Grochowski v. Phoenix Const., Docket No. 01-7569.
| Decision Date | 14 January 2003 |
| Docket Number | Docket No. 01-7569. |
| Citation | 318 F.3d 80 |
| Parties | Jan GROCHOWSKI, Jerzy Klosek, Miroslav Sidor, Jan Statkiweicz, Henryk Supinski, Andrzej Wiktoruk, Janusz Wysocki, Andrzej Zmijewski, and Roman Kakol, Plaintiffs-Appellants, v. PHOENIX CONSTRUCTION, Ypsilon Construction Corporation, Inc., John Giavris, George Gizanis, Republic Western Insurance Company, Utica Mutual Insurance Company, Defendants-Appellees, Ajet Construction Corp., Cos Construction Corporation, Spiro Gazgalis, Sebastianos Diakogiannis, International Fidelity Insurance Company, Defendants-Appellees, Colonia Insurance Company (Uk) Limited, and Titan Indemnity Company, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Randall D. Bartlett, Bartlett & Bartlett LLP, New York, New York, for Plaintiffs-Appellants Jan Grochowski, Jerzy Klosek, Miroslav Sidor, Jan Statkiweicz, Henryk Supinski, Andrzej Wiktoruk, Janusz Wysocki, Andrzej Zmijewski, and Roman Kakol.
Richard J. Flanagan, Flanagan, Cooke & French, LLP, New York, New York, for Defendants-Appellees Ajet Construction Corp., Spiro Gazgalis, and International Fidelity Insurance Company.
Mario Biaggi, Jr., Biaggi & Biaggi, New York, New York, for Defendants-Appellees Phoenix Construction Corp., Ypsilon Construction Corp., John Giavris, George Gizanis, Republic Mutual Western Insurance Company, and Utica Mutual Insurance.
Before: McLAUGHLIN and CABRANES, Circuit Judges, and LYNCH, District Court Judge.*
The plaintiffs appeal several determinations of the United States District Court for the Southern District of New York (Buchwald, District Judge). The plaintiffs raise the following issues: (1) whether their state-law claims for recovery of prevailing wages and overtime pay should have been dismissed; (2) whether the plaintiffs should have been permitted to amend their complaint to add a claim under Article 6 of New York's Labor Law; (3) whether their FLSA claims for unpaid overtime compensation should have been limited to one-and-a-half times the hourly rates actually paid, rather than one-and-a-half times the prevailing hourly rates; and (4) whether the district court should have directed a verdict against the four nontestifying plaintiffs.
For the reasons that follow, we affirm each of the district court's determinations.
The appellants are nine plaintiffs who were employed as roofers and bricklayers on three separate public works construction projects. The defendants-appellees are contractors involved in these projects, their officers, and the insurance companies that served as sureties on construction payment bonds for those projects.
The contractor defendants are Ypsilon Construction Corporation, Inc. ("Ypsilon"), Phoenix Construction Corporation ("Phoenix") and Ajet Construction Corporation ("Ajet"). All three are construction companies.
The insurance defendants are Republic Western Insurance Company ("Republic"), Utica Mutual Insurance Company ("Utica") and International Fidelity Insurance Company ("IFIC"). All three companies are sureties on construction payment bonds.
Three construction projects are involved and each contract involves the New York City Housing Authority ("NYCHA") as owner of three public housing developments — the Fulton Houses, the Lillian Wald Houses and the Queensbridge Houses.
NYCHA hired Ypsilon to perform exterior brick repair at the Fulton Houses (the "Fulton Project"), Phoenix to perform asbestos abatement and roofing renovations on the Lillian Wald Houses (the "Wald Project"), and Phoenix and Ajet, as a joint venture (the "Joint Venture"), to perform roofing renovations, asbestos abatement and brickwork repair at the Queensbridge Houses (the "Queensbridge Project"). All three NYCHA projects were federally funded.
Each project, of course, was subject to a separate contract but all contract provisions relevant to this appeal were identical. The General Conditions of each contract required that workers on the projects be paid wage rates and supplemental fringe benefits prevailing at the time the work was performed. The General Conditions of each contract stated that the Davis-Bacon Act, 40 U.S.C. § 276a, et seq. ("DBA"), and the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 327, et seq. ("CWHASSA"), were specific labor standards provisions applicable to all federally funded contracts. Section 42(a) of the General Conditions provided that "[t]he Contractor shall pay to all laborers and mechanics employed in the work not less than the wages prevailing in the locality of the Project, as predetermined by the Secretary of Labor of the United States pursuant to the Davis-Bacon Act (Title 40, U.S.C., Sections 276a — 276a-5)."
