ex. A to Affirmation of Gennadiy Naydenskiy, Esq. in Support of

Request for Certificate of Default, dated Feb. 22,2015 [sic]; see also N.Y. Bus. Corp.Law
§ 306(b)(1).) On March 14, 2016,the Clerk of the Court entered a certificate of default against
all defendants. (Certificate of Default, dated Mar. 14, 2016.)

On June 16, 2016, plaintiffs moved for a defaultjudgment. (See Declaration of
Gennadiy Naydenskiy, Esq., dated June 16,2016,

9-11; Memorandum ofLaw in Support of

Plaintiffs' Motion for Default Judgment,dated June 16,2016, at 7-16.) The court held a

damages hearing on November 18, 2016. fSee Minute Entry, dated Nov. 18, 2016; Transcript of
Proceedings held on Nov. 18,2016,filed Dec. 19, 2016.) Despite multiple notices(see Orders,
dated Sept. 8 & Sept. 27,2016), defendants did not appear at the hearing.

On February 2,2017,1 issued a report and recommendation that plaintiffs' motion
be granted and that defaultjudgments be entered against all defendants. With respect to

damages,I recommended that Sermuks be awarded $40,893.20: $144 in unpaid overtime

compensation,$16,302.60 in retained gratuities, $3,000 in statutory penalties for wage notice
violations, $5,000 in statutory penalties for wage statement violations, and $16,446.60 in

liquidated damages under state law. I also recommended that he be awarded prejudgment
interest at the rate of nine percent per annum on his compensatory damages of$16,446.60

accruing from June 24,2015 to the date ofthe entry ofjudgment. I recommended that Ozturk be
awarded $42,405.46: $10 in unpaid overtime compensation, $17,117.73 in retained gratuities,

$3,150 in statutory penalties for wage notice violations, $5,000 in statutory penalties for wage
statement violations, and $17,127.73 in liquidated damages under state law. I also recommended

that she be awarded prejudgment interest on her compensatory damages of$17,127.73 at the rate
of nine percent per annum accruing from July 1,2015 to the date ofthe entry ofjudgment.

Finally, I recommended that plaintiffs be awarded $2,720 in attorney's fees and $475 in costs.
(Report and Recommendation, dated Feb.2, 2017, Dkt. No. 16.) On February 23,2017, Judge
Dearie adopted my report and recommendation in its entirety and directed the Clerk to enter the
defaultjudgment and close the case. (See Order, dated Feb. 23,2017.)
Since then, plaintiffs have been attempting to enforce the judgment. (Declaration
of Gennadiy Naydenskiy, Esq., dated July 13, 2017("Naydenskiy 7/13/17 Deck"), Dkt. No. 19,

^ 5.) In the course ofthese efforts, plaintiff Edgars Sermuks purportedly "has discovered that the

spelling[s] ofthe names ofthe aforementioned individual Defendants are Eugene Straschnow
and Tsila Polevetsky" and not Eugene Straschlow and Tsilya Poveletskiy, as originally and

currently named in the caption and the judgment. (IdJ Plaintiffs have provided no explanation
as to how Sermuks discovered the alleged spelling errors. (See id.) Plaintiffs then ran a "skip

trace" on the individual defendants,* which they claim has "corroborated the legal spellings of
their names as Eugene Straschnow and Tsila Polevetsky." (Id at ^ 6.) They therefore move to
amend the case caption and defaultjudgment to replace the defendants' names with these
"correct" spellings. (See Motion for Leave to Amend Case Caption and Defualt [sic] Judgment,
dated July 13,2017, Dkt. No. 18; Plaintiffs' Memorandum of Law in Support of Motion for
Leave to Amend Case Caption and Default Judgment, dated July 13, 2017, Dkt. No. 20.)
Discussion

In analyzing motions to amend judgments to correct errors made by plaintiffs in
naming defendants, courts have primarily focused on whether the error was simply a misnomer;
this has been dubbed the "misnomer rule." See Munetz v. Eaton Yale & Towne,Inc.. 57 F.R.D.

476,479(E.D. Pa. 1973)("The 'misnomer' rule applies to situations in which the plaintiff has

'Running a skip trace (a.k.a. "skip-trace" or "skip-tracing") is "the process of developing new
telephone, address,job or asset information on a customer, or verifying the accuracy ofsuch
information." Mever v. Portfolio Recoverv Assocs.. 707 F.3d 1036,1040 n.l (9th Cir. 2012). A

"skiptracing agency" is a "service that locates persons(such as delinquent debtors, missing heirs,
witnesses, stockholders, bondholders, etc.) or missing assets(such as bank accounts)." Black's
Law Dictionary 1514(9th ed. 2009). Courts have on occasion cited evidence generated

through skip traces when granting motions for alternative methods of service due to an inability
to locate a physical address. See, e.g.. Metromedia Co. v. Cowan. No. 13 CV 3787,2013 WL
4780039, at *1 (S.D.N.Y. 2013). Skip traces can employ a wide variety of methods, ranging
from basic online or public records searches to aggressive, in-person interviews with family and
friends. See generallv Randall Sullivan, The World's Best Bountv Hunter is 4'11". Here's How

