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Mikhaylov v. Y & B Transportation Co.

United States District Court, E.D. New York

March 17, 2017

VADIM MIKHAYLOV and ALEXANDR SYSOEV, Plaintiffs,
v.
Y & B TRANSPORTATION CO., YURY IAKOVLEV, Defendants.

          MEMORANDUM & ORDER

          DORA L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiffs Vadim Mikhaylov (“Mikhaylov”) and Alexandr Sysoev (“Sysoev”) (collectively, “Plaintiffs”) bring this action against their former employer, Y & B Transportation (“Y&B”), and its agent, Yury Iakovlev (“Iakovlev”) (collectively, “Defendants”). Individually, Plaintiffs allege that Defendants: (1) failed to pay them minimum wages in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (“FLSA Claims”); (2) failed to pay them minimum wages in violation of New York State Labor Law (“NYLL”) § 652 (“NYS Minimum Wage Claims”); (3) failed to provide them with notices of compensation in violation of NYLL § 195(1) (“NYS Notice Claims”); (4) failed to provide them with wage statements in violation of NYLL § 195(3) (“NYS Statement Claims”); (5) failed to pay them their earned compensation in violation of NYLL § 198(1-a) (“NYS Withheld Wages Claims”); (6) breached their employment contracts (“Breach of Contract Claims”); and (7) have been unjustly enriched (“Unjust Enrichment Claims”). See Amended Complaint (“Am. Compl.”), Dkt. Entry No. 5.

         Defendants filed the instant Motion to Dismiss arguing insufficient service of process and failure to state a claim under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6), respectively. See Att'y Aff. in Supp. of Mot. to Dismiss (“Def. Aff.”), Dkt. Entry No. 11-1. Plaintiffs oppose the motion. See Pl.'s Att'y Aff. in Opp. to Def.'s Mot. to Dismiss (“Opp. Aff.”). Defendants did not file any reply papers. After the motion was briefed, the parties engaged in discovery under the supervision of the assigned magistrate judge who certified discovery was complete on October 25, 2016. Oct. 25, 2016 Minute Entry.

         For the reasons set forth below, Defendants' Motion to Dismiss is denied.

         BACKGORUND[1]

         In the simplest terms, Plaintiffs allege that they were swindled out of wages Defendants owed them for work performed over the course of approximately one month, from July 9, 2014 through August 5, 2014. Am. Compl. at ¶ 49.

         Y & B is a long-haul trucking company organized under the laws of the Michigan and doing business in New York. Id. at ¶¶ 4, 14. Iakovlev is an agent of Y & B who was responsible for executing a number of tasks on Y & B's behalf. During the period at issue, Iakovlev was charged with, inter alia: hiring and firing employees, setting employee work schedules and conditions, setting employee compensation rates, training employees, and all other “major decisions for the company.” Id. at ¶¶ 15-18, 28-31, 33-42.

         In April 2014, Iakovlev contacted Mikhaylov after seeking a referral for a recent graduate from the Red Hook Commercial Driving School in Brooklyn, New York. Id. at ¶¶ 20-21. After a phone interview, Iakovlev hired Mikhaylov to work as a driver for Y & B. Id. at ¶ 22. On or about May 8, 2014, Iakovlev drove his car to Mikhaylov's apartment in Brooklyn and had Mikhaylov drive that same vehicle to a truck parked in New Jersey. Id. at ¶ 23. Iakovlev and Mikhaylov thereafter drove that truck together to its destination. Id. at ¶ 23. From that point until some time in June 2014, Iakovlev and Mikhaylov drove trucks for Y & B as a team. Id. at ¶¶ 24, 32. It was during this period that Iakovlev trained Mikhaylov to drive trucks, complete driver logs, and perform various other maintenance-related tasks. Id. at ¶ 33.

         In early June 2014, Iakovlev asked Mikhaylov if he could refer another graduate of the Red Hook Commercial Driving School to Y & B. Id. at ¶ 25. Mikhaylov referred his co-plaintiff, Sysoev. Id. Shortly thereafter, Iakovlev also hired Sysoev to work as a driver for Y & B. Id. at ¶ 26. Iakovlev had Mikhaylov train Sysoev, as Iakovlev had trained Mikhaylov. Id. at ¶ 34.

         Mikhaylov's employment with Y & B lasted from May 2014 through August 5, 2014. Id. at ¶ 24. Sysoev's employment lasted from June 13, 2014 through August 5, 2014. Id. at ¶ 27.

         By agreement between the parties, Plaintiffs' compensation was set at $0.20 per mile traveled and $20.00 per loading and unloading of the truck, if there were more than two loadings and unloadings per trip. Id. at ¶ 38. Y & B also would reimburse Plaintiffs for work expenses upon submission of receipts and documentation. Id. at ¶ 39. Plaintiffs initially received payments by check, but eventually were paid by wire transfers. Id. at ¶ 40. The responsibility of ensuring that Plaintiffs were timely and accurately paid belonged to Iakovlev. Id. at ¶ 42.

         Plaintiffs allege that they were not paid for the four weeks worked from July 9, 2014 to and including August 5, 2014. Id. at ¶ 49. According to Plaintiffs, during that time, Mikhaylov and Sysoev worked a total of 122.25 hours and 147 hours, respectively. Id. at ¶ 50. Applying the terms of the agreement outlined above, Mikhaylov claims that he is due $3, 040.00 and Sysoev claims that he is due $2, 967.80. Id. at ¶¶ 51-52. Plaintiffs claim Defendants' failure to pay them was willful. Id. at ¶ 53.

         In addition to being denied the compensation due to them under their employment agreements, Plaintiffs allege that Defendants have not maintained adequate employment records (Id. at ¶ 43) and neither have provided them with notices stating the terms of their compensation (Id. at ¶¶ 45, 54) nor statements documenting their respective gross wages, deductions, and net wages for any payments (Id. at ¶ 55).

         Presently before this Court is Defendants' Motion to Dismiss the Amended Complaint. See generally Def. Aff. Defendants argue that the present action should be dismissed because neither Y & B nor Iakovlev were served within Federal Rule of Civil Procedure 4(m)'s timeframe. Id. at ¶¶ 4-31. They further argue that: (1) the Breach of Contract and Unjust Enrichment Claims must be dismissed as preempted by the FLSA; (2) the NYS Minimum Wage Claims must be dismissed because they, too, are preempted by the FLSA; and (3) the FLSA Claims and the NYS Minimum Wage Claims should be dismissed because Plaintiffs allege pay rates above minimum wage (Id. at ¶¶ 37-66).

         DISCUSSION

         I. Insufficient Service of Process

         A. Legal Standard

         When a defendant moves to dismiss for insufficient service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure, “‘the plaintiff bears the burden of establishing that service was sufficient.'” Allstate Ins. Co. v. Rosenberg, 771 F.Supp.2d 254, 260 (E.D.N.Y. 2011) (quoting Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010)). When applying New York State law, a plaintiff may carry this burden by submitting a process server's affidavit, thereby establishing a rebuttable presumption of proper service. Old Republic Ins. Co. v. Pacific Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2001) (citing NYCTL 1997-1 Trust v. Nillas, 288 A.D.2d 279 (2d Dep't 2001)). A defendant may rebut this presumption through a sworn affidavit in which the defendant denies receipt of service. Id. at 57-58 (citing Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 117 A.D.2d 135, 139 (2d Dep't 1986)); Id. at 58 (quoting Simonds v. Grobman, 277 A.D.2d 369, 370 (2d Dep't 2000) (explaining that a defendant must swear to “specific facts” to rebut the presumption)). Where a defendant's ...


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