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