Infantino v. Sealand Contractors Corp.

• Decision Date: 30 September 2021
• Docket Number: 6:20-CV-06782-EAW-MWP
• Citation: 565 F.Supp.3d 347
• Parties: Corey INFANTINO, on behalf of himself and all others similarly situated, Plaintiff, v. SEALAND CONTRACTORS CORP. and Daniel Bree, individually, Defendant.
• Court: U.S. District Court — Western District of New York

565 F.Supp.3d 347

Corey INFANTINO, on behalf of himself and all others similarly situated, Plaintiff,

v.SEALAND CONTRACTORS CORP. and Daniel Bree, individually, Defendant.

6:20-CV-06782-EAW-MWP

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

Signed September 30, 2021

Jeffrey Robert Maguire, John R. Stevenson, Justin Robert Marino, Stevenson Marino LLP, New York, NY, for Plaintiff

Maureen T. Bass, Sharon P. Stiller, Abrams, Fensterman, Fensterman, Eisman, Ferrara & Wolf, LLP, Scott P. Rogoff, Hiscock & Barclay LLP, Rochester, NY, Ross Michael Greenky, Barclay Damon, LLP, Syracuse, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

BACKGROUND

Plaintiff Corey Infantino ("Plaintiff") commenced this action on October 1, 2020, alleging that defendants Sealand Contractors Corp. ("Sealand") and Daniel Bree ("Bree," collectively, "Defendants") failed to pay overtime wages to Plaintiff and others similarly situated in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (the "FLSA") and the New York Labor Law (the "NYLL") and its associated regulations. (Dkt. 1 at ¶¶ 1, 2-7, 14-17). On December 15, 2020, the Court referred the case to United States Magistrate Judge Marian W. Payson for all pretrial matters excluding dispositive motions. (Dkt. 13).

On February 19, 2021, Plaintiff filed a motion to conditionally certify a collective action pursuant to 29 U.S.C. § 216(b) and for leave to distribute notice to putative collective members. (Dkt. 20). On March 29, 2021, Defendants filed their opposition to Plaintiff's motion and cross-moved to compel arbitration or, alternatively, to dismiss. (Dkt. 33). Plaintiff subsequently filed a combined response to Defendants’ motion to compel arbitration or dismiss and reply in further support of his motion for conditional certification on April 13, 2021. (Dkt. 37). Defendants filed a reply in further support of their motion to compel arbitration or to dismiss on April 20, 2021. (Dkt. 38).

On April 21, 2021, Plaintiff moved to strike Defendants’ reply to Plaintiff's response to the cross-motion as an impermissible sur-reply pursuant to Local Rule of Civil Procedure 7(a)(6). (Dkt. 39). On April 22, 2021, Magistrate Judge Payson held oral argument regarding Plaintiff's motions and Defendants’ cross-motion. (Dkt. 45).

During oral argument, Magistrate Judge Payson granted in part Plaintiff's motion to strike (Dkt. 45), striking point one and portions of the statement of facts Plaintiff highlighted in the exhibit submitted with the motion to strike (Dkt. 39-1). The portions struck primarily concerned the factual nexus between Plaintiff and other putative collective members. (See id. at 3, 5-8, 11). Magistrate Judge Payson ordered supplemental briefing from the parties regarding a line of cases related to Quintanilla v. Suffolk Paving, No. CV 09-5331(SJF)(AKT), 2011 WL 1323033 (E.D.N.Y. Feb. 10, 2011), which the court raised during oral argument. (See Dkt. 47 at 36-37). The parties filed their supplemental briefs on April 30, 2021. (Dkt. 42; Dkt. 43). On May 3, 2021, Plaintiff moved to strike portions of Defendants’ supplemental brief as outside the scope of Magistrate Judge Payson's directive. (Dkt. 44).

On May 11, 2021, Magistrate Judge Payson issued a Decision and Order and Report and Recommendation (the "R&R") (Dkt. 46). Judge Payson granted in part Plaintiff's motion to strike portions of Defendants’ supplemental filing, striking point II in Defendants’ brief. (Id. at 32 n.7, 38). She further granted Plaintiff's motion for conditional certification and for approval of and authorization to distribute the proposed notice to the putative collective class. (Id. at 38-39). Judge Payson recommended that the Court equitably toll the FLSA statute of limitations and that the Court deny Defendants’ motion to compel arbitration or to dismiss. (Id.).

Defendants timely filed objections to the R&R. (Dkt. 48). Plaintiff timely filed a response to Defendants’ objections. (Dkt. 50). Familiarity with the R&R and underlying facts of this matter, as set forth in the R&R, is assumed for purposes of this Decision and Order.

After conducting a careful review of the R&R, and the record in this matter, see 28 U.S.C. § 636(b)(1)(C), the Court adopts the R&R in its entirety. This Decision and Order addresses Defendants’ specific objections.

