Amparo v. Ink Point Tattoo and Body Piercing, Inc. et al
Filing
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OPINION AND ORDER re: 47 CROSS MOTION for Partial Summary Judgment filed by Claudette Amparo, 39 FIRST MOTION for Summary Judgment filed by Ink Point Tattoo and Body Piercing, Inc., Peter Santacruz. For the foreg oing reasons, Defendants' motion for summary judgment is GRANTED; Plaintiff's motion for summary judgment is DENIED; and the Clerk of Court is directed to close the motions at Docket Nos. 39 and 47 and to close the case. (Signed by Judge Lorna G. Schofield on 1/15/2015) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CLAUDETTE AMPARO,
:
Plaintiff,
:
:
:
-against:
INK POINT TATTOO AND BODY PIERCING, :
INC, et al.,
:
Defendants. :
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1/15/15
13 Civ. 07232 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Plaintiff Claudette Amparo brings claims against Defendants Ink Point Tattoo and Body
Piercing, Inc., d/b/a Ink Point Studios (“Ink Point”) and Peter Santacruz, alleging violations of the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. and New York law. The parties
cross-move for summary judgment on Plaintiff’s claims. For the reasons that follow,
Defendants’ motion is granted, and Plaintiff’s motion is denied.
I.
FACTS
From April 23, 2010, to July 11, 2013, Plaintiff was employed by Defendants at Ink Point,
a tattoo parlor in Manhattan. Plaintiff’s job responsibilities included piercing, sales, maintaining
and cleaning the store, opening and closing, customer service and management of social media.
The parties dispute Plaintiff’s income while at Ink Point. At her deposition, Plaintiff testified that
she earned $8 per hour and was paid for a forty-hour workweek. In contrast, Defendant
Santacruz testified at his deposition that Plaintiff was paid $552 per week, and that the amount
was recorded in a notebook on a weekly basis. Plaintiff was paid in cash.
Ink Point did not maintain time cards or a system for tracking the hours Plaintiff worked,
and the parties also dispute that number. Plaintiff testified at her deposition that her weekly hours
ranged from 70 to 84, and that she worked seven days a week, from approximately 10:30 a.m. to
between 1:00 and 3:00 a.m. Santacruz, on the other hand, testified that Plaintiff worked from
noon to 9:00 p.m. five days a week.
At her deposition, Plaintiff testified that Santacruz owned a total of six tattoo studios in
addition to Ink Point, of which she was able to name four: Piercemania, Studio 316, Kundalink
Ink and Tattoo Alley. She was unable to identify the remaining two tattoo studios. Plaintiff
visited only one of the other tattoo studios. Defendants have adduced evidence disputing that
Santacruz owned any of the tattoo studios identified by Plaintiff, other than Piercemania and
Tattoo Alley, which was opened after Plaintiff’s employment with Ink Point ceased. That
evidence includes a printout from the New York Department of State website listing Alma Chispe
as the Chief Executive Office and Principal Executive Officer of Studio 316, and a letter from an
individual by the name of Karoline Alburquerque stating that Ms. Alburquerque is the owner and
sole proprietor of Kundalin Ink LLC.
Ink Point earned revenue from tattoo artists who worked as independent contractors, with
each tattoo artist paying a certain share of the revenue they earned at the tattoo studio. Ink
Point’s tax returns, which were signed by Santacruz and prepared by an accountant, show that in
2010, Ink Point had gross earnings of $2,158.00; in 2011, it had gross earnings of $19,851.00; in
2012, it had gross earnings of $19,710.00 and in 2013, it had gross earnings of $18,892.00.
Santacruz testified that Plaintiff’s wages were not reported on the tax returns. Piercemania’s tax
returns reflect that its gross earnings in 2010 amounted to $53,270; in 2011, its gross earnings
were $33,750; in 2012, its gross earnings were $34,980; and in 2013, its gross earnings were
$57,630.
II.
STANDARD
Summary judgment is appropriate where the record before the court establishes that there
is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter
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of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of informing the court
of the basis for the summary judgment motion and identifying those portions of the record that
demonstrate the absence of a genuine dispute as to any material fact. Fed. R. Civ. P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must construe the evidence in the
light most favorable to the non-moving party and must draw all reasonable inferences in the nonmoving party’s favor. See In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir.
2008); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If the moving party carries its initial burden, then the non-moving party bears the burden
of demonstrating a genuine issue of material fact. See Celotex, 477 U.S. at 322. In satisfying this
burden, the non-moving party cannot rely merely on allegations or denials of the factual
assertions of the moving party. See Fed. R. Civ. P. 56(c)(1)(A); Celotex, 477 U.S. at 324.
Moreover, “conclusory statements, conjecture, or speculation by the party resisting the motion
will not defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
The non-moving party must present specific evidence in support of its contention that there is a
genuine dispute as to the material facts. See Celotex, 477 U.S. at 324. Furthermore, to
demonstrate a genuine dispute as to the material facts, the non-moving party must come forward
with sufficient evidence to permit a reasonable jury to return a verdict in its favor. See Anderson,
477 U.S. at 248.
III.
DISCUSSION
A.
