Adami v. Cardo Windows, Inc.
| Decision Date | 10 June 2014 |
| Docket Number | Civil No. 12-2804 (JBS/JS) |
| Parties | FRED ADAMI and JACK VARNER, on behalf of themselves and all others similarly situated, Plaintiffs, v. CARDO WINDOWS, INC. d/b/a "Castle, 'The Window People'" et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
HONORABLE JEROME B. SIMANDLE
APPEARANCES:
Richard S. Hannye, Esq.
HANNYE LLC
Attorney for Plaintiffs
Kenneth Goodkind, Esq.
Peter J. Tomasco, Esq.
Michael D. Homans, Esq.
FLASTER GREENBERG P.C.
Commerce Center
Attorneys for Defendants
TABLE OF CONTENTS
I. INTRODUCTION 2
II. BACKGROUND 3
A. Factual Background 3
B. Procedural Background 4
III. STANDARD OF REVIEW 6
IV. DISCUSSION 7
I. INTRODUCTION
This matter comes before the Court on cross-motions for summary judgment by Defendants Cardo Windows, Inc. d/b/a "Castle 'The Window People,'" Christopher Cardillo, Sr., Christopher Cardillo, Jr., Nicholas Cardillo, Edward Jones, John J. Belmonte, and Pat Tricocci [Docket Item 87] and by Plaintiffs Jack Varner and Fred Adami [Docket Item 88.] This action arises from Defendants alleged misclassification of its window installers as independent contractors. Plaintiffs maintain claims for unpaid overtime and all other relief they are dueunder the Fair Labor Standards Act, the New Jersey State Wage and Hour Law, and the New Jersey Construction Industry Independent Contractor Act, as well as a claim for unjust enrichment. Plaintiff Fred Adami also maintains claims for slander per se and for unpaid overtime and benefits when he was a manager for Cardo. The Court recently granted Plaintiffs' motion for conditional certification of a collective action under the Fair Labor Standards Act. The following addresses only the individual claims remaining in the case.
For the reasons discussed below, the Court will grant in part, deny in part, and defer in part Defendants' motion for summary judgment. The Court will also grant in part and deny in part Plaintiffs' motion for summary judgment.
II. BACKGROUND
Defendant, Cardo Windows, Inc. ("Cardo") does business under the trademark, "Castle the Window People." Cardo sells and installs windows and doors in multiple states including New Jersey, Pennsylvania, Delaware, Massachusetts, Rhode Island, Vermont, New Hampshire, Connecticut, New York, and Ohio. Cardo uses installation work crews to install windows for customers. Generally, these work crews consist of an installer and one or more helpers.
Central to this suit are substantial factual disputes regarding the relationship between Cardo and its installers including the named Plaintiffs, Fred Adami and Jack Varner. Plaintiff Jack Varner asserts that he worked 10 to 14 hours per day as an installer for Cardo from February 2003 to October 2012. Plaintiff Fred Adami asserts that he worked 10 to 12 hours per day installing windows for Cardo from March 2001 to June 2012. Both contend that they primarily completed work orders in New Jersey as sole proprietors and admit that they signed agreements characterizing their relationship with Cardo as independent contractors. Adami asserts that he became an office manager in his final few months working for Cardo before being fired for allegedly stealing supplies from Cardo and falsifying invoices.
On May 10, 2012, Plaintiff Fred Adami, individually and on behalf of all others similarly situated, filed a putative collective action and class action against Defendants Cardo Windows, Inc. d/b/a "Castle 'The Window People,'" Christopher Cardillo, Sr., Christopher Cardillo, Jr., Nicholas Cardillo, Edward Jones, John J. Belmonte, and Pat Tricocci. [Docket Item 1.] Adami asserted claims under the Fair Labor Standards, Act ("FLSA"), the New Jersey Wage and Hour Law ("NJWHL"), the New Jersey Construction Industry Independent Contractor Act("CIICA"), and the Employee Retirement Income Security Act ("ERISA"). Adami also asserted claims for injunctive relief requiring Cardo to pay federal and state taxes on behalf of plaintiffs and comply with FLSA, NJWHL, CIICA, and ERISA in the future. Defendants filed an Answer on June 22, 2012 and Cardo asserted counter-claims against Adami for breach of contract, fraud, conversion, and tortious interference with contract. [Docket Item 6.] On July 12, 2012, Adami filed an Answer to Cardo's counter-claims. [Docket Item 9.] Adami filed an Amended Complaint on November 27, 2012, adding a second plaintiff, Jack Varner, and an additional defendant, Nicholas Brucato. [Docket Item 18.] On December 11, 2012, Defendants filed a partial motion to dismiss Plaintiffs' Amended Complaint. [Docket Item 22.] The Court granted in part and denied in part Defendants' partial motion to dismiss, dismissing Counts VI and X, for failure to maintain records under the FLSA and NJWHL; Counts III and IX, for violation of § 502(a)(3) of ERISA; and Count XIII, for wrongful discharge. [Docket Items 60 & 61.]
