Vicente v. Ljubica Contractors LLC

JUAN R. VICENTE, on behalf of himself,FLSA Collective Plaintiffs, and the Class, et al. Plaintiffs, v. LJUBICA CONTRACTORS LLC, et al. Defendants.

18-cv-419 (VSB) (SLC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 1, 2020

OPINION & ORDER

Appearances:

Anne Melissa Seelig

C.K. Lee

Lee Litigation Group, PLLC

New York, New York

Counsel for Plaintiffs

John P. DeMaio

Leon M. Greenberg, Esq.

New York, New York

Counsel for Defendants

VERNON S. BRODERICK, United States District Judge:

Plaintiffs Juan R. Vicente, Juan Zamora, and Luis Benitez bring this action pursuant to the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201, et. seq. and the New York Labor Law (the "NYLL"). Before me are (1) Plaintiffs' motion for summary judgment, and (2) Magistrate Judge Ona Wang's unchallenged Report & Recommendation ("R&R" or "Report") recommending that I treat Plaintiffs' motion for summary judgment as unopposed. Because I agree with Magistrate Judge Wang's recommendation, I adopt the Report and consider Plaintiffs' motion for summary judgment as unopposed; however, because Plaintiffs have failed to sustain their burden of establishing that there are no issues of material fact and that they are entitled to judgment as a matter of law, Plaintiffs' motion for summary judgment is DENIED without prejudice. The Clerk of Court is respectfully directed to enter the default of Defendants Pedrag Jankovic and Ljubica Contractors, LLC, and Plaintiffs are directed to begin the process of moving for a default judgment against Defendants within sixty (60) days.

I. Factual Background

In their first amended complaint ("Amended Complaint"), Plaintiffs allege that they were employed by Defendant Ljubica Contractors as construction workers for various periods between 2014 and 2016. (Am. Compl. ¶¶ 23-25.)¹ Plaintiffs Vicente and Zamora allege they were hired directly by Defendant Predrag Jankovic. (Id. ¶¶ 23-24.) All three Plaintiffs allege that throughout their employment Defendants failed to pay them an overtime premium for the hours they worked beyond forty hours, and that Defendants ultimately stopped paying them any wages at all for hours worked. (Id. ¶¶ 23-26.) Plaintiffs also allege that Defendants failed to provide adequate annual wage and hour notices and weekly wage statements as required by New York law. (Id. ¶ 29.)

II. Procedural History

Plaintiffs commenced this action on January 17, 2018 by filing a complaint. (Doc. 1.) On March 21, 2018, Defendant Ljubica Contractors filed an answer through counsel, John DeMaio, (Doc. 7.) On April 6, 2018, I entered an order scheduling an initial pretrial conference, directing the parties to submit a joint letter and proposed case management plan, and directing the parties to, among other things, exchange limited discovery in aid of settlement. (Doc. 12.)

On April 9, 2018, I referred this case for settlement to the designated magistrate judge, who at the time was Magistrate Judge Debra C. Freeman. (Doc. 13.) The case and referral were then reassigned to Magistrate Judge Wang. Judge Wang held an initial telephonic conference with counsel on April 18, 2018, and scheduled an in-person settlement conference for May 15, 2018. She also directed the parties to provide ex parte settlement submissions in advance of the conference. (May 16 Op., at 11.)²

Thereafter, according to Magistrate Judge Wang, "matters devolved rapidly." (Id. at 3.) On May 4, 2018, DeMaio filed a document titled "Motion to Withdraw Answer with Prejudice" stating in its entirety that "The Defendant Ljubica Contractors by its Attorney John De Maio, hereby withdraws its Answer with Prejudice." (Doc. 16.) That same day, Plaintiffs submitted (1) a letter-motion to me seeking leave to amend their complaint to add another Defendant, and (2) a letter to Judge Wang informing her that Defendants' counsel had failed to exchange the required limited discovery. (Docs. 17, 18.)

On May 4, 2018, Magistrate Judge Wang issued an Order to Show Cause directing Defendants to show cause why she should not recommend to me that sanctions be awarded, and adjourning the settlement conference. (Doc. 19.) Defendants did not respond to the Order to Show Cause.

On May 10, 2018, Plaintiffs submitted their initial pretrial conference letter and proposed case management plan, noting that they had been unable to reach DeMaio. (Doc. 20.) Plaintiffs' counsel then appeared for the initial pretrial conference, but neither Defendants nor their counsel appeared or requested an adjournment. At the conference, I granted Plaintiffs leave to amend their complaint.

Plaintiffs then filed an Amended Complaint on May 24, 2018, (Doc. 23), and Defendant Jankovic, through his counsel, filed his Answer on July 20, 2018, (Doc. 26). Defendant Ljubica Contractors has not filed an answer to the Amended Complaint.