FLSA
FLSA protects “the minimum standard of living necessary for health, efficiency, and
general well-being of workers.” 29 U.S.C. § 202(a). It requires that employers pay a minimum
wage, as well as overtime compensation to employees who work more than forty hours per week
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if an employee either “is engaged in commerce or in the production of goods for commerce, or is
employed in an enterprise engaged in commerce or in the production of goods for
commerce.” Id. §§ 206(a), 207(a)(1); see also Jacobs v. N.Y. Foundling Hosp., 577 F.3d 93, 9697 (2d Cir. 2009).
Plaintiff asserts that FLSA is applicable to her case only under the second prong, known
as “enterprise coverage.” A business qualifies as an “enterprise” under FLSA where it “has
employees engaged in commerce or in the production of goods for commerce, or . . . handling,
selling, or otherwise working on goods or materials that have been moved in or produced for
commerce by any person” and has an “annual gross volume of sales made or business done [that]
is not less than $500,000.” 29 U.S.C. § 203(s)(1)(A); see also Alladin v. Paramount
Management, LLC, No. 12 Civ. 4309, 2013 WL 4526002, at *5 (S.D.N.Y. Aug. 27, 2013).
Defendants are not covered by FLSA because they do not have annual gross sales or
business of $500,000 or more. The tax returns presented by Defendants show that, for the years
2010 through 2013, Ink Point’s gross earnings never exceeded approximately $20,000 for any
given year. Even if Ink Point’s gross earnings for those years were aggregated with those of
Piercemania – which indisputably was not Plaintiff’s employer – annual gross earnings never
exceeded approximately $76,000 in any given year, still far below the monetary threshold
imposed by FLSA. Therefore, there is no material issue of fact regarding FLSA’s inapplicability
to this action. Accord Yang Li v. Ya Yi Cheng, No. 10 Civ. 4664, 2012 WL 1004854, at *4
(E.D.N.Y. Jan. 6, 2012) (granting summary judgment to defendants where there was “no
evidence that defendant . . . had gross revenues in excess of $500,000”), report and
recommendation adopted, No. 10 Civ. 4664, 2012 WL 1004852 (E.D.N.Y. Mar. 23, 2012); Xelo
v. Mavros, No. 03 Civ. 3665, 2005 WL 2385724, at *4 (E.D.N.Y. Sept. 28, 2005) (granting
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summary judgment where “defendants have met their burden of demonstrating that there is no
question of material fact with regard to [whether the defendants’] annual income” was under
$500,000).
In contending otherwise, Plaintiff lodges three arguments, none of which are persuasive.
First, Plaintiff, citing out-of-Circuit authority, disputes the admissibility of the tax returns
showing Defendants’ gross income. Courts in this Circuit, however, routinely rely on tax returns
in determining FLSA’s applicability at the summary judgment stage. E.g., Yang Li, 2012 WL
1004854, at *5 (relying on, inter alia, the defendants’ tax returns in assessing whether defendants
met monetary threshold for enterprise coverage under FLSA); Saleem v. Corporate Transp.
Group, Ltd., No. 12 Civ. 8450, 2014 WL 4626075, at *12 (S.D.N.Y. Sept. 16, 2014) (relying on
the plaintiff’s tax returns in assessing whether the plaintiff was an “employee” for purposes of
FLSA).
Second, Plaintiff also appears to challenge the accuracy of Defendants’ tax returns,
alleging that Defendants failed to report income earned by the independent contractors working
as tattoo artists at Ink Point. Plaintiff cites no authority for the proposition that Defendants were
required to report income earned by independent contractors, nor does Plaintiff present evidence
in support of this assertion. Plaintiff’s own speculation is insufficient to create an issue of
material fact, particularly where the tax returns at issue were signed, and included the name and
contact information for the accountant who prepared them. Cf. Monterossa v. Martinez Rest.
Corp., No. 11 Civ. 3689, 2012 WL 3890212, at *4 (S.D.N.Y. Sept. 7, 2012) (declining to rely on
defendant’s tax returns where, inter alia, “the submitted returns [were] unsigned and
unaccompanied by a statement or affidavit of the tax preparer.”).
Third, Plaintiff maintains that Santacruz owned six businesses in addition to Ink Point,
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implicitly suggesting that the revenue of these other businesses must be aggregated to determine
whether FLSA’s monetary threshold is met. Again, however, Plaintiff provides no evidence for
this contention beyond her own speculation; moreover, she was unable to name two of the
businesses at her deposition. Defendant Santacruz concedes that he owns Piercemania, and that
he opened a third business, Tattoo Alley, in April 2014, after Plaintiff ceased to be employed by
Ink Point. He has submitted evidence that the only other two businesses Plaintiff named at her
deposition are owned by others. Accordingly, Plaintiff has failed to raise a triable issue of fact,
and summary judgment in favor of Defendants must be granted on Plaintiff’s FLSA claim.
B.
New York State Law Claims
“In general, where the federal claims are dismissed before trial, the state claims should be
dismissed as well.” Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998). A district court
“may decline to exercise supplemental jurisdiction over a claim . . . [where it] has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C.A. § 1367(c)(3). “Courts in the Second
Circuit routinely dismiss complaints where the FLSA provided the jurisdictional hook and the
rest of plaintiffs’ claims arise under state law.” Yang Li, 2012 WL 1004854, at *5 (collecting
cases). Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED;
Plaintiff’s motion for summary judgment is DENIED; and the Clerk of Court is directed to close
the motions at Docket Nos. 39 and 47 and to close the case.
Dated: January 15, 2015
New York, New York
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