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Gonzalez v. El Acajutla Restaurant Inc.

March 20, 2007

FERMIN GONZALEZ, ET AL., PLAINTIFFS,
v.
EL ACAJUTLA RESTAURANT INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Orenstein, Magistrate Judge

MEMORANDUM AND ORDER

Plaintiffs Fermin Gonzalez ("Gonzalez"), William Ochoa ("Ochoa"), and Maria Orbelicia Melgar ("Melgar") accuse defendants Freddy and Rosa Bonilla (the "Bonillas") and several commercial entities with which they are associated -- specifically, El Acajutla Restaurant Inc. (the "Restaurant"), El Campesino Deli-Grocery, Inc. (the "Deli"), and Caleb's Coin Laundromat (the "Laundromat") -- of violating of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA") and the corresponding New York State laws, as well as Section 1985 of Title 42, United States Code ("Section 1985"). The plaintiffs allege that they were denied minimum wages and appropriate overtime payments, that they were subjected to retaliation for protesting against such treatment, and that the defendants conspired to violate their civil rights. With the parties' consent, the case was referred to me for all purposes pursuant to 28 U.S.C. § 636(c)(1).

The defendants now seek partial summary judgment in their favor on all of the plaintiffs' federal law claims, and further argue -- although they have not formally sought such relief in their notice of motion -- that I should decline to exercise supplemental jurisdiction over the remaining law claims. For the reasons set forth below, I grant the motion for summary judgment as to Ochoa's FLSA claims as well as the state and federal retaliation claims raised by Gonzalez and Ochoa; in all other respects I deny the defendants' requests for relief.

I. Background

The plaintiffs commenced this action on April 13, 2004. See Docket Entry ("DE") 1.*fn1

The defendants moved for dismissal on November 16, 2004, DE 16, and the plaintiffs subsequently filed a response in opposition and a cross-motion seeking permission to amend their complaint. DE 17; DE 19. On March 25, 2005, the Honorable Leonard Wexler, United States District Judge (to whom the case was then assigned), denied the defendants' motion to dismiss and granted the plaintiffs' motion to amend their complaint. DE 24. The plaintiffs filed a Second Amended Complaint -- the pleading now before the court -- on May 6, 2005, and the defendants filed an answer, along with a counterclaim against plaintiff Ochoa, on June 15, 2005. See DE 28 ("Complaint"); DE 34 (Answer and Counterclaim).

Following the resolution of a number of discovery disputes, the parties consented to have the case referred to a magistrate judge for all purposes including the entry of judgment, and Judge Wexler referred it to me. DE 61. With the parties' consent and input as to deadlines, I ordered the following briefing schedule for the motion now before me:

Defendants shall serve their motion for summary judgment on plaintiffs by March 13, 2006. Plaintiffs shall serve their opposition papers on defendants by March 27, 2006. Defendants shall serve their reply papers on plaintiffs by April 3, 2006. Defendants shall then file all papers with the court electronically ... on April 3, 2006.

Order dated February 21, 2006. The parties, however, did not follow my instructions, and on April 2, 2006, the defendants filed only their motion for summary judgment on the docket. See DE 66 (consisting of the defendants' Notice of Motion ("Notice"); the Affirmation of Attorney Delvis Meléndez; and a Memorandum of Law ("DM")).*fn2

The plaintiffs filed no timely response to the motion. In early January of 2007, my law clerk, unable to find any response to the motion, telephoned the plaintiffs' counsel looking for a copy. Counsel assured him that a response had been filed and would submit a copy. Over the next several days, that story changed: first to an assertion that the response, although written, may not have been filed by the junior attorney who had been assigned the task (and who had left the office of plaintiffs' counsel in October 2006); and then to an assertion that the response had never actually been written but that counsel would soon file a letter reconstructing what the departed attorney had been expected to write and file. Some (but not all) of the plaintiffs' counsel's evolving story is set forth in a letter he submitted, after several unproductive telephone calls from my chambers to his office, on January 12, 2007. DE 67. Because the plaintiffs' response was so long overdue, and because the plaintiffs' attorney had done nothing for many months to assure that his clients' interests were protected, but had instead taken belated and insufficient steps in that regard only after significant prompting from me, I entered an order advising that I would resolve the motion for summary judgment solely on the basis of the defendants' submissions. Order dated January 12, 2007. Counsel for the plaintiffs filed a letter motion for reconsideration of the latter order that included, as an attachment, a three-page letter-brief that counsel wished me to consider in opposition to the motion for summary judgment. DE 68. Because the motion for reconsideration was supported by no showing that would warrant such relief, I denied it. Order dated January 18, 2007. I therefore proceed to consider the defendants' motion solely on the basis of the defendants' submissions in support of it.