On July 26, 2018, I issued an amended order of reference referring this case to Magistrate Judge Wang for general pretrial. (Doc. 29.) Magistrate Judge Wang held a status conference on September 13, 2018; DeMaio did not appear in-person, but after waiting 15 minutes the Court called him by telephone. (May 16 Op. at 4.) DeMaio stated that he only represented Jankovic, not Ljubica Contractors, and asked for an extension of time to produce the pre-settlement discovery. (Id. at 4-5.) Magistrate Judge Wang set a schedule whereby on or before October 19, 2018, (1) Defendants would produce limited discovery and (2) DeMaio would either move to withdraw on behalf of Ljubica or file a letter stating that he intended to proceed as counsel for Ljubica. (Id. at 5.) On November 5, 2018, Plaintiffs filed a letter stating that Defendants had not produced the limited discovery but had instead promised to provide an affidavit from Defendant Jankovic stating that no relevant documents had been found. (Doc. 35.) DeMaio did not provide Magistrate Judge Wang with any update on the status of his representation of Ljubica Contractors. (May 16 Op. at 12.)

Magistrate Judge Wang scheduled a status conference for December 18, 2018 and directed counsel to appear in person. (Doc. 36.) DeMaio failed to appear and could not be reached by telephone. (May 16 Op. at 7-8.) Magistrate Judge Wang issued an Order to Show Cause directing the Defendants to show cause by December 28, 2018, why sanctions should not be imposed on Defendants and/or attorney DeMaio under Fed. R. Civ. P. 16(f), 28 U.S.C. §1927, or the inherent powers of the Court. (Doc. 37). The Court also granted leave for Plaintiffs tomove separately for sanctions. (Id.). On December 28, 2018, I denied Ljubica's request to withdraw its answer. (Doc. 38.)

Defendants did not make any submissions by the deadline set by Magistrate Judge Wang. On December 28, 2018, Plaintiff filed a letter motion for monetary sanctions in the form of reimbursement for legal fees expended in preparing for conferences at which DeMaio failed to appear and in preparing the motion for sanctions. (Doc. 39.) Plaintiffs also requested that Judge Wang strike Defendants' answers, apparently to enable them to move for a default judgment. (Id.; see also May 16 Op., at 13-14.)

On May 16, 2019, Magistrate Judge Wang issued an Opinion & Order imposing $3,678.28 in monetary sanctions on Defendants under Federal Rule of Civil Procedure 16(f), on the grounds that Defendants and DeMaio engaged in the following conduct:

• DeMaio failed to personally appear for the following three scheduled court conferences:

? May 17, 2018 conference before me, (Doc. 12);

? September 13, 2018 conference before Magistrate Judge Wang, (Doc. 31);

? December 18, 2018 conference before Magistrate Judge Wang, (Doc. 36).

• DeMaio and Defendants failed to comply with the following pretrial orders in the following ways:

? April 6, 2018 Order:

¦ Defendants did not exchange limited discovery in aid of settlement by April 27, 2018; and

¦ Defendants did not meet and confer with Plaintiffs and submit a joint letter and proposed case management plan by May 10, 2018.

? April 18, 2018 Order:

¦ Defendants did not provide ex parte settlement submissions one week before the scheduled Settlement Conference as required by Magistrate Judge Wang's Individual Rules of Practice in Civil Cases, and as directed in the telephone conference.

? September 14, 2018 Order:

¦ Defendants did not produce the limited discovery in aid of settlement by October 19, 2018;

¦ Although Magistrate Judge Wang was able to reach DeMaio by telephone for the September 13, 2018 conference, he was not prepared to participate.

? DeMaio did not file a motion to withdraw his appearance for Ljubica Contractors or file a letter stating that he intended to proceed as counsel for the Ljubica Contractors by October 19, 2018.

(May 16 Op. at 10-12.)

Magistrate Judge Wang denied Plaintiffs' request to strike Defendants answers on the basis that (1) she did not have authority to do so, and (2) "the action is fully joined, Defendants' counsel has not withdrawn, and a final resolution on the merits is preferred. Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No. 06-CV-14226 (RLE), 2008 WL 5560868 (S.D.N.Y. Oct. 27, 2008) (citing Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981) ('[t]he law disfavors default judgments; any doubts should be resolved in favor of setting aside a default so that a determination may be made on the merits')." (Id. at 13-14.) Instead, Magistrate Judge Wang directed Plaintiffs to file a motion for summary judgment, and set a briefing schedule under which Plaintiffs' moving papers would be due by June 28, 2019, Defendants' opposition papers would be due by July 29, 2019, and Plaintiffs' reply would be due by August 19, 2019. (Id. at 14.)

On June 28, 2019, Plaintiffs filed a motion for summary judgment, (Doc. 47), along with a memorandum of law in support with exhibits, (Doc. 48), and a Local Civil Rule 56.1 Statement, (Doc. 49). Defendants did not oppose by the deadline, nor have they filed any further submissions in the intervening months.

On August 7, 2019, P...