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Porter v. Mooregroup Corp.

United States District Court, E.D. New York

January 2, 2020

JOSHUA PORTER et al, Plaintiff,


          Kiyo A. Matsumoto, United States District Judge.

         On December 20, 2017, plaintiffs Joshua Porter (“Porter”) and Sharkey Simmons (“Simmons”) (collectively, “plaintiffs”) commenced this action against defendants MooreGroup Corporation (“MooreGroup”); Martin Moore (“M. Moore”); John Moore (“J. Moore”); and Gary Moore (“G. Moore”)(collectively, “defendants”) alleging various wage and hour violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., New York Labor Law (“NYLL”), §§ 650 et seq., and NYLL §§ 190 et seq. (ECF No. 1, Complaint (“Compl.”).) Plaintiffs brought their FLSA claims as a collective action on behalf of themselves and all other similarly situated employees of the defendants and their NYLL claims as a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of themselves and all fire guards, welders, and other construction employees working for the defendants in New York. (Id.) By order dated May 15, 2018, the court granted plaintiffs' consent motion to certify a Collective Action pursuant to the FLSA. (ECF No. 19, Consent Motion; ECF No. 21, Order Granting Motion to Certify FLSA Collective Action (“Collective Action Order”).) The Collective Action Order limited the class of potential plaintiffs to fire guards, welders, laborers, and other construction employees who worked for the defendants between December 20, 2014 and May 14, 2018. (May 15, 2018 Order ¶ 2.)

         Following extensive fact discovery and a pre-motion conference, the court set a briefing schedule for plaintiffs to serve their motion to amend the complaint (“Motion”), which is presently before the court. On March 29, 2019, the parties timely filed their Motion papers on ECF. (See generally ECF No. 47, Motion for Leave to Amend the Complaint (“Motion”); ECF No. 48, Memorandum in Support re Motion to Amend/Correct/Supplement Complaint (“Pls. Mem.”); ECF No. 49, Pelton Decl.; ECF No. 50, Memorandum in Opposition re Motion to Amend/Correct/Supplement Complaint (“Defs. Mem.”); ECF No. 51, Nasis Decl.; ECF No. 52; Reply in Support re Motion to Amend/Correct/Supplement Complaint (“Pls. Rep.”); ECF No. 53, Pelton Decl.)

         Plaintiffs' proposed Amended Complaint (“Amended Complaint”) seeks to make the following changes to the original Complaint: (1) add plaintiff Emanuel Colajay Rivera (“Rivera”) as a named plaintiff; (2) add Baldwin Harbor Contracting Inc. (“Baldwin”) as a defendant; and (3) add retaliation claims, pursuant to the relevant FLSA and NYLL statutory provisions, on behalf of Simmons and Rivera. For the reasons set forth below, the court grants plaintiffs' Motion.


         On December 20, 2017, plaintiffs commenced this action alleging violations of the FLSA and NYLL. Plaintiffs are former employees of defendants' construction company. (Compl. ¶ 1.) Porter was employed by defendants from around January 2017 through approximately August 2017, and Simmons was employed by defendants from approximately November 2016 through approximately September 2017. (Id. ¶¶ 37, 47.) Plaintiffs allege that while employed with the defendants' company, defendants failed to provide overtime premiums owed to plaintiffs pursuant to both FLSA, 29 U.S.C. §§ 201 et seq. and NYLL, §§ 650 et seq. (Id. ¶ 3.) In addition, plaintiffs allege that defendants failed to provide proper wage notices and wage statements, pursuant to NYLL §§ 190 et seq. (Id. ¶ 4.) Defendants timely filed their Answer on February 23, 2018, generally denying plaintiffs' substantive allegations, or not responding to them, to the extent that they allegedly stated a legal conclusion. (ECF No. 14, Answer.)

         On March 15, 2018, after an Initial Conference Hearing before Magistrate Judge Vera M. Scanlon, Judge Scanlon filed a scheduling order stating that “no additional parties may be joined after 7/8/16.” (ECF No. 16, Scheduling Order ¶ 4.) In addition, “no amendment of the pleadings will be permitted after [July 6, 2018] unless information unknown to the parties by this date later becomes available to them.” (Id. ¶ 5.) Furthermore, the court ordered the parties to complete fact discovery by October 12, 2018 and all discovery by December 21, 2018. (Id. ¶¶ 6, 8.) Moreover, the Scheduling Order noted that plaintiffs anticipated filing a FLSA § 216(b) motion by April 19, 2018. (Id. ¶ 16.) Lastly, a Status Conference was set for July 19, 2018. (Id. ¶ 13.)

