ARTHUR R. AMASH, et al., Plaintiffs,
HOME DEPOT U.S.A., INC., Defendant.
DECISION & ORDER
THOMAS J. McAVOY, Senior District Judge.
Plaintiffs commenced this action asserting claims for unpaid overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and New York Labor Law, Article 19, §§ 650 et seq. See 2nd Am. Compl., dkt. # 43. Defendant Home Depot U.S.A., Inc. ("Home Depot" or "Defendant") moves for summary judgment dismissing the claims brought by Plaintiff Charles R. Schneider, Jr. ("Schneider" or "Plaintiff'). See Mot. dkt. # 103. Schneider has not responded. For the reasons that follow, the motion is granted.
Schneider is a former assistant store manager for Home Depot who had joined a FLSA conditional certified collective action entitled Aquilino v. The Home Depot, Inc., Civil Action No. 04-cv-4100, filed against Home Depot in the United States District Court for the District of New Jersey on August 25, 2004 ("Aquilino action"). See 2nd Am. Compl. at ¶ 1; Compl., (ECF No. 1 in D. NJ. 04-cv-4100). The Aquilino plaintiffs, including Schneider, alleged that they were misclassified as exempt from the overtime requirements of the FLSA, and the laws of 25 other states ("ASM Wage and Hour Claims"). Id.
Six months after opting-in to the Aquilino action, Schneider, on May 31, 2007, filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the Northern District of New York. Schneider did not disclose to the Bankruptcy Court his status as an opt-in plaintiff in the Aquilino action or otherwise disclose that he had a claim for unpaid overtime against Home Depot.
On February 15, 2011, the District of New Jersey granted Home Depot's motion to decertify the nationwide FLSA collective action. Aquilino, 2011 WL 564039, at * 11, (ECF Nos. 341 and 347 in D.N.J. 04-cv-4100). After decertification of the collective action, by Order dated May 2, 2011, the District of New Jersey dismissed the opt-in plaintiffs without prejudice. Aquilino, 2011 WL 564039, at *1, (ECF No. 353 in D.N.J. 04-cv-4100); see Aquilino v. Home Depot U.S.A., Inc., No. 06-cv-4100 (PGS) (D.N.J. May 2, 2011) (ECF No. 353 in D.N.J. 04-cv-4100).
In June 2011, some of the former Aquilino opt-in plaintiffs filed six multi-state actions, alleging violation of the FLSA and various state laws. See Costello v. Home Depot U.S.A., Inc. , 888 F.Supp.2d 258, 262 (D. Conn. 2012). On June 14, 2011, the plaintiffs in the instant action, including Schneider, were among the plaintiffs who filed a FLSA and multi-state law wage/hour action in the United States District Court for the District of Connecticut, alleging violations of the FLSA and the wage and hour laws of New Hampshire, New York, and Vermont ("Costello action"). Costello v. Home Depot U.S.A., Inc ., Civil Action. No. 11-cv-953 (ECF No.1 in D. Conn. 11-cv-0953). None of the multi-state actions included FLSA collective action or Rule 23 class action allegations.
On January 10, 2012, Home Depot filed a motion in the Costello action, pursuant to Fed.R.Civ.P. 21 and 28 U.S.C. §1404(a), to sever the plaintiffs' claims into seven separate actions and to transfer six of those actions to districts in other states, including New York. Costello , 888 F.Supp.2d at 261 (ECF No. 55 in D. Conn. 11-cv-0953). On April 10, 2012, the Costello Court granted Home Depot's motion. Id . at 271 (ECF No. 72 in D. Conn. 11-cv-0953).
By its Orders of April 30, 2012 and May 2, 2012, the claims of plaintiff Arthur R. Amash, Theodore Biagoiotti, Sheryl Glickman, Christine M. Holloway, Shaun H. Kimball, Joseph L. Pangione, Jeffrey A. Repp, Charles R. Schneider, Richard A. Yingling, Jr., Robert F. Yuskauskas and John L. Marine were transferred to the Northern District of New York. See Order of Transfer, filed April 30, 2012, (ECF No. 77 in D. Conn. 11-cv-0953), and Amended Order of Transfer, filed May 2, 2012 (ECF No. 79 in D. Conn. 11-cv-0953). The instant action was electronically transferred to this Court on May 21, 2012. See May 21, 2012 Docket Entry (ECF No. 81 in N.D.N.Y. 12-cv-0837).
As indicated above, on May 31, 2007, six months after Schneider joined the Aquilino action as an opt-in plaintiff, Schneider filed a voluntary petition under Chapter 7, with the United States Bankruptcy Court for the Northern District of New York, Case No. 07-11556-1-rel ("Chapter 7 Petition"). Question 4.a of the Statement of Financial Affairs filed with Schneider's Chapter 7 Petition states:
4. Suits and administrative proceedings, executions, garnishments and attachments.
a. List all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case....
Plaintiff checked the box marked "None" in response to Question 4.a of the Statement of Financial Affairs. The bankruptcy petition included a notice that made clear Schneider's legal obligation to ...