Tejada v. Ottomanelli's Cafe Franchising Corp. et al
Filing
19
ANSWER to 11 Amended Complaint,. Document filed by Ottomanelli's Cafe Franchising Corp..(Breslow, Allen)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIAM TEJADA and EDUARDO ROSA, Individually and on
Behalf of All Other Past and Present Similarly Situated
Employees,
Plaintiffs,
‐against‐
OTTOMANELLI'S CAFÉ FRANCHISING CORP. d/b/a
OTTOMANELLI BROTHERS NY GRILL, NICOLO OTTOMANELLI
and JOSEPH OTTOMANELLI,
Defendants.
CASE NUMBER:
11 CV 2112(SAS)
DEFENDANTS' ANSWER TO
AMENDED COMPLAINT
(CLASS ACTION)
Defendants, OTTOMANELLI'S CAFÉ FRANCHISING CORP. d/b/a OTTOMANELLI BROTHERS
NY GRILL, NICOLO OTTOMANELLI and JOSEPH OTTOMANELLI (collectively "Defendants") hereby
answer Plaintiffs' Amended Complaint as follows:
1.
Defendants DENY the allegations contained in paragraph "1" of the Amended
Complaint but ADMIT that Defendants Nicolo Ottomanelli and Joseph Ottomanelli are
principals of Ottomanelli's Brothers NY Grill ("Ottomanelli's Café").
2.
Defendants DENY the allegations contained in paragraph "2" of the Amended
Complaint, except ADMIT that Defendant Ottomanelli's Café is a small well‐established
restaurant located in New York City.
3.
Defendants ADMIT the allegations contained in paragraph "3" of the Amended
Complaint.
4.
Defendants DENY knowledge or information sufficient to form a belief as to the
truth of the allegations of paragraph "4" of the Amended Complaint.
5.
Defendants ADMIT the allegations contained in paragraph "5" of the Amended
Complaint.
6.
Defendants ADMIT the allegations contained in paragraph "6" of the Amended
Complaint insofar as they relate to the time frame set forth in other allegations of the Amended
Complaint.
7.
Defendants ADMIT the allegations contained in paragraph "7" of the Amended
Complaint insofar as they relate to the time frame relevant to this action.
8.
Defendants DENY the allegations contained in paragraph "8" of the Amended
Complaint.
9.
Defendants DENY the allegations contained in paragraph "9" of the Amended
Complaint, except ADMIT that Defendant Nicolo Ottomanelli served as principal and officer of
Defendant Ottomanelli's Café.
10.
Defendants DENY the allegations contained in paragraph "10" of the Amended
Complaint.
11.
Defendants DENY the allegations contained in paragraph "11" of the Amended
Complaint, except ADMIT that Defendant Joseph Ottomanelli served as principal and officer of
Defendant Ottomanelli's Café.
12.
Defendants DENY the allegations contained in paragraph "12" of the Amended
Complaint.
13.
Defendants DENY the allegations contained in paragraph "13" of the Amended
Complaint.
Page 2 of 15
14.
Defendants DENY the allegations contained in paragraph "14" of the Amended
Complaint, except ADMIT that during certain calendar years between 2007 through 2010
inclusive gross receipts of Defendant Ottomanelli's Café exceeded $500,000.
15.
Defendants DENY the allegations contained in paragraph "15" of the Amended
Complaint, except ADMIT that during calendar years 2008, 2009 and 2010 gross receipts of
Ottomanelli's Café exceeded $500,000.
16.
Defendants DENY the allegations contained in paragraph "16" of the Amended
Complaint.
17.
Defendants DENY the allegations contained in paragraph "17" of the Amended
Complaint.
18.
Defendants ADMIT the allegations contained in paragraph "18" of the Amended
Complaint.
19.
Defendants DENY the allegations contained in paragraph "19" of the Amended
Complaint except ADMIT that Ottomanelli's Café's employees prepared food, cooked food,
washed dishes and delivered food, and further allege that Ottomanelli's Café was a small
restaurant employing less than 15 employees who are not related to the Defendants Nicolo and
Joseph Ottomanelli in any one year.
