Secretary of Labor, Thomas E. Perez v. Manna 2nd Avenue LLC d/b/a Gina La Fornarina et al
Filing
95
MEMORANDUM AND ORDER. The plaintiff's motion to strike is denied. The plaintiff may file a sur-reply within three weeks of the date of this Memorandum and Order. SO ORDERED. Denying 86 Motion to Strike. (Signed by Magistrate Judge James C. Francis on 12/27/2016) Copies transmitted via ECF this date. (rjm)
Background
The four corporate defendants, at separate locations, operate
as the restaurant Gina La Fornarina, and Ms. Pedrignani is the
owner
and
entities.
has
primary
managerial
control
over
the
corporate
(Stipulation dated Aug. 24, 2016 (“Stip.”), attached as
Exh. 1 to Declaration of Amy Tai dated Sept. 16, 2016, ¶¶ 6-7;
Defendants’ Rule 56.1 Statement (“Def. 56.1 Statement”), ¶ 2).
Igor Segota is the general manager.
(Def. 56.1 Statement, ¶ 8).
The defendants jointly employ and regulate the employment of
the restaurant employees, and at least some of the employees have
worked for more than one of the corporate defendants in the same
workweek and pay period.
(Stip., ¶¶ 5, 10-11).
The corporate
defendants are Italian restaurants in Manhattan with a focus on
pizza; they employ a variety of employees, including chefs, pizza
chefs, dishwashers, salad makers, prep cooks, trainees, servers,
bussers, runners, porters, general captains, hosts, baristas, and
delivery people.
(Amended Complaint, ¶¶ 4-7; The Secretary of
Labor’s Rule 56.1 Statement in Support of His Motion for Partial
Summary Judgment, ¶ 31; Def. 56.1 Statement, ¶¶ 3, 5, 9).
pizza chefs are paid a fixed salary.
The
Department
of
Labor
began
The
(Def. 56.1 Statement, ¶ 16).
its
investigation
of
the
defendants in 2013 for violations of the FLSA overtime, minimum
the Director of National Intelligence, No. 10 Civ. 4419, 2011 WL
5563520, at *1 (S.D.N.Y. Nov. 15, 2011).
2
wage, and notice provisions that allegedly occurred from November
2010 to November 2013.
(Def. 56.1 Statement, ¶ 17).
After the
parties were unable to resolve the matter, this action followed.
(Def. 56.1 Statement, ¶¶ 18-21).
On September 16, 2016, the plaintiff moved for partial summary
judgment on his overtime claims, and the defendants subsequently
cross-moved for partial summary judgement on their affirmative
defense
that
requirements.
the
pizza
chefs
are
exempt
from
the
overtime
On October 14, the defendants filed a declaration
from their counsel, Stephen D. Hans, opposing the plaintiff’s
motion for summary judgment, 2 and the Secretary filed a memorandum
opposing the defendants’ motion for summary judgment.
On October
28, the Secretary filed a reply memorandum in support of his
summary judgment motion.
The same day, the defendants filed a
reply declaration of Mr. Hans 3 accompanied by declarations from
Mr. Segota and Ms. Pedrignani.
On November 10, 2016, the Secretary moved to strike the
defendants’
reply,
arguing
that
it
contains
improper
legal
conclusions and improper factual assertions; the Secretary also
2
In substance, this declaration is a memorandum of law
opposing the Secretary’s motion for summary judgment.
3
This declaration appears to act as the defendants’ reply
memorandum of law, presenting arguments supporting the defendants’
motion, and it also appears to include arguments opposing the
Secretary’s motion for summary judgment. The defendants did not
separately file a reply memorandum of law.
3
moved to strike portions of Mr. Segota’s and Ms. Pedrignani’s
declarations.
Discussion
A.
Motion to Strike Portions of Non-Attorney Declarations
The
plaintiff
declaration
must
contends
be
stricken
that
portions
because
they
of
Mr.
