Flores v. 201 West 103 Corp. et al

Filing 55

OPINION AND ORDER. For the reasons outlined above, the Moving Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. Defendants' motion to strike is DENIED as moot. The Clerk of Court is directed to terminate the motions pendi ng at Docket Entries #40 and #50. The remaining parties are directed to provide the Court with a joint status letter and proposed case management plan on or before June 28, 2017, so the Court may determine how this case will proceed. SO ORDERED. re: 40 FIRST MOTION to Dismiss . filed by 3143 Broadway Corp., 1600 Amsterdam Avenue Corp., 994 Columbus Avenue Corp., 886 Amsterdam Avenue Corp., 412 Amsterdam Corp., 201 West 103 Corp., Francesca Fiori, Sebastiano Cappitta, Da niele Fiori, Iano Corp. 50 FIRST LETTER MOTION for Leave to File letter motion seeking an order striking Telesforo Reyes Galvez's declaration addressed to Judge Katherine Polk Failla from Aaron N. Solomon dated May 15, 2017. Document filed by Sebastiano Cappitta. 1600 Amsterdam Avenue Corp. and Francesca Fiori terminated. (Signed by Judge Katherine Polk Failla on 6/14/2017) (rjm)

Case 1:16-cv-02233-KPF Document 55 Filed 06/14/17 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------X
:
NICOMEDES FLORES, a/k/a Pablo,
:
and CRISOFORO CAMPOS, on behalf
:
of themselves, FLSA Collective Plaintiffs,
:
and the Class,
:
:
Plaintiffs,
:
:
v.
:
:
:
201 WEST 103 CORP., d/b/a Buchetta,
IANO CORP., d/b/a Acqua, 886
:
AMSTERDAM AVENUE CORP., d/b/a Arco :
Café, 994 COLUMBUS AVENUE CORP.,
:
:
d/b/a Isola, 3143 BROADWAY CORP.,
:
d/b/a Bettolona, 1600 AMSTERDAM
:
AVENUE CORP., d/b/a Coccola, 412
:
AMSTERDAM CORP., d/b/a Bettola,
SEBASTIANO CAPPITTA, DANIELE FIORI, :
:
and FRANCESCA FIORI,
:
Defendants. :
:
------------------------------------------------------ X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: June 14, 2017
______________

16 Civ. 2233 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Plaintiffs Nicomedes Flores and Crisoforo Campos, on behalf of
themselves and others similarly situated, brought this class and collective
action against corporate Defendants 201 West 103 Corp., doing business as
Buchetta; Iano Corp., doing business as Acqua; 886 Amsterdam Avenue Corp.,
doing business as Arco Café; 994 Columbus Avenue Corp., doing business as
Isola; 3143 Broadway Corp., doing business as Bettolona; 1600 Amsterdam
Avenue Corp., doing business as Coccola; 412 Amsterdam Corp., doing
business as Bettola (together, the “Corporate Defendants”); and individual

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Defendants Sebastiano Cappitta, Daniele Fiori, and Francesca Fiori (together,
the “Individual Defendants”) pursuant to the Fair Labor Standards Act, as
amended, 29 U.S.C. §§ 201-219 (the “FLSA”), and the New York Labor Law,
Consol. Laws 1909, ch. 31 (the “NYLL”). Under the FLSA, Plaintiffs seek to
recover from Defendants unpaid wages, unpaid overtime compensation,
liquidated damages, and attorney’s fees and costs. Under the NYLL, Plaintiffs
seek to recover unpaid wages, unpaid overtime compensation, unpaid “spread
of hours” premiums, statutory penalties, liquidated damages, and attorney’s
fees and costs.
Corporate Defendants Iano Corp., doing business as Acqua; 886
Amsterdam Avenue Corp., doing business as Arco Café; 994 Columbus Avenue
Corp., doing business as Isola; 3143 Broadway Corp., doing business as
Bettolona; 1600 Amsterdam Avenue Corp., doing business as Coccola; and 412
Amsterdam Corp., doing business as Bettola (together, the “Moving Corporate
Defendants”); and Individual Defendants Daniele Fiori and Francesca Fiori
(together, the “Moving Individual Defendants,” and together with the Moving
Corporate Defendants, “the Moving Defendants”) have moved to dismiss
Plaintiffs’ Amended Complaint (the “Complaint”) under Federal Rule of Civil
Procedure 12(b)6) and to strike Telesforo Reyes Galvez’s declaration in support
of Plaintiffs’ opposition to Defendants’ motion (the “Galvez Declaration”). For
the reasons that follow, the Moving Defendants’ motion to dismiss is granted in
part and denied in part. Defendants’ motion to strike is denied as moot.