II. Discussion

A. The Applicable Law

1. The Standard For Granting Summary Judgment

"Under Rule 56(c), summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In determining whether to grant summary judgment, a court is confined to issue-finding, not issue resolution. Rasmussen v. Sigma Corp. of Am., 27 F. Supp.2d 388, 391 (E.D.N.Y. 1998) (citations omitted). The court does not "weigh the evidence and resolve ... factual issues" but rather "determine[s] as a threshold matter whether there are genuine unresolved issues of material fact to be tried." Owens v. New York City Hous. Auth., 934 F.2d 405, 408 (2d Cir. 1991) (quoting Gibson v. Am. Broadcasting Cos., 892 F.2d 1128, 1132 (2d Cir. 1989)); see also Fed. R. Civ. P. 56(c). A fact is material if it "'might affect the outcome of the suit under the governing law.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue is presented if "'the evidence is such that a reasonable jury could return a verdict for the non[-]moving party.'" Id. In assessing theevidence, "[a]ll factual inferences are to be resolved in favor of the non-movant." Transco Prods., Inc. v. Performance Contracting, Inc., 38 F.3d 551, 555 (Fed. Cir. 1994).

2. Procedural Requirements

Local Civil Rule 56.1 Local Civil Rule 56.1 of the United States District Courts for the Southern and Eastern Districts of New York provides as follows:

Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.

Loc. Civ. R. 56.1(a) (emphasis added). As the plain language of the rule makes clear, a movant's failure to file a Rule 56.1 statement alone constitutes a sufficient ground for denying the motion in its entirety. See, e.g., Martinez v. Headley, 2001 WL 483448, at *1 (E.D.N.Y. Jan. 18, 2001) (denying without prejudice to renewal defendant's motion for summary judgment for failure to comply with Local Civil Rule 56.1) (citing Grant v. City of New York, 1992 WL 77562, at *4 (S.D.N.Y. Mar. 25, 1992); Gear, Inc. v. L.A. Gear California, Inc., 637 F. Supp. 1323, 1333 (S.D.N.Y. 1986)).

The defendants have not submitted a Rule 56.1 statement in support of their motion. While that lapse would permit me to deny relief on that basis alone, it does not compel me to do so: "A district court has broad discretion to determine whether to overlook a failure to comply with local court rules." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citations omitted). I exercise my discretion in this instance to address the motion on the merits. See, e.g., Ostroski v. Town of Southold, 443 F. Supp.2d 325, 332-33 (E.D.N.Y. 2006) (declining to deny the defendants' summary judgment motion based on the absence of a Rule 56.1 statement because "the relevant facts were readily apparent" from the defendants' memorandum of law) (citing Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 155 n.2 (2d Cir. 2003)).

The absence of any timely response from the plaintiffs does not create a corresponding basis for the exercise of discretion. To be sure, the local rules of this court generally provide that a party's willful failure to comply with the requirement of submitting a memorandum of law in opposition to a motion "may be deemed sufficient cause for ... the granting of [the] motion by default." Loc. Civ. R. 7.1. That local rule, however, does not trump the Federal Rules of Civil Procedure, and therefore has no application where a plaintiff fails to submit a memorandum of law in opposition to a motion for summary judgment. That circumstance is governed by a rule that allows the entry of summary judgment only "if appropriate[.]" Fed. R. Civ. P. 56(e); see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) ("where the non-moving party chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial") (citing Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)) (internal quotation marks omitted); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001) (in deciding a summary judgment motion, a court may "in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file" a Rule 56.1 statement) (internal quotation marks omitted); David v. Comtech PST Corp., 2006 WL 2713936, *12 (E.D.N.Y. Sept. 22, 2006) (if the court is aware of a basis for determining that the record would permit a material finding of fact in the non-moving party's favor, the law does not require the court to ignore it simply because the non-moving party has not been the one to identify it).

I therefore proceed to examine the substance of the defendants' arguments in favor of summary judgment on the plaintiffs' various claims. As explained below, most of the defendants' legal arguments are fatally flawed, while others rest improperly, if tacitly, on the ...


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