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Dziennik v. Sealift

March 26, 2010

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., VICTORY MARITIME, INC., DEFENDANTS.
MIECZYSLAW KIERSTIN, PLAINTIFF,
v.
M/V ADVANTAGE DEFENDANTS.
JOSEF FELSKOWSKI, PLAINTIFF,
v.
SEALIFT, INC., SAGAMORE SHIPPING, INC., DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry United States District Judge

DORA L. IRIZARRY, United States District Judge

ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATIONS

On March 16, 2009, the Honorable Marilyn D. Go, United States Magistrate Judge, issued a Report and Recommendation on defendants' motion for summary judgment and to compel arbitration, and plaintiffs' motion for partial summary judgment (the "R & R"). Judge Go recommended that plaintiffs' motion for partial summary judgment be granted as to their claims under 46 U.S.C.§ 11107 and denied in all other respects. She further recommended that defendants' motions for summary judgment and to compel arbitration or to dismiss be denied. On April 13, 2009, defendants filed objections to the R & R, and, on April 23, 2009, plaintiffs filed a memorandum in support of the R & R and in opposition to defendants' objections.

By a joint letter dated January 21, 2010, the parties advised the court that they had agreed to mediate these cases privately with JAMS ADR before the Honorable John C. Lifton (Retired, U.S. District Court, District of New Jersey). The parties requested that the court withhold any rulings on the motions pending the outcome of the mediation. (See Docket Entry #117 under Dziennik v. Sealift, Inc., et al, 05-CV-4659 (DLI)(MDG)). By letter dated February 26, 2010, Judge Lifland advised the court that the mediation was unsuccessful. As such the court automatically reinstated the motions and the R & R.

After carefully reviewing the R & R, the recommendations concerning defendants' motion for summary judgment and to compel arbitration are adopted in part and rejected in part. Defendants' motion to compel arbitration as to the eight plaintiffs for whom defendants produced executed copies of the Philippines Overseas Employment Administration Standard Terms and Conditions is granted and denied as to the remaining plaintiffs. The court further grants defendants' motion for summary judgment as to the applicability of the double wage penalty statute, 46 U.S.C. § 10313, finding that plaintiffs are not entitled to double wage penalties for amounts recovered under 46 U.S.C. § 11107. The R & R is adopted in all other respects.

BACKGROUND

This memorandum assumes the parties' familiarity with these cases' factual background, procedural history, and R & R. In Dziennik v. Sealift, Inc., et al, 05-CV-4659 (DLI)(MDG), plaintiffs brought a class action against defendants Sealift, Inc. ("Sealift"), Fortune Maritime Inc. ("Fortune"), Sagamore Shipping Inc. ("Sagamore"), and Victory Maritime, Inc. ("Victory") (together, the "Sealift defendants"), alleging violations of federal maritime law, specifically under Sections 10313 and 11107 of the Seaman's Wage Act, 46 U.S.C.A. § 10301, et seq.*fn1 The class is composed of 209 seafaring employees, 113 of whom are Polish citizens and 96 of whom are Filipino citizens, employed on U.S. flag vessels owned, managed, or operated by one or more of the defendants at various times since January 1, 1999. Class plaintiffs seek recovery of unpaid wages, overtime wages, and statutory penalties.

In Felskowski v. Sealift, Inc., et al, 04-CV-1244 (DLI)(MDG), plaintiff Josef Felskowski brought an individual action against defendants Sealift and Sagamore seeking the same relief as the class action plaintiffs. Plaintiff Felkowski's motion for summary judgment was filed on June 21, 2005, briefed by the parties, and argued on April 24, 2007. After class certification was granted on May 29, 2007, this court consolidated Felkowski's individual action with the class action on the parties' consent. Since defendants Victory and Fortune were not parties to the Felkowski action, they had not had the opportunity to respond to the arguments set forth in Felkowski's motion for summary judgment. The motion was thus briefed and argued for a second time. All defendants also cross-moved for summary judgment on December 3, 2007.

Kierstin v. M/V Advantage, 06-CV-4659 (DLI)(MDG) is an in rem action brought by the parties to obtain security in the Dziennik action. As Kierstin and Dziennik involve common questions of law and fact, the two cases were consolidated on October 31, 2006 on the parties' consent.

DISCUSSION

In reviewing a magistrate judge's R & R, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Where a party objects to an R & R, the court must engage in de novo review of those portions of the report to which the party specifically objects. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

Defendants object to the magistrate judge's recommendation that their motion to compel arbitration be denied, arguing that the magistrate judge erred in rejecting their claim that the employment agreements of the Filipino plaintiffs must be arbitrated in the Philippines under Philippine law. They also argue that the magistrate judge erred in finding that issues of fact precluded summary judgment on whether penalty wages should be awarded pursuant to 46 U.S.C. § 10313, the double wage penalty statute. They further object on grounds that the magistrate judge included incorrect statements of fact and law in her analysis concerning laches. Finally, defendants rely on their summary judgment papers and their 56.1 submissions previously submitted in the Felskowski and Dziennik actions with respect to "each and every finding that is adverse to them in the R & R," including the magistrate judge's rulings that:

1. Signed shipping articles were required by each plaintiff and defendants and that substantial compliance with the articles provision of 46 U.S.C. § was insufficient;

2. The individual contracts between each plaintiff and defendants failed to contain the necessary terms of or substantially comply with 46 U.S.C. § 10302;

3. 46 U.S.C. § 8103(b) and § 8701 apply to unlicensed seaman who are not part of the crew complement under 46 U.S.C. § 8101;

4. 46 U.S.C. § 8103(b) applies to plaintiffs as riding gang members;

5. 46 U.S.C. § 8701 apply to plaintiffs as riding gang members;

6. Plaintiffs, as riding gang members, were not required to sign articles under ...


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