She Hunts. WIRED(Dec. 17,2013), https://wvm.wired.com/2013/12/skip-tracing-ryan-mullen/;
Jay MacDonald, Ron Brown,skip tracer, talks debt collecting. CreditCards.COM (Aug. 3,
2012), https://www.creditcards.com/credit-card-news/skip-tracer-debt-collection-ron-browninterview-1272.php.

actually sued and served the correct party, the party he intends to sue, but merely mistakenly has
used the wrong name ofthe defendant in the caption ofthe complaint.")(collecting cases). The
Second Circuit has held that, post-judgment, courts may apply the misnomer rule pursuant to

their authority under Federal Rule of Civil Procedure 60(a).^ See Robinson v. Sanctuary Music,
383 F. App'x 54, 57-58(2d Cir. 2010)("In this Circuit, in appropriate circumstances, a district
court may employ this Rule to correct misnomers in a party's name.")(citing Fluoro Elec. Corp.
V. Branford Assocs.. 489 F.2d 320,324-26(2d Cir. 1973)); see also Braun v. Ultimate
Jetcharters. LLC.828 F.3d 501, 517(6th Cir. 2016).

Under the misnomer rule, the court must determine whether the party actually

selected the wrong defendant or instead mislabeled the right defendant; ifthe latter, the court

may correct the misnomer in the party's name. Robinson. 383 F. App'x at 57(citing Datskow v.
Teledvne. Inc.. 899 F.2d 1298, 1301 (2d Cir. 1990)). Important factors to consider include

whether the plaintiff identifies the defendant in several ways, whether the complaint lists the
defendant's correct address, and the degree of similarity between the name contained in the

complaint and the actual name. Id.: see also Flvnn v. Best Buv Auto Sales. 218 F.R.D. 94,97
(E.D. Pa. 2003)("The basic test under the misnomer rule is whether it would be reasonable to

conclude that plaintiff had in mind the proper entity or person, merely made a mistake as to the
name,and actually served the entity or person intended; or whether the plaintiff actually meant to

serve and sue a different person."^)(intemal citations and quotation marks omitted).

2 Rule 60(a) provides that"The court may correct a clerical mistake or a mistake arising from
oversight or omission whenever one is found in ajudgment, order, or other part ofthe record.
The court may do so on motion or on its own, with or without notice." Fed. R.Civ.P.60(a).
^ While the district court in Flvrm concluded that correction of misnomers post-judgment was

properly done under the aegis ofFederal Rule of Civil Procedure 15, 218 F.R.D. at 96 n.3,1
reference it here because courts apply the rule in the same substantive manner regardless of
Continued...

Here, plaintiffs have failed to demonstrate that they merely made a mistake as to
the names ofthe individual defendants. The most important pieces ofevidence they offer, the

skip traces, have not been properly authenticated. As Federal Rule ofEvidence 901(a)states,

"[t]o satisfy the requirement ofauthenticating or identifying an item ofevidence, the proponent

must produce evidence sufficient to support a finding that the item is what the proponent claims
it is." Fed. R.Evid. 901(a). The only exceptions to this requirement are items ofevidence that

are self-authenticating, which require "no extrinsic evidence of authenticity in order to be
admitted." Fed. R.Evid.902. Here, plaintiffs counsel claims that these documents are redacted

skip traces, but offers no evidence to support a finding that the documents are, in fact, what he
claims they are. (See Naydenskiy 7/13/17 Decl.

5-8.) These documents also do not fit into

any ofthe recognized categories ofself-authenticating evidence. See Fed. R.Evid.902(1)-(12).
Plaintiffs have not even identified what agency, website or service they used to generate these

skip traces, let alone explained the methods that were used to gather the information contained
within them. The exhibits merely contain the header "Premium People Search."(^

Naydenskiy 7/13/17 Deck,Exs. C & D.) Plaintiffs have failed, therefore, to authenticate the
exhibits that they claim corroborate their proposed corrected spellings, meaning that they are

inadmissible and the court cannot rely on them in its findings."*

whether they do so under Rule 15 or Rule 60(a). See, e.g.. United States v. Edwards. 241 F.R.D.
146,147-48(E.D.N.Y. 2007)(applying misnomer rule post-judgment, prior to Second Circuit's
holding in Robinson, and citing Flvrm): see also Perez v. Sandals Resorts Inf1. Ltd.. No. 11 CV
914,2015 WL 94223, at *2(E.D.N.Y. 2015)(Levy, M.J.)(citing Flvnn and applying misnomer
rule pre-judgment to correct errors in defendants' names under Rule 15).
^ Plaintiffs' failure to authenticate these exhibits is especially significant considering the very low

bar necessary to authenticate documentary evidence. See United States v. Maldonado-Rivera.
922 F.2d 934,957(2d Cir. 1990)("In general, a document may not be admitted into evidence
unless it is shown to be genuine. The requirement that the document be authenticated may be
satisfied by evidence sufficient to support a finding that the matter in question is what its
Continued...