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BACKGROUND 1
A.

Factual Background
1.

The Alleged Restaurant Enterprise

Plaintiffs allege that “Defendants operate a restaurant enterprise”
comprised of seven restaurants by and through the Corporate Defendants,
which restaurants are identified in the caption of this case: Buchetta, which
formerly did business as Buca; Bettola; Acqua; Arco Café; Isola; Bettolona; and
Coccola (together, the “Restaurants”). (Compl. ¶ 7). Specifically, Plaintiffs
allege that
[T]he Restaurants are engaged in related activities,
share common ownership and have a common business
purpose. The Restaurants are commonly owned by the
Individual Defendant [Cappitta]. The Restaurants serve
similar menu items and are all categorized as Italian
and Brick Oven Pizza restaurants. The Restaurants are
advertised and marketed jointly on the Internet[.] The
“Bettola” and “Acqua” restaurants are also advertised
jointly on the website www.sebastianoitaliano.com. In
addition, supplies and employees are interchangeable
between the Restaurants.
(Id. (citation omitted)).
Individual Defendant Cappitta is identified as “an equity interest holder
and chief executive officer of all Corporate Defendants.” (Compl. ¶ 9).

1

This Opinion draws on facts from Plaintiffs’ Amended Complaint (“Compl.” (Dkt. #35)),
taking all well-pleaded allegations as true as the Court must at this stage. See, e.g.,
Peralta v. St. Luke’s Roosevelt Hosp., No. 14 Civ. 2609 (KPF), 2015 WL 3947641, at *1
n.1 (S.D.N.Y. June 26, 2015). The Court has also reviewed the briefing submitted by
the parties and will refer to it as follows: the Moving Defendants’ Memorandum of Law
in Support of Their Motion to Dismiss (Dkt. #42) will be referred to as “Def. Br.,”
Plaintiffs’ Memorandum of Law in Opposition to the Moving Defendants’ Partial Motion
to Dismiss Plaintiffs’ First Amended Complaint (Dkt. #45) as “Pl. Opp.,” and the Moving
Defendants’ Reply Memorandum in Further Support of Their Motion to Dismiss (Dkt.
#48) as “Def. Reply.”

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Individual Defendants Daniele and Francesca Fiori are identified as “senior
executive officers” of Corporate Defendant 886 Amsterdam Avenue, doing
business as Arco Café. (Id. at ¶ 10). The Individual Defendants exercised
control over Plaintiffs and the putative Class members, insofar as they had and
“exercised the power and authority to (i) fire and hire, (ii) determine rate and
method of pay, (iii) determine work schedules and (iv) otherwise affect the
quality of [their] employment.” (Id. at ¶¶ 9, 10). With regard to Cappitta,
Plaintiffs allege that
[i] employees could complain to [Cappitta] regarding
any of the terms of their employment, and [he] would
have the authority to effect any changes to the quality
and terms of employees’ employment. [ii] [Cappitta]
regularly visited “Buchetta” and directly reprimanded
any employee who did not perform his duties correctly.
[iii] [Cappitta] ensured that employees effectively serve
customers and that the business is operating efficiently
and profitably. [iv] [Cappitta] exercised functional
control over the business and financial operations of all
Corporate Defendants.
(Id. at ¶ 9). With regard to Daniele and Francesca Fiori, Plaintiffs allege they
“exercised functional control over the business and financial operations of”
Corporate Defendant 886 Amsterdam Avenue, doing business as Arco Café.
(Id. at ¶ 10). Daniele Fiori was also a manager at Buchetta restaurant, where
he directly supervised Plaintiffs. (Id.).
2.