         On May 1, 2018, the parties filed a consent motion to certify the FLSA collective action, which the court granted on May 15, 2018. (ECF No. 19, Consent Motion; ECF No. 21, Collective Action Order.) Pursuant to the Collective Action Order, the court gave defendants 60 days to provide plaintiffs with the names and contract information of all potential plaintiffs. (Id. ¶ 3.) In addition, the Collective Action Order required plaintiffs to send notices to all potential plaintiffs within 10 days following defendants' required disclosure. (Id. ¶ 4.) All potential plaintiffs were required to opt in within 60 days of the mailing of the notices. (Id. ¶ 5.) Four opt-in plaintiffs, including Plaintiff Rivera, subsequently joined the case in September 2018. (ECF No. 23-25, 27, Consent to Become Party in a Collective Action.)

         During the October 11, 2018 Status Conference before Magistrate Judge Scanlon, plaintiffs informed the court of their intention to amend the complaint, and Judge Scanlon ordered plaintiffs' counsel to request a pre-motion conference seeking leave to file an amended complaint. (ECF No. 29, Scheduling Order.) On November 9, 2018, plaintiffs requested a pre-motion conference in anticipation of their motion to amend the complaint. (ECF No. 31, Pls. Ltr. Mot. for Pre-Motion Conference (“PMC Letter”).) In their letter, plaintiffs indicated that they had shared a copy of the proposed amended complaint with defendants, but defendants were unwilling to consent to the proposed amendments. (Id.) On November 13, 2018, defendants' counsel requested an extension to file a response, citing personal reasons, which the court granted. (ECF No. 32, Motion for Extension of Time to File Response/Reply; Dkt. Entry dated Nov. 16, 2018.)

         Without seeking a further extension, defendants failed to file their reply to plaintiffs' PMC Letter by the court-ordered deadline, and on November 21, 2018, the court granted plaintiffs' motion for a Pre-Motion Conference and ordered defendants to respond to plaintiffs' PMC Letter by November 27, 2018. (Dkt. Entry dated Nov. 21, 2018.) Defendants filed their response on November 27, 2018, arguing that plaintiffs' proposed Amended Complaint fails to sufficiently allege Baldwin as a joint employer with MooreGroup. Defendants did not address the proposed amendment to add Rivera as a named plaintiff. (ECF No. 33, Letter Responding to Plaintiffs' Premotion Conference Letter.)

         On November 29, 2018, plaintiffs filed a letter informing the court of alleged acts of retaliation against Simmons and Rivera on the evening of November 27, 2018. (ECF No. 34, Letter Regarding Retaliation Against Plaintiffs and Further Proposed Amendments to Complaint.) Specifically, plaintiffs alleged that defendants sent an unidentified individual, pretending to be an IRS agent (“Individual”), to Simmons' and Rivera's residences in order to intimidate and harass them into dropping the instant action. Further, the Individual informed Simmons and Rivera that any money “received from the lawsuit would have to be paid to the IRS” and that the only way to make the “problem go away” would be to “drop the lawsuit.” (Id.) As a result, plaintiffs seek to “add retaliation claims on behalf of [Rivera] and Simmons pursuant to both 29 U.S.C. § 215(a)(3) and NYLL § 215.” (Id.)

         A pre-motion conference was held on November 30, 2018, to discuss plaintiffs' intent to move to amend their complaint and the allegations raised in plaintiffs' letters. (Dkt. Entry dated Nov. 30, 2018.) The court ordered defendants to file a letter by December 7, 2018 stating whether they will consent to the filing of an amended complaint without a motion or oppose a motion to amend the complaint. (Id.) At this time, there were delays and extensions due to a change of defendants' counsel.[1]Defendants submitted a letter on February 5, 2019, stating that they could not consent to the filing of an amended complaint without a motion. (ECF No. 41, Letter.)

         The court granted the parties' proposed briefing schedule, ordering that (1) plaintiffs serve their motion to amend the complaint by February 27, 2019, (2) defendants serve their opposition by March 20, 2019, (3) plaintiffs serve their reply, if any, by March 29, 2019, and (4) the parties file their motion papers in logical order via ECF on March 29, 2019. (Dkt. Entry dated Feb. 6, 2019.) The parties' papers were timely filed.