Even if plaintiffs had produced properly-authenticated versions ofthe exhibits
they presented here, such exhibits would be insufficient by themselves without further

explanation as to how they "corroborate" plaintiffs' claim.^ In addition, plsdntiffs have skipped
an important step by failing to explain how or why they arrived at the conclusion that the original
spelling in the case caption and judgment were inaccurate. Plaintiffs' counsel's statement that
"Plaintiff Edgars Sermuks has discovered that the spelling[s] ofthe aforementioned individual
Defendants are Eugene Straschnow and Tsila Polevetsky" is, by itself, not enough. (Naydenskiy

7/13/17 Decl.^ 5.) How exactly did Mr. Sermuks discover this, and why did he get it wrong in
proponent claims. This evidence may be direct or circumstantial, and the latter category may
include distinctive characteristics ofthe document itself, such as the appearance, contents,

substance, internal patterns, or other distinctive characteristics, taken in conjunction with
circumstances.")(internal citations and quotation marks omitted); see also SMS Audio. LLC v.
Belson. No. 16 CV 81308,2017 WL 1533971, at *3-*4(S.D. Fla. 2017)(collecting cases
permitting both testimonial and circumstantial evidence for authenticating web postings and
electronically stored information).

^ The skip trace exhibits are grossly insufficient. With respect to both individual defendants,
plaintiffs have simply provided the "skip trace" results for the name they allege to be correct.
(See Naydenskiy 7/27/17 Decl., Exs. C & D.) There are forty-nine total records for "Eugene
Straschnow," several of which appear to be duplicates. (See Naydenskiy 7/27/17 Decl., Ex. C.)
All this may indicate is that someone named "Eugene Straschnow" was, at some point in time,
associated with the addresses listed. (Id.) To be sure, there are two results for this person

associated with 2555 McDonald Avenue, Brooklyn, NY 11223-5938, which is the alleged

address ofthe corporate defendant. (Id.) This might offer some support for the accuracy ofthis
spelling—^but not standing alone without any additional explanation. On their face, all these
results indicate is that they were "reported" on March 3,2010 and between March 22,2010 and
April 15, 2010. (Id.) What does it mean that they were "reported" on those dates? What is the
court to make ofthe fact that there is no result "reported" for any more recent date associated
with this address? (Id.) How is the court to be certain that the "Straschnow" associated with the

2555 McDonald Avenue address is not itself a misspelling that was "reported" in the spring of
2010 because of human error?

There are twenty-nine records for "Tsila Polevetsky," several of which appear to
be duplicates. (See Naydenskiy 7/27/17 Decl., Ex. D.) All this may indicate is that someone
named "Tsila Polevetsky" was associated with the addresses listed (these include locations in
Brooklyn, Staten Island, New Jersey, Pennsylvania, and Sparrow Bush,NY.) (Id.) Moreover,
not one ofthese records links "Tsila Polevetsky" to the address ofthe corporate defendant. (Id.)
On what basis, then, is the court to conclude that this spelling is correct, or even that this person
is in fact the person whom plaintiffs intended to name in this suit?

the first place? Counsel has provided no details, making it impossible to know whether there are
additional corroborating facts that would support using these alternate spellings.

Ultimately, plaintiffs still bear the burden ofshowing that they properly identified
the correct persons in the first instance and simply mislabeled them. Robinson. 383 F. App'x at

57. Put another way, plaintiffs must persuade the court that it is "reasonable to conclude that
plaintiff had in mind the proper entity or person, merely made a mistake as to the name,and
actually served the entity or person intended." Flvnn. 218 F.R.D. at 97. Based on the motion
papers and supporting documents before me,plaintiffs have not met their burden.
Conclusion

For the foregoing reasons, I respectfully recommend that plaintiffs' motion be

denied, without prejudice and with leave to file a new motion that provides sufficient, properly
authenticated evidence to satisfy their burden. Plaintiffs are directed to serve copies ofthis

Report and Recommendation on defendants upon receipt. Any objections to this Report and
Recommendation must be filed with the Clerk ofthe Court, with courtesy copies to Judge Dearie

and to my chambers, within fourteen(14)days. Failure to file objections within the specified
time waives the right to appeal the district court's order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P.72,6(a), 6(d).

Respectfully submitted.

/s/
ROBERT M.LEVY

United States Magistrate Judge

Dated: Brooklyn, New York
October 27,2017