Plaintiffs’ Employment and the Claims Arising Therefrom

Plaintiff Flores was employed by Defendants as a delivery person for
Buchetta restaurant at 201 West 103rd Street in New York City from on or
about March 5, 2013, through March 15, 2016. (Compl. ¶ 24). Throughout
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this time, he “was regularly required to transfer produce, ingredients and
supplies among Defendants’ other Upper West Side restaurants.” (Id. at ¶ 25).
Flores worked for 42 hours per week and was required to work without a
lunch break. (Compl. ¶ 26). He was paid $20 per workday, regardless of the
number of hours that he worked each day, which amounted to an hourly wage
below New York’s “tip credit” minimum wage. (Id. at ¶ 27). His “tips averaged
$160 per workweek, and including his daily fixed salary, at all times, he
received a straight time hourly rate of approximately $6.67 per hour, which is
below the Federal and State minimum wage.” (Id.). What is more, Flores
was required to spend half of all his working hours
engaged in non-tipped activities, including transferring
ingredients and supplies between Defendants’
restaurant locations, cleaning the bathroom, taking
orders and answering the telephone, preparing bags
and boxes for take-out and delivery orders, receiving
and stocking incoming deliveries for the restaurant,
disposing the garbage[,] and folding menus.
(Id. at ¶ 36).
Plaintiff Campos was hired by Defendants as a dishwasher for Buchetta
restaurant at 201 West 103rd Street in New York City in or around December
2012. (Compl. ¶ 28). In or around May 2013, he was promoted to work as a
food preparer, which role he maintained through approximately March 5, 2016.
(Id.). Throughout this time, he “was regularly required to transfer produce,
ingredients and supplies among Defendants’ other Upper West Side
restaurants.” (Id. at ¶ 29).

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Before his promotion in May 2013, Campos worked 58 hours per week.
(Compl. ¶ 30). For this work, he was paid $390 per week regardless of the
number of hours that he worked each day, which amounted to a wage below
the Federal and State minimum wage. (Id. at ¶ 31). After his promotion,
through December 2015, Campos regularly worked weeks of either 63.5 or 75.5
hours. (Id. at ¶ 30). For this work, he was paid $500 for 6-day workweeks and
$540 for 7-day workweeks. (Id. at ¶ 31). From January 2016 through the end
of Campos’ employment in March 2016, Campos was paid $540 for 6-day
workweeks and $640 for 7-day workweeks. (Id.). At all times, these wages
were below the New York statutory minimum wage. (Id.). Moreover, Campos
was at all times required to work without a lunch break. (Id. at ¶ 30).
Both Flores and Campos “were paid entirely in cash and did not receive
any wage statements from Defendants.” (Compl. ¶ 32; see also id. at ¶ 43).
Plaintiffs likewise did not
receive any notice that Defendants were claiming a tip
credit ... [or] notice informing them that the tip credit
taken by Defendants may not exceed the value of tips
that they actually received. Defendants further failed to
keep track of daily tips earned and maintain records
thereof and failed to provide proper wage statements
informing Plaintiffs ... of the amount of tip credit taken
for each payment period.
(Id. at ¶ 35; see also id. at ¶¶ 39, 44). Plaintiffs were not paid overtime
compensation nor the spread-of-hours premium for workdays exceeding 10
hours in length. (Id. at ¶¶ 37-38, 41-42).

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B.

Procedural Background
Flores brought this collective and class action on March 25, 2016. (Dkt.

#1). On June 3, 2016, Defendants filed a letter motion for a conference to
discuss their contemplated motion to dismiss Flores’s pleading. (Dkt. #31). A
conference was held on June 28, 2016. Pursuant to the Court’s discussion
with the parties at that conference, Flores and Campos filed the Complaint on
July 25, 2016. (Dkt. #35). Campos previously had consented to sue under the
FLSA on June 21, 2016. (Dkt. #33).
On August 8, 2016, Defendants filed a letter motion for a second
conference to discuss their contemplated motion to dismiss. (Dkt. #37). In
light of the Court’s discussions with the parties at the June 28, 2016
conference, Defendants’ motion for a conference was denied. (Dkt. #39).
Instead, the Court set a briefing schedule for Defendants’ motion. (Id.).
The Moving Defendants filed their motion to dismiss on September 12,
2016. (Dkt. #40-42). Plaintiffs filed their opposition to this motion on
October 26, 2016. (Dkt. #45; see also Dkt. #46-47). The Moving Defendants
filed their reply on November 9, 2016. (Dkt. #48).
The Galvez Declaration that is the subject of Defendants’ motion to strike
was filed months later, on May 12, 2017. (Dkt. #49). Defendants filed their
letter motion to strike the Declaration on May 15, 2017. (Dkt. #50). Plaintiffs
opposed the letter motion on May 18, 2017 (Dkt. #51), and Defendants filed a
reply on May 19, 2017 (Dkt. #52).

