Vajic v. API Restaurant Corp. et al
Filing
78
OPINION re: 72 LETTER MOTION for Local Rule 37.2 Conference regarding Defendants' motion for sanctions against Plaintiffs addressed to Judge Robert W. Sweet from Netanel Newberger dated 07/21/2014 filed by Antonio Spiridigliozzi, Giovanni Apicella, API Restaurant Corp., Cella Fine Foods Inc. Based on the reasoning given within, Defendants' motions to dismiss the FAC and sanctions is denied. The parties will meet for a conference at 4:00 p.m. on September 24, 2014 a t Courtroom 18C, 500 Pearl Street, New York, NY 10007. It is so ordered. (Status Conference set for 9/24/2014 at 04:00 PM in Courtroom 18C, 500 Pearl Street, New York, NY 10007 before Judge Robert W. Sweet.) (Signed by Judge Robert W. Sweet on 9/1/2014) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------x
MIROSLAV VAJIC, on behalf of all other
persons similarly situated, DANIEL
SLAMNA, MIHAI BOROZIA, LUCIAN BARBU,
OSCAR AGUSTIN FLORES-SILVA, JUAN MIGUEL
ESTRADA-ROSALES, ALESSANDRO RAGONE,
ERMAL BAXHIJA, and ALEJANDRO SEVILLA,
12 Civ. 757
(RWS)
OPINION
Plaintiffs,
- against API RESTAURANT CORP., CELLA FINE FOODS
INC., PIO RESTAURANT, LLC, SETA
RESTAURANT CORP., GIOVANNI APICELLA and
ANTONIO SPIRIDIGLIOZZI,
Defendants.
----------------------------------------x
Counsel for Plaintiffs
THE LAW OFFICE OF JUSTIN A. ZELLER, P.C.
277 Broadway
New York, NY 10007
By:
Brandon D. Sherr, Esq.
Counsel for Defendants
MILMAN LABUDA LAW GROUP, PLLC
3000 Marcus Avenue
New Hyde Park, NY 11042
By:
Netanel Newberger, Esq.
USDCSDNY
DOCUlVtENT
ELECTRONICALLY FlLED
1
IDOC #:
z¥: Ft
DATE FILED: 9-
Sweet, D.J.
Defendants API Restaurant Corp., Cella Fine Foods Inc.,
Giovanni Apicella,
"Defendants")
Letter")
and Antonio Spiridigliozzi
submitted a letter on July 21,
(collectively the
2014
(the "July 21
requesting for an informal conference pursuant to Local
Civil Rule 37.2, dismissal of the first amended complaint ("FAC")
of plaintiffs Miroslav Vaj ic
persons similarly situated,
Barbu,
( "Vaj ic") ,
Daniel Slamna, Mihai Borozia, Lucian
Oscar Agustin Flores-Silva,
Ragone,
Alessandro
(collectively,
the
Ermal
on behalf of all other
Juan Miguel Estrada-Rosales,
Baxhija,
and
"Plaintiffs"),
and
Alejandro
Sevilla
sanctions
against
Plaintiffs.
Treating the letter as a motion, Defendants' request for
dismissal of the FAC and sanctions is denied. Defendants' request
for a conference is granted.
Procedural History
Plaintiff initiated the instant action on January 31,
2012.
Fair
The FAC,
Labor
Defendants
filed on May 18,
Standards
and
seeks
Act
2012,
("FLSA")
unpaid wages
1
alleges violations of the
and
for
New
hours
York
labor
worked,
law
by
overtime,
liquidated
damages,
and
attorneys'
fees.
The
FAC
also
seeks
designation of the action as a collective action.
The
Plaintiffs
Notice
was
of
approved
Collective
on
April
Collective Action"). See ECF No.
Action
22,
Lawsuit
2014
(the
proposed
by
"Notice
of
66.
Defendants submitted the letter relating to the instant
motion on July 21, 2014. In the July 21 Letter, Defendants "move[d]
for an informal conference pursuant to Local Civil Rule 37.2, as
Defendants
seek for
the Court
to dismiss
the Complaint
in its
entirety and impose sanctions against Plaintiffs for serious and
egregious violations of the Court's Order dated July 8,
2014."
July 21 Letter at 1. The Defendants contend that Plaintiffs failed
to timely serve Defendants with a final version of the collective
action notice.
should
The Defendants conclude that "Plaintiffs'
persuade
this
Honorable
Complaint in all respects . . . .
Court
to
dismiss
the
actions
instant
[and] also award sanctions against
Plaintiffs, including attorneys' fees for Defendants continuing to
have to turn to the Court due to Plaintiffs' refusal to cooperate."
Id. at 3.
