United States District Court, S.D. New York
JOSE PATINO, on behalf of himself and all others similarly situated, Plaintiffs,
BRADY PARKING, INC., et al., Defendants.
REPORT AND RECOMMENDATION
DEBRA FREEMAN, Magistrate Judge.
TO THE HONORABLE ANALISA TORRES, U.S.D.J.:
In this action for unpaid wages, plaintiff Jose Patino ("Plaintiff") has moved for the imposition of discovery sanctions against defendants Brady Parking, Inc., 800 Brady Parking, Inc., Jose Dominguez, and Jacobo Dominguez (collectively, "Defendants"). ( See Notice of Plaintiff Jose Patino's Motion for Sanctions, dated July 18, 2014 (Dkt. 84).) Plaintiff's motion was referred to me to issue a report and recommendation as to its disposition. ( See Order of Reference, dated July 21, 2014 (Dkt. 86).)
In his motion, Plaintiff seeks sanctions against Defendants for their failure to produce documents evidencing their gross annual volume of business ( see generally Plaintiff Jose Patino's Memorandum of Law in Support of Motion for Sanctions, dated July 18, 2014 ("Pl. Mem.") (Dkt. 85)), which would be required to establish "enterprise coverage" under the Fair Labor Standards Act ("FLSA"), see 29 U.S.C. § 203(s)(1)(A) (defining "enterprise engaged in commerce" as an enterprise whose annual gross volume of sales or business is not less than $500, 000, and who also has employees engaged in commerce, the production of goods for commerce, or handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce). Plaintiff argues that sanctions are warranted against Defendants for their failure to produce the relevant documents in contravention of this Court's oral ruling during a telephonic case management conference. (Pl. Mem., at 2.) Defendants filed no opposition to Plaintiff's motion.
On December 17, 2014, this Court, upon review of Plaintiff's motion and his supplemental submission,  issued an Order clarifying two of its prior oral rulings and affording Defendants a final opportunity to comply. ( See generally Order dated Dec. 17, 2014 (Dkt. 90).) In its December 17 Order, this Court specifically cautioned Defendants that their failure to comply could result in a recommendation that sanctions be awarded against Defendants, including a recommendation that the Court (1) make a finding of fact that Defendants' gross sales or business volume was at least $500, 000 for each year relevant to Plaintiff's FLSA claims, (2) strike Defendants' defense regarding FLSA coverage, (3) preclude Defendants from introducing evidence in support of that defense, and/or (4) award any other sanction permitted by Rule 37 of the Federal Rules of Civil Procedure. ( Id. at 10-11.) Notwithstanding this clarification and explicit warning, Defendants have still failed to provide the demanded documents, in contravention of both this Court's earlier oral rulings and its subsequent written Order. ( See Letter to the Court from Michael Palitz, Esq., dated Jan. 8, 2014 (Dkt. 91).)
Given Defendants' continued failure to comply with this Court's orders to produce documents evidencing their gross sales or business volume, the apparent willfulness of their non-compliance, and the resulting prejudice to Plaintiff, I recommend, for the reasons set forth in my December 17 Order (a copy of which is attached hereto), that the Court make a finding of fact that the gross sales or business volume of defendant Brady Parking, Inc., defendant 800 Brady Parking, Inc., and any predecessor or successor in interest to either of these corporations, was at least $500, 000, as required for FLSA enterprise coverage, from May 5, 2008 until Plaintiff was no longer employed by Defendants, which Plaintiff alleges was on or about November 28, 2010. ( See Third Amended Complaint, dated Nov. 7, 2013 (Dkt. 57), ¶ 40.)