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DISCUSSION
A.

Applicable Law
1.

Federal Rule of Civil Procedure 12(b)(6)

When considering a motion to dismiss under this rule, a court should
“draw all reasonable inferences in [the plaintiffs’] favor, assume all well-pleaded
factual allegations to be true, and determine whether they plausibly give rise to
an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.
2011) (internal quotation marks and citation omitted) (quoting Selevan v. N.Y.
Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). Thus, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In this regard, a complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents
incorporated in it by reference. See, e.g., Hart v. FCI Lender Servs., Inc., 797
F.3d 219, 221 (2d Cir. 2015) (citing Fed. R. Civ. P. 10(c) (“A statement in a
pleading may be adopted by reference elsewhere in the same pleading or in any
other pleading or motion. A copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes.”)).
“While Twombly does not require heightened fact pleading of specifics, it
does require enough facts to ‘[nudge a plaintiff’s] claims across the line from
conceivable to plausible.’” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d
Cir. 2007) (per curiam) (quoting Twombly, 550 U.S. at 570). “Where a
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complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,
it ‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Moreover,
“the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id.
2.

Employer Status Under the FLSA

The FLSA “defines the verb ‘employ’ expansively to mean ‘suffer or permit
to work.’” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992)
(quoting 29 U.S.C. § 203(g)). That is because “broad coverage [under the FLSA]
is essential to accomplish the [statute’s] goal of outlawing from interstate
commerce goods produced under conditions that fall below minimum
standards of decency.” Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S.
290, 296 (1985).
“Unfortunately, however, the statute’s definition of ‘employer’ relies on
the very word it seeks to define[.]” Irizarry v. Catsimatidis, 722 F.3d 99, 103
(2d Cir. 2013). “Employer” is defined to “include[] any person acting directly or
indirectly in the interest of an employer in relation to an employee.” 29 U.S.C.
§ 203(d). “The statute nowhere defines ‘employer’ in the first instance.”
Irizarry, 722 F.3d at 103. “Accordingly, the [Supreme] Court has instructed
that the determination of whether an employer-employee relationship exists for
purposes of the FLSA should be grounded in economic reality rather than
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technical concepts.” Id. at 104 (internal quotation marks omitted) (quoting
Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 141 (2d Cir. 2008)
(quoting Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961))). “The
‘economic reality’ test applies equally to whether workers are employees and to
whether managers or owners are employers.” Id.
There is no single economic-reality test consisting of uniform factors.
Rather, “economic realities are assessed by reference to ‘the particular
situation’ with some factors more important than others depending on the
FLSA question at issue and the context in which it arises.” Brown v. N.Y.C.
Dep’t of Educ., 755 F.3d 154, 167 (2d Cir. 2014). Indeed, the Second Circuit
has made clear “that the various factors [it has] relied upon ... [i] to examine
the degree of formal control exercised over a worker, [ii] to distinguish between
independent contractors and employees; and [iii] to assess whether an entity
that lacked formal control nevertheless exercised functional control over a
worker, state no rigid rule for the identification of an FLSA employer.” Barfield,
537 F.3d at 143 (citations omitted) (citing Zheng v. Liberty Apparel Co. Inc., 355
F.3d 61, 71 (2d Cir. 2003) (functional control); Brock v. Superior Care, Inc., 840
F.2d 1054, 1058-59 (2d Cir. 1988) (independent contractors and employees);
Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (formal control)).
To the contrary, the Circuit has reiterated that these factors are nonexclusive
and overlapping “to ensure that the economic realities test mandated by the
Supreme Court is sufficiently comprehensive and flexible to give proper effect
to the broad language of the FLSA.” Barfield, 537 F.3d at 143.
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With this background in mind, the Court considers factors that courts in
this Circuit have analyzed to identify an “employer” for purposes of the FLSA. 2
a.

