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Zebzda v. Tenavision


March 31, 2008


The opinion of the court was delivered by: Douglas F. Eaton, United States Magistrate Judge.

This is an ECF case


On August 27, 2007, the five named Defendants filed a dismissal motion. On October 3, 2007, Plaintiffs filed opposing papers. In their effort to state a claim under federal law, Plaintiffs make two arguments.

First. At Document 27, pages 22-25, Plaintiffs request me to decline to follow the holding in Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir. 2003). I deny that request. The state courts are not bound to follow Grochowski. Indeed, in May 2007, two panels of the First Department came to opposite conclusions about the wisdom of Grochowski, and the New York Court of Appeals has decided to hear argument on that issue.

Whatever the high court of New York may decide, I am bound to follow Grochowski. On the other hand, one week after the close of the briefing to me, Judge Cogan issued Sobczak v. AWL Industries, Inc., 2007 WL 4934239 (E.D.N.Y. Oct. 22, 2007). He pointed out that Grochowski noted that its contracts were "federally funded and, as such, are governed by the prevailing wage requirements set forth in the [Davis Bacon Act], not by §220 of the New York Labor Law." 318 F.3d at 86 (emphasis added by me). Judge Cogan opined that "to the extent that plaintiffs' claims arise under state funded contracts, to which state prevailing wage standards apply, Grochowski has no application." 2007 WL 4934239, at *5 (emphasis added by me). He ruled that, if a plaintiff can prove his entitlement to a particular prevailing wage under state law, then that base wage would be "a predicate for an FLSA recovery" of 1 1/2 times that base wage as to any hours worked overtime. Ibid. By order filed November 26, 2007, Judge Cogan acknowledged that his October 22 decision "recognizes a theory of recovery under the FLSA that has never been advanced in any reported decision," and he certified his decision for interlocutory appeal, but on February 20, 2008 the Second Circuit ruled that an immedlatr appeal was unwarranted. See E.D.N.Y. Docket 07 Civ. 1226, Documents 48 and 49.

Second. Plaintiffs ask me to grant leave to file 3 Second Amended Complaint. They do not say what amendments they prgpose to make.

On the present reccrd, Plaintiffs have failed to make a sufficient statement of a c l a i m arising under federal la w . I hereby grant Defendants' motion (Document 17) for dismissal of the Amended Complaint. Plaintiffs are free to refile their lawsuit in state court. Alternatively, they - can attempt tc state a claim under Judqe Cogan's theory; if so , then Defendants will be fres to attack that theory ln a new dismissal motion.

In view of Judge Cogan's decision, I hereby grant Plaintiffs leave to file a Second Amended Complaint, no later than April 3 0 , 2008. Its federal claims shall be limited to claims under the Fair Labor standards Act. Such claims shall be further limited tg elairns about overtlme pay by any cf the Plaintiffs who submlts a detailed affidavit specifying any week durlng which he worked for Tenavision, Inc. f o r rnore than 40 hours in conllection with a contract which was not federally funded. If any of the Plaintiffs wants to file an amended complaint that goes beyond these limits, then he must first file a formal motion for leave.


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