The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:
Plaintiff Andrew Ellis ("Plaintiff") brought the instant action against defendants Commonwealth Worldwide Chauffeured Transportation of NY, LLC ("Commonwealth") and Scott Rutter ("Rutter," collectively with Commonwealth, "Defendants"), seeking to recover damages under the Fair Labor Standards Act ("FLSA"), the New York Minimum Wage Act, and under claims of unjust enrichment and breach of contract. Defendants and Plaintiff cross-moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Plaintiff purports to make a motion to strike certain affirmative defenses and affidavits submitted by Defendants. For the reasons set forth below, Defendants' motion is granted and Plaintiff's motions are denied.
Commonwealth is "in the business of providing chauffeured transportation services for compensation." (Defs.' Statement of Material Facts Not in Dispute, Dkt. Entry 28 ("Defs.' 56.1 Statement") ¶ 1; Pl's. Resp. to Defs.' Statement of Facts, Dkt. Entry 32 ("Pl's. 56.1 Resp.") ¶ 1.) Commonwealth runs its business out of a garage in Queens, New York. (Pl's. Statement of Undisputed Material Facts, Dkt. Entry 31 ("Pl's. 56.1 Statement") ¶ 3; Defs.' Resp. to Pl's. Statement of Undisputed Material Facts, Dkt. Entry 37 ("Defs.' 56.1 Resp.") ¶ 31.)
Rutter is currently the Executive Vice President and partial owner of Commonwealth. (Defs.' 56.1 Statement ¶ 2; Pl's. 56.1 Resp. ¶ 2; Pl's. 56.1 Statement ¶ 54; Defs.' 56.1 Resp. ¶ 54.) Rutter hired Plaintiff to work at Commonwealth, though there is a dispute as to whether Rutter fired Plaintiff or whether Rutter still had hiring and firing authority by 2009, when Plaintiff was discharged. (Pl's. 56.1 Statement ¶ 55; Defs.' 56.1 Resp. ¶ 55; Defs.' 56.1 Statement ¶ 24; Pl's. 56.1 Resp. ¶ 24.)
Plaintiff worked for Commonwealth as a chauffeur from July 2004 to June 24, 2009. (Pl's. 56.1 Statement ¶ 1; Defs.' 56.1 Resp. ¶ 1.) He never had a written employment agreement while working for Commonwealth. (Defs.' 56.1 Statement ¶ 31; Pl's. 56.1 Resp. ¶ 31.)
II. Plaintiff's Compensation
While employed by Commonwealth, Plaintiff's base rate of pay was $8 per hour. (Compl. ¶ 26; Answer ¶ 26.) On occasion, Plaintiff worked more than ten hours per day. (Pl's. 56.1 Statement ¶ 34; Defs.' 56.1 Resp. ¶ 34.) When Plaintiff worked more than 40 hours in a given week, Commonwealth paid Plaintiff overtime at $12 per hour, which was time and a half of Plaintiff's usual $8 hourly rate. (Pl's. 56.1 Statement ¶ 35; Defs.' 56.1 Resp. ¶ 35.) Any tips Plaintiff received were not included in calculating his overtime pay. (Defs.' 56.1 Statement ¶ 37; Pl's. 56.1 Resp. ¶ 37.)
Commonwealth's clients, which included both individuals and businesses, received invoices on which appeared an amount for the fare and an amount for a "Recommended Tip," calculated at 20% of the fare. (Pl's. 56.1 Statement ¶ 13; Defs.' 56.1 Resp. ¶ 13; Aff. of Scott Rutter, dated Apr. 8, 2011, Dkt. Entry 26-8 ("Rutter Aff.") Ex. C.) The invoice had an asterisk next to the Recommended Tip amount referencing a footnote stating "[t]he actual amount of tip is in the discretion of the customer; any tip received will be remitted in full to the chauffeur." (Rutter Aff. Ex. C.) Sometimes, passengers also gave cash tips directly to the driver in addition to any Recommended Tip that the client ultimately paid. (Pl's. 56.1 Statement ¶ 29; Defs.' 56.1 Resp. ¶ 29.)
According to Rutter, when a client paid its invoice, whatever amount the client paid as the Recommended Tip (whether or not it was 20%) was given to Plaintiff in his subsequent paycheck in addition to the regular $8 per hour wage and any overtime pay. (Pl's. 56.1 Statement Ex. D, ("Rutter Dep.") 74:24-75:3.) Rutter testified at a deposition that, when a client had not paid its invoice for a particular ride before the end of the pay period during which the ride occurred, Commonwealth would pay Plaintiff the Recommended Tip at 20% of the fare anyway, but, if the client ultimately paid more than the recommended 20%, Commonwealth would add that additional amount to Plaintiff's subsequent paycheck. (Id. 106:3-107:2.) However, if the client ultimately did not pay its invoice, Commonwealth would not claw back the 20% recommended tip it had already paid to Plaintiff. (Id. 75:9-20.)
