Alvarado Balderramo et al v. Go New York Tours Inc. et al

Filing 198

MEMO ENDORSEMENT on 197 Letter Response denying as moot 193 Letter Motion to Compel; denying as moot 193 Letter Motion for Local Rule 37.2 Conference; denying as moot 193 Letter Motion for Extension of Time to File. ENDORSEMENT: In l ight of Defendants' representation that they will be providing Plaintiffs with the discovery in question, Plaintiffs' letter motion to compel, Doc. 193, is DENIED as moot. The Clerk of Court is respectfully directed to terminate the the motion. Plaintiffs' Opposition to Defendants' Motion for Summary Judgment, Doc. 186, is due no later than November 16, 2020. Defendant's Reply Brief will be due no later than December 7, 2020. (Signed by Judge Edgardo Ramos on 11/2/2020) (mro)

Case 1:15-cv-02326-ER Document 198 Filed 11/02/20 Page 1 of 3

BARTON
ATTORNEYS AT LAW
Laura-Michelle Horgan, Esq.
DIRECT: 212.885.8824
[e-mail]

711 Third Avenue
14th Floor
New York, NY 10017

October 30, 2020

VIA ECF FILING AND ELECTRONIC MAIL
Hon. Judge Edgardo Ramos,
United States District Judge
United States District Court
Southern District of New York
Courtroom 619
Thurgood Marshall U.S. Courthouse
40 Foley Square
New York, NY 10007

Re:

[phone] Office
[phone] Fax

bartonesq.com

Victor H. Alvarado Balderramo et al. v. Go New York
Tours Inc. and Asen Kostadinov,
Case No. 15 Civ. 2326 (ER)

Dear Judge Ramos:
Defendants Go New York Tours Inc. ("Go New York") and Asen Kostadinov ("Mr.
Kostadinov") respectfully submit this letter in response to Plaintiffs' letters, dated October 27,
2020, requesting a Local Civil Rule 3 7 .2 Conference in anticipation of making a motion to compel
Defendants to provide amended responses to parts of plaintiffs' document demands and
interrogatories and seeking an ext nsion of time to oppose Defendants' Motion for Summary
Judgment or Alternatively, for a Stay of the Action pending the utcome of proceedings with the
New York State Department of Labor (the 'NYSDOL"). See ECF Docs. Nos. 193, 195.
Plaintiffs' letters continue their pattern of delay and obfuscation that has been ongoing
since they commenced this action five years ago and continued to litigate it despite the fact that
they are well-aware that these are the ame claims at issue in wide-ranging investigations
conducted by the NYSDOL into all of Go New York's employment practices during the same time
frame. Pursuant to tbe C urt Ord r Defendants produced the entire file of documents relating
to the NYSDOL s investigations to Plaintiffs. This file contains all ofth time and wage payment
records l roduced to the NYSDOL for bus drivers. Now, on the eve of the date that their opposition
to Defendants' Motion was due on October 29 th , Plaintiffs seek yet another extension of time in
this case from the Court because they claim that they need written discovery responses to a single
interrogatory and two document requests in addition to the docw11ents that they received weeks

New York I Nashville

Case 1:15-cv-02326-ER Document 198 Filed 11/02/20 Page 2 of 3
Hon. Judge Edgardo Ramos
October 30, 2020
Page 2
ago before they can file their opposition.
There is absolutely no basis for this request. Plaintiffs have been provided with all of the
documents that they need to oppose Defendants' Motion and, in fact, concede this themselves in
their letter application, stating that that have received: 1) the complete NYSDOL file, and 2) time
and wage records produced by Go New York months ago based upon Plaintiffs' own list of bus
drivers in an effort to resolve this matter by mediation before Justice Freeman. (Def. Ltr., p. 2.)
Plaintiffs' counsel simply does not like what these documents show: that the exact claims that they
purport to bring on behalf of bus drivers in this case on behalf of the Rule 23 Class have already
been investigated and have been, or will be, redressed through the NYSDOL's pending Notice to
Comply and subsequent proceedings. This has clearly been established in Defendants' moving
brief. Faced with, and in possession of evidence, of these cold hard facts, Plaintiffs now claim that
they cannot file an opposition to Defendants' Motion unless they receive amended responses to a
single interrogatory and two document requests.
Plaintiffs' latest claim is nothing more than an attempt to shift the burden of doing the work
of comparing the bus drivers' Rule 23 class action claims with the claims already investigated by
the NYSDOL. Again, plaintiffs have had the information needed to do this work for weeks and
apparently have done nothing with it. Now that their opposition is due, Plaintiffs seek to shift the
burden of doing this work onto Defendants and create unnecessary made-work for Defendants'
counsel which should have plainly been done by class counsel. Plaintiffs seek to do this because
Defendants have already established in their moving brief that the NYSDOL has investigated the
claims at issue in this case and much, much more. Indeed, as the records produced by Defendants
show, the NYSDOL investigated claims through 2017 and concluded that after Go New York
installed a time clock and retained a third-party employee leasing company called South East
Personnel Leasing Inc. ("SPLI") on April 6, 2017, there were no further wage and hour violations.
Indeed, as the records produced by Go New York show, after Go New York had been put through
years of investigations by the NYSDOL, Go New York buttoned-up its operations by, inter alia,
retaining SPLI. to handle all of its obligations to its employees including time records, payment of
wages, taking appropriate taxes from employees' wages, maintaining appropriate Workers'
Compensation insurance, as so on. Additionally, as Plaintiffs' counsel well know, Go New York's
bus drivers are now represented by Union Local 100. On the drivers' behalf, the Union has
negotiated collective bargaining agreements with Go New York to ensure that the drivers are paid
appropriately for their work.
All of this having been said, in order to resolve the newest issue manufactured by Plaintiffs'
counsel to try to delay this case and avoid the ultimate outcome if it being dismissed on the basis
of the doctrine of primary jurisdiction, Defendants are providing Plaintiffs with amended responses
to the interrogatory and document requests identified in their letter and claim are necessary in order
for them to file an opposition to Defendants' Motion today. Additionally, Defendants are reproducing the employment records specifically requested by Plaintiffs in connection with
mediation since they appear to be under a misimpression that they cannot make use of these
documents that they have had in their possession for months and did not even bother asking
Defendants' counsel to consent to this before burdening this Court with an unnecessary request for
a Local Civil Rule 37.2 conference to the Court. Additionally, to avoid any additional attempts by
Plaintiffs' counsel to delay this action (and the likely result of Defendants' Motion for Summary

Case 1:15-cv-02326-ER Document 198 Filed 11/02/20 Page 3 of 3
Hon. Judge Edgardo Ramos
October 30, 2020
Page 3
Judgment), Defendants will provide complete amended responses to all of Plaintiffs'
interrogatories and document requests by Monday, November 2nd • Defendants have no objection
to Plaintiffs' request for an additional two weeks to file an opposition to Defendants' Motion from
that date, which would make Plaintiffs' Opposition due on November 16th . Defendants would
request three weeks to file their reply, which would be by December 7th •

cc:

John M. Gurrieri, Esq.

In light of Defendants' representation that they will be providing
Plaintiffs with the discovery in question, Plaintiffs' letter motion to
compel, Doc. 193, is DENIED as moot. The Clerk of Court is
respectfully directed to terminate the the motion. Plaintiffs'
Opposition to Defendants' Motion for Summary Judgment, Doc. 186,
is due no later than November 16, 2020. Defendant's Reply Brief
will be due no later than December 7, 2020. IT IS SO ORDERED.

11/2/2020