The plaintiffs sued in the United States District Court for the Southern District of New York (Kaplan, District Judge) to recover unpaid prevailing wages and overtime compensation allegedly owed them for their labor on all three projects. The plaintiffs invoked the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (the "FLSA"), the CWHASSA and New York State common law.
The district court issued a scheduling order setting the deadline for reply on all pleadings for late December 1997. The pretrial order was filed in June 1998. On consent of the parties, the case was transferred to then Magistrate Judge Buchwald for all pretrial purposes.
Several defendants moved to dismiss for failure to state a claim, while others moved for summary judgment. Immediately following oral argument on April 17, 1999, Magistrate Judge Buchwald dismissed the plaintiffs' CWHASSA claims, holding that the statute does not create a private right of action. The district court also dismissed the plaintiffs' state-law claims because state common law remedies are not available to recover prevailing wages under the federally funded contracts. The district court also held that the DBA, the statute applicable to federal contracts, does not afford the plaintiffs a private right of action.
The plaintiffs requested reconsideration of the district court's dismissal of their state-law claims and also moved to amend their complaint to add a claim under Article 6 of the New York Labor Law. The district court denied reconsideration as well as the plaintiffs' motion to amend the complaint, citing the plaintiffs' undue delay in bringing the motion. Grochowski v. Ajet Construction Corp., 1999 WL 688450, *1 (S.D.N.Y. Sept.2, 1999).
Subsequently, in response to additional motions by several defendants for summary judgment, now District Judge Buchwald pared the plaintiffs' claims down to one remedy: the unpaid minimum wages, if any, and unpaid overtime in the amount of one and one-half times the hourly rates actually paid. Grochowski v. Ajet Construction Corp., 2000 WL 1159640 (S.D.N.Y. Aug. 16, 2000). The case went to a jury trial on the limited issues of minimum wages and time-and-a-half for overtime under the FLSA.
The claims of only five of the original nine plaintiffs were submitted to the jury. Two of the plaintiffs who lived in New York chose not to appear at trial. Two other plaintiffs lived in Poland and did not return to the United States. Plaintiffs' counsel did not take their depositions, despite the opportunity to do so via telephone shortly before trial. After the plaintiffs rested at trial, the district court granted judgment as a matter of law against the four non-testifying plaintiffs on the ground that they failed to present sufficient evidence for the jury to make a reasonable inference as to the hours worked or wages paid.
The jury awarded each of the five remaining plaintiffs approximately $26,000.00 — double the unpaid wages of $13,000.00 because of the defendants' willful conduct, a sanction permitted under the FLSA. 29 U.S.C. § 216(b).
The plaintiffs make the following claims on appeal: (1) their state-law claims should not have been dismissed; (2) the plaintiffs should have been permitted to amend their complaint; (3) their FLSA claims should not have been limited to one-and-a-half times the hourly rates actually paid; and (4) judgment as a matter of law was improperly entered against the four non-testifying plaintiffs.
The plaintiffs' state-law claims for breach of contract and quantum meruit were dismissed on summary judgment. Thus, we review this issue de novo to determine whether the substantive law has been correctly applied. Republic Nat'l Bank of New York v. Delta Air Lines, 263 F.3d 42, 46 (2d Cir.2001).
The construction projects were federally funded and the contracts specifically provided that the DBA applied. The DBA requires that all laborers and mechanics working on federally funded construction projects be paid not less than the prevailing wage in the locality where the work is performed. 40 U.S.C. § 276a. Although the Supreme Court has not considered whether the DBA confers a private right of action on an aggrieved employee for back wages, the great weight of authority indicates that it does not. See, e.g., Operating Eng'rs Health & Welfare Trust Fund v. JWJ Contracting Co., 135 F.3d 671, 676 (9th Cir.1998); Chan v. City of New York, 1 F.3d 96, 102 (2d Cir.1993); Weber v. Heat Control Co., 728 F.2d 599, 599-600 (3d Cir.1984).
In Chan v. City of New York, 1 F.3d 96 (2d Cir.1993), this Court indicated that a private right of action does not exist under the DBA. Id. at 102. In Chan, laborers under municipal contracts sued the contractor, the City of New York and the New York City Department of Housing Preservation and Development for back wages alleging that they were not paid prevailing wages as required — not by the DBA — but by the Housing Community and Development Act ("HCDA"). Id. at 99.
In determining that no private right of action exists under HCDA, we found an analogy in Congress' adoption of the DBA's regulatory scheme providing administrative remedies. Id. at...
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