20.
Defendants DENY the allegations contained in paragraph "20" of the Amended
Complaint.
21.
Defendants DENY the allegations contained in paragraph "21" of the Amended
Complaint.
Page 3 of 15
22.
Defendants DENY the allegations contained in paragraph "22" of the Amended
Complaint, but ADMIT that if a proper class is found to exist, the Defendants, their legal
representatives, heirs, officers, assigns or successors, any family members of the individual
Defendants who worked for Ottomanelli's Café or any individual who at any relevant period
had a controlling interest in Ottomanelli's Café or acted as a bona fide supervisor or exempt
employee as defined in the Fair Labor Standards Act ("FLSA") would be excluded.
23.
Defendants DENY the allegations contained in paragraph "23" of the Amended
Complaint and allege that the number of employees not related to Defendants Nicolo and
Joseph Ottomanelli in any one year is less than 15 and the total number of employees during
the period from 2007 through 2010 excluding members of the Ottomanelli family, and
supervisors, is less than 16.
24.
Defendants DENY the allegations contained in paragraph "24" of the Amended
Complaint.
25.
Defendants DENY the allegations contained in paragraph "25" of the Amended
Complaint.
26.
Defendants DENY the allegations contained in paragraph "26" of the Amended
Complaint.
27.
Defendants DENY the allegations contained in paragraph "27" of the Amended
Complaint.
28.
Defendants DENY the allegations contained in paragraph "28" of the Amended
Complaint.
Page 4 of 15
29.
Defendants DENY the allegations contained in paragraph "29" of the Amended
Complaint since Defendant Ottomanelli's Café did not employ chefs, assistant chefs or
maintenance workers, but ADMIT employing cooks, delivery persons, food preparation workers
and kitchen workers, and further ADMIT that many employees performed more than one job
function at the same time.
30.
Defendants DENY the allegations contained in paragraph "30" of the Amended
Complaint except ADMIT that Plaintiff Tejada worked for Ottomanelli's Café between
September 27, 2004 and November 24, 2010 at which time Ottomanelli's Café was sold.
31.
Defendants DENY the allegations contained in paragraph "31" of the Amended
Complaint but ADMIT that Plaintiff Tejada regularly handled goods which had been moved in
interstate commerce.
32.
Defendants DENY the allegations contained in paragraph "32" of the Amended
Complaint.
33.
Defendants DENY the allegations contained in paragraph "33" of the Amended
Complaint except ADMIT that Plaintiff Tejada was employed by Defendant Ottomanelli's Café
and regularly worked from on or about September 27, 2004 until on or about November 24,
2010 five days per week and regularly worked approximately nine hours per day.
34.
Defendants DENY the allegations contained in paragraph "34" of the Amended
Complaint and allege Plaintiff Tejada was paid a salary which varied annually during his
employment but was always in excess of the minimum requirement of FLSA for an exempt
employee.
Page 5 of 15
35.
Defendants DENY the allegations contained in paragraph "35" of the Amended
Complaint.
36.
Defendants DENY the allegations contained in paragraph "36" of the Amended
Complaint.
37.
Defendants DENY knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph "37" of the Amended Complaint. To the best of
Defendants' knowledge, Plaintiff Rosa did not work for Defendant Ottomanelli's Café.
38.
Defendants DENY knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph "38" of the Amended Complaint.
39.
Defendants DENY knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph "39" of the Amended Complaint.
40.
Defendants DENY knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph "40" of the Amended Complaint.
41.
Defendants DENY knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph "41" of the Amended Complaint.
42.
Defendants DENY knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph "42" of the Amended Complaint.
43.
Defendants DENY knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph "43" of the Amended Complaint.
44.
Defendants repeat and re‐allege each and every response contained in
paragraphs 1 through 43 of this Answer with the same force and effect as if more fully set forth
at length herein.
Page 6 of 15
45.
