The opinion of the court was delivered by: Ramon E. Reyes, Jr., U.S.M.J.
Plaintiff Siew Lian Rivera ("plaintiff"or "Rivera") brought this action alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 216(b) ("FLSA"), New York Labor Law, Articles 6 and 19 ("Labor Law"), New York State Human Rights Law, Executive Law §§ 290 et seq. ("Human Rights Law"), and the Administrative Code of the City of New York §§ 8-101 et seq. ("Administrative Code"), as well as asserting the following common law claims: battery, intentional infliction of emotional distress, negligent retention and supervision of a supervisor, and negligent infliction of emotional distress.
Before this Court is Ndola Pharmacy Corp.'s ("Ndola Pharmacy"), Ndola Holding LLC's ("Ndola Holding"), Khandubhai Patel's ("K. Patel"), Natvar Patel's ("N. Patel"), Madhusudan Patel's ("M. Patel"), and Abdoul Hameed's ("Hameed") motion for partial summary judgment and to remand certain state law claims. Also before this Court is defendants Ndola Pharmacy's, Ndola Holding's, K. Patel's, and N. Patel's motion to amend the answer and, upon amendment, dismiss plaintiff's claims arising that arose prior to her discharge from bankruptcy, and to dismiss the complaint with respect to defendants Ndola Holding, K. Patel, and N. Patel. The parties have consented to have me decide these motions pursuant to 28 U.S.C. § 636(c)(1).
For the reasons set forth below, defendants' motion for partial summary judgment is denied and the motion to "remand" is granted in part and denied in part.*fn1 The motion to amend the answer and dismiss plaintiff's claims prior to her discharge from bankruptcy is granted in part and denied in part. The motion to dismiss the claims against defendants Ndola Holding, K. Patel, and N. Patel is granted in part and denied in part.
From 1999 until January 2006, plaintiff was employed by Ndola Pharmacy. Defs' 56.1 Stmt ¶ 1; Plaintiff's Response to Defendants' Rule 56.1 Statement of Undisputed Material Facts ("Pl's 56.1 Response") ¶ 1. Plaintiff was never employed by Ndola Holding, a limited liability company that was incorporated separately from Ndola Pharmacy and that files its taxes separately. Defs' 56.1 Stmt ¶¶ 3-5; Pl's 56.1 Response ¶¶ 3-5. Plaintiff's W-2 forms were issued solely by Ndola Pharmacy. Defs' 56.1 Stmt ¶ 6; Pl's 56.1 Response ¶ 6.
Plaintiff alleges that she regularly worked more than 40 hours a week during the entire period of her employment without receiving compensation for her overtime hours. Complaint ¶¶ 19-20. She alleges that at the time her employment ended, she made $500 a week. Id. ¶ 18. She further alleges that N. Patel increased her wages as a result of her agreement to accompany him to breakfast and lunch. Id. ¶ 25. According to plaintiff, N. Patel began sexually harassing her, in part during these meetings, by repeatedly attempting to have sex with her, hugging her against her will, and sending her gifts and cards. Complaint ¶¶ 26-31. Sometime in 2003, N. Patel discovered plaintiff had a boyfriend and discontinued his advances. Id. ¶ 32.
Plaintiff additionally alleges that Hameed made sexually suggestive statements to her, hugged her, and attempted to kiss her. Complaint ¶¶ 33-37. She alleges that when she rejected Hameed's advances, Hameed and another employee treated her with hostility and made false accusations to her employers in retaliation. Id. ¶¶ 38-40, 57, 68. Plaintiff also alleges M. Patel made sexually suggestive statements to her, touched her breast and butt, attempted to kiss her, and displayed his genitals to her. Id. ¶¶ 42-69. She alleges that N. Patel did not investigate any of the alleged incidents when she complained about the harassment, and that K. Patel threatened to fire her and prevented her from reporting the harassment to the police. Id. ¶¶ 51-56, 58, 68-71.
I. Relevant Legal Standards
A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Am. Int'l Group, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981). In addition, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If, however, the opposing party fails to make a showing of an essential element of its case for which it bears the burden of proof, summary judgment will be granted. Celotex, 477 U.S. at 323; Smith v. Half Hollow Hill Cent. Sch. Dist., 349 F. Supp. 2d 521, 524 (E.D.N.Y. 2004).
To overcome a motion for summary judgment, the opposing party must show that there is an issue of material fact in dispute. That is, the disputed fact must be one which "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 242. If the opposing party does not set forth specific facts showing that there is a genuine issue for trial, summary judgment is appropriate. FED. R. CIV. P. 56(c).
B. Motion to Dismiss for Lack of Subject Matter Jurisdiction
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); FED. R. CIV. P. 12(b)(1). When determining a motion to dismiss for lack of subject matter jurisdiction, "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000)); see also Mascoll v. Strumpf, No. 05-CV-667, 2006 WL 2795175, at *2-3 (E.D.N.Y. Sept. 26, 2006). The district court may also consider evidence outside of the pleadings. Makarova, 201 F.3d at 113. Plaintiff bears the burden of proving that subject matter exists by a preponderance of the evidence. Id.; see also Mascoll, 2006 WL 2795175, at *3.
C. Supplemental Jurisdiction
Plaintiff alleges this court has jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367. Complaint ¶ 4. "Supplemental jurisdiction allows federal courts to hear and decide state-law claims along with federal-law claims when they are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 387 (1998) (citation and internal quotation marks omitted); 28 U.S.C. § 1367(a). Claims are part ...