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Flores v. Mamma Lombardis of Holbrook, Inc.

United States District Court, E.D. New York

April 15, 2013

ELMER FLORES, JOSE GONZALEZ RODRIGUEZ, RAMON BENITEZ, JAMIE VELASQUEZ, EDWIN HERNANDEZ, PAOLA PINEDA, LILLIAN FUENTES, EDWIN ESQUTVAL and FRED FUENTES, on behalf of themselves and others similarly situated, Plaintiffs,
v.
MAMMA LOMBARDIS OF HOLBROOK, INC., 600 SOUTH OCEAN OPERATING CORP., d/b/a/ LOMBARDI'S ON THE BAY, LOMBARDI CATERERS, INC., d/b/a/ LOMBARDI'S ON THE SOUND, QCG, INC., d/b/a/ VILLA LOMBARDI'S, LOMBARDI'S GOURMET MARKET, QURINO LOMBARDI, JERRY LOMBARDI, JOSEPHINE LOMBARDI PAPADAKIS, FILOMENA LOMBARDI and GUY LOMBARDI, Defendants

For Plaintiffs: PETER ARCADIO ROMERO, ESQ., NEIL FRANK, ESQ., FRANK & ASSOCIATES, P.C., Farmingdale, New York.

For Defendants: ROBERT D. LIPMAN, ESQ., DAVID ROBINS, ESQ., LIPMAN & PLESUR, LLP., Jericho, New York.

OPINION

Page 275

MEMORANDUM AND ORDER

LEONARD D. WEXLER, UNITED STATES DISTRICT JUDGE.

This is a case brought pursuant to the Fair Labor Standards Act, 29 U.S.C. § 207 (the " FLSA" ), and parallel provisions of the New York State Labor Law, seeking minimum wage and overtime compensation. Plaintiffs represent themselves and seek to represent a class of persons similarly situated. Presently before the court are Plaintiffs' motions to dismiss Defendants' counterclaim and to amend their complaint. The counterclaim sought to be dismissed seeks contribution from certain named Plaintiffs on the ground that if Defendants are found liable, these Plaintiffs should also be held liable as employers under the relevant statutory provisions. Plaintiffs' motion to amend seeks to add a claim for retaliation, and to change the definition of the covered class to add busboys and servers. For the reasons that follow, the motions are granted.

BACKGROUND

I. The Parties, the Allegations of the Complaint and The Counterclaim

Plaintiffs are current and former employees of Defendants who are alleged to own and operate the Defendant restaurants and catering businesses. Members of the Plaintiff class are alleged to be responsible for cooking and/or preparing food, washing dishes and cleaning the restaurants operated by Defendants. These employees are alleged to have been assigned to work, at various times, at each of the five locations operated by Defendants. Each of the individually named Plaintiffs is alleged to have regularly worked in excess of forty hours per week, but not to have been paid overtime wages as required by Federal and New York law. Defendants are also alleged to have failed to maintain proper records of hours works, to have denied certain Plaintiffs " spread of hours" pay under state law and to have been denied required time off for meals and breaks.

Plaintiffs' first cause of action alleges a violation of the FLSA for the failure to pay overtime wages. The second cause of action alleges a parallel cause of action pursuant to the New York Labor Law. Plaintiff Evelyn Lilian Fuentes (" Fuentes" ) alleges the third and fourth causes of action for failure to pay her, and

Page 276

those similarly situated, the required minimum wage under Federal and State law. Fuentes similarly alleges the fifth cause of action on behalf of herself and class members similarly situated, seeking spread of hours pay under New York law.

Defendants deny the allegations of Plaintiffs' complaint and assert twenty-nine separate affirmative defenses. Among those affirmative defenses is the claim that Plaintiffs do not clearly and objectively define a plaintiff class and are not similarly situated to those they seek to represent. Defendants also assert a counterclaim against individual Plaintiffs Jamie Velasques (" Velasquez" ), Edwin Hernandez (" Hernandez" ) and Luis Juarez (" Juarez" ) (collectively the " Counterclaim Defendants" ). Defendants assert that the Counterclaim Defendants were employed as chefs who worked on a salaried basis. The individuals named are asserted to have exercised supervisory authority over other employees, including hiring, firing and scheduling hours. Each of the Counterclaim Defendants is further alleged to have been responsible for tracking the hours of their fellow employees and approval of time records. More specifically, Velasquez, Hernandez and Juarez are alleged to have been responsible for ensuring that their fellow workers had work time properly recorded, scheduling workers so that they did not work in excess of forty hours in any work week, and for ensuring that their co-workers were properly paid. Based upon these factual allegations, Defendants assert that the Counterclaim Defendants are employers, within the meaning of the FLSA and the New York Labor Law. The counterclaim goes on to allege that " [i]f defendants are found liable for damages, [Velasquez, Hernandez and Juarez] should be compelled to be responsible for paying all or part of such damages" as jointly responsible under both the FLSA and New York law. Counterclaim ¶ 227. Defendants allege further that:

[i]f defendants are found liable for damages, [Velasquez, Hernandez and Juarez] should be required to contribute any damages pursuant to and otherwise reimburse defendants for all or part of such damages pursuant to the remedial scheme of the FLSA governing the liability of joint employers and under the doctrine of contributory negligence and joint employer liability ...

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