Teri ex rel. Themselves & All Other Similarly Situated Current & Former Emps. v. Salvatore Spinelli & Salvatore Spinelli Law Office
| Citation | 980 F.Supp.2d 366 |
| Decision Date | 28 October 2013 |
| Docket Number | No. 05–CV–2777 (PKC)(RML).,05–CV–2777 (PKC)(RML). |
| Parties | Rachel M. TERI and Daniel Watkins, on behalf of themselves and all other similarly situated current and former employees as Class Representatives, Plaintiffs, v. Salvatore SPINELLI and Salvatore Spinelli Law Office, Defendants. |
| Court | United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York) |
OPINION TEXT STARTS HERE
Jean Y. Park, Kelley Drye & Warren LLP, John E. Kiley, Ryan Michael Duffy, Sheppard Mullin Richter & Hampton LLP, New York, NY, for Plaintiffs.
Salvatore Spinelli, Great Neck, NY, pro se.
John G. Poli, III, John Poli P.C., Northport, NY, for Defendants.
Representative Plaintiffs, Rachel Teri and Daniel Watkins, along with Opt–In Class Plaintiffs (collectively, “Plaintiffs”), move for summary judgment against Salvatore Spinelli (“Spinelli” or “Defendant”) and the Salvatore Spinelli Law Office (“Spinelli Law Office,” together with Spinelli, the “Spinelli Defendants”) for failing to pay overtime wages 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.C.R.R ¶ 142.2–2.
Spinelli, an attorney proceeding pro se,1 opposes Plaintiffs' motion for summary judgment and cross-moves for: (i) decertification of Plaintiffs' FLSA collective action; (ii) dismissal of co-defendant John P. Fiumano from this action; (iii) dismissal of the Spinelli Law Office from this action; (iv) dismissal of Spinelli from this action on the grounds that all of Plaintiffs' claims as against him are barred by the FLSA's statute of limitations; (v) an order precluding Plaintiffs from certifying as a class pursuant to Federal Rule of Civil Procedure (“FRCP”) 23(a) and/or New York Civil Practice Law and Rule (“NYCPLR”) 902; and (vi) dismissal of the action without prejudice upon decertification of the Plaintiffs' FLSA action. (Spinelli Notice of Cross–Motion (“Dkt. 128–17”).)
The Court recites only the history and facts necessary to resolve the motions at bar.
I. Procedural History
On June 8, 2005, Plaintiffs Teri and Watkins brought this action against their former employer, Defendant Oxford Management Services, Inc. (“OMS”) and individual defendants who were OMS officers and directors, Richard A. Pinto, Charles Harris, Patrick R. Pinto, Peter C. Pinto and John Fiumano (“Individual OMS Defendants,” together with OMS, the “OMS Defendants”). Plaintiffs alleged that they are entitled to unpaid overtime wages from the OMS Defendants, liquidated damages, and attorneys' fees. . The Spinelli Defendants were not yet a party to the action.
On September 26, 2006, Plaintiffs sought court approval (“Dkt. 32”), and subsequently moved, to amend their Complaint to add the Spinelli Defendants to the action (“Motion to Amend”),2 alleging that, during the course of discovery, they obtained evidence supporting the extension of their overtime pay claims to the Spinelli Defendants under the FLSA's single enterprise or joint employer theories of liability. (Dkt. 45.)
On August 13, 2007, with the Motion to Amend pending, Plaintiffs moved to strike the OMS Defendants' Answer pursuant to Rule 37 of the Federal Rules of Civil Procedure (“Motion to Strike”) (Dkt. 58) for, inter alia, repeated failures to comply with discovery requests and the Court's orders. (Dkt. 61.) By Order dated September 18, 2007, Judge Hurley granted Plaintiffs' Motion to Amend. (Dkt. 71.) Thereafter, by Memorandum and Order, dated November 18, 2009, Judge Hurley, adopting Magistrate Judge Wall's Report and Recommendation, granted Plaintiffs' Motion to Strike in its entirety, striking the OMS Defendants' Answer and directing the Clerk of the Court to note the default of the OMS Defendants. (Dkt. 86.) The Court concluded, however that because Plaintiffs' claims against Spinelli remained pending, and because Plaintiffs had not moved for the entry of a final judgment as to the defaulting defendants, the default judgment would not be entered until such time as Plaintiffs' claims against Spinelli were resolved. (Dkt. 86.) As a result, only Plaintiffs' claims against Spinelli and the Spinelli Law Office remain to be litigated.
The case was reassigned to the undersigned on April 18, 2013. Plaintiffs' motion for summary judgment and the Spinelli Defendants cross-motions are before the Court.
II. Relevant Factual HistoryA. The Parties
Defendant OMS is a New York corporation that engaged in business as a debt collections agency. (Plaintiffs' Local Rule 56.1 Statement (“Pl. 56.1”) ¶¶ 1–2.) 3 Its principal office is located at 135 Maxess Road, Melville, New York 11747 (“Maxess Road Property”). (Pl. 56.1 ¶ 1.) The Individual OMS Defendants were officers and/or directors of OMS during the relevant time period. (Pl. 56.1 ¶ 5.)
OMS employed Plaintiffs as collections agents during the time period relevant to this action. (Pl. 56.1 ¶ 3.) Teri worked for OMS as a collections agent from September or October 2003 until January 2004. ( Id.) Watkins worked for OMS and Spinelli from September 19, 2000 until June 18, 2004. ( Id.) OMS collections agents were responsible for communicating with individual consumers who owed debts to OMS clients. (Harris Tr. 10.) 4
Spinelli is an attorney who has operated a solo law practice since 1972. (Spinelli Tr. 23–25.) 5 From approximately 2003 to 2009, Spinelli maintained an office on the second floor of the Maxess Road Property, where he engaged in private practice and also served as General Counsel for OMS. (Spinelli Tr. 25–29.) Oxford Realty Corp. (“Oxford Realty”) owns the Maxess Road Property, and OMS leases space from Oxford Realty. (Spinelli Tr. 30–31.) Spinelli paid no rent for his office, which was “gratis from Oxford [Realty].” (Spinelli Tr. 28.) Oxford Realty and OMS share common ownership. (Spinelli Tr. 30–31.) Specifically, OMS Defendants Peter Pinto, Patrick Pinto, and Harris have ownership interests in both companies. (Spinelli Tr. 30–31.) Spinelli and his wife have ownership rights in Oxford Realty but not OMS. (Spinelli Tr. 31–32, 34.)
B. Spinelli's Relationship with OMS
Spinelli began to function as counsel for OMS in 2002. (Spinelli Tr. 74.) From approximately 2002 to 2003, Spinelli operated out of an office located at 535 Broad Hollow Road, Melville, New York, which was owned by Oxford Realty. (Spinelli Tr. 35–36.) Around that time, Spinelli began “employing” OMS collections agents. (Spinelli Tr. 74–75.) He shared employees with OMS, including Watkins, as well as Opt-in Plaintiffs Steven Bristol, Richard Costa, Kenneth Garretson, Adam Nagel, George Ramirez, and Jonathan Gascott. (Pl. 56.1 ¶ 13.)
In addition to sharing OMS collections agents, Spinelli employed supervisor-level OMS personnel. (Pl. 56.1 ¶¶ 15–16.) For example, Spinelli employed Harris as Director of Collections in a supervisory role while Harris was simultaneously employed by OMS as Executive Vice President. (Spinelli Tr. 66–68, 185–86.) Spinelli also employed Richard Madden as supervisor of collections during his tenure with OMS. (Spinelli Tr. 186–87.) Spinelli and OMS shared the same “bookkeeper,” Richard Galeota. (Spinelli Tr. 87–88.) Spinelli employed 59 collections agents, all of whom were simultaneously employed by OMS, to perform work for him related to OMS collections. (Pl. 56.1 ¶¶ 17–18 (listing names).)
Spinelli's work for Oxford included sending out OMS collections letters on his letterhead and supervising debt collections agents. (Spinelli Tr. 74–77, 110–11.) From 2002 until 2008, approximately 80% of Spinelli's income derived from OMS-related work. (Spinelli Tr. 78–81.)
C. Spinelli's Relationship with Plaintiffs
Spinelli employed and supervised OMS collections agents from 2002 through 2004. (Pl. 56.1 ¶ 21.) However, OMS controlled the agents' work schedules, rates of pay, benefits, commissions, and vacation pay. (Spinelli 112–14.) Spinelli and OMS maintained the same time clock, which employees used to punch in and out of work. (Pl. 56.1 ¶ 22.)
“Salvatore Spinelli Esq.” was designated federal employer tax identification number 11–2256094 (“Spinelli's Employer Tax ID”). (Park Decl. Ex. 7.) 6 Spinelli's W–2 Statements reflect that he employed 59 employees, who were simultaneously employed by OMS, to perform OMS-related work for him. (Park Decl. Ex. 7; Spinelli Tr. 70, 73.) Spinelli, like OMS, paid the collections agents he employed on an hourly basis. (Pl. 56.1 ¶¶ 23–24.) Spinelli and the OMS Defendants failed to pay overtime wages to OMS collections agents who worked more than 40 hours in a work week. (Pl. 56. 1 ¶ 24.) At some point 7 after Spinelli discovered that OMS was not paying premium overtime wages,8 Spinelli advised OMS Chief Financial Officer Pat LaMarco that OMS was obligated to pay such wages to its collections agents. (Pl. 56.1 ¶ 26.)
The Court first considers Spinelli's motion to dismiss the Spinelli Law Office from this action. Spinelli claims that “there is no entity known as the ‘Salvatore Spinelli Law Office,’ ” that he operates his law practice as a sole proprietorship, and that he has never done business under any other organizational structure. (Spinelli Decl. ¶ 45; Ans. ¶ 28.) 9 Plaintiff has offered no evidence to rebut Spinelli's claim. The only relevant record evidence, Spinelli's W–2 Statements, submitted by Plaintiffs, show that Spinelli's Employer Tax ID was issued to “Salvatore Spinelli Esq.,” not the “Salvatore Spinelli Law Office.” ( See Park. Decl. Ex. 7.) For that reason, and lacking evidence to the contrary, Defendant's motion to dismiss the “Salvatore Spinelli Law Office” from this action is GRANTED.10
Summary judgment is proper only where, construing the evidence in the light most favorable to the non-movant, “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 also Redd v....
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