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)

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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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