Gortat et al v. Capala Brothers, Inc. et al, No. 1:2007cv03629 - Document 377 (E.D.N.Y. 2013)
Court Description: ORDER granting in part and denying in part 358 Motion to Amend/Correct/Supplement; denying 361 Motion to Alter Judgment; granting in part and denying in part 374 Motion for Entry of Judgment under Rule 54(b). Ordered by Judge I. Leo Glasser on 6/12/2013. (Levy, Joshua)
Download PDF
<![CDATA[
Gortat et al v. Capala Brothers, Inc. et al UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------x MIROSLAW GORTAT, et al., Plaintiffs, -against- Doc. 377 MEMORANDUM AND ORDER 0 7 CV 3629 (ILG) CAPALA BROS., et al., Defendants. ----------------------------------------------------x GLASSER, United States District J udge: Plaintiffs are laborers and forem en form erly em ployed by Capala Brothers, Inc. (“Capala Bros.”), a construction services com pany, Robert Capala, and Pawel Capala (collectively “defendants”) who seek to recover on behalf of them selves and others sim ilarly situated unpaid wages and overtim e arising out of defendants’ alleged failure to com ply with the Fair Labor Standards Act, 29 U.S.C. § 20 1 et seq. (“FLSA”), and New York Labor Law, N.Y. Lab. Law § 650 et seq. (“NYLL”). 1 After extensive pretrial litigation, the Court bifurcated the trial into liability and dam ages phases. Dkt. No. 292. On May 10 , 20 13, a jury returned a verdict finding defendants liable for violating both the FLSA and NYLL, and finding for the plaintiffs on defendants’ counterclaim s. On May 13, 20 13, the jury found that defendants’ violations were willful. 1 The factual background and procedural history to this action are set out m ore fully in a num ber of the Court’s previous decisions, fam iliarity with which is assum ed. See, e.g., Gortat v. Capala Bros., Inc., No. 0 7 Civ. 3629 (ILG) (SMG), 20 12 WL 1116495, at *1 (E.D.N.Y. Apr. 3, 20 12) (“Gortat VI”); Gortat v. Capala Bros., Inc., No. 0 7 Civ. 3629 (ILG) (SMG), 20 11 WL 6945186, at *1-2 (E.D.N.Y. Dec. 30 , 20 11) (“Gortat V”); Gortat v. Capala Bros., Inc., No. 0 7 Civ. 3629 (ILG) (SMG), 20 11 WL 2133769, at *1 (E.D.N.Y. Mar. 27, 20 11) (“Gortat IV”); Gortat v. Capala Bros., Inc., No. 0 7 Civ. 3629 (ILG) (SMG), 20 10 WL 14230 18, at *1 (E.D.N.Y. Apr. 9, 20 10 ) (“Gortat III”); Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 355-57 (E.D.N.Y. 20 0 9) (“Gortat II”); Gortat v. Capala Bros., Inc., 58 5 F. Supp. 2d 372, 376-77 (E.D.N.Y. 20 0 8) (“Gortat I”). Dockets.Justia.com The jury verdict prom pted a flurry of m otions. In what is described as a “letter brief” dated May 16, 20 13, plaintiffs m oved to request (1) “service awards” for nam ed plaintiffs, (2) “stacked liquidated dam ages under both the FLSA and New York Labor Law,” and (3) prejudgm ent interest. Pls.’ Letter Br. (Dkt. No. 358). On May 22, 20 13, defendants m oved to decertify the class pursuant to Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure and for judgm ent as a m atter of law notwithstanding the verdict pursuant to Rule 50 (b). Mem orandum of Law In Support of Decertification of Class Action after Trial (“Defs.’ Mem .”) (Dkt. No. 361-8). Finally, on J une 5, 20 13, plaintiffs m oved for entry of judgm ent. Dkt. No. 374. For the reasons set forth below, plaintiffs’ m otions are GRANTED in part and DENIED in part, an d defendants’ m otions are DENIED. D is cu s s io n I. Plain tiffs ’ Mo tio n s Plaintiffs m ake three m otions; I turn to a consideration of each. A. Se rvice Aw ard s Plaintiffs’ advocacy for those awards begins with a string citation of cases ending with Rodriguez v. West Publ’g Corp., 563 F.3d 948, 959 (20 0 9) (noting that such awards “are generally sought after a settlem ent or a verdict has been achieved”). Not m entioned, however, is the observation that “[s]uch awards are discretionary,” an d, m ore notably, that the district court denied incentive awards in their entirety because, am ong other reasons, the am ounts requested were unreasonable; the circuit court affirm ed. Id. at 958 -60 , aff’g, 20 0 7 WL 2827379, at *14-22 (C.D. Cal. Sept. 10 , 20 0 7). 