Karl J. Stoecker, Law Offices of Karl J. Stoecker, New York, NY, Counsel for Plaintiff.
Christopher A. Parlo, Morgan, Lewis & Bockius LLP (New York), New York, NY, Counsel for Defendants.
OPINION & ORDER
ROBERT P. PATTERSON, Jr., District Judge.
On February 13, 2004, Plaintiff William Pierce ("Pierce"), a former carpet installer for Defendant ABC Carpet Co., Inc. ("ABC"), filed this action pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. and the New York Minimum Wage Act, N.Y. Labor Law §§ 160, 193 et seq. Plaintiff filed an Amended Complaint on October 28, 2009. Plaintiff alleges that ABC and co-defendants Jerome Weinrib ("Weinrib") and Paul Chapman ("Chapman") (collectively "Defendants") failed to pay him overtime wages to which he was entitled and made improper deductions from his wages. (See Am. Compl. ¶¶ 1-2, 21-34) Plaintiff claims that he is (1) owed back wages, overtime pay, and other employee benefits and expenses for which he did not receive full and due compensation; and (2) entitled to liquidated damages. (See id. ¶ 35.)
By letter motion dated May 30, 2013, Plaintiff seeks to withdraw his previous request for a bench trial, which was contained in a joint pre-trial order, and instead seeks a jury trial. For the reasons stated below, Plaintiff's motion is granted.
In both Complaints, Plaintiff demanded a jury trial. (See Compl. at 10; Am. Compl. at 7.) On or about October 6, 2011, however, the parties submitted the first Joint Pre-Trial Order ("2011 JPTO"), which stated that "Pursuant to FED. R. Civ. P. 38(b), Plaintiff demands a bench trial on all questions of fact raised by the Amended Complaint." (2011 JPTO ¶ (c) (emphasis added).)
On April 25, 2013, this case was transferred from the Honorable Deborah A. Batts to this Court. On April 30, 2013, this Court held an initial conference with the parties, during which Plaintiff reiterated his desire for a bench trial; counsel for Defendants, however, advised the Court that Defendants were withdrawing their previous consent to a bench trial and instead demanding a jury trial. Accordingly, at the conclusion of the conference, the Court entered a scheduling order setting a jury trial date of May 29, 2013, and requiring the submission of voir dire, the joint pre-trial order, and motions in limine by May 14, 2013. (See Order, April 30, 2013, ECF No. 28.) The parties then commenced preparation for a jury trial.
By letter dated May 7, 2013, however, Defendants withdrew their request for a jury trial and consented to Plaintiff's request for a bench trial; the Court endorsed Defendants' letter on May 8, 2013, ordering a bench trial to begin on May 29, 2013. (See Order, May 8, 2013, ECF No. 29.)
On May 13, 2013, the parties engaged in a settlement conference in which they consented to the Court acting as mediator. On May 16, 2013, the parties submitted the second Joint Pre-Trial Order ("2013 JPTO"), which again stated that "Pursuant to FED. R. Civ. P. 38(b), Plaintiff demands a bench trial on all questions of fact raised by the Amended Complaint." (2013 JPTO ¶ (c) (emphasis added).)
On May 21, 2013, the Court's clerk contacted Plaintiff's counsel ex parte to discuss scheduling matters and to inquire, on the Court's behalf, how Plaintiff intended to prove damages for 1999 at trial, since Defendants maintained that the 1999 weekly work records Plaintiff submitted to ABC for payment had been destroyed in a fire. On May 21, 2013, Plaintiff submitted a letter containing authorities responding to this question. Defendants have since discovered the records.
On May 22, 2013, Plaintiff's counsel contacted the Court's law clerk and Defendant by phone and requested an emergency adjournment of the scheduled trial date due the illness of Plaintiff's wife, Mrs. Petrin Pierce, a trial witness for Plaintiff who still needed to be deposed by Defendant. Plaintiff's counsel also stated that Plaintiff wished to withdraw his previous request for a bench trial due to the Court's participation in the May 13, 2013 settlement conference. Defendants' counsel, however, informed the Court that Defendants would not consent to a jury trial. Accordingly, a briefing schedule was set.
By letter dated May 24, 2013, Defendants responded to Plaintiff's May 21, 2013 letter by arguing that Plaintiff would be unable to prove damages at trial. Among other support for this argument, Defendants' counsel cited the depositions taken of the lead plaintiffs in the related class action Lee v. ABC Carpet & Home, No. 00 CV 984, and quoted from a document entitled "Joint Memorandum of Points and Authorities in Support of Joint Motion of the parties for Preliminary Approval of the Proposed Consent Decree and of the Proposed Consent Order Providing for Notice to the class, Opportunity to Object or Opt Out, and a Fairness Hearing" ("Joint Motion"), which ostensibly had been jointly prepared by the settling parties in the Lee action. (See Def.'s Letter at n.3, May 24, 2013, ECF No. 35.)
By letter dated May 24, 2013, Plaintiff responded by asserting that because Plaintiff was not a party in the Lee action, Plaintiff did not have access to the depositions and document Defendants cited in their May 24, 2013 letter. Plaintiff requested a Court order compelling Defendants to provide Plaintiff with copies of these documents. The Court granted ...