Segota’s
contradict
prior
deposition testimony; the plaintiff also seeks to strike portions
of Mr. Segota’s and Ms. Pedrignani’s declarations on the ground
that
they
attempt
to
introduce
new
factual
contentions.
(Plaintiff’s Memorandum of Law in Support of His Motion to Strike
Defendants’ Reply Declaration (“Pl. Memo.”) at 2).
1.
Contradictory Statements
“[A] party may not create an issue of fact by submitting an
affidavit in opposition to a summary judgment motion that, by
omission
or
addition,
deposition testimony.”
contradicts
the
affiant’s
previous
Hayes v. New York City Department of
Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
“If a party who has
been examined at length on deposition could raise an issue of fact
simply by submitting an affidavit contradicting his own prior
testimony, this would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of fact.”
Id. (quoting Perma Research & Development Co. v. Singer Co., 410
F.2d 572, 578 (2d Cir. 1969)).
A court may strike declarations
made in support of summary judgment if the declaration directly
4
and unequivocally contradicts previous deposition testimony.
See,
e.g., In re Methyl Tertiary Butyl Ether (MTBE) Products Liability
Litigation, 117 F. Supp. 3d 276, 295 & n.147 (S.D.N.Y. 2015);
Ventura v. Town of Manchester, No. 06 CV 630, 2008 WL 4080099, at
*2 (D. Conn. Sept. 2, 2008); Perkins v. Memorial Sloane-Kettering
Cancer Center, No. 02 Civ. 6493, 2005 WL 2453078, at *15 (S.D.N.Y.
Sept. 30, 2005); see also SCF Arizona v. Wells Fargo Bank, N.A.,
No. 09 Civ. 9513, 2011 WL 3874889, at *4 (S.D.N.Y. Sept. 1, 2011)
(in order to strike, it must be demonstrated that declaration in
question directly contradicts declarant’s own prior deposition
testimony).
The defendants contend that the declaration was “a
clarification of the testimony.”
(Declaration of Stephen D. Hans
dated Nov. 30, 2016 (“Hans 11/30/16 Decl.”), ¶ 1).
The plaintiff seeks to strike the following sentences from
paragraph two of Mr. Segota’s declaration: “Unquestionably and
without any doubt, when I referred to ‘chef’ or ‘chefs,’ I was
referring to both our kitchen chef and our pizza chef.
To me,
they are one and the same with respect to the position.”
(Pl.
Memo. at 6; Declaration of Igor Segota dated Oct. 27, 2016 (“Segota
Decl.”), attached as Exh. A to Declaration of Stephen D. Hans dated
Oct. 27, 2016, ¶ 2).
The plaintiff also seeks to strike the
following paragraphs:
3. I would never distinguish between the pizza chef and
the kitchen chef. The reason is that both attend the
management meetings and both have made significant
5
contributions and decisions in those meetings.
The
pizza chef has the exact same authority and position as
the kitchen chef.
The pizza chef orders food;
distributes the work; discusses and makes decisions on
the needs of the kitchen and so many other smaller but
important decisions in running the restaurants.
8. PRIME DUTY -- When discussing primary duties, it is
critical to point out that both the kitchen and pizza
have a twofold primary duty because of a small kitchen.
Those twofold duties are to run the kitchen and all the
responsibilities for running the restaurant and making
sure the entrees or the pizzas are produced. This is
what they do. They cook and run it because there is no
one else. I am moving around from place to place and
cannot stay in one location to manage.
I am not a
kitchen person, and the need for two chefs who cook and
manage is just absolutely required.
9. Management by the pizza chefs involves, among other
things, the meetings, the hiring, and deciding on
supplies. This is very important and critical to the
effective running of the business. These two chefs do
not split the duties, but rather, each one does it.
Management is not just some of the time. It is a full
time requirement by both the pizza and kitchen chef.
(Pl. Memo. at 6; Segota Decl., ¶¶ 3, 8-9).