2 The staggering am ount requested as incentive awards for the seven n am ed plaintiffs is breathtaking and were the Court to grant it, would be an exercise of discretion inexcusably abused. It seeks $ 30 ,0 0 0 for each of five nam ed plaintiffs an d $ 15,0 0 0 each for the rem aining two for a total of $ 180 ,0 0 0 , an award that would be 61.74% of the total amount of the award granted to all plaintiffs including the m em bers of the class. 2 A conclusion that the request is unreasonable is, on the recitation of those num bers, without m ore, com pelled. An exten ded discussion of the factors the Court considers in deciding whether to m ake incen tive awards would not be a productive exercise on the facts of this case. Those factors are reviewed at length by the district court in Rodriguez and by the cases cited by counsel in support of his request. Each of those is a m ajor class action in which a huge sum was involved and was settled without objection to the incentive awards agreed upon. Castagna v. Madison Square Garden, L.P., No. 0 9-cv-10 211, 20 11 WL 220 8614 (S.D.N.Y. J une 7, 20 11); Willix v. HealthFirst, Inc., No. 0 7 Civ. 1143, 20 10 WL 550 90 89 (E.D.N.Y. Nov. 29, 20 10 ); Khait v. Whirlpool Corp., No. 0 6-6381, 20 10 WL 20 2510 6 (E.D.N.Y. J an. 20 , 20 10 ). Why a plaintiff in a class action is m aterially different from a plaintiff in any other civil action and whether the factors generally recited to accept that difference in support of an incentive award can withstand a rigorous analysis pursued against a background of experience and reality has been the subject of considerable discussion in the literature. 2 See Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards to Class Action Plaintiffs: An Em pirical Study, 53 UCLA L. Rev. 130 3, 130 3 (20 0 6) (“This study of 374 opinions from 1993 to 20 0 2 finds that [incentive] awards were granted in about 28 percent of settled class actions. . . . When given, incentive awards constituted, on average, 0 .16 percent of the class recovery, with a m edian of 0 .0 2 percent.”). 3 See, e.g., Eisenberg & Miller, supra; Ann K. Wooster, Propriety of Incentive Awards or Incentive Agreem ents in Class Actions, 60 A.L.R.6th 295 (20 10 ). In that regard, a case decided m ore than 130 years ago is inform ative. Trustees v. Greenough, 10 5 U.S. 527 (1881). There, one Vose, a large holder of bonds of a Florida Railroad, on behalf of him self and other bondholders sued trustees of a Florida Internal Im provem ent Fund for wasting assets ostensibly affecting the bonds negatively. He sought to set aside what he claim ed were fraudulent conveyances. The litigation succeeded and other bondholders benefitted by it. Vose bore the en tire burden of the litigation, advanced m ost of the expenses, and sought an allowance out of the fund thus created for his expen ses and services. The Court allowed com pen sation for reasonable costs, counsel fees, and expenses incurred in the prosecution of the case, but found an allowance for personal expen ses “decidedly objectionable” – those being for the personal services and private expenses of Vose, charges for which, the Court wrote, “we can find no authority whatever.” Id. at 537. The Court then went on to write: Where an allowance is m ade to trustees for their personal services, it is m ade with a view to secure greater activity and diligence in the perform ance of the trust, and to induce persons of reliable character and business capacity to accept the office of trustee. These considerations have no application to the case of a creditor seeking his rights in a judicial proceeding. It would present too great a tem ptation to parties to interm eddle in the m anagem ent of valuable property or funds in which they have only the interest of creditors, and that perhaps only to a sm all am ount, if they could calculate upon the allowance of a salary for their tim e an d of having all their private expenses paid. Such an allowance has neither reason nor authority for its support. Id. at 537-38. 