The opinion of the court was delivered by: DENISE COTE, District Judge
Defendants American Motorist Insurance, Co., ("AMIC") and FOWAD
Trading Co, Inc. ("FOWAD") have filed motions for judgment on the
pleadings pursuant to Rule 12(c), Fed.R.Civ.P. For the reasons
set forth below, AMIC's motion is granted and FOWAD's motion is
granted in part. Background
On September 30, 2003, pro se plaintiff Mohamed Ali Abdrabo
("Abdrabo") filed a complaint against the New York State Workers'
Compensation Board ("WCB"), FOWAD, and AMIC. On December 12,
defendant WCB filed a motion to dismiss the claims filed against
it on the grounds that the WCB was immune from suit in federal
court under the Eleventh Amendment and that plaintiff failed to
state a claim against it. At an initial conference on January 22,
2004, WCB's motion to dismiss was granted. On February 24, both
AMIC and FOWAD filed motions for judgment on the
Abdrabo's complaint states that he was employed as a security
guard by FOWAD at its store located at 2554 Broadway, New York,
New York, during the period January 1, 1992 through December 21,
1998. In April 1994, Abdrabo developed a left inguinal scrotal
hernia while lifting a heavy box at work. Plaintiff immediately
notified FOWAD of his injury. After the hernia became enlarged in
1995, plaintiff went to Roosevelt Hospital and his injury was
diagnosed. Plaintiff continued to work at FOWAD until December
21, 1998, at which time he went to Roosevelt Hospital and was
referred to a specialist for surgery.
After FOWAD refused to execute the necessary documentation for
payment of plaintiff's surgery, plaintiff consulted an attorney
and filed a worker's compensation claim with the WCB in or around January 1999. In this claim, AMIC was identified as the
workers' compensation carrier for FOWAD. Plaintiff was
hospitalized due to a strangulation of his hernia from July 29 to
August 3, 1999.
In March 2000, a WCB judge found that plaintiff's worker's
compensation claim was untimely filed. Plaintiff again consulted
with his lawyer and decided to appeal WCB's decision. Abdrabo's
attorney, however, filed an untimely appeal, 75 days after the
WCB decision, rather than within the thirty day appeal period.
The WCB's three member Appeals Board denied the appeal as
Plaintiff made several efforts to re-open his case with the
WCB, contending that his injury was a repetitive trauma which
developed over the course of his employment and thus was not
time-barred. On April 24, 2002, the WCB issued an Amended
Memorandum of Decision which upheld the earlier denial of
plaintiff's worker's compensation claim as untimely and provided
a detailed explanation of the basis for the ruling.
Abdrabo has also brought at least six actions, each for no more
than $3,000.00, for non-payment of wages and benefits in New York
County Civil Court Small Claims Part.*fn2 The first claim,
Index No. 1442/2001, was for FOWAD's alleged deduction of
Abdrabo's salary when he took lunch breaks. This action resulted
in a stipulation of settlement between the parties on April 17, 2001, wherein FOWAD paid Abdrabo $1,500.00.
The second claim, Index No. 4301/2001, was for instances in
which the defendant allegedly deducted money from Abdrabo's pay
for the purposes of paying Abdrabo's income tax. This action
resulted in a default judgment against FOWAD for $3,712.50 issued
on August 29, 2001.
The third claim, Index No. 5863/2001,*fn3 was for pay that
FOWAD owed Abdrabo for days in which Abdrabo was told not to come
into work because of inclement weather. This action resulted in a
default judgment against FOWAD for $3,825.00 issued on February
The resolution of the remaining three claims is not clear from
the parties' submissions. The fourth claim, Index No. 1249/2002,
sought the remaining damages of the first claim on the ground
that Abdrabo had been tricked into settling the first claim for
less than the full amount of the claim. The fifth claim, Index
No. 1692/2002, was for failure to pay Abdrabo a promised bonus.
The sixth claim, Index No. 2533/2002, was for money Mr. Fouad
Mohamed Al Eshmawi ("Al Eshmawi"), the alleged owner and manager
of FOWAD, took out of Abdrabo's salary in order to make a
contribution to Al Eshmawi's mosque.
FOWAD eventually moved to vacate an unspecified number of the
default judgments entered against it in New York County Court. In
a September 17, 2002 Decision/Order ("Decision/Order") relating to Index No. 5863/2001, the New York County Court
apparently consolidated several of Abdrabo's other claims and
vacated certain of the default judgments. The parties'
submissions do not describe precisely which of Abdrabo's claims
the New York County Court consolidated and which default
judgments were vacated. The only document submitted to this Court
relating to claims adjudicated by the Decision/Order was an
incomplete copy of the one-page, handwritten decision.*fn4
The Decision/Order, however, dismissed with prejudice Abdrabo's
claim(s) stating that his claims for unpaid benefits or wages
arising out his employment with FOWAD were "settled or are
barred." There is no evidence of any appeal from that ruling.
Allegations against Fowad and AMIC
Abdrabo's complaint lists five causes of action against the
three named defendants. The complaint centers on the alleged
wrongdoing on the part of the WCB and Abdrabo's lawyer in the
proceedings before the WCB. With respect to AMIC, Abdrabo claims
that it conspired with the WCB to deny him compensation. Abdrabo
also seems to allege that AMIC was obligated to provide him with
temporary compensatory benefits after he filed his claim with the
WCB regardless of whether the WCB ultimately awarded him damages.
Lastly, Abdrabo claims that AMIC is jointly liable for the
damages he seeks against all parties. With respect to FOWAD, Abdrabo's claims can be characterized as
a failure to pay wages and benefits. More specifically, Abdrabo
contends that FOWAD, through the actions of its owner and
manager, Al Eshmawi, violated the Fair Labor Standards Act
("FLSA")*fn5 by forcing him to work seven days a week, ten
hours a day, with no allotment of sick or vacation days, and that
FOWAD failed to pay Abdrabo his agreed upon salary, and failed to
pay him the minimum wage and overtime. Abdrabo also contends that
FOWAD, through the actions of Al Eshmawi, promised to pay for his
hernia operation and actively encouraged him to ...