Bozdogan v. 23 Ludlam Fuel, Inc.

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ERGUN BOZDOGAN Plaintiff, v. 23 LUDLAM FUEL, INC., JOHN PARISI, and ANTON PARISI, Defendants.

No. CV 16-1053 (JMW)

United States District Court, E.D. New York

February 22, 2022

Keith E. Williams, Esq.

Neil H. Greenberg & Associates, P.C.

Attorney for Plaintiff

Jeffrey H. Weinberger

Attorney for Defendants

MEMORANDUM DECISION AND ORDER

JAMES M. WICKS, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Ergun Bozdogan (“Plaintiff”) commenced this action against corporate Defendant 23 Ludlam Fuel, Inc. (“Ludlam”) and individual Defendants John Parisi and Anton Parisi (collectively, “Defendants”) alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., the New York Labor Law (“NYLL”), N.Y. Lab. Law §§ 190 et seq., and regulations promulgated thereunder for failure to pay overtime compensation and spread of hours wages. See generally Complaint (“Compl.”) (DE 1).

On January 23 and 24, 2019, a bench trial was held before Magistrate Judge A. Kathleen Tomlinson.^[1] (DE 60-61.) Following the bench trial, Plaintiff moved to amend his pleadings to conform to the evidence introduced at trial, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. See Plaintiff's Memorandum of Law in Support of Motion to Amend (DE 67-1); Plaintiff's Reply Memorandum of Law in Support of Motion to Amend (DE 68). Specifically, Plaintiff seeks to amend his pleadings to assert claims for wage notice and statement violations under the NYLL against Defendants. (Id.) Defendants oppose the motion chiefly arguing that the amendment is improper because the claims sought to be added were not tried by the parties either by express or implied consent. See Defendants' Memorandum of Law in Opposition to Motion to Amend (DE 66). For the reasons that follow, Plaintiff's motion to amend the pleadings is GRANTED.

Background

On March 2, 2016, Plaintiff commenced this action against Defendants alleging the failure to pay overtime wages in violation of the FLSA and NYLL. (DE 1.) The Complaint alleges willful violations of the FLSA and NYLL and seeks compensatory damages, liquidated damages, attorneys' fees and costs. (Id. at 7-8.) On May 11, 2016, Defendants filed their Answer to the Complaint. (DE 18.) Thereafter, discovery commenced and was completed on March 10, 2017. (Electronic Order dated Feb. 7, 2017.)

On April 3, 2017, the parties submitted a proposed Joint Pre-Trial Order (“JPTO”) which included counsel's contact information, the manner in which the trial would proceed, anticipated length of the trial, stipulations of fact and law, witnesses to be called at trial, and deposition testimony and exhibits to be introduced at trial. (DE 38.) The JPTO was silent as to the causes of action sought to be tried. (Id.) On April 10, 2021, Judge Tomlinson held a Pre-Trial Conference at which she noted several issues with the JPTO which needed to be addressed before approval. (DE 41.) These issues related to the parties' exhibit list, objections to exhibits, and the manner in which the witnesses were intended to be called during trial. (Id.) The final JPTO was held in abeyance until these issues were resolved. (Id.) On October 1, 2018, the parties consented to the Magistrate Judge Tomlinson's jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c). (DE 49.)

On November 2, 2018, Judge Tomlinson held another conference with the parties and deemed the case trial ready. (DE 51.) Some of the issues previously noted in the parties' initial JPTO were addressed and resolved at this conference, including those related to the witnesses and exhibits to be introduced at trial. (DE 52.) As such, implicit in deeming the case trial-ready, the JPTO was seemingly accepted as filed, with certain modifications discussed at the conference incorporated therein. These modifications, however, did not relate to the causes of actions intended to be tried. (Id.)

The parties each submitted a pre-trial memorandum on January 11 and 13, 2019, respectively. (DE 58; DE 59.) Plaintiff's pre-trial memorandum asserted for the first time that Defendants failed to provide Plaintiff with wage notices and statements in violation of NYLL §§ 195(1)(a) and 195(3). (DE 58 at 21-22.) Plaintiff sought statutory damages for these newly asserted violations, in addition to compensatory damages, liquidated damages, attorneys' fees and costs, and pre-judgment and post-judgment interest arising from Defendants' failure to pay overtime compensation. (Id.) Defendants' pre-trial memorandum was filed two days after Plaintiff filed theirs, however it did not address Plaintiff's newly alleged wage notice and statement claims. (DE 59.) At no point did Defendants raise any opposition to Plaintiff's attempt to raise these claims prior to the commencement of the bench trial.