Defendants DENY the allegations contained in paragraph "45" of the Amended
Complaint.
46.
Defendants DENY the allegations contained in paragraph "46" of the Amended
Complaint.
47.
Defendants DENY the allegations contained in paragraph "47" of the Amended
Complaint.
48.
Defendants repeat and re‐allege each and every response contained in
paragraphs 1 through 47 of this Answer with the same force and effect as if more fully set forth
at length herein.
49.
Defendants DENY the allegations contained in paragraph "49" of the Amended
Complaint.
50.
Defendants repeat and re‐allege each and every response contained in
paragraphs 1 through 49 of this Answer with the same force and effect as if more fully set forth
at length herein.
51.
Defendants DENY the allegations contained in paragraph "51" of the Amended
Complaint.
52.
Defendants DENY the allegations contained in paragraph 52 of the Amended
Complaint.
53.
Defendants DENY each and every paragraph of Plaintiffs' Prayer for Relief.
Page 7 of 15
AS AND FOR A
FIRST AFFIRMATIVE
DEFENSE
54.
The Amended Complaint fails to state a valid cause of action.
AS AND FOR A
SECOND AFFIRMATIVE
DEFENSE
55.
Defendants Nicolo Ottomanelli and Joseph Ottomanelli are not employers as
defined under the Fair Labor Standards Act.
AS AND FOR A
THIRD AFFIRMATIVE
DEFENSE
56.
Defendants Nicolo Ottomanelli and Joseph Ottomanelli are not employers as
defined under the New York State Labor Laws.
AS AND FOR A
FOURTH AFFIRMATIVE
DEFENSE
57.
As to Plaintiff Tejada, said Plaintiff was an exempt employee during the period at
issue and therefore is not entitled to overtime compensation inasmuch as Plaintiff was
employed in a bona fide executive and/or administrative capacity.
Page 8 of 15
AS AND FOR A
FIFTH AFFIRMATIVE
DEFENSE
58.
As an exempt employee, Plaintiff Tejada has neither standing to be a Plaintiff in
this class or collective action nor does he have a claim cognizable by this Court under the Fair
Labor Standards Act or the New York State Labor Laws.
AS AND FOR A
SIXTH AFFIRMATIVE
DEFENSE
59.
Plaintiffs are not entitled to punitive or liquidated damages under New York
State Labor Laws or the Fair Labor Standards Act because the actions and conduct of all named
Defendants were at all times taken in good faith and for legitimate and lawful business reasons.
AS AND FOR A
SEVENTH AFFIRMATIVE
DEFENSE
60.
Defendants pay practices are within the requirements of all applicable statutes
and regulations of the New York State Department of Labor and U.S. Department of Labor.
Page 9 of 15
AS AND FOR A
EIGHTH AFFIRMATIVE
DEFENSE
61.
Plaintiffs are not entitled to punitive and/or liquidated damages under the Fair
Labor Standards Act as the actions and conduct of Defendants were at all times taken in good
faith and for legitimate and lawful business reasons. Accordingly, pursuant to the Fair Labor
Standards Act, Plaintiffs' statute of limitations is two years.
AS AND FOR A
NINTH AFFIRMATIVE
DEFENSE
62.
Plaintiffs' claims are barred in all or in part by the applicable statutes of
limitations.
AS AND FOR AN
TENTH AFFIRMATIVE
DEFENSE
63.
Plaintiffs' claims are barred in all or in part by the doctrines of waiver, laches
and/or collateral estoppel.
Page 10 of 15
AS AND FOR A
ELEVENTH AFFIRMATIVE
DEFENSE
64.
The Amended Complaint fails to state a claim upon which relief can be granted
to the extent it attempts to state a class action under Rule 23 of the Federal Rules of Civil
Procedure.
AS AND FOR A
TWELFTH AFFIRMATIVE
DEFENSE
65.
The Court should not exercise supplemental jurisdiction on Plaintiffs who have
not opted into the Federal FLSA action.
AS AND FOR A
THIRTEENTH AFFIRMATIVE
DEFENSE
66.