On January 29, 2014, the Court granted Plaintiffs' motion for conditional certification of a FLSA "opt-in" collective action and denied Plaintiffs' motion for certification of a Rule 23 "opt-out" state wage class action. [Docket Items 112 & 113.] The Court also granted Plaintiffs' motion to dismiss Cardo's counter-claims for breach of contract against Jack Varner anddenied Plaintiffs' motion to dismiss Cardo's counter-claims for breach of contract against Fred Adami. On April 14, 2014, following briefing and oral argument, the Court approved a form of collective action notice to be sent to potential collective action members within seven days.
The parties filed the instant motions for summary judgment on December 2, 2013 in conformance with the deadline imposed for dispositive motions as to the named Plaintiffs' individual claims. [Docket Item 58.]
III. STANDARD OF REVIEW
Summary judgment is appropriate "if the movant shows 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). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. The Court will view any evidence in favor of the nonmoving party and extend any reasonable favorable inferences to be drawn from that evidence to that party. Scott v. Harris, 550 U.S. 372, 378 (2007).
IV. DISCUSSION
Defendants' motion for summary judgment [Docket Item 87] seeks dismissal of Plaintiffs' claims for unpaid overtime under the FLSA, the NJWHL, and the CIICA, as well as Plaintiffs' claims for unjust enrichment. Defendants also seek dismissal of Adami's claim for slander per se, his claim for overtime for periods in which he was an "installation manager," and his claim for benefits under the CIICA. The Court will address each in turn.
Cardo markets its windows, doors, and installation services to the general public through its website and direct mailings. (Defendants' Statement of Undisputed Facts ("SMF") [Docket Item 87-27] ¶ 5.)1 Upon the sale of a product, homeowners enter acontract with Cardo that includes the price of the product to be installed and the cost of installation. (Id.)
Plaintiffs Adami and Varner installed windows and doors for Cardo and were required to sign independent contractor agreements outlining the terms and conditions of their work. (Id. ¶ 6.) As window installers for Cardo, Plaintiffs were paid based upon the size and type of window installed. For example, in 2009 and 2010 Plaintiffs were paid $40 to install a wooden double-hung window, $50 for a metal double-hung window, $75 for a wooden section slider, $85 for a metal section slider, $300 for a bow window with roof, $175 for a garden window, $150 for a standard door, $300 for a two-sided door, $200 for a patio door, and $65 for storm doors. (Id. ¶ 10.) At some point, Cardo began paying installers "an adjustment of $10 additional per window on double hungs only." (Deposition of Edward Jones on January 9, 2013 ("Jones Dep.") [Docket Item 87-7] 176:3-5.) The amount of time it would take to install a certain window product would vary based on the details of the job and the speed of the installer. (SMF ¶ 12.) Cardo would not pay more than ten percent of the total cost of an installation job to cover labor expenses. (Deposition of Fred Adami on March 29, 2013 ("Adami Dep.") [Docket Item 87-4] 462:7-463:13.) Plaintiffs provided Cardo daily and bi-weekly worksheets recording the projects worked, the number of windows and doors installed, and theamounts to be paid for each. (SMF ¶ 13.) Both Adami and Varner earned more than $100,000 per year for their work for Cardo. (Id. ¶ 16.)
It is undisputed that Cardo did not maintain records of the hours worked by its installers. Jack Varner certified that he worked 10-14 hours a day installing windows for Cardo from February 2003 to October 2012. (Certification of Jack Varner, Pl. Ex. F [Docket Item 104-3] ¶ 1.) Varner also testified that he worked 10-14 hours a day, six days per week. (Deposition of Jack Varner on May 7, 2013 ("Varner Dep."), Pl. Ex. G [Docket Item 104-3] 46:1-6; 62:2-3.) Similarly, Adami testified that "a typical day at [Cardo] is easily 10 to 12 hours" and he worked six or seven days per week. (Adami Dep. 113:11-12; 241:6-9.)...
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