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Cruz v. AAA Carting & Rubbish Removal, Inc.

United States District Court, S.D. New York

July 16, 2015

JORGE CRUZ, Plaintiff,

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[Copyrighted Material Omitted]

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For Plaintiff: Adam Arthur Biggs, Esq., Borah, Goldstein, Altschuler, Nahins, & Goidel, P.C., New York, NY.

For Plaintiff: Alexander Todd Coleman, Esq., Michael John Borrelli, Esq., Law Offices of Borrelli & Associates, Great Neck, NY.

For Defendants: Nicholas Raymond Caputo, Esq., Michael Allan Eisenberg, Esq., Robinson Brog Leinwand Green Genovese & Gluck P.C., New York, NY.

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Jorge Cruz (" Plaintiff" ) filed suit against AAA Carting and Rubbish Removal, Inc. (" AAA Carting" ) and Pasquale Cartalemi, Jr. (" Cartalemi" ) (collectively " Defendants" ), alleging violations of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 201 et seq., for failure to pay time and half for overtime hours and for failure to pay minimum wage, as well as violations of the New York Labor Law (" NYLL" ), § 650 et seq., for the same conduct and for failure to pay the appropriate rate for spread of hours and failure to issue accurate hours and wage statements when payroll was issued. Defendants move to dismiss Plaintiff's federal claims under Rule 12

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for lack of subject matter jurisdiction over the FLSA claims and for failure to state a claim for a minimum wage violation, and to dismiss the state law claims once the federal claims have been dismissed. Alternatively, Defendants move for summary judgment under Rule 56 on the ground that the FLSA does not apply to Plaintiff. For the following reasons, Defendants' Rule 12 Motion is denied in part and granted in part, and Defendants' Rule 56 Motion is denied.

I. Background

A. Factual Background

The following facts are taken from Plaintiff's Complaint, and are presumed to be true for the purpose of Defendants' Rule 12 Motion. Plaintiff was employed by AAA Carting and its Chief Executive Officer, Cartalemi, from November 27, 2010 to November 27, 2012. ( See Compl. ¶ ¶ 8-9, 14-15 (Dkt. No. 1).)[1] AAA Carting " is a corporation providing trash removal services." ( Id. ¶ 11.) " During his employment with Defendants, Plaintiff's duties included driving a garbage truck locally between Rye Brook and White Plains, New York." ( Id. ¶ 16.) Plaintiff further asserts that his " duties did not require transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act," and that he " was not otherwise exempt from the overtime requirements of the FLSA and NYLL." ( Id. ¶ ¶ 18-19.) Furthermore, Plaintiff alleges that the " qualifying annual volume of business for Defendants exceeds $500,000.00," and that Defendants' " employees are engaged in interstate commerce, as they all handle goods that have been and continue to be moved in interstate commerce." ( Id. ¶ 10.)

" When Plaintiff was first employed, he was paid $20.00 an hour," and in June 2012 " the rate was increased to $25.51 an hour." ( Id. ¶ 24.) However, Plaintiff alleges that he " was never paid for hours worked in excess of forty (40) hours." ( Id. ¶ 25.) Plaintiff alleges, by way of example, that he worked a 60-hour work week from June 3 to 9, 2012, in that he worked " on Monday, June 4, 2012, from 5:30 a.m. to 4:45 p.m.; Tuesday, June 5, 2012, from 5:30 a.m. to 6:00 p.m.; Wednesday, June 6, 2012, from 5:30 a.m. to 5:15 p.m.; Thursday, June 7, 2012, from 5:30 a.m. to 3:45 p.m.; Friday, June 8, 2012, from 5:30 a.m. to 3:45 p.m.; and Saturday, June 9, 2012, from 1:30 a.m. to 9:30 a.m.," but was only paid for 40 hours that week. ( Id. ¶ 23.) Plaintiff further alleges that he " frequently worked in excess of ten (10) hours in a single work day," but was " never paid for spread-of-hours throughout his employment," and that he " was provided with statements of hours or wages which inaccurately reflected the number of hours worked." ( Id. ¶ ¶ 28-29.)

Defendants have submitted materials outside of the pleadings in support of their Motion for Summary Judgment, most of which evidence Plaintiff either disputes or asserts, by his counsel's Rule 56(d) declaration, that he needs discovery in order to dispute. The evidence submitted outside of the pleadings addresses the following points: First, according to Defendants, Plaintiff's route " required that he drive the truck several times a week over the state line into Connecticut." (Decl. of Pasquale P. Cartalemi, Jr. in Supp. of Mot. To Dismiss for Lack of Subject Matter Jurisdiction and/or for Summ. J. (" Cartalemi Decl." ) ¶ 22 (Dkt. No. 31); see also id.