This action should not be certified as a class action pursuant to the FLSA since
Plaintiffs will be unable to meet the criteria for numerosity, commonality, typicality, adequacy
of representation and/or any other criteria sufficient to form a class or sub‐class entitled to
relief under state or federal law.
Page 11 of 15
AS AND FOR A
FOURTEENTH AFFIRMATIVE
DEFENSE
67.
Plaintiffs are not entitled to a jury trial as back pay is an equitable remedy.
AS AND FOR A
FIFTEENTH AFFIRMATIVE
DEFENSE
68.
This action should not be certified as a collective action pursuant to the FLSA
since Plaintiffs will be unable to meet the criteria for numerosity, commonality, typicality,
adequacy of representation and/or any other criteria sufficient to form a collective or sub‐
collective entitled to relief under state or federal law.
AS AND FOR A
SIXTEENTH AFFIRMATIVE
DEFENSE
69.
Plaintiffs were properly paid for all work time but should it be determined that
some hours of work were not properly paid, which is specifically denied, then such amount was
negligible and, hence, was de minimus; the Court should not give cognizance to the amount and
should deny any recovery for such claim.
Page 12 of 15
AS AND FOR A
SEVENTEENTH AFFIRMATIVE
DEFENSE
70.
The Defendants allege that should they have failed to pay any overtime to
Plaintiffs, which is specifically denied, any omission was committed in good faith and upon
reasonable grounds for believing that such act or omission was not in violation of the law.
Defendants accordingly request this Court, in the exercise of its discretion, not to make an
award of liquidated damages to Plaintiffs should any omission have occurred.
AS AND FOR A
EIGHTEENTH AFFIRMATIVE
DEFENSE
71.
The Court should decline to exercise supplemental jurisdiction over Plaintiffs'
state law claims since the state law claims predominate over the federal claim.
AS AND FOR A
NINETEENTH AFFIRMATIVE
DEFENSE
72.
The Court should decline to exercise supplemental jurisdiction over Plaintiffs'
state law claims because the conflict between Article 23's opt‐out mechanism and Section
216(b)'s opt‐in mechanism is an exceptional circumstance which compels the Court to decline
jurisdiction.
Page 13 of 15
AS AND FOR A
TWENTIETH AFFIRMATIVE
DEFENSE
73.
The Court should decline to exercise supplemental jurisdiction over Plaintiffs'
state law claims because of the inherent incompatibility of opt‐in collective actions and opt‐out
class actions.
AS AND FOR A
TWENTY‐FIRST AFFIRMATIVE
DEFENSE
74.
The Court should not allow Plaintiffs to pursue their hybrid class/collective action
because the action violates the Rules Enabling Act which authorizes the United States Supreme
Court to promulgate rules of procedure which cannot "abridge, enlarge or modify" a
substantive right.
75.
Since the FLSA, including its opt‐in procedure, contains substantive rights,
maintenance of a hybrid action abridges or modifies the substantive rights contained in the
FLSA that the state law claims should be dismissed.
Page 14 of 15
AS AND FOR A
TWENTY‐SECOND AFFIRMATIVE
DEFENSE
76.
Plaintiff Tejada cannot act as a class plaintiff because he has not filed the legally
required consent under Section 216(b).
WHEREFORE, Defendants pray this Court as follows:
1.
Plaintiffs have and recover nothing from Defendants;
2.
That the costs of this action including any reasonable attorneys' fees be taxed
against the Plaintiffs; and
3.
Dated:
That the Court grants such other and further relief as it deems just and proper.
Commack, New York
June 24, 2011
William Cafaro, Esq.
Law Office of William Cafaro
19 West 44th Street, Suite 1500
New York, New York 10036
Phone: 212‐583‐7400
Attorney for Plaintiffs
Page 15 of 15
/s/
Allen B. Breslow, Esq.
Law Office of Allen B. Breslow
6165 Jericho Turnpike
Commack, New York 11725
Phone: 631.543.1191
Attorney for Defendants
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