The July 21 Letter refers to a July 8, 2014 Order, which
is ostensibly an order filed by the Court dated June 30, 2014 (the
2
"Order"), but uploaded on ECF on July 8, 2014. The Order requires
the parties
to
mailing
collective
the
"meet
and confer with
action
respect
notice.
to
Following
the
date
for
agreement
the
parties will submit proposed scheduling orders."
Further letters were submitted by both parties, and the
matter was marked fully submitted on August 20, 2014.
Defendants' Motion for Dismissal and Sanctions Is Denied
Defendants
explanation
Defendants
as
did
to
not
have
why
not
the
submit
provide
dismissal
a
brief
submissions regarding dismissal.
Defendants'
402,
423
of
or
analysis
the
FAC
is
note
any
cases
only cursory mention of the issue,
See Yong Ki Hong v.
(E.D.N.Y.
2013)
or
legal
warranted.
in
its
Given the lack of briefing and
FAC is not appropriate at this time,
denied.
any
dismissal of the
and Defendants'
KBS America,
Inc.,
(denying defendants'
951 F.
motion is
Supp.
2d
motion to dismiss
claims that were not otherwise mentioned in the parties' briefs);
Gavigan v. Comm'r of I.R.S., No. 3:06-CV-942, 2007 WL 1238651, at
*7 (D. Conn. Apr. 27, 2007)
(denying defendant's motion to dismiss
a specific claim because it "did not brief the issue and makes
only passing references to dismissing all of Plaintiffs'
under Rule 12 (b) (6) ").
3
claims
With
regards
to
Defendants'
request
for
sanctions,
Defendants have not moved under any specific Federal Rule of Civil
Procedure, but Rule 16(f) (1) (C) allows a court to issue sanctions
on a party or attorney that "fails to obey a scheduling or other
pretrial order." Defendants contend that Plaintiffs violated the
Order when they sent the collective action notice to potential
class action members in mid-July without meeting and conferring
with the Defendants. Defendants argue that they were not given the
opportunity to review the finalized notice before it was served on
the putative class in contravention to the Order.
According
to
Plaintiffs,
distribution
Notice of Collective Action occurred on July 7,
of
the
2014,
first
one day
before the parties were aware of the Order. Plaintiffs' explanation
corresponds with Defendants learning that their employees received
the Notice of Collective Action on July 14, 2014. July 21 Letter
at 2.
However,
despite knowledge of the Order,
Plaintiffs still
sought to deliver a Notice of Collective Action on July 14, 2014
to a putative class member whose notice was returned as a wrong
address to the Plaintiffs. See ECF No. 72, Ex. H.
Rule
16 (f)
under Rule 37 (b) (2).
incorporates
the
Fed.
Civ.
See
R.
4
same
P.
standards
developed
16 Advisory Committee
Notes,
1983 Amendment
which
37(b) (2),
discovery.");
Cir. 2012)
("Rule 16(f)
for
sanctions
prescribes
Houghton v.
incorporates portions of Rule
Culver,
467
Fed.
failing
App'x 63,
to
make
64-65
(2d
(same). Accordingly, any sanction imposed here "must be
'just'" and "must be specifically related to the particular 'claim'
which was at issue in the order to provide discovery." Chevron
Corp.
v.
Danziger,
296 F.R.D.
168,
220
(S.D.N.Y.
2013)
(stating
standard for Rule 37 (b) (2) sanctions).
Plaintiffs did seek to mail
the Notice of Collection
Action without meeting and conferring with the Defendants after
the issuance of the Order.
However,
imposing sanctions at this
time based upon the filing of letters by Defendants without robust
briefing on the
e.g.,
CIV.
Buffalo Specialty Products v.
4650(SS),
(denying
See,
issue would not constitute "just" action.
1997 WL 778733,
request
for
at
Great American Ins.,
*l
(S.D.N.Y.
sanctions where movant
Dec.
did not
No.
17,
97
1997)
brief
the
sanctions issue in its initial brief). Defendants have not set out
what,
if
any,
punishment
should
be
placed
on
Plaintiffs
if
sanctions were to issue other than dismissal of the FAC. Moreover,
Defendants have only shown one attempt by Plaintiffs after the
publication of the Order to deliver the Notice of Collective Action
to
a
putative
sanctions,
class
member.
Given
the
gravamen
of
imposing
the circumstances regarding the request for sanctions
5
compel denial of the demand.
At the same time,
Plaintiffs must in the future comply
with the Order or any other orders set forth in this action or
risk potential consequences, including sanctions.
Conclusion
Based on the reasoning given above, Defendants' motions
to dismiss the FAC and sanctions is denied. The parties will meet
for a conference at 4:00 p.m. on September~' 2014 at Courtroom
18C, 500 Pearl Street, New York, NY 10007.
It is so ordered.
Dated:
New York, New York
~,gust
, 2"814
6
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