Jones v. Pawar Bros. Corp.

434 F.Supp.3d 14

Daniel E. JONES II, on behalf of himself, individually, and on behalf of all others similarly-situated, Plaintiff,

v.PAWAR BROS. CORP., Harjinder Singh, and USAC Towing Corp., Defendants.

17-CV-3018 (PKC) (JO)

United States District Court, E.D. New York.

Signed January 22, 2020

Alexander T. Coleman, Michael J. Borrelli, Michael R. Minkoff, Borrelli & Associates, P.L.L.C., Garden City, NY, for Plaintiff.

Aaron Michael Rubin, New York, NY, Diana Rose Rubin, Rubin & Rus, Sleepy Hollow, NY, for Defendants Pawar Bros. Corp., Harjinder Singh.

Aaron Michael Rubin, New York, NY, for Defendant USAC Towing Corp.

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Plaintiff Daniel E. Jones II ("Plaintiff") brings this action on behalf of himself and other similarly situated individuals pursuant to 29 U.S.C. § 216(b) against Defendants Pawar Bros. Corp. ("Pawar"), Harjinder Singh,¹ and USAC Towing Corp. ("USAC"). Plaintiff alleges that Defendants failed to pay him overtime compensation and retaliated against him for asserting his entitlement to overtime compensation, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. , and the New York Labor Law ("NYLL"), N.Y. Lab. Law §§ 160 et seq. , §§ 200 et seq. Plaintiff also asserts that Defendants failed to furnish him with wage statements in accordance with the NYLL, N.Y. Lab. Law. §§ 190 et seq. Before the Court are Plaintiff's motion for partial summary judgment and Defendants' cross motion for summary judgment. For the reasons stated below, Plaintiff's motion for partial summary judgment is granted in part and denied in part, and Defendants' cross motion for summary judgment is denied in its entirety.

BACKGROUND

I. Relevant Facts²

A. Defendants' Businesses

Defendant Pawar is an "auto body shop in the business of repairing cars" and is owned and operated by Defendant Singh and non-party Harmit Singh, Singh's brother. (Defendants' 56.1 Statement ("Defs.' 56.1"), Dkt. 69, ¶¶ 3, 7; Plaintiff's 56.1 Statement ("Pl.'s 56.1"), Dkt. 60, ¶ 2.) Pawar provides auto body work and tows vehicles for repair to and from Pawar. (Defendants' 56.1 Counterstatement ("Defs.' 56.1 Counter"), Dkt. 68, ¶ 7.) Pawar owns two tow trucks registered to its address and bearing on the body of the truck the name Pawar and a phone number ending in 0122. (Defs.' 56.1, Dkt. 69, ¶¶ 13–14.) Pawar usually operates in New York City, but also tows vehicles from New Jersey approximately twice a year. (Id. ¶ 17; Plaintiff's 56.1 Reply Statement ("Pl.'s 56.1 Reply"), Dkt. 63, ¶ 110; Singh 8/1/2018 Deposition, Dkt. 62-1, at 87:24–25 ("[O]nce or twice, we had an incident where we had to go out of state...."); Marchand Deposition, Dkt. 62-2, at 90:15–17 ("Q. How often do [you go] to New Jersey? A. Now and then. Usually he keeps me local like in the five boroughs."); id. at 91:5–6 ("Q. Would you say once a year? A. Like maybe twice a year or something like.").) Between 2013 and 2017, Pawar had an annual gross revenue exceeding $500,000. (Pl.'s 56.1, Dkt. 60, ¶ 9.)

Defendant USAC is a tow truck company and is solely owned by Defendant Singh. (Defs.' 56.1, Dkt. 69, ¶¶ 4, 8.) USAC provides towing services, but does not provide "body work services." (Id. ¶ 9.) USAC owns two tow trucks registered to its address and bearing on the body of the truck the name USAC and a phone number ending in 8093. (Id. ¶¶ 15–16.) USAC does not operate outside of New York. (Plaintiff's Counterstatement, Dkt. 65, ¶ 18.)

Pawar's employees include Harmit Singh, Harvinder Singh, and Ricardo Marchand. (Pl.'s 56.1, Dkt. 60, ¶ 17.) USAC does not have any employees other than Plaintiff, whose employee status is disputed.³ (Defs.' Counter, Dkt. 68, ¶ 35.) Defendant Singh works onsite at Pawar, but takes towing request calls for USAC. (Singh 8/1/2018 Deposition, Dkt. 61-1, at 72:21–73:24; Singh 11/5/2018 Deposition, Dkt. 61-5, at 17:7–18.) On average, Singh receives one or two calls a day. (Singh 11/5/2018 Deposition, Dkt. 61-5, at 16:12–15.) Singh performs the tow jobs himself if possible, and asks other people, including Harmit Singh, Harvinder Singh, and Plaintiff, to fill in if he is not available. (Id. at 13:6–20, 16:21–17:4, 17:19–18:5; Singh 8/1/2018 Deposition, Dkt. 61-1, at 63:10–15; Pl.'s 56.1, Dkt. 60, ¶¶ 33–34.) USAC does not pay Harmit Singh or Harvinder Singh for any work they perform for USAC. (Singh 8/1/2018 Deposition, Dkt. 61-1, at 54:21–56: 6, 141:24–142:2.)

