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.

Franco v. Ideal Mortgage Bankers

November 3, 2009

BIENVENIDO FRANCO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
IDEAL MORTGAGE BANKERS, LTD, D/B/A LEND AMERICA, INC., MICHAEL ASHLEY, TIMOTHY MAYETTE, HELENE DECILLIS, MICHAEL PRIMEAU, DEFENDANTS.
WILLIAM FRASER AND BRIAN MCCABE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
IDEAL MORTGAGE BANKERS, LTD, D/B/A LEND AMERICA, INC., MICHAEL ASHLEY, TIMOTHY MAYETTE, HELENE DECILLIS, MICHAEL PRIMEAU, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

Pending before the Court is Defendants' appeal of Magistrate Judge A. Kathleen Tomlinson's September 29, 2009 Order granting Plaintiffs' motion to amend and motion to consolidate (the "September 2009 Order"). For the reasons stated below, the Court dismisses Defendants' appeal and affirms Judge Tomlinson's Order.

BACKGROUND

Plaintiff Bienvenido Franco filed a Complaint on September 21, 2007 on behalf of himself and other similarly situated plaintiffs. The Complaint alleges that Defendant Ideal Mortgage Bankers, Ltd., d/b/a Lend America ("Ideal Mortgage"), violated the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., by failing to pay certain loan officers minimum wage and overtime pay.

On March 4, 2008, Plaintiffs filed a motion to amend the Complaint to (1) correct Defendant's corporate name, (2) add claims under the New York State Labor Law, and (3) add Timothy Mayette, Chief Financial Officer; Helene DeCillis, Chief Operation Officer; Michael Primeau, President and Chief Executive Officer; and Michael Ashley, Vice-President and Chief Strategist, as individual defendants.

On July 10, 2009, the parties entered into a Stipulation (the "Stipulation") wherein Ideal Mortgage agreed to provide Plaintiffs' counsel with the names, dates of employments, and addresses of all loan officers since September 21, 2004, Plaintiffs agreed to withdraw their motion to amend, and the parties agreed that Plaintiffs would file an Amended Complaint containing Defendant's correct name. Additionally, the parties agreed to conditionally certify the case as a Section 216(b) collective action and allow Plaintiffs to distribute notice to potential collective action members. This Court "so ordered" the stipulation on August 13, 2009.

On February 19, 2009, Plaintiffs again filed a motion to amend to add the same four defendants named in Plaintiffs' earlier motion to amend. Plaintiffs' second motion to amend did not seek to assert claims under the New York Labor Law. Thereafter, on April 14, 2009, Plaintiffs filed a motion to consolidate this action with Fraser, et al. v. Ideal Mortgage Bankers, Ltd. et al., No. 09-CV-0664 (JFB)(AKT). Filed on February 17, 2009, the Fraser case asserts similar claims under the FLSA against Defendant Ideal Mortgage but also asserts claims against the individually-named Defendants and alleges claims under various New York state statutes, including the New York Labor Law. This Court referred both the motion to amend and motion to consolidate to Judge Tomlinson for a ruling.*fn1

In her September 2009 Order, Judge Tomlinson found that Plaintiffs should be permitted to amend their Complaint to add the four individually-named Defendants. Specifically, Judge Tomlinson found amendment would not cause undue delay or prejudice because Plaintiffs would depose the four executives regardless of whether they are named as defendants, Ideal Mortgage would not need to defend against claims based on new legal theories, and neither depositions nor expert discovery had begun. Additionally, Judge Tomlinson granted Plaintiffs' motion to consolidate after finding that the interest in judicial efficiency outweighed any prejudice that might result from consolidation.

Ideal Mortgage now appeals; according to Ideal Mortgage, Judge Tomlinson's September 2009 Order is clearly erroneous in determining that consolidation would promote judicial efficiency and is contrary to law because it relies on representations regarding confidential settlement negotiations and overturns an Order by this Court. The Court disagrees.

DISCUSSION

I. Standard of Review

The Court may set aside a Magistrate's order concerning non-dispositive matters only if the order is "clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a). An order is "clearly erroneous only when the reviewing court[, based] on the entire evidence[,] is left with the definite and firm conviction that a mistake has been committed." E.E.O.C. v. First Wireless, Inc., 225 F.R.D. 404, 405 (E.D.N.Y. 2004) (quoting Weiss v. La Suisse, 161 F. Supp. 2d 305, 320-21 (S.D.N.Y. 2001)) (alteration in original). An order is "contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure." First Wireless, 225 F.R.D. at 405.

II. Magistrate Judge Tomlinson's Order is Not Clearly Erroneous

A. Judge Tomlinson's Order did not rely on Representations Regarding the Parties' ...


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.