Aiola v. Malverne Union Free School District et al

Filing 40

ORDER - The April 5, 2016 27 Report and Recommendation by Magistrate Judge Shields is adopted in its entirety, and the Plaintiffs 27 motion for further leave to amend his amended complaint is denied. The Court notes that, according to the most re cent scheduling order in this case, the deadline to complete discovery is May 1, 2016. The Court respectfully refers this matter back to Judge Shields for a conference to assess the need, if any, for additional discovery, and to establish a timetable for setting a trial date. SEE ATTACHED ORDER for details. So Ordered by Judge Arthur D. Spatt on 4/20/2016. (Coleman, Laurie)

FILED 
CLERK 

4/20/2016 1:53 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NICHOLAS AIOLA,
Plaintiff,

ORDER
15-cv-0064(ADS)(AYS)

-againstMALVERNE UNION FREE SCHOOL DISTRICT,
MALVERNE UNION FREE SCHOOL DISTRICT
BOARD OF EDUCATION, SPIROS COLAITIS, JAMES
BOSWORTH, and JAMES HUNDERFUND,
Defendants.
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APPEARANCES:
Jonathan Tand and Associates
Attorneys for the Plaintiff
990 Stewart Avenue, Suite 130
Garden City, NY 11530
By: Jonathan A. Tand, Esq.
Gary R. Novins, Esq., Of Counsel
Sokoloff Stern LLP
Attorneys for the Defendants
179 Westbury Avenue
Carle Place, NY 11514
By: Brian Sokoloff, Esq.
Melissa L. Holtzer, Esq., Of Counsel
SPATT, District Judge:
On December 11, 2014, the Plaintiff Nicholas Aiola (the “Plaintiff”) filed an amended
complaint in the New York State Supreme Court against his former employer, the
Defendant Malverne Union Free School District, as well as the District’s Board of Education,
its Assistant Superintendent for District Operations Spiro Colaitis, its Head of Maintenance
James Bosworth, and its Superintendent James Hunderfund.

The amended complaint

alleged causes of action based on disability and national origin discrimination; retaliation;

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aiding and abetting discriminatory conduct; common law defamation; and violations of the
New York Labor Law’s overtime wage requirement.
On January 7, 2015, the Defendants removed the action to this Court on the basis of
federal question jurisdiction under the provisions of 28 U.S.C. § 1331.
On February 18, 2015, the Defendants moved under Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 12(b)(6) to dismiss the amended complaint.
On July 13, 2015, this Court issued a 42-page opinion granting in part and denying in
part the Defendants’ motion to dismiss. In particular, the Court granted the motion and
dismissed the Plaintiff’s claims based on national origin discrimination, and aiding and
abetting such conduct. The Court also granted the motion and dismissed the Plaintiff’s
overtime claim under the New York Labor Law. However, the Court denied the motion
with regard to the Plaintiff’s claims based on disability discrimination and retaliation, and
his claim against the individual Defendant Hunderfund based on aiding and abetting such
conduct.
Further, the Court found that the Plaintiff’s request for leave to further amend the
amended complaint contained in his brief was not a procedurally proper cross-motion
under Fed. R. Civ. P. 15, and denied that request without prejudice to renewal as a formal
motion. The Court did not fix a deadline for the Plaintiff to do so.
On September 1, 2015, following an initial conference, United States Magistrate
Judge Anne Y. Shields set a deadline of October 30, 2015, for any party to move to amend
their pleading.
On October 15, 2015, Judge Shields held another status conference in this matter. A
related Civil Conference Minute Order reflects that:

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Plaintiff[’s then counsel] expressed that she will be seeking to amend the
complaint to assert a claim of unpaid overtime wages. Plaintiff is directed to
provide Defendant with a copy of the proposed pleading within two weeks of
the date of this order. Defendant is to review the pleading and to advise
Plaintiff’s counsel, within one week of receipt of the proposed pleading,
whether defendants will agree or object to the amendment. . . . Counsel are
directed to advise this court as to whether or not there is agreement to the
amended pleading or whether there will be a motion to amend.
See Minute Order dated Oct. 15, 2015, DE [23].
On December 14, 2015, the parties advised Judge Shields in a series of letters that
they were unable to reach an agreement regarding Plaintiff’s proposed amended pleading.
Thus, the court established a briefing schedule for formal motion practice.
On January 6, 2016, the Plaintiff filed a motion pursuant to Fed. R. Civ. P. 15 for leave
to file a second amended complaint. In particular, the Plaintiff sought to add a federal
overtime wage claim under the Fair Labor Standards Act (“FLSA”).
On April 5, 2016, Judge Shields issued a Report and Recommendation (the “R&R”),
finding, in relevant part, that:
In support of his [proposed] claim, Plaintiff alleges only that he worked in
excess of forty hours “nearly every other week” during the time period
between 2012 through January of 2014. He neither states what weeks he
worked overtime, nor the amount of overtime he worked in any given week.
Indeed, Plaintiff does not provide any calculations as to how he arrived in
determining that he is owed fifty-six hours of overtime compensation.
When weighed against the pleading standard set forth by the Second Circuit
in the cases cited above [namely, Lundy v. Catholic Health Sys. of L.I., Inc., 711
F.3d 106 (2d Cir. 2013); Nakahata v. N.Y. Presbyterian Healthcare Sys., Inc.,
723 F.3d 192 (2d Cir. 2013); Dejesus v. HF Mgmt. Servs., 726 F.3d 85, 89 (2d
Cir. 2013)], Plaintiff’s allegations are plainly insufficient. Instead of pleading
specific workweeks and overtime hours worked, Plaintiff alleges a blanket
claim of fifty-six hours owed over a two year period. Absent from his
complaint is any allegation of his hourly wage, an overtime wage or any
calculation of overtime wages. . . . Under these circumstances, Plaintiff’s
pleading fails to set forth a proper FLSA claim for overtime wages owed.
See R&R at 8-9.
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Thus, “[b]ecause Plaintiff ha[d] not provided ‘particular facts sufficient to raise a
plausible inference of an FLSA overtime violation,’ ” Judge Shields concluded that the
Plaintiff’s proposed amendment would be properly dismissed on a motion under
Fed. R. Civ. P. 12(b)(6) and was thus futile. Accordingly, she recommended to this Court
that the Plaintiff’s motion to amend be denied.
Further, in view of various relevant facts, including that: (i) the proposed second
amended complaint was the Plaintiff’s third pleading in this action; and (ii) discovery is
nearly complete, Judge Shields recommended that this Court deny any further requests to
amend the Plaintiff’s complaint.
On April 5, 2016, counsel for both sides received copies of the R&R by way of the
Court’s electronic filing system. As clearly stated in the R&R, any objections to Judge
Shields’s findings and recommendations – or requests for an extension of time to file such
objections – were due within fourteen days, or by April 19, 2016.
That deadline has now expired, and neither party objected to the R&R or sought an
extension of time to do so.

Accordingly, pursuant to 28 U.S.C. § 636(b) and

Fed. R. Civ. P. 72, this Court has reviewed the R&R for clear error, and finding none, now
concurs in both its reasoning and its result.
Accordingly, the April 5, 2016 Report and Recommendation by Magistrate Judge
Shields is adopted in its entirety, and the Plaintiff’s motion for further leave to amend his
amended complaint is denied.
The Court notes that, according to the most recent scheduling order in this case, the
deadline to complete discovery is May 1, 2016. The Court respectfully refers this matter

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back to Judge Shields for a conference to assess the need, if any, for additional discovery,
and to establish a timetable for setting a trial date.
It is SO ORDERED
Dated:

Central Islip, New York
April 20, 2016

/s/ Arthur D. Spatt______________________________
ARTHUR D. SPATT
United States District Judge

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