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Ex. E (Google Maps screenshots showing Plaintiff's alleged routes).) Plaintiff disputes these assertions, though he acknowledges that he " did drive on King Street, which crosses into Connecticut for forty-five seconds to reach a portion of his route . . . once per month," but maintains that he " did not collect any waste in Connecticut." (Decl. of Jorge Cruz in Opp'n to Defs.' Mot To Dismiss, for Judgment on the Pleadings, and/or for Summ. J. (" Cruz Decl." ) ¶ 19 (Dkt. No. 35).) Second, according to Defendants, " [e]mployees whose duties includ[ed] traveling across state lines would sometimes be absent from work due to vacation, sick leave or for personal reasons," and " [d]uring such absences, it would be necessary for an employee from another route to help out by taking over the absent employee's route during his absence." (Cartalemi Decl. ¶ 14.) Plaintiff disputes this, alleging that " to the best of [his] knowledge, Defendants never made a driver abandon his route to cover the route of another driver that was absent," that " [d]uring [his] employment, [he] only drove [his] assigned route," and that " [a]t no time did Defendants ever require [him] to cover the route of another driver in the household waste division." (Cruz Decl. ¶ ¶ 20-22.) Also, in response generally to Defendants' use of materials outside the pleadings, Plaintiff's counsel asserts that he requires discovery " to demonstrate that Plaintiff's personal contact with interstate commerce was de minim[i]s." (Decl. of Adam A. Biggs, Esq. in Supp. of Discovery pursuant to Fed.R.Civ.P. 56(d) (" Biggs Decl." ) ¶ 19 (Dkt. No. 37) (italics omitted).) Discovery is also needed, according to Plaintiff, to show that any interstate travel did not constitute a natural, integral, and inseparable part of his duties. In particular, Plaintiff says he needs discovery to ascertain " how many routes required a driver to have more than de minimis contact with interstate travel; how many drivers, within the entire class of household waste drivers, were required to drive interstate routes; how many intrastate drivers have ever been called on to drive[] interstate; how many household waste drivers were ever called upon to cover interstate routes for other divisions; whether interstate routes were indiscriminately spread amongst all drivers; how . . . interstate routes [were] assigned; and whether a driver could avoid being called on to drive an interstate route." ( Id. ¶ 25 (italics omitted).)

Third, Defendants assert that the recycling and garbage often has ended up out of state. In particular, Defendants claim that construction and demolition (" C& D" ) debris was typically exported out of state, (Cartalemi Decl. ¶ 7), that the recyclables are shipped out of New York both to other states and internationally, ( id. ¶ 10), that " [t]here are limited landfills in New York so the garbage is shipped out of the state," ( id. ¶ 11), and that " it has always been [Cartalemi's] understanding and intent that the waste AAA Carting transported to transfer stations would thereafter be shipped out of the state" " [g]iven that AAA Carting's business started out, and operated for its first ten years, exclusively as a 'roll-off' business where much of the C& D waste transported was shipped out of the state," ( id. ).[2] In response, Plaintiff asserts that " Defendants' business had multiple divisions, including construction debris, recycling, and household waste," and that he only collected and transported household waste. (Cruz Decl. ¶ ¶ 4-9.) Additionally, Plaintiff asserts that he " only deposited waste at the transfer station located in White Plains, New York," except

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that " [o]n one sole occasion [he] deposited waste at a transfer station located at 325 Yonkers Ave. Yonkers, New York." ( Id. ¶ 17.) On the list of transfer stations submitted by Defendants, there is not a White Plains location listed, and with regard to the station located at 325 Yonkers Ave., Yonkers, NY, the document states that the destination of waste is " [u]nknown." (Cartalemi Decl. Ex. B (List of Transfer Stations), at unnumbered 2.) Furthermore, Plaintiff's counsel contends that he requires discovery " to demonstrate that the recycling and construction debris divisions are distinct from the household division" and thus evidence related to the other divisions " is irrelevant in regards to household waste." (Biggs Decl. ¶ ¶ 12-15.) Additionally, Plaintiff " seeks evidence to demonstrate that when Defendants collected the waste they did not have any specific out-of-state recipient in mind beyond the transfer station." ( Id. ¶ 30.) In particular, Plaintiff seeks to examine Defendants' contracts with municipalities and transfer stations to find " facts that will illustrate that the ultimate locations of the household waste, beyond the transfer station, were immaterial to Defendants." ( Id. )

Finally, Defendants assert that the Department of Labor (" DOL" ) conducted a company-wide audit of AAA Carting and " issued a Compliance Action Report finding that the Motor Carrier Exemption applied to AAA Carting's employees because some of the waste or refuse transported by AAA Carting is shipped out-of-state or overseas," (Cartalemi Decl. ¶ ¶ 15-19), and states that " [d]rivers and helpers routinely pick up recyclables, construction debris, etc[.] that is sent out-of-state or overseas thus entitling the company to the Motor Carriers exemption 13(b)1," ( id. Ex. C (" DOL Compliance Action Report" ), at 2). Plaintiff responds that he requires discovery on whether the DOL Report only addressed the recycling and construction debris portion of the company, and also asserts that this Report is inadmissible hearsay. (Biggs Decl. ¶ ¶ 34-36.)

B. Procedural Background

Plaintiff filed suit on November 27, 2013, (Dkt. No. 1), and Defendants answered the Complaint on April 17, 2014, (Dkt. No. 11). On June 6, 2014, the Court held a pre-motion conference, and set a scheduling order for the submission of Defendants' motion. (Dkt. (minute entry for June 6, 2014); Dkt. No. 20.) Thereafter, Defendants filed their Motion and accompanying papers, (Dkt. Nos. 29-33), Plaintiff filed his Opposition, (Dkt. Nos. 34-37), and Defendants filed their Reply, (Dkt. Nos. 38-39). Discovery has been stayed pending resolution of the question of whether the Court has subject matter jurisdiction over this case. ( See Pl. Jorge Cruz's Mem. of Law in Opp'n to Defs.' Mot To Dismiss, for Judgment on the Pleadings and/or for Summ. J. (" Pl.'s Mem." ) 9 (Dkt. No. 36); Biggs Decl. ¶ 3.)

II. Discussion

A. Rule 12 Motion

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