In his March 9, 2016 deposition testimony, Mr. Segota stated,
“Chef is the king” (Deposition of Igor Segota dated March 9, 2016
(“Segota Dep.”), attached as Exh. B to Declaration of Amy Tai dated
Nov. 10, 2016, at 51), and he stated that there is only one chef
at each restaurant (Segota Dep. at 51-53).
When asked if there
can “be only one chef at a time at each restaurant,” Mr. Segota
replied,
“I
see
one
chef
only.”
(Segota
Dep.
at
52).
Additionally, he stated, “[T]here is on the left side a pizza oven,
6
a pizza guy there.
There is a chef.” 4
(Segota Dep. at 81).
He
also stated that the chef is the “big kahuna” and “the boss,” but
his testimony was vague on whether the “pizza guy” was “under the
chef in the hierarchy.”
(Segota Dep. at 84-85).
He also stated,
“Chef has his own team.
So, you know, I see there a salad guy, I
see there a dishwasher, prep guy, pizza people, you know.” (Segota
Dep. at 80).
When asked whether the “pizza guys” were chefs, he stated
either that he was unsure or that they were not.
87-88).
(Segota Dep. at
Regarding a pizza chef’s duties, the following colloquy
took place:
Q. Do the pizza guys have any jobs other than making
pizza?
A. I don’t know.
Q. Have you ever seen a pizza guy doing anything else
other than making pizza?
A. I don’t know. It’s a job. You know, he does his job.
Pizza guy does the pizza job, right?
Q. So you’re –
A. I don’t know. Pizza simply require opening pizza,
putting pizza in oven. Pizza is pizza.
. . . .
A. Pizza guy does the pizza.
Q. Is that all you’ve ever seen the pizza guy do?
A. Yeah.
4
“Pizza guy” appears to refer to the pizza chefs.
7
(Segota Dep. at 98-99).
Although the Secretary contends that this testimony directly
contradicts the October 28 declaration, the deposition testimony
is not unequivocally at odds with the declaration.
Mr. Segota
would not have necessarily understood that the attorney was asking
him about the management duties of the pizza chefs, as opposed to
their culinary responsibilities.
Additionally, though he stated
one of the pizza chefs was not a chef, Mr. Segota could have meant
that the pizza chef was not also a kitchen chef.
While his
deposition testimony is ambiguous and open to interpretation, it
is not directly contradictory to his declaration.
See Hayes, 84
F.3d at 620 (depositions that are only arguably contradictory is
one reason to not strike); In re Methyl Tertiary Butyl Ether
(“MTBE”) Products Liability Litigation, MDL No. 1358, No. M21-88,
2014 WL 5088095, at *2 (S.D.N.Y. Sept. 22, 2014) (declining to
strike
declaration
because
it
did
not
“flatly”
contradict
deposition).
2.
New Evidence and Legal Arguments
The plaintiff contends that portions of Mr. Segota’s and Ms.
Pedrignani’s declarations must be stricken because they contain
facts not previously asserted; alternatively, the plaintiff seeks
leave to file a sur-reply.
A court may strike portions of reply
submissions if they add new material that should have been included
8
in the opening papers, as long as the new material is not merely
in response to a new issue raised by the opposition papers.
See
Revise Clothing, Inc. v. Joe’s Jeans Subsidiary, Inc., 687 F. Supp.
2d 381, 387 (S.D.N.Y. 2010) (“It is plainly improper to submit on
reply evidentiary information that was available to the moving
party at the time that it filed its motion and that is necessary
in
order
for
that
party
to
meet
its
burden.”);
Aurora
Loan
Services, Inc. v. Posner, Posner & Associates, P.C., 513 F. Supp.
2d 18, 19-20 (S.D.N.Y. 2007).
However, the “court has discretion
in deciding whether to strike portions of [] reply papers,” Aurora
Loan Services, 513 F. Supp. 2d at 19 (citing Bayway Refining Co.
v. Oxygenated Marketing and Trading A.G., 215 F.3d 219, 226 (2d
Cir. 2000)), and -- to cure any potential prejudice -- the court
may instead permit the aggrieved party to file a sur-reply, see
Dixon
v.