DISCUSSION

I. Standard of Review of Report and Recommendation

1 Pursuant to 28 U.S.C. § 636(b)(1)(C), where a party makes specific objections to a magistrate judge's report and recommendation, the district judge must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). "The Court reviews unobjected-to findings for clear error." Am. Ins. Co. v. City of Jamestown, 914 F. Supp. 2d 377, 384 (W.D.N.Y. 2012). After conducting its review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

II. Mandatory Arbitration Pursuant to the Collective Bargaining Agreement

Defendants’ motion to compel arbitration is premised on the terms of a collective bargaining agreement ("CBA") entered into by Plaintiff's union and in force between 2017 and 2021. (See Dkt. 46 at 22). In the R&R, Magistrate Judge Payson determined that any waiver of Plaintiff's statutory rights under federal and New York State wage and hour laws through the collective bargaining agreement (the "CBA") must be "clear and unmistakable" following the Second Circuit's test set forth in Abdullayeva v. Attending Homecare Servs. LLC, 928 F.3d 218, 222 (2d Cir. 2019). (Dkt. 46 at 27, 31-33). Defendants contend in their objections that Plaintiff is asserting rights pursuant to the CBA, and not statutory rights, and that Magistrate Judge Payson's application of Abdullayeva was therefore misplaced. (See Dkt. 48 at 11-13). Instead, Defendants propose that Magistrate Judge Payson should have applied the Second Circuit's preference for arbitration set forth in Daly v. Citigroup, Inc., 939 F.3d 415, 421 (2d Cir. 2019) ("[W]e will compel arbitration unless it may be said with positive assurance that the arbitration case is not susceptible of an interpretation that covers the asserted dispute."). (See Dkt. 48 at 12). Defendants argue in particular that Plaintiff's NYLL § 191 claims rely fundamentally on the CBA and should not be subject to the "clear and unmistakable" standard, as NYLL § 191 does not afford a statutory right independent of an underlying contract. (See Dkt. 48 at 12 n.7).

Plaintiff argues that Defendants have not previously properly raised the argument that Plaintiff's claims rely on the CBA. (Dkt. 50 at 7). Because Defendants failed to raise this argument previously and failed to certify the new argument pursuant to Local Rule of Civil Procedure 72(c), Plaintiff contends that the Court should not consider it. (Id. at 7-8). Plaintiff argues that in the alternative, if the Court were to consider Defendants’ argument, Defendants have failed to point to a specific provision of the CBA to support their position that Plaintiff's claims are contractual and not statutory. (Id. at 8-9).

Fundamentally, Defendants’ contention rests on the position that Plaintiff asserts rights guaranteed by the CBA and not by statute. (See Dkt. 48 at 12 ("Plaintiff's claims are transparently and admittedly based on the terms of the CBA, and they cannot arise independently under either the FLSA or New York Labor Law, neither of which provides for a breach of contract action.")). Defendants rely on Plaintiff's counsel's comments during oral argument in response to Magistrate Judge Payson's questioning regarding the "terms and conditions" that, pursuant to NYLL § 191, Defendants are alleged to have violated. (See Dkt. 47 at 49-50). Plaintiff's counsel stated:

I brought that based on the client's understanding of the contract, which it's in the contract. It states that a plaintiff shall be paid a time for over the amount of hours worked in an eight-hour shift, so based upon the contract with his employer, that is why it was brought, not based upon the statute. This is not a statutory case in terms of the eight hours. This is based upon the terms and conditions of his employment, which is a New York Labor Law claim, which has nothing to do with FLSA, as the Court correctly noted.

(Dkt. 47 at 50).

Based on this same statement of counsel at oral argument, in their supplemental briefing, Defendants introduced a new argument that Plaintiff's claims arise from the CBA and are accordingly not subject to the clear and unmistakable standard. (Dkt. 43 at 4-7). This new argument—along with a new argument, discussed below, that Plaintiff's claims are preempted by § 301 of the Labor Management Relations Act (the "LMRA")—was contained in point II of Defendants’ supplemental brief. (Dkt. 43 at 4-7). This is the portion of Defendants’ supplemental brief that Plaintiff subsequently moved to strike (Dkt. 44). Judge Payson granted this motion, explaining that the arguments contained in point II of Defendants’ supplemental brief had not been raised at the appropriate time and thus were not properly before the Court. (Dkt. 46 at 32 n.7, 38).

2 Thus, although Defendants have presented their argument that Plaintiff's claims arise from the CBA and not from statute as an objection to Magistrate Judge Payson's application of the clear and unmistakable standard, it is actually a request that the Court overrule Magistrate Judge Payson's determination that this argument was not timely raised. The Court will not do so. Magistrate Judge Payson was correct in determining that Defendants could and should have raised this argument in their moving papers and that it was outside the scope of the supplemental briefing that she had ordered. Accordingly, because Magistrate Judge Payson appropriately struck and did not consider this argument, the Court...