4 The concern express by the Court was not m isplaced. In Incentive Awards to Class Action Plaintiffs, supra, the authors acknowledge that: [It] has long been recognized [that class action] cases tend to be dom inated by entrepreneurial attorneys who effectively control all phases of the litigation. The ‘nam ed’ or ‘representative’ plaintiff, who supposedly acts as the cham pion of the class, is som etim es little m ore than an eponym . Yet, despite suggestions that class action procedures should dispense with the nam ed plaintiff as a m eaningless figurehead . . . the trend of the law . . . has been to the contrary. Eisenberg & Miller, supra, at 130 4-0 5. The exaggerated am ount of the required service awards, if granted, would be akin to a winning lottery ticket charged to the defendants in addition to the doubled overtim e pay, back wages, and prejudgm ent interest these plaintiffs are already entitled to receive and the defendants will be obligated to pay. Were the Court to exam ine the reasons advanced by plaintiffs for granting incentive awards, Pls.’ Letter Br. at 2-3, they would be found wanting. Am ong them are (1) that plaintiffs rendered a substantial service to the public. The Court would look askance at a suggestion that they were m otivated by public service rather than their own in dividual interests; (2) that they were instrum ental in causing the defen dants to raise the wages of their current em ployees. The sudden departure of the nam ed plaintiffs from defendants’ em ploy because they found better jobs elsewhere left defendants with a dim in ished and less experienced workforce upon whom they had to rely to com plete projects in progress, and in creased wages were warranted for increased responsibilities assum ed by those who rem ained and as incentives to stay; (3) by bringing this action plaintiffs brought the defendants into com pliance with the law; (4) plaintiffs caused other Polish-owned construction firm s in 5 their area to com ply with the law. None of those reasons can reasonably be believed to have incentivized these nam ed plaintiffs to com m ence this lawsuit. A passing referen ce to a risk of adverse action by the em ployer is dispelled by the fact that plaintiffs voluntarily left their jobs before com m encing this action, and by the statute that m akes it unlawful to discrim inate against an em ployee because he instituted such an action. 29 U.S.C. § 215(a)(3). The litany of “hardships” recited as having been endured as plaintiffs does not m ove the Court to reward them for it. They include being deposed, “subm itting” to direct and cross-exam ination, signing affidavits, and attending the trial, which was voluntary and not com pelled. Those are “hardships” every plaintiff endures when he assum es that status. “Although it is laudable that plaintiff[s] undertook to prosecute this litigation, the court perceives no circum stance warranting a special award.” Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 720 (E.D.N.Y. 1989). See also Silverberg v. People’s Bank, 23 Fed. App’x 46, 48 (2d Cir. 20 0 1); Ayers v. SGS Control Servs., Inc., No. 0 3 Civ. 90 78, 20 0 8 WL 4185813, at *5-7 (S.D.N.Y. Sept. 9, 20 0 8), aff’d, 353 Fed. App’x 466 (2d Cir. 20 0 9); Gulino v. Sym bol Techs., Inc., No. 0 6 CV 2810 , 20 0 7 WL 30 36890 , at *3 (E.D.N.Y. Oct. 17, 20 0 7). The m otion for such awards is denied. B. Liqu id ate d D am age s i. U n d e r th e FLSA The FLSA provides for “the paym ent of wages lost and an additional equal am ount as liquidated dam ages,” unless “the em ployer shows to the satisfaction of the court that the act or om ission giving rise to such action was in good faith and that [his 6 belief was] reasonable.” 29 U.S.C. §§ 216(b), 260 . “The em ployer bears the burden of proving good faith and reasonablen ess, but the burden is a difficult one, with double dam ages being the norm and single dam ages the exception.” Herm an v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999). Where a jury has returned a finding of willful violations of the FLSA, courts typically do not exercise their discretion to reduce an award of liquidated dam ages under the FLSA. See Pin eda-Herrera v. Dar-Ar-Da, Inc., No. 0 9-CV-5140 , 20 11 WL 2133825, at *5 (E.D.N.Y. May 26, 20 11). The jury returned a verdict of willfulness and plaintiffs are, therefore, entitled to liquidated dam ages in an am ount equal to the am ount of unpaid wages an d overtim e for the three years prior to August 29, 20 0 7 when this action was com m enced. Accordingly, plaintiffs are entitled to liquidated dam ages in the am ount of 10 0 % of their unpaid wages an d overtim e, as the case m ay be, for the statutory period. 