III. Commonwealth's Meal Break Policy
In February 2009, Commonwealth implemented a new meal break policy for its chauffeurs. Under this policy, Commonwealth automatically deducted 30 minutes for an unpaid "meal break" for all chauffeurs, including Plaintiff, when they worked six or more consecutive hours in a day. (Defs.' 56.1 Statement ¶ 41; Pl's. 56.1 Resp. ¶ 41.) Prior to implementing this policy, Commonwealth held meetings with its chauffeurs to explain and discuss the new policy. (Defs.' 56.1 Statement ¶ 44; Pl's. 56.1 Resp. ¶ 44.) There was a question and answer session before the end of the meeting to ensure that each driver understood the new policy. (Defs.' 56.1 Statement ¶ 46; Pl's. 56.1 Resp. ¶ 46.)
During the meeting, Commonwealth gave Plaintiff and the other chauffeurs a written copy of its "Break, Meals and Start Time Policy." (Defs.' 56.1 Statement ¶ 47; Pl's. 56.1 Resp. ¶ 47.) Plaintiff reviewed, signed and returned the policy at the end of the meeting. (Defs.' 56.1 Statement ¶ 47; Pl's. 56.1 Resp. ¶ 47; Rutter Aff. Ex. B.) The written policy that Plaintiff signed provided, among other things, that Plaintiff was entitled to take two fifteen-minute paid breaks during every six hours of work time plus one thirty-minute unpaid lunch break for every six hours of work time. (Rutter Aff. Ex. B. 430.) The policy explained that it was up to the chauffeurs to take their breaks when the opportunity presented itself. (Id.) The policy also instructed employees to "[p]lease tell your supervisor if you do not believe you had the opportunity for a full meal break in any given day." (Id. at 431.) When employees informed Commonwealth that they were unable to take a lunch break, it was Commonwealth's policy not to deduct for the unpaid 30 minute meal break that day. (Defs.' 56.1 Statement ¶ 54; Pl's. 56.1 Resp. ¶ 54.) However, between the policy taking effect and the end of Plaintiff's employment with Commonwealth, Plaintiff never informed Commonwealth that he was unable to take a meal break. (Defs.' 56.1 Statement ¶ 51; Pl's. 56.1 Resp. ¶ 51.)
Plaintiff brought this action alleging that Defendants violated the FLSA by: (i) not including the Recommended Tip as part of Plaintiff's regular wage for the purpose of calculating his overtime rate; and (ii) automatically deducting meal breaks from Plaintiff's pay. (See Pl's. Mem. of Law in Support of His Mot. for Summ. J. and in Opp'n to Defs.' Mot. for Summ. J., Dkt. Entry 30 ("Pl's. Mem.") 11-17, 20-23.)*fn1 Plaintiff also alleges that Defendants violated New York's "spread of hours" law by not compensating Plaintiff for an extra hour of pay at minimum wage for every day he worked more than 10 hours. (Id. 18-20.) Finally, Plaintiff brings claims for unjust enrichment and breach of contract, apparently under the same theories as his FLSA and New York statutory claims. (Compl. ¶¶ 68-75.)
Defendants seek summary judgment, contending there is no genuine issue of fact that: (i) Defendants are exempt from paying overtime under the "taxicab exemption" and the "motor carrier exemption" of the FLSA's overtime requirements, See 29 U.S.C. § 213(b); (ii) even if no exemptions apply, Plaintiff's overtime wages were calculated properly under the FLSA; (iii) Plaintiff is not entitled to "spread of hours" pay under New York law; (iv) Commonwealth's automatic meal break deductions were proper; (v) Defendants were not unjustly enriched at Plaintiff's expense and did not breach any contract with Plaintiff; (vi) Rutter is not an "employer" under 29 U.S.C. § 203(d) and, therefore, cannot be held individually liable; and (vii) any labor law violations by Defendants were not willful.*fn2 (See Defs.' Mem. of Law in Supp. of their Mot. for Summ. J., Dkt. Entry 27 ("Defs' Mem.").)
Plaintiff cross-moved for summary judgment on his overtime claims, arguing that whether the taxicab or motor carrier exemption applies is purely a matter of law for the court to decide and, in any event, Defendants waived this defense by not raising it in their Answer. (Pl's. Mem. 2-11.) In addition, Plaintiff purports to move to strike factual affidavits submitted by Defendants in support of their summary judgment motion and to strike Defendants' taxicab and motor carrier affirmative defenses. (See Pl's. Mot. for Summ. J., Dkt. Entry 29.) This request is summarily denied requiring no further explanation than that set forth in Note 3 below.*fn3
Plaintiff also opposes Defendants' motion for summary judgment, arguing that there are genuine issues of material fact as to whether: (i) Defendants violated state and federal labor laws; (ii) Defendants' violations were willful; and (iii) Rutter is an ...