There were occasions where Pawar used USAC trucks when Pawar's trucks were in repair or otherwise unavailable. (Defs.' 56.1 Counter, Dkt. 68, ¶ 29.) Pawar has never used any other company's trucks. (Singh 11/5/2018 Deposition, Dkt. 61-5, at 24:3–7.) USAC recommends Pawar to towing customers for repair services, but brings the vehicle to other repair shops if the customer so requests. (Defs.' 56.1 Counter, Dkt. 68, ¶¶ 7, 23.)

Defendant Singh processes payroll for both Pawar and USAC. (Pl.'s 56.1, Dkt. 60, ¶ 15.) Braj Aggarwal serves as the accountant and bookkeeper for both Pawar and USAC. (Id. )

Defendants do not preserve records such as towing receipts, time records, and cash payments. (Defs.' 56.1 Counter, Dkt. 68, ¶ 104.) Pawar does not maintain records about the amount of time the employees work. (Pl.'s 56.1, Dkt. 60, ¶ 105.) Defendants did not keep any records of payments to Plaintiff. (Id. ¶ 106.)

Pawar was sued by Tito Benitez for wage violations in 2009. (Id. ¶ 96.) The case was settled before any depositions were taken. (Id. ¶ 97.) Singh never consulted the opinions of the U.S. Department of Labor, New York State Department of Labor, or any attorneys, nor did he do any research, with respect to the compensation of his workers. (Id. ¶¶ 101–02.)

B. Plaintiff's Relationship with Defendants

Before the commencement of this action, Plaintiff drove tow trucks for USAC. (Defs.' 56.1 Counter, Dkt. 68, ¶¶ 19, 90.) The parties dispute whether Plaintiff also drove tow trucks for Pawar. (Id. ¶ 19.) When Singh was not available to perform towing himself, he "would call [Plaintiff] to come in." (Pl.'s 56.1, Dkt. 60, ¶ 79.) They would agree on a flat rate for the day, which would be paid in cash that day. (Singh 8/1/2018 Deposition, Dkt. 61-1, at 166:8–167:20, 209:12–15.) Plaintiff worked for Singh at least "three or four times a month." (Pl.'s 56.1, Dkt. 60, ¶ 78.) There were occasions when Singh requested Plaintiff, but Plaintiff was busy working for other companies and did not come in. (Defs.' 56.1 Counter, Dkt. 68, ¶¶ 81, 83; Singh 8/1/2018 Deposition, Dkt. 61-1, at 147:4–18.) When Plaintiff was driving for Defendants, any accident would be covered under Defendants' insurance policy. (Defs.' 56.1 Counter, Dkt. 68, ¶ 85.) Plaintiff was not responsible for repairing the tow trucks. (Singh 8/1/2018 Deposition, Dkt. 61-1, at 201:8–13.) Singh stopped calling Plaintiff for work because Plaintiff initiated this action. (Defs.' 56.1 Counter, Dkt. 68, ¶ 90.)

II. Procedural History

On May 18, 2017, Plaintiff filed the instant action on behalf of himself and all other similarly situated individuals pursuant to 29 U.S.C. § 216(b). (Complaint, Dkt. 1.) Defendants failed to timely appear, and Plaintiff obtained a certificate of default on August 30, 2017. (See Clerk's Entry of Default, Dkt. 8.) On December 1, 2017, Defendants entered their appearance and expressed their intention to move to vacate the certificate of default. (See Notice of Appearance, Dkt. 17; Defendants' letter motion for extension of time to file motion to vacate certificate of default, Dkt. 18.) Upon Plaintiff's consent (see Plaintiff's response, Dkt. 19), on December 5, 2017, the Honorable James Orenstein vacated the entry of default (Dec. 5, 2017 Order). On the same day, Defendants filed a pre-motion conference request for a proposed motion to dismiss. (Defendants' letter motion for pre-motion conference, Dkt. 20.) However, on December 12, 2017, prior to a pre-motion conference being held, Defendants filed their motion to dismiss for failure to state a claim. (Defendants' motion to dismiss for failure to state a claim, Dkt. 22.) On January 10, 2018, the Court held a pre-motion conference, at which it denied Defendants' motion to dismiss. (Jan. 10, 2018 Minute Order.)

Defendants filed their answer on January 23, 2018. (Answer, Dkt. 29.) On February 14, 2018, the Honorable James Orenstein held a status conference and granted Plaintiff's motion for conditional certification of a collective action. (See Minute Entry, Dkt. 33; Feb. 14, 2018 Order.) On September 7, 2018, Plaintiff filed his amended complaint, joining USAC as a Defendant. (See Amended Complaint, Dkt. 43.) On September 24, 2018, Defendants filed their answer to the amended complaint. (See Answer to Amended Complaint, Dkt. 46.) On November 20, 2018, discovery was closed. (Minute Entry, Dkt. 48.) Plaintiff and Defendants cross-moved for summary judgment, and the motions were fully briefed on May 8, 2019. (See Dkts. 58–69.)

STANDARD OF REVIEW

Summary judgment is appropriate where the submissions of the parties, taken together, "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (noting that summary judgment inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505.

The initial "burden of establishing the absence of any genuine issue of material fact" rests with the moving party. Zalaski v. City of Bridgeport Police Dep't , 613 F.3d 336, 340 (2d Cir. 2010) (per curiam). Once this burden is met, however, the burden shifts to the non-moving part...