Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dziennik v. Sealift

August 30, 2006

SYLVESTER DZIENNIK, MIECZYSLAW KIERSZTYN, FERDYNAND KOBIEROWSKI, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
SEALIFT, INC., FORTUNE MARITIME, INC., SAGAMORE SHIPPING, INC., SEALIFT CHEMICALS, INC., VICTORY MARITIME, INC., SEALIFT TANKSHIPS, INC., REMINGTON SHIPPING, INC., WILSON SHIPPING, INC., DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

The named plaintiffs in this class action, each a citizen of Poland, worked as seafarers aboard U.S. flag vessels under the control of one or more of the defendants. Plaintiffs filed the instant class action on October 3, 2005, alleging breach of employment contract and the applicable collective bargaining agreement and violation of federal maritime law, specifically 46 U.S.C. §§ 10313 and 11107. Plaintiffs seek recovery of unpaid wages, overtime wages, and statutory penalties. Defendants have moved to dismiss plaintiffs' complaint under Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, defendants' motion to dismiss is granted as to the breach of the collective bargaining agreement claim but denied as to claims of breach of employment contract and violation of 46 U.S.C. §§ 10313 and 11107.

I. Facts

Plaintiffs Sylvester Dziennik, Mieczyslaw Kiersztyn, and Ferdinand Kobierowski (collectively, "plaintiffs" or "named plaintiffs") are Polish citizens who worked at various times aboard one or more seagoing vessels owned by one or more of the defendants. Plaintiffs' class action complaint purports to represent similarly situated foreign nationals employed, at any time since January 1, 1999, aboard vessels owned by the defendants.*fn1 Plaintiff Dziennik worked aboard the M/V ASCENSION (owned by Sagamore Shipping, Inc.) during 2000 and 2001 and aboard the S/S CLEVELAND (owned by Victory Maritime, Inc.) during 2000. Plaintiff Kiersztyn worked aboard the M/V ADVANTAGE (owned by Fortune Maritime, Inc.) during 2003. Plaintiff Kobierowski worked aboard the M/V ADVANTAGE during 2001 to 2004. Plaintiffs allege that defendant Sealift, Inc. is also the owner, manager, and operator of the M/V ASCENSION, S/S CLEVELAND, and M/V ADVANTAGE, as well as of other vessels named in the complaint that are owned by the other defendants in this action.*fn2

Plaintiffs assert three causes of action: (1) breach of "contracts of employment, including but not limited to Collective Bargaining Agreements between Defendants and/or its [sic] agents and the Seafarers International Union and the American Maritime Officers Union" for failure to pay "full wages due or otherwise owed"; (2) violation of 46 U.S.C. § 11107, through the engagement of seamen "contrary to a law of the United States"; and (3) violation of 46 U.S.C. § 10313(f) and (g) for "refusal and neglect to pay the seafarers their full balance of wages due [including overtime wages] without sufficient cause."*fn3 (Compl. ¶¶ 19--22.)

Though the complaint does not specify or describe the "contracts of employment" referred to therein, defendants have provided as exhibits various employment contracts, governed by Polish law, between the named plaintiffs and Sealift, Inc.

Also provided as an exhibit by defendants is a collective bargaining agreement, dated June 16, 1990 to June 15, 1993, between the American Maritime Association on behalf of itself and member companies (Sealift Bulkers, Inc. and Victory Maritime, Inc.) and the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (hereinafter the "CBA"). Defendants admit that the CBA currently covers Sealift, Inc. "and the related defendants," as the CBA has been extended through numerous memoranda of understanding. (Defs.' Mem. at 3.) Article II, Section 3 of the CBA provides that, "[f]or the adjustment of any grievance arising in connection with performance of this Agreement which cannot be satisfactorily adjusted on board the vessel[,] there shall be established a Port Committee at the port where Articles are terminated." (Defs.' Ex. 3 at 7.) Grievances are handled by the "Port Committee," or, if an agreement is not possible among Committee members, by an impartial arbitrator. The CBA states that:

[a]ll grievances must be submitted to the Union by the affected seaman within ninety (90) days from the earlier of the date the seaman leaves the vessel or the Ship's Articles are terminated. A failure to file a grievance within this time period shall preclude an assertion of this grievance or its subject matter at any later date in any forum. (Id.) Plaintiffs do not allege membership in the Seafarers International Union but rather allege that they are covered under the CBA as third-party beneficiaries.

II. Standard of Review

The court's role in deciding a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6) is simply to assess the legal feasibility of the plaintiff's claims rather than to weigh evidence that might eventually be offered at trial. E.g., AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir. 2003); Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). The court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in the plaintiff's favor. Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). In deciding the motion, the court may consider documents upon which the plaintiff relied when drafting the complaint, such as "documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, or . . . documents either in plaintiff['s] possession or of which plaintiff[] had knowledge and relied on in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Brass v. Am. Film Techs. Inc., 987 F.2d 142, 150 (2d Cir. 1993)). A motion to dismiss under 12(b)(6) must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45--46, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957).

III. Standing

Defendants argue that the named plaintiffs lack standing to assert claims against some of the defendants. As a threshold matter, "standing imports justiciability: whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III." Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed. 2d 343 (1975)). That the present case is a proposed class action "does not relax this jurisdictional requirement." Id. "To meet the Article III standing requirement, a plaintiff must have suffered an 'injury in fact' that is 'distinct and palpable'; the injury must be fairly traceable to the challenged action; and the injury must be likely redressable by a favorable decision." Denney, 443 F.3d at 263 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560--61, 112 S.Ct. 2130, 119 L.Ed. 2d 351 (1992); Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed. 2d 135 (1990)). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice . . . ." Lujan, 504 U.S. at 561. However, "[a] plaintiff, including one who is seeking to act as class representative, must have individual standing to assert the claims in the complaint against each defendant being sued by him." Ramos v. Patrician Equities Corp., 765 F. Supp. 1196, 1199 (S.D.N.Y. 1991) (collecting cases holding the same). "A plaintiff may not use the procedural device of a class action to bootstrap himself into standing he lacks under the express terms of the substantive law." Angel Music, Inc. v. ABC Sports, Inc., 112 F.R.D. 70, 74 (quoting Weiner v. Bank of King of Prussia, 358 F. Supp. 684, 705 (E.D. Pa. 1973)).

Named plaintiffs only allege having worked aboard vessels owned or operated in some capacity by four of the defendants: (1) Sealift, Inc., (2) Sagamore Shipping, Inc., (3) Victory Maritime, Inc., and (4) Fortune Maritime, Inc. As to the remaining four defendants-(1) Sealift Chemicals, Inc., (2) Sealift Tankships, Inc., (3) Remington Shipping, Inc., and (4) Wilson Shipping, Inc.-plaintiffs only allege that members of the putative class worked aboard vessels owned by these defendants. Thus, as there is no causal link between the named plaintiffs and any injury that might have been caused to others by these last four defendants, defendants Sealift ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.