Formal Control

The Second Circuit first announced the “traditional four-factor test” of
formal control in Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir.
1984). See Barfield, 537 F.3d at 144; see also Zheng, 355 F.3d at 72 (affirming
that “formal control [is] measured by the Carter factors”). The four Carter
factors are “whether the alleged employer [i] had the power to hire and fire the
employees, [ii] supervised and controlled employee work schedules or
conditions of employment, [iii] determined the rate and method of payment,
and [iv] maintained employment records.” 735 F.2d at 12. Satisfying these
factors “can be sufficient to establish employer status,” but is not “necessary to
establish an employment relationship.” Zheng, 355 F.3d at 71.
b.

Functional Control

To that end, the Second Circuit has recognized that additional factors
“when they weigh in plaintiffs’ favor, [can] indicate that an entity has functional
control over workers even in the absence of the formal control measured by the
Carter factors.” Zheng, 355 F.3d at 72. The factors the Circuit found
“pertinent” to determining whether a garment manufacturer exercised

2

“The NYLL uses the same definition of an employer” as the FLSA. Bravo v. Established
Burger One LLC, No. 12 Civ. 9044 (CM), 2013 WL 5549495, at *5 (S.D.N.Y. Oct. 8,
2013); see also Lopez v. Pio Pio NYC, Inc., No. 13 Civ. 4490 (HB), 2014 WL 1979930, at
*2 (S.D.N.Y. May 15, 2014). Accordingly, this Court’s analysis of the Moving
Defendants’ employer status under the FLSA is equally applicable to Plaintiffs’ NYLL
claims.

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“functional control” over subcontracted workers in Zheng, “listed in no
particular order,” were
[i] whether [the manufacturer]’s premises and
equipment were used for the plaintiffs’ work;
[ii] whether the Contractor Corporations had a business
that could or did shift as a unit from one putative joint
employer to another; [iii] the extent to which plaintiffs
performed a discrete line-job that was integral to [the
manufacturer]’s process of production; [iv] whether
responsibility under the contracts could pass from one
subcontractor to another without material changes;
[v] the degree to which the [manufacturer] or [its] agents
supervised plaintiffs’ work; and [vi] whether plaintiffs
worked exclusively or predominantly for [the
manufacturer].
Id.; see also, e.g., Irizarry, 722 F.3d at 105 n.4.
c.

Single-Integrated-Enterprise Liability

“A ‘single employer’ situation exists where two nominally separate
entities are actually part of a single integrated enterprise.” Perez v.
Westchester Foreign Autos, Inc., No. 11 Civ. 6091 (ER), 2013 WL 749497, at *7
(S.D.N.Y. Feb. 28, 2013) (quoting Clinton’s Ditch Coop. Co. v. NLRB, 778 F.2d
132, 137 (2d Cir. 1985)). As courts have observed:
In such circumstances, of which examples may be
parent and wholly-owned subsidiary corporations, or
separate corporations under common ownership and
management, ... an employee, who is technically
employed on the books of one entity, which is deemed
to be part of a larger single-employer entity, may impose
liability for certain violations of employment law not
only on the nominal employer but also on another entity
comprising part of the single integrated employer.
Perez, 2013 WL 749497, at *7 (internal quotation mark omitted) (quoting
Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005)).
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Though “the Second Circuit does not appear to have ‘expressly applied
the integrated enterprise test in the FLSA context,’” courts in the Circuit have
found “sufficient support for its application” in the breadth of the FLSA’s
definition of an employer and the Second Circuit’s interpretation thereof. Coley
v. Vannguard Urban Improvement Ass’n, Inc., No. 12 Civ. 5565 (PKC) (RER),
2016 WL 4179942, at *5 (E.D.N.Y. Aug. 5, 2016) (quoting Teri v. Spinelli, 980
F. Supp. 2d 366, 372 n.12 (E.D.N.Y. 2013)) (citing United States v. Stanley, 416
F.2d 317, 318 (2d Cir. 1969) (per curiam)); see also Lopez v. Pio Pio NYC, Inc.,
No. 13 Civ. 4490 (HB), 2014 WL 1979930, at *3 (S.D.N.Y. May 15, 2014) (“[T]he
‘shared policy concerns underlying the ... doctrine and the FLSA’ urge the
theory’s application to FLSA claims.” (quoting Chen v. TYT E. Corp., No. 10 Civ.
5288 (PAC), 2012 WL 5871617, at *3 (S.D.N.Y. Mar. 21, 2012))). But see Hart
v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 940 n.16 (S.D.N.Y. 2013)
(declining to apply the integrated enterprise test because it was not commonly
used and would lead to the same result as the economic realities test).
“In assessing whether ‘multiple defendants constitute a single employer,
courts consider the following factors: [i] interrelation of operations;
[ii] centralized control of labor relations; [iii] common management; and
[iv] common ownership or financial control.’” Li v. Ichiro Sushi, Inc., No. 14 Civ.
10242 (AJN), 2016 WL 1271068, at *6 (S.D.N.Y. Mar. 29, 2016) (quoting Perez,
2013 WL 749497, at *7); see also, e.g., Juarez v. 449 Rest., Inc., 29 F. Supp. 3d
363, 367 (S.D.N.Y. 2014). Significantly, however, because “the question of
‘whether a particular defendant can be considered a plaintiff’s employer is a
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fact-specific inquiry[,]’ ... courts have held that ‘on a motion to dismiss, the
relevant inquiry is whether a defendant has been put on notice of the theory of
employer liability.’” Li, 2016 WL 1271068, at *6 (quoting Perez, 2013 WL
749497, at *7).
B.