I further recommend that Defendants be directed to reimburse Plaintiff for the reasonable attorneys' fees and costs that he incurred in making his motion for sanctions (Dkts. 84, 85), as Defendants have not made, nor even attempted to make, any showing that their failure to comply was substantially justified. See Fed.R.Civ.P. 37(b)(2)(C). This Court does not recommend, however, that Plaintiff be reimbursed for fees or costs incurred in making his supplemental submissions in connection with this motion (Dkts. 88, 89, 91), as these submissions were required as a result of inaccuracies in Plaintiff's own representations to the Court ( see Order dated Dec. 17, 2014 (Dkt. 90), at 4-5, 8-9), and an award of fees and costs in connection with these submissions would therefore be unjust, see Fed.R.Civ.P. 37(b)(2)(C).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, Room 2210, New York, NY 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, NY 10007. Any requests for an extension of time for filing objections should be directed to Judge Torres. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
DEBRA FREEMAN, United States Magistrate Judge:
Currently before this Court, in this action for unpaid wages, is the motion of plaintiff Jose Patino ("Plaintiff") for the imposition of discovery sanctions against defendants Brady Parking, Inc., 800 Brady Parking, Inc., Jose Dominguez, and Jacobo Dominguez (collectively, "Defendants"). (Dkt. 84.) In particular, Plaintiff seeks sanctions for Defendants' failure to produce material evidence, in contravention of an oral ruling made by this Court. Although it does indeed appear that Defendants failed to comply with this Court's ruling, this Court will not yet recommend the imposition of sanctions, as this Court is not confident that the ruling in question was sufficiently clear. Further, this Court has concerns that Defendants were not adequately warned of the severity of the consequences that they could face for violation of the Court's ruling. Especially as Plaintiff is now seeking a sanction that, if granted, would establish a relevant fact as proven, or strike a defense, or preclude the introduction of evidence in support of a defense, this Court will defer making a sanctions recommendation so as, first, to clarify its ruling, and, second, to see if a more explicit direction and word of caution from the Court will prod Defendants into producing the evidence to which Plaintiff is entitled.
The evidence that is the subject of Plaintiff's sanctions motion is evidence that would go toward establishing whether Plaintiff was protected by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., while employed by Defendants. In the Third Amended Complaint, Plaintiff has alleged that, from about September 15, 2003 until about November 28, 2010, Defendants employed him as a parking attendant and that, throughout this period, he was not paid as required by the FLSA. ( See Third Amended Complaint, dated Nov. 7, 2013 ("Am. Compl.") (Dkt. 57), ¶¶ 40-47.) Specifically, Plaintiff has alleged that Defendants employed him through a string of related corporate entities, including defendant Brady Parking, Inc., each of which was owned and operated by defendant Jacobo Dominguez. ( See id. ¶¶ 8, 10, 11, 23.) Plaintiff has additionally alleged that each corporation in this string was the successor in interest to its predecessor, and that defendant 800 Brady Parking, Inc. - which was created after Plaintiff was no longer employed by Defendants and of which defendant Jose Dominguez is allegedly the CEO - is the successor in interest to the entire string. ( See id. ¶¶ 12, 15-21, 24, 40.)
With respect to FLSA coverage, Plaintiff has alleged that (1) Defendants' gross annual volume of business is greater than $500, 000, and (2) all of Defendants' employees are engaged in interstate commerce ( id. ¶ 22) - allegations Defendants deny ( see Amended Answer to Third Amended Complaint, dated Nov. 21, 2013 (Dkt. 62), ¶ 9). If proven with respect to any of the corporations that purportedly employed Plaintiff, these allegations would render that corporation an "enterprise engaged in commerce" within the meaning of the FLSA, see 29 U.S.C. § 203(s)(1)(A), thereby placing Plaintiff within the protection of the FLSA's wage and hour provisions while in that corporation's employ, see id. §§ 206(a), 207(a). In addition, if the allegations were proven, FLSA liability might also run to defendants Jacobo Dominguez and Jose Dominguez as "employers" under the statute, depending on additional facts regarding those individuals' roles with respect to Plaintiff's employment. See id. § 203(d) (defining "employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee"); see also Irizarry ...