Leier v. Lincoln Limousine Brokerage Inc.

          MEMORANDUM & ORDER

          Pamela K. Chen United States District Judge.

         Plaintiff Douglayr Leier filed this action pursuant to the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”), on behalf of herself and similarly situated employees and former employees of Defendant Lincoln Limousine Brokerage Inc., d/b/a Lincoln Limousine, Inc., Lincoln Limousine Luxury Inc., Lynbrook Car and Limo Inc. (collectively, “Lincoln Limousine”), and Defendant Mohamed M. Almogazi (together with Lincoln Limousine, “Defendants”). The thrust of Plaintiff's lawsuit is that Defendants are liable to Plaintiff and similarly situated persons for violations of the minimum wage and overtime provisions of the FLSA and NYLL, as well as additional violations of the NYLL and New York common law.

         In the course of preparing to move for summary judgment, Defendants' current counsel^[1]learned that, early on in discovery in this case, Defendants made certain written admissions that seemingly defeat one of Defendant Almogazi's grounds for summary judgment. Thus, in advance of filing their motion for summary judgment, Defendants have moved, pursuant to Federal Rule of Civil Procedure (“FRCP”) 36(b), to withdraw the seemingly adverse admissions that Defendants made during discovery. For the reasons discussed below, the Court denies Defendants' motion.

         BACKGROUND

         Plaintiff filed the original complaint in this action on May 19, 2014, alleging that Defendants were liable to her and similarly situated Lincoln Limousine employees for violations of the FLSA and NYLL. (Dkt. 1.) As relevant to the present motion, the complaint alleged that, “Defendant Almogazi oversees the day-to-day operations of both corporations' business and controls all aspects of the business with respect to the drivers' pay, work assignments, and hours.” (Dkt. 1 ¶ 33.) Defendants answered the complaint on July 21, 2014 (Dkt. 13), and, in particular, denied the complaint's allegations about Almogazi's oversight of the corporations' business. (Dkt. 13 ¶ 33.)

         On October 2, 2014, Plaintiff served a First Set of Requests for Admission to Defendants (“Requests”), which included twenty-one requests for admission pursuant to FRCP 36. (Dkt. 83-1.) The Requests included the following two requests for admission, which are the subject of Defendants' instant motion:

#10. Admit that Defendant Mohamed M. Almogazi is a covered employer within the meaning of the FLSA.

#11. Admit that Defendant Mohamed M. Almogazi is a covered employer within the meaning of the NYLL.

         Defendants served a response to the Requests on October 23, 2014, through their initial counsel in this action, the law firm of Pike & Pike P.C. (“Pike & Pike”). (Dkt. 83-2.) In response to Request #10, Defendants admitted that “Defendant Mohamed M. Almogazi is a covered employer within the meaning of the FLSA.” (Dkt. 83-2 at ECF 4.)^[2] In response to Request #11, Defendants admitted that “Defendant Mohamed M. Almogazi is a covered employer within the meaning of the NYLL.” (Id.)

         After Defendants made these admissions, discovery continued in the ordinary course. However, the relationship between Defendants and their initial counsel, Pike & Pike, evidently began to deteriorate. On December 11, 2014, Pike & Pike moved to withdraw from its representation of Defendants due to Defendants' “failure to cooperate” in defending the action and failure to pay Pike & Pike's attorney fees. (Dkt. 21.) After the Court initially denied its motion, Pike & Pike filed a renewed motion to withdraw on February 4, 2015 (Dkt. 30), which the Court granted on February 13, 2015, along with a thirty-day stay of discovery for Defendants to obtain substitute counsel (Dkt. 35).

         Defendants obtained new counsel on or around March 11, 2015. (Dkt. 36.) Discovery resumed and, on April 9, 2015, Defendant Almogazi sat for a deposition in which he was represented by his new counsel, Ricotta & Marks, P.C. (“Ricotta & Marks”). (Dkt. 78.) In that full-day deposition, Plaintiff's counsel asked Almogazi numerous questions about his role and responsibilities at Lincoln Limousine. (Dkt. 78-1.) Among other things, Almogazi testified that, although he was the owner of Lincoln Limousine, he stopped working in the office “[a]bout ten years ago, ” and, at the time of his deposition, only visited the office “around once a year, ” while most of the day-to-day management of Lincoln Limousine was being handled by its Chief Executive Officer, Ahmed Korban. (Dkt. 78-1 at 23-31, 125-41.)^[3]

         On July 9, 2015, Plaintiff moved under FRCP 15(a) to amend her complaint, and also moved under 28 U.S.C. § 216(b) to conditionally certify the action as a collective action under the FLSA. (Dkts. 42, 45.) The next day, July 10, 2015, Defendants' counsel, Ricotta & Marks, moved to withdraw from their representation of Defendants due to a “complete breakdown of the attorney-client relationship, ” including “Defendants' failure to cooperate [in the litigation], and Defendants' failure to pay their legal fees.” (Dkt. 46.) The Court granted Ricotta & Marks' motion to withdraw on July 31, 2015. (Dkt. 51.)

         Defendants obtained new, and their current, counsel on or around August 12, 2015. (Dkt. 53.) Defendants' new counsel, Arthur H. Forman, responded on Defendants' behalf to Plaintiff's then-pending motion for conditional certification, and consented to Plaintiff's motion to file an amended complaint. (Dkts. 54, 57.)

         Plaintiff's amended complaint (Dkt. 55) mostly tracked the allegations of her original complaint verbatim, except with the addition of a new Defendant, Lynbrook Car and Limo Inc. (“Lynbrook”), and new allegations related to Lynbrook's role in controlling and operating the Lincoln Limousine business. (Compare Dkt. 1 with Dkt. 55.) The amended complaint also contained a new allegation related to Almogazi's role in controlling and overseeing Lynbrook (Dkt. 55 ¶ 38), but preserved the original complaint's allegation about Almogazi's role in managing and overseeing the overall Lincoln Limousine business (compare Dkt. 1 ¶ 33, with Dkt. 55 ¶ 39), which Defendants had denied in their answer to the original complaint (Dkt. 13 ¶ 33). In their answer to Plaintiff's amended complaint, Defendants ...