         I. The Instant Motion

         As noted at the outset, the proposed Amended Complaint differs from the original Complaint in primarily three respects: (1) the addition of Rivera as a named plaintiff; (2) the addition of Baldwin as a defendant; and (3) the addition of retaliation claims on behalf of Simmons and Rivera. (ECF No. 49-2, Ex. B - Proposed Amended Complaint (“Am. Compl.”) ¶¶ 85-92, 97-103, 113-119.)

         Plaintiffs assert that Rivera's claims are “in all substantive ways identical” to those of the originally-named plaintiffs. (ECF No. 48, Pls. Mem. 4.) Specifically, plaintiffs allege that Rivera “typically worked in excess of forty (40) hours per week but was paid straight-time rates for all hours worked in excess of forty, ” his “weekly wages were typically short by several hours, ” his hourly rates were “similar” to those paid to Simmons and Porter, and “at no time did Rivera receive[] with his payment of wages a breakdown of his total hours worked.” (Id.) Notably, though the Collective Action Order limited the relevant period to between December 20, 2014 and May 14, 2018, see Collective Action Order ¶ 2, Rivera was employed at various times outside of and during the relevant period.[2] (Am. Compl. ¶ 69.)

         Plaintiffs allege that Rivera began receiving paychecks from Baldwin when Rivera returned to work for defendants in 2018 despite working for the same supervisors that he had worked for during his prior employment with defendants and “performing the same work and [being] paid in the same manner as in the past.” (Id. ¶ 75.) Baldwin, which allegedly shares its principal place of business with MooreGroup, allegedly operates on behalf of MooreGroup “to avoid scrutiny of MooreGroup's payroll or pay practices.” (Id. ¶ 19.) Plaintiffs assert that the Individual who visited Simmons' and Rivera's residences was likely acting on behalf of defendants, and thus plaintiffs seek to bring a retaliation claim under NYLL and FLSA. (Id. ¶¶ 91-92.)

         In defendants' opposition, they assert that plaintiffs have not established good cause to amend the complaint; defendants will be prejudiced if the Motion is granted; the proposed amendments regarding Rivera and the retaliation claims are futile; and the allegations against Baldwin are not plausible on their face. (ECF No. 50, Defs. Mem. 5-18.) In their reply, plaintiffs assert that they acted in a timely fashion in filing the motion; the amendments would not result in undue delay, prejudice, or confusion; and the amendments are not futile. (ECF No. 52, Pls. Rep.)

         On August 29, 2019, Magistrate Judge Scanlon ordered the parties to complete discovery by October 31, 2019. (ECF No. 54, Status Report Order.) Pursuant to the October 31, 2019 Status Report Order, if plaintiffs' motion is granted, discovery is to be completed within 60 days of the court's decision on the motion. (Id.) Counsel will then be directed to make a class certification and summary judgment motion within 45 days after the close of discovery. Id.)


         In the Second Circuit, “[l]eave to amend should be denied only because of undue delay, bad faith, futility or prejudice to the non-moving party, and the decision to grant or deny a motion to amend rests within the sound discretion of the district court.” Mendez v. U.S. Nonwovens Corp., 2 F.Supp.3d 442, 451 (E.D.N.Y. 2014) (citing Aetna Cas. And Su. Co. v. Aniero Concrete Co., 404 F.3d 566, 603-04 (2d Cir. 2005); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). Using this guiding principle, the court considers whether or not to grant the Motion.

         a. Liberal Standard under Rule 15

         Motions to amend pleadings are governed by Rule 15(a). In cases where a party is not entitled to amend its complaint as a matter of course, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” See Fed.R.Civ.P. 15(a)(2). Motions to amend are to be “liberally granted absent a good reason to the contrary, ” see Assam v. Deer Park Spring Water, 163 F.R.D. 400, 404 (E.D.N.Y. 1995), as Rule 15(a)(2) provides that “court[s] should freely give leave when justice so requires, ” Fed.R.Civ.P. 15(a)(2). In addition, a court may add a party “at any time, on just terms.” See Fed.R.Civ.P. 21. Motions to add parties are given the “same standard liberality afforded to motions to amend” under Rule 15. Essani v. Earley, No. 13-CV-3424 (JMA)(SIL), 2018 U.S. Dist. LEXIS 134414, at *10 (E.D.N.Y. Aug. 9, 2018) (quoting Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74, 79 (E.D.N.Y. 2011)).

