Vazquez v. Molto Bene Bellmore, Inc.
| Decision Date | 26 August 2022 |
| Docket Number | 18-CV-3681 (MKB) |
| Parties | HUMBERTO V. VAZQUEZ, RUBEN BERNAL, and JEISON PEREZ RAMIREZ, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. MOLTO BENE BELLMORE, INC. d/b/a MOLTO BENE, KARINA J. TERRAZAS, and MOLTO BENE SOUTH BELLMORE, LLC, d/b/a MOLTO BENE, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Humberto V. Vazquez, individually and on behalf of all others similarly situated, commenced the above-captioned action against Defendants Molto Bene Bellmore, Inc. (“Molto Bene Bellmore”)[1] and Karina J. Terrazas on June 25, 2018 alleging violations of the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). (Compl., Docket Entry No. 1.) In the months that followed, Jeison Perez Ramirez and Ruben Bernal joined the action as Plaintiffs, (Consent to Become Party Docket Entry No. 8; Consent to Become Party, Docket Entry No 12); the Clerk of Court entered a certificate of default against Molto Bene Bellmore, (Am. Clerk's Entry of Default, Docket Entry No. 35); and Plaintiffs amended their Complaint to add Molto Bene South Bellmore, LLC (“Molto Bene South Bellmore”) as a Defendant, claiming that it is a “successor company” to Defendant Molto Bene Bellmore, (. Molto Bene South Bellmore now moves to dismiss the Amended Complaint for failure to state a claim, arguing that it is not subject to Molto Bene Bellmore's liabilities and that the statute of limitations on Plaintiffs' claims has elapsed.[2]Plaintiffs oppose the motion.[3]
For the reasons set forth below, the Court giants Molto Bene South Bellmore's motion and dismisses the Amended Complaint as it pertains to Molto Bene South Bellmore, but grants Plaintiffs leave to amend the Amended Complaint as to their claims against Molto Bene South Bellmore.
I. Background
In June of 2018, Plaintiff Humberto V. Vazquez, on behalf of himself and similarly situated employees, filed his initial Complaint against Defendants Molto Bene Bellmore, doing business as restaurant Molto Bene, and Karina J. Terrazas, alleging violations of the FLSA and NYLL. (Compl.) In July of 2018, Jeison Perez Ramirez and Claudina de Maria Cruz requested and consented to join the action, (Consent to Become Party, Docket Entry No. 8; Consent to Become Party, Docket Entry No. 9), and in September of 2018, Ruben Bernal similarly joined the action, (Consent to Become Party, Docket Entry No. 12).
In October of 2019, counsel for Defendants moved for permission to withdraw from the case, explaining that “the attorney-client relationship ... ha[d] broken down to the point of being irreconcilable.” (Mem. in Supp. of Mot. to Withdraw 3, annexed to Mot. to Withdraw, Docket Entry No. 21-1.) In October of 2019, Magistrate Judge Anne Y. Shields granted the motion to withdraw and ordered Molto Bene Bellmore to obtain new counsel and Terrazas to obtain new counsel or inform the Court of her intention to proceed pro se by December 2, 2019. (Order dated Oct. 30, 2019.) Neither Molto Bene Bellmore nor Terrazas obtained new counsel.
In December of 2019, the Clerk of Court entered a certificate of default against Molto Bene Bellmore and Terrazas. (Clerk's Entry of Default, Docket Entry No. 30.) In January of 2020, Magistrate Judge Shields issued a sua sponte report and recommendation, recommending that “the notation of default be amended to reflect only the default of Molto Bene Bellmore, Inc. and not that of Karina J. Terrazas.” (Report & Recommendation dated Jan. 7, 2020 (“R&R”) 3, Docket Entry No. 31.) The R&R noted that unlike Molto Bene Bellmore, Terrazas “may proceed pro se.” (Id.) Further, although she had “not complied with the order that she advise the Court as to whether she will be seeming counsel,” Terrazas had “properly answered and appeared in this case.” (Id.) In January of 2021, the Court adopted the R&R and ordered the Clerk of Court to amend the Certificate of Default accordingly. (Order Adopting R&R, Docket Entry No. 34; see Am. Clerk's Entry of Default.)
In December of 2019, Plaintiffs moved to amend the Complaint. (Mot. to Amend, Docket Entry No. 28.) They explained that they intended to add Ruben Bernal and Jaison Perez as Plaintiffs and to “add[] as a defendant the corporation presently doing business as Molto Bene, ... which was formed in February [of] 2019 and has continued operations without any material change, and is a ‘successor' entity to .. . Molto Bene Bellmore, Inc.” (Id.) Magistrate Judge Shields granted Plaintiffs' motion. (Order dated Mar. 9, 2020.)
In July of 2021, Plaintiffs filed an Amended Complaint that included Molto Bene South Bellmore as a Defendant along with Molto Bene Bellmore and Terrazas. (Am. Compl.) The Amended Complaint alleges that “[u]pon information and belief,” Molto Bene South Bellmore “is a successor company to Molto Bene Bellmore, Inc., owned and operated through the same corporate management,” and “acquired and has continued, without interruption or substantial change, the business operations of the predecessor, and is liable for the debts and liabilities of its predecessor.” (Id. at ¶¶ 10-11.) Terrazas “exercised sufficient control over Molto Bene's dayto-day operations as to be considered an employer of Plaintiffs under the FLSA and New York Labor Law.” (Id. at¶¶ 12, 17.)
Vazquez was employed at Molto Bene from March of 2016 through May 20, 2018, with two brief interruptions in 2017; Bernal was employed at Molto Bene from December of 2016 through July of 2017; and Ramirez was employed at Molto Bene from February of 2016 through July of 2016, with a brief interruption in 2016. (Id. at ¶¶ 20-22.) Plaintiffs allege that “[a]t all relevant times,” Defendants “knowingly and willfully failed to pay Plaintiffs lawfully earned wages,” “lawfully earned overtime compensation,” and ‘“spread of horns' premiums” in contravention of the FLSA and NYLL. (Id. at ¶¶ 24-26.)
On February 11, 2022, Molto Bene South Bellmore moved to dismiss the Amended Complaint. (Def's Mot.) The motion to dismiss included a declaration by its counsel Daniel Olivieri, and, annexed to the declaration, the following exhibits: Plaintiffs' Amended Summons and Complaint, ); Molto Bene South Bellmore's Articles of Incorporation (Articles of Incorporation, annexed to Olivieri Deci, as Ex. B, Docket Entry No. 48-1); the Bill of Sale reflecting the sale from Molto Bene Bellmore to Molto Bene South Bellmore of “all right, title and interest... in and to the assets of the restaurant,” (Bill of Sale, annexed to Olivieri Deci, as Ex. C, Docket Entry No. 48-1); the Asset Purchase Agreement governing the same transaction, (Asset Purchase Agreement, annexed to Olivieri Deci, as Ex. D, Docket Entry No. 48-1); Molto Bene South Bellmore's Certificate of Authority with the New York State Department of Taxation and Finance, (Certificate of Authority, annexed to Olivieri Deci, as Ex. E, Docket Entry No. 48-1); Molto Bene South Bellmore's New York liquor license, (Liquor License, annexed to Olivieri Deci, as Ex. F, Docket Entry No. 48-1); the termination of Molto Bene Bellmore's lease agr eement, dated April 8, 2019, (Termination of Lease Agr eement, annexed to Olivieri Deci, as Ex. G, Docket Entry No. 48-1); Molto Bene South Bellmore's lease agreement for the same property, also dated April 8, 2019, (Lease Agreement, annexed to Olivieri Deci, as Ex. H, Docket Entry No. 48-1); and three cases from this district, (Vazquez v. Ranieri Cheese Corp., No. 07-CV-464, 2010 WL 1223606 (E.D.N.Y. Mar. 26, 2010), annexed to Olivieri Deci, as Ex. I, Docket Entry No. 48-1; Peralta v. WHM Tool Grp Inc., No. 04-CV-3826, 2005 WL 2002454 (E.D.N.Y. Aug. 19, 2005), annexed to Olivieri Deci, as Ex. J, Docket Entry No. 48-1; Marte v. Westbury'Mini Mart, Inc., No. 16-CV-53, 2017 WL 9485667 (E.D.N.Y. Jan. 18, 2017), annexed to Olivieri Deci, as Ex. K, Docket Entry No. 48-1). Molto Bene South Bellmore also attached an affidavit by its managing member Artur Biba.[4] The affidavit claims that Biba and the other managing member, Valon Beqirim,[5] “had no ownership, control, or management” in Molto Bene Bellmore “at any time.” (Aff. of Artur Biba (“Biba Aff”) ¶ 8, annexed to Def.'s Mot., Docket Entry No. 48-3.) The Biba Affidavit also states that Terrazas, the owner of Molto Bene Bellmore, “had no ownership control or management” in Molto Bene South Bellmore. (Id. at ¶¶ 4, 8.) Biba claims that Molto Bene South Bellmore did not exist until February 8, 2019, and that Plaintiffs never worked for Molto Bene South Bellmore, “as it did not exist during the period of time that the Plaintiffs allege they were not paid.” (Id. at ¶¶ 11, 19-1.)[6] Moreover, he and Mr. Beqirim “had no [n]otice of Plaintiffs' claims” when they purchased Molto Bene Bellmore's assets, nor did they have any knowledge “that there was even an issue concerning wages.” (Id. at ¶ 19-2.)
Molto Bene South Bellmore also attached a reply affidavit by Biba to its memorandum replying to Plaintiff s opposition. (Reply Aff. of Artur Biba (“Biba Reply Aff”), annexed to Def.'s Reply, Docket Entry No. 50-1.) In his reply affidavit, Biba claims that the documents attached as exhibits to Molto Bene South Bellmore's motion “are kept and maintained by” Molto Bene South Bellmore “as business records,” and “are true and accurate copies of those records.” (Id. at ¶ 2.) He claims that he and his partner “were just employees of Molto Bene Bellmore,” namely a food runner and waiter, and “had no management control supervision, or anything else with regard to Molto...
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