Analysis
1.

The Moving Defendants’ Motion to Dismiss Plaintiffs’ Claims
Against 1600 Amsterdam Avenue Corp. and Francesca Fiori
Is Granted

Plaintiffs agree to dismiss their claims as to Moving Corporate Defendant
1600 Amsterdam Avenue Corp., doing business as Coccola, and Moving
Individual Defendant Francesca Fiori. (Pl. Br. 2). Because Plaintiffs do not
dispute the Moving Defendants’ contention that Plaintiffs have failed to state a
claim with regard to these Defendants, and indeed consent to the dismissal of
these claims, the Moving Defendants’ motion to dismiss Plaintiffs’ claims
against 1600 Amsterdam Avenue Corp., doing business as Coccola, and
Francesca Fiori is granted.
2.

The Moving Defendants’ Motion to Dismiss Plaintiffs’ Claims
Against the Remaining Moving Corporate Defendants Is Denied

With regard to Moving Defendants Iano Corp., doing business as Acqua;
886 Amsterdam Avenue Corp., doing business as Arco Café; 994 Columbus
Avenue Corp., doing business as Isola; 3143 Broadway Corp., doing business
as Bettolona; and 412 Amsterdam Corp., doing business as Bettola, Plaintiffs
have not alleged that these entities had any direct relationship with Plaintiffs.
Flores alleges only that he was “regularly required to transfer produce,
ingredients and supplies among Defendants’ other Upper West Side
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restaurants, including ‘Bettola,’ ‘Acqua,’ ‘Arco Café,’ ‘Isola,’ and ‘Bettolona.’”
(Compl. ¶ 25; see also id. at ¶ 36). Campos alleges in turn that he too was
“regularly required to transfer produce, ingredients and supplies among
Defendants’ other Upper West Side restaurants, including ‘Acqua,’ and ‘Isola.’”
(Id. at ¶ 29). While both Plaintiffs allege that “employees are interchangeable
between the Restaurants” (id. at ¶ 7), neither Plaintiff claims to have worked for
any Corporate Defendant other than 201 West 103 Corp, doing business as
Buchetta.
Plainly, these allegations alone are not enough to establish that Moving
Defendants Iano Corp., doing business as Acqua; 886 Amsterdam Avenue
Corp., doing business as Arco Café; 994 Columbus Avenue Corp., doing
business as Isola; 3143 Broadway Corp., doing business as Bettolona; and 412
Amsterdam Corp., doing business as Bettola, had formal or functional control
over Plaintiffs. And Plaintiffs do not appear to dispute this. Instead, Plaintiffs
place all of their eggs in the single-integrated-enterprise basket: Plaintiffs
allege that all of the Corporate Defendants comprised a “single integrated
enterprise” on the basis of their common ownership by Cappitta and their
common business purpose, specifically, their sale in the Restaurants of
“similar menu items” and the Restaurants’ common identities as “Italian and
Brick Oven Pizza restaurants.” (Compl. ¶ 7). Plaintiffs further allege that the
Restaurants are “advertised and marketed jointly” because (i) they were
described in a news article as part of Cappitta’s “Upper West Side empire” of