         b. “Good Cause” under Rule 16

         Where a court has set a scheduling order with a deadline for amended pleadings, however, “the lenient standard under Rule 15(a) . . . must be balanced against the requirement under Rule 16(b) that the Court's scheduling order ‘shall not be modified except upon a showing of good cause.'” See Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (quoting Fed.R.Civ.P. 16(b)); see also Essani, 2018 U.S. Dist. LEXIS 134414, at *11. The purpose of Rule 16(b) is to create certainty in pretrial proceedings. See Fed.R.Civ.P. 16 advisory committee's note, 1983 amendment, discussion of subsection (b)). Therefore, to consider only Rule 15(a) without taking Rule 16(b)'s good cause standard into account “would render scheduling orders meaningless.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (holding that the district court did not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the movant failed to establish good cause) (quoting Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998)). Accordingly, a party seeking to amend the complaint after the Rule 16(b) scheduling order deadline has passed must first demonstrate good cause to modify the scheduling order deadline before the court addresses the proposed amendment under the Rule 15(a) standard.

         In order to demonstrate good cause under Rule 16(b), the movant generally must establish diligence. See Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 244 (2d Cir. 2007); Parker, 204 F.3d at 340 (“[A] finding of ‘good cause' depends on the diligence of the moving party.”). Courts have declined to find good cause where the movant was aware of facts giving rise to the claim, or where such information was available to the movant, at the time the movant commenced the action. See, e.g., Parker, 204 F.3d at 341 (adopting district court's lack of good cause determination where movant was informed of his rights under the leave policy); Rent-A-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003) (finding no good cause where “the substance of the defendants ‘new' claim was known when the defendants filed their original amended answer”); cf. Enzymotec Ltd. V. NBTY, Inc., 754 F.Supp.2d 527, 537 (E.D.N.Y. 2010) (finding that plaintiff established diligence because it did not discover the facts underlying its new cause of action until after the deadline, and plaintiff filed the motion to amend within two months); Jackson v. Roslyn Bd. Of Educ., 596 F.Supp.2d 581, 586 (E.D.N.Y. 2009) (finding that delaying nearly five months after acquiring knowledge of underlying facts of an amendment before making any attempt to seek leave to amend “is some evidence of a lack of diligence”).

         Courts in the Second Circuit have sometimes excused a movant's lack of diligence where the information was available to the movant but could cause “potential confusion, ” or where the movant filed an amended pleading two months after learning new facts during discovery. See Olaf Soot Design, LLC v. Daktronics, Inc., 299 F.Supp.3d 395, 399 (S.D.N.Y. 2017) (citations omitted). The Second Circuit has “left open the possibility that amendments could be permitted even where a plaintiff has not been diligent in seeking an amendment, ” absent a showing of undue prejudice for the non-moving party. See Fresh Del Monte Produce, Inc., 304 F.R.D. 170, 175 (quoting Castro v. City of New York, 2010 WL 889865, at *2 (E.D.N.Y. Mar. 6, 2010)); Olaf Soot Design, 299 F.Supp.3d at 399.

         c. Prejudice

         In deciding whether there would be prejudice, courts typically consider whether the amendment would “(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial…[and] (ii) significantly delay the resolution of the dispute.” Block v. First Blood Assoc., 988 F.2d 344, 350 (2d Cir. 1993). Courts may find prejudice if the amendments would require significant discovery or cause delays on the eve of trial. See Zubulake v. UBS Warburg LLC, 231 F.R.D. 159, 163 (S.D.N.Y. 2005); Benefitvision Inc. v. Gentiva Health Svcs., Inc., 2015 WL 1034543, at *14 (E.D.N.Y. Feb. 9, 2015) (denying plaintiffs' motion to add four new causes of action in a trial-ready case “at the eleventh hour” because it would “significantly prejudic[e]” defendants). Cf. State Teachers Ret. Bd., 654 F.2d at 856 (finding no undue prejudice where no trial date had been set at the time plaintiffs requested leave to amend and defendants had not yet filed a motion for summary judgment); Martin v. Sprint/United Mgmt. Co., No. 15-CIV-5237 (PAE), 2016 U.S. Dist. LEXIS 63192, at *12-13 (S.D.N.Y. May 12, 2016) (finding no undue delay, and therefore no prejudice, because discovery deadline was more than three months away).

         “Any prejudice which the non-movant demonstrates must be balanced against the court's interest in litigating all claims in a single action and any prejudice to the movant which would result from a denial of the motion.” Saxholm AS v. Dynal, Inc.,938 F.Supp. 120 (E.D.N.Y. 1996); see also State ...

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