United States District Court, E.D. New York
DOUGLAYR LEIER, on behalf of herself and all others similarly situated, Plaintiffs,
LINCOLN LIMOUSINE BROKERAGE INC., d/b/a LINCOLN LIMOUSINE, INC., LINCOLN LIMOUSINE LUXURY INC., LYNBROOK CAR AND LIMO INC., and MOHAMED M. ALMOGAZI, in his individual and professional capacities, Defendants.
MEMORANDUM & ORDER
K. Chen United States District Judge.
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.
course of preparing to move for summary judgment,
Defendants' current counsellearned 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'
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 ¶
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.
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
In response to Request #11, Defendants admitted that
“Defendant Mohamed M. Almogazi is a covered employer
within the meaning of the NYLL.” (Id.)
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.
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
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.)
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.)
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