29 U.S.C. §§ 216(b), 255(a), 260 . ii. U n d e r th e N YLL During the relevant tim e periods of this litigation, NYLL provided that “upon a finding that the em ployer’s failure to pay the wage required . . . was willful,” the em ployer m ust pay “an additional am ount as liquidated dam ages equal to twenty-five percent of the total am ount of wages found to be due.” N.Y. Labor Law §§ 198(1-a), 663(1). 4 Under the FLSA, “[l]iquidated dam ages are not a penalty exacted by the law, but rather com pensation to the em ployee occasioned by the delay in receiving wages due caused by the em ployer’s violation of the FLSA.” Herm an, 172 F.3d at 142 (citing 4 The liquidated dam ages provisions of the NYLL were am ended in 20 0 9 and 20 10 an d now track the FLSA. These am en dm ents have resolved the disagreem ent am ong district courts discussed infra. The am endm ent also bespeaks an acknowledgm ent that the com pensatory/ punitive dichotom y is a sem antic one. 7 Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583-84 (1942)). Conversely, “liquidated dam ages under the Labor Law ‘constitute a penalty’ to deter an em ployer’s willful withholding of wages due.” Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999) (quoting Carter v. Frito-Lay, Inc., 425 N.Y.S.2d 115, 116 (1st Dep’t 198 0 ), aff’d, 419 N.E.2d 10 79 (N.Y. 1981)). Also, unlike the FLSA, “the burden is on the plaintiff to prove willfulness in order to obtain liquidated dam ages under New York law.” Bauin v. Feinberg, 8 0 0 N.Y.S.2d 342, 20 0 5 WL 63670 0 , at *6 (N.Y.C. Civ. Ct. Mar. 18 , 20 0 5) (citing Epelbaum v. Nefesh Achath b’ Yisrael, Inc., 654 N.Y.S.2d 8 12, 8 14 (2d Dep’t 1997)). “District courts in this circuit have disagreed as to whether a plaintiff m ay secure cum ulative awards of liquidated dam age[s] under both [the FLSA and NYLL].” Gunawan v. Saki Sushi Rest., 8 97 F. Supp. 2d 76, 91 (E.D.N.Y. 20 12) (citing cases). Som e courts hold that plaintiffs m ay obtain liquidated dam ages under both statutes because, as was indicated, FLSA liquidated dam ages are com pensatory, while NYLL liquidated dam ages are punitive. See, e.g., Gunawan, 8 97 F. Supp. 2d at 91; Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240 , 261-62 (S.D.N.Y. 20 0 8). “Other cases have found that distinction unpersuasive in light of the sim ilar predicates for an award of liquidated dam ages under each statute.” Pineda-Herrera, 20 11 WL 2133825, at *4-5 (citing Chun J ie Yin v. Kim , 0 7 CV 1236, 20 0 8 WL 90 6736, at *7 (E.D.N.Y. Apr. 1, 20 0 8)); see also Chan v. Sung Yue Tung Corp., No. 0 3 Civ. 60 48, 20 0 7 WL 313483, at *28-29 (S.D.N.Y. Feb. 1, 20 0 7). I find the distinction between com pen satory and punitive for characterizing liquidated dam ages under the FLSA an d NYLL as sem antic, exalting form over 8 substance, an d also not persuasive. See Chung J ie Yin, 20 0 8 WL 90 6736, at *7 (holding that FLSA and NYLL liquidated dam ages “com pensate the exact sam e harm ”). The jury has returned a verdict of willfulness under the NYLL, therefore, nam ed plaintiffs are entitled to 25% liquidated dam ages for August 29, 20 0 1 through August 29, 20 0 4, because plaintiffs will not receive FLSA liquidated dam ages for that period; unlike the FLSA, the statute of lim itations under the NYLL is 6 years. N.Y. Labor Law § 663(3). The non-appearing class m em bers are entitled to 25% liquidated dam ages for the entire period of their em ploym ent between August 29, 20 0 1 and August 29, 20 0 7, sin ce they brought no claim s under the FLSA. In support of “stacked” liquidated dam ages under both the FLSA an d NYLL, plaintiffs rely strenuously on Callier v. Superior Bldg. Servs., Inc., No. 0 9 CV 4590 , 20 11 WL 222458 (E.D.N.Y. J an. 21, 20 11), which is plainly distinguishable. There, a default judgm ent was entered against the defendants and the dam ages issue was referred to Magistrate J udge Azrack to Report and Recom m end. Her Report recom m en ded “stacking” liquidated dam ages. 20 10 WL 562590 6, at *3-4. No objection was taken to her Report by defendants and it was accordin gly adopted by the Court in its entirety. 