NBCUniversal
Media,
LLC,
947
F.
Supp.
2d
390,
397
(S.D.N.Y. 2013); Pagan v. Abbott Laboratories, Inc., 287 F.R.D.
139, 144 (E.D.N.Y. 2012); Revise Clothing, 687 F. Supp. 2d at 387.
“Although it is ‘plainly improper to submit on reply evidentiary
information that was available to the moving party at the time
that it filed its motion and that is necessary in order for that
party to meet its burden,’ [the court] has discretion to consider
documents filed in violation of procedural rules.” Church & Dwight
Co. v. Kaloti Enterprises of Michigan, L.L.C., No. 07 CV 612, 2011
9
WL 4529605, at *1 n.1 (E.D.N.Y. Sept. 28, 2011) (quoting Revise
Clothing, 687 F. Supp. 2d at 387).
The defendants admit to including new material in their reply
papers (Hans 11/30/16 Decl., ¶¶ 8, 11-13), and do not appear to be
doing so to gain a procedural advantage.
I will therefore allow
the plaintiff to submit a sur-reply to cure any possible prejudice.
B.
Motion to Strike Counsel’s Reply Declaration
In response to the plaintiff’s opposition to the defendants’
motion
for
partial
summary
judgment,
declaration from their counsel.
reply
memorandum
of
law.
the
defendants
filed
a
They did not separately file a
The
plaintiff
seeks
to
have
the
declaration stricken on the ground that it contains unsupported
factual
assertions,
conclusions.
improper
v.
arguments,
and
legal
A declaration supporting summary judgment must be
made on personal knowledge.
States
credibility
Private
Fed. R. Civ. P. 56(c)(4); United
Sanitation
Industry
Association
of
Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir. 1995); W.T. ex
rel J.T. v. Board of Education of School District of New York City,
716 F. Supp. 2d 270, 284 (S.D.N.Y. 2010).
“[A]ny declaration
submitted to ‘support or oppose a motion must . . . set out facts
that would be admissible in evidence.’”
Rund v. JPMorgan Chase
Group Long Term Disability Plan, No. 10 Civ. 5284, 2012 WL 1108003,
at *2 (S.D.N.Y. March 30, 2012) (alteration in original) (quoting
Fed. R. Civ. P. 56(c)(4)).
Indeed, “if a declaration improperly
10
includes unsupported facts, legal arguments, or evidence that is
not
otherwise
discretion.”
admissible,
it
may
be
stricken
at
the
court’s
Degelman Industries, Ltd. v. Pro-Tech Welding and
Fabrication, Inc., No. 06 CV 6346, 2011 WL 6754053, at *2 (W.D.N.Y.
May 31, 2011); see also Internet Law Library, Inc. v. Southridge
Capital Management, LLC, No. 01 Civ. 6600, 2005 WL 3370542, at *3
(S.D.N.Y. Dec. 12, 2005) (striking attorney affidavit that was
“more
akin
affidavit”).
to
a
memorandum
of
law
than
to
an
attorney’s
However, a court may “simply decline to consider
those aspects of a supporting affidavit that do not appear to be
based on personal knowledge or are otherwise inadmissible.” Pineda
v. Masonry Construction, Inc., 831 F. Supp. 2d 666, 681 (S.D.N.Y.
2011)
(quoting
Doe
v.
National
Board
of
Podiatric
Medical
Examiners, No. 03 Civ. 4034, 2004 WL 912599, at *4 (S.D.N.Y. April
29, 2004)).
The
attorney
declaration
here
clearly
serves
as
the
defendants’ memorandum of law, and “this Court has discretion to
consider documents filed in violation of procedural rules.” Church
& Dwight Co., 2011 WL 4529605, at *1 n.1.
While I will decline to
consider facts not based on personal knowledge, see Pacenza v. IBM
Corp., 363 F. App’x 128, 130 (2d Cir. 2010), I will not strike the
attorney declaration. Instead, I will consider the legal arguments
raised there as I would a memorandum of law.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?