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“seven restaurants” and (ii) “[t]he ‘Bettola’ and ‘Acqua’ restaurants are ...
advertised jointly on the website www.sebastianoitaliano.com.” (Id.).
This Court finds, as have others in this District, that accepting (i) the
truth of Plaintiffs’ allegations, as it must at this stage, and (ii) the existence of
single-integrated-enterprise liability under FLSA, Plaintiffs have plausibly
alleged the existence of a single integrated enterprise in this case. “In the FLSA
context, facts that go to the existence of a single, integrated enterprise include
common decor, name, menu and marketing; the use of the same employees at
multiple locations; the transfer of items between restaurants; use of the same
central payroll office, common storage space and leases; and the distribution of
common employee guidelines and procedures across different businesses.”
Khereed v. W. 12th St. Rest. Grp. LLC, No. 15 Civ. 1363 (PKC), 2016 WL
590233, at *4 (S.D.N.Y. Feb. 11, 2016) (collecting cases). Here, Plaintiffs have
alleged facts that the Restaurants had similar names, a common theme, and
similar menus. Plaintiffs alleged that they personally transferred items
between the Restaurants, and that the Restaurants were commonly owned and
operated by Cappitta. Two of the Restaurants shared a website.
Certainly, Plaintiffs could have been more specific in their allegations,
and the Court wishes that they had been. But “although Plaintiffs could have
included more detail in their amended complaint, they have put forward more
than ‘mere boilerplate allegations’” of the existence of a joint integrated
enterprise. Li, 2016 WL 1271068, at *6 (quoting Bravo, 2013 WL 5549495, at
*7); see also Juarez, 29 F. Supp. 3d at 367 (“Stripping away its various
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conclusory (or arguably conclusory) statements, the Amended Complaint still
contains well-pleaded factual allegations [of a single integrated enterprise.]”).
3.

The Moving Defendants’ Motion to Dismiss Plaintiffs’ Claims
Against Daniele Fiori Is Denied

With regard to Daniele Fiori, the Court finds at this stage that Plaintiffs
have plausibly pleaded that Fiori was their employer. Specifically, Plaintiffs
have alleged that Fiori had and “exercised the power and authority to (i) fire
and hire, (ii) determine rate and method of pay, (iii) determine work schedules
and (iv) otherwise affect the quality of [Plaintiffs’] employment.” (Compl. ¶ 10).
While the Court might deem this alone little more than a conclusory allegation
tailored to the tests of employer control described above, the Court notes that
Plaintiffs have also pleaded that Fiori was “a manager at ‘Buchetta’ and directly
supervised Plaintiffs” in that capacity. (Id.).
Drawing all inferences in Plaintiffs’ favor as it must at this stage, the
Court finds that Plaintiffs have plausibly pleaded that Fiori had formal control
over them, such that he was Plaintiffs’ employer for purposes of the FLSA.
4.

Defendants’ Motion to Strike Is Denied

The Court is aware of the limits on its ability to consider materials
outside the pleadings when adjudicating a motion brought under Rule 12(b)(6).
See Goel v. Bunge, Ltd., 820 F.3d 554, 558-59 (2d Cir. 2016). Generally courts
may “not look beyond ‘facts stated on the face of the complaint, ... documents
appended to the complaint or incorporated in the complaint by reference,
and ... matters of which judicial notice may be taken.’” Id. at 559 (omissions in
original) (quoting Concord Assocs., L.P. v. Entm’t Props. Tr., 817 F.3d 46, 51 n.2
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(2d Cir. 2016)). Plaintiffs here urge the Court to consider the support leant to
Plaintiffs’ opposition by the Galvez Declaration, as well as by each Plaintiff’s
own Declaration (Dkt. #46, 47), but the Court declines to do so. The Court was
able to resolve Defendants’ motion without considering the Galvez Declaration
or either of Plaintiffs’ Declarations, which the Court agrees with Defendants are
outside the Court’s purview at this stage. Accordingly, Defendants’ motion to
strike the Galvez Declaration is denied as moot.
CONCLUSION
For the reasons outlined above, the Moving Defendants’ motion to
dismiss is GRANTED IN PART and DENIED IN PART. Defendants’ motion to
strike is DENIED as moot. The Clerk of Court is directed to terminate the
motions pending at Docket Entries #40 and #50. The remaining parties are
directed to provide the Court with a joint status letter and proposed case
management plan on or before June 28, 2017, so the Court may determine
how this case will proceed.
SO ORDERED.
Dated:

June 14, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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