On January 23 and 24, 2019, a bench trial was held before Magistrate Judge Tomlinson. (DE 60; DE 61.) During the trial, Plaintiff elicited testimony from Defendant John Parisi and non-party witnesses regarding Defendants' failure to provide wage notices and statements without objection from Defendants. (DE 63-16 at 24, 34-35, 166-68, 181-82, 188, 191, 194, 267-68, 280, 283, 285.) At the conclusion of the trial, Plaintiff's counsel advised the Court of his intention to move to conform the pleadings to the evidence introduced at trial. (Id. at 342.) The Court set a briefing schedule for the motion, along with a deadline for the parties to submit their respective proposed findings of fact and conclusions of law. (Id. at 349-50.) On May 8, 2019, Plaintiff filed a fully briefed motion to amend his pleading to assert two claims, including wage notice and statement violations under NYLL §§ 195(1)(a) and 195(3). (DE 66; DE 67; DE 68.)

After the passing of Magistrate Judge Tomlinson, this matter was reassigned to the undersigned on October 25, 2021. (Electronic Order dated Oct. 25, 2021.) On December 2, 2021, this Court held a conference to confer with the parties as to whether they intended to recall any material witnesses pursuant to Rule 63. (DE 70.) Plaintiff's counsel advised that Plaintiff did not intend to recall any witnesses. (Id.) Defendants' counsel advised that Defendants intended to recall Defendant John Parisi to clarify certain portions of his trial testimony regarding the issues of willfulness and liquidated damages.^[2] (DE 71.) At the conference, the Court further discussed the arguments raised by the parties on Plaintiff's motion to conform the pleadings to the evidence introduced at trial. (DE 70.) Defendants were permitted to supplement their opposition to Plaintiff's motion to further address why consent should not be implied from the circumstances presented by the record. (Id.) Rather than supplement their opposition, Defendants informed the Court that they would rest on their post-trial submissions. (DE 71.)

Analysis

Plaintiff now moves, pursuant to Rule 15(b), to amend the Complaint to add two claims: first, a claim for violation of NYLL § 195(3), which requires employers to furnish employees with wage statements containing certain information each payday and second, a claim for violation of NYLL § 195(1), which requires employers to furnish employees with a wage notice containing certain information at the time of hiring and on an annual basis. (DE 67-1 at 5.) Plaintiff argues that the claims were tried by the parties' implied consent, and that Defendants would not be prejudiced if the amendments were permitted. (Id. at 3-4, 6-9.) In opposition, Defendants argue that Rule 15(b) precludes the addition of new or different claims and, even assuming it did not, Defendants maintain that implied consent cannot be construed from the parties' actions. (DE 66 at 2-6.)

It is undisputed that Plaintiff's proposed wage notice and statement claims were not litigated with express consent. As such, the central inquiry before the Court is whether the claims were litigated with implied consent.

Before turning to the implied consent inquiry, the Court first addresses Defendants' contention that Rule 15(b) seemingly precludes a party from adding new or different claims. (DE 66 at 5.) In support of this argument, Defendants cite to three district court cases, none of which directly support their proposition. First, one of the cited authorities - Johnson v. Helicopter & Airplane Servs. Corp., 389 F.Supp. 509 (D. Md. 1974) - is outside the Second Circuit. Nonetheless, while Johnson comments on one of the functions of Rule 15(b), it does not support the proposition that the rule precludes a party from adding new or different claims. Id. at 513. With respect to the other two cited authorities, Kirk v. Metro. Transp. Auth., No. 99 CV 3787 RWS., 2001 WL 258605, at *16 (S.D.N.Y. Mar. 14, 2001), notes that proposed amendments that “merely ... make defective allegations more definite and precise are more favored than those seeking to assert new claims, ” but goes on to acknowledge that “amendments [seeking to add new claims] are not necessarily barred after summary judgment motions have been filed” and may be appropriate after considering “notice and whether the new claims arise out of the same set of operative facts.” Id. Moreover, Ho Myung Moolsan, Co. v. Manitou Min. Water, Inc., No. 07 Civ 07483(RJH), 2010 WL 4892646, at *13 (S.D.N.Y. Dec. 2, 2010), aff'd, 501 Fed.Appx. 85 (2d Cir. 2012), provides that “Rule 15(b) motions are intended to correct the theory of an existing claim and not to assert new and different claims, ” but then implicitly defines “new and different claims” as those which are not actually tried and only inferentially suggested by incidental evidence in the record. Id. As such, the district court in Ho Myung Moolsan did not hold that Rule 15(b) per se precludes the addition of new claims...