20 11 WL 222458. Defendants’ here do object to stacking the liquidated dam ages. Plaintiffs’ m otion in that regard is denied. C. Pre ju d gm e n t In te re s t “It is well settled that in an action for violations of the Fair Labor Standards Act prejudgm ent interest m ay not be awarded in addition to liquidated dam ages.” Brock v. Superior Care, Inc., 8 40 F.2d 10 54, 10 64 (2d Cir. 1988) (citing Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 715 (1945)). However, plaintiffs can receive both liquidated 9 dam ages an d prejudgm ent interest under the NYLL, “because liquidated dam ages under the Labor Law and pre-judgm ent interest serve fundam entally different purposes.” Reilly, 18 1 F.3d at 265. Therefore, plaintiffs are entitled to prejudgm ent interest only “for that portion of unpaid wages for which [they are] being com pensated under state law.” J in v. Pacific Buffet House, Inc., No. CV-0 6-579, 20 0 9 WL 260 1995, at *9 (E.D.N.Y. Aug. 24, 20 0 9) (citing Reilly, 181 F.3d at 265). Also, “[p]rejudgm ent interest applies only to the am ount of com pensatory dam ages, and excludes the am ount of liquidated dam ages.” Maldonado v. La Nueva Ram pa, Inc., No. 10 Civ. 8 195, 20 12 WL 1669341, at *11 (S.D.N.Y. May 14, 20 12). Accordingly, nam ed plaintiffs are entitled to prejudgm ent interest at the statutory rate of 9% per year for unpaid wages from August 29, 20 0 1 through August 29, 20 0 4, and the non-appearing plaintiffs are entitled to prejudgm ent interest for unpaid wages from August 29, 20 0 1 through August 29, 20 0 7. N.Y. C.P.L.R. §§ 50 0 1, 50 0 4. D . Atto rn e ys ’ Fe e s A m otion for an award of attorneys’ fees is required to be m ade by Rules 54(d)(2) and 23(h) of the Federal Rules of Civil Procedure. When that m otion is m ade, the Court will refer the m otion to Magistrate J udge Steven Gold as if it were a dispositive pretrial m atter in accordance with Rule 54(d)(2)(D). II. D e fe n d an ts ’ Mo tio n s Defendants m ove to decertify the class pursuant to Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure, an d for judgm ent as a m atter of law notwithstanding the jury verdict pursuant to Rule 50 (b). Both m otions are m eritless and denied. A. D e ce rtificatio n 10 Defendants have spent the better part of the past six years unsuccessfully attem pting to prevent class certification. Gortat VI, 20 12 WL 1116495, at *1. In this latest salvo, defendants argue that a class of 17 m em bers fails to satisfy the num erosity requirem ent of Rule 23(a). They also point to a num ber of m inor in consisten cies in trial testim ony that they claim disprove com m onality and typicality. Defs.’ Mem . at 8-12. Under Rule 23(c)(1)(C), “[a]n order that grants or denies class certification m ay be altered or am en ded before final judgm ent.” Accordingly, “[a] district court m ay decertify a class if it appears that the requirem ents of Rule 23 are n ot in fact m et.” Gortat VI, 20 12 WL 1116495, at *2 (quoting Sirota v. Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir. 1982)). However, “the Court m ay not disturb its prior certification findings absent som e significant interven ing event, or a showing of com pelling reason s to reexam ine the question.” Id. (quoting J erm yn v. Best Buy Stores, L.P., 276 F.R.D. 167, 169 (S.D.N.Y. 20 11)). Moreover, “[a] court should be wary of revoking a certification order com pletely at a late stage in the litigation process.” Id. (quoting Easterling v. Conn. Dep’t of Corr., 278 F.R.D. 41, 42 (D. Conn. 20 11)). Defendants have m ade no showing of any significant intervening event or any com pelling reason to revisit the issue. This m otion to decertify the class com es not m erely “at a late stage” of this litigation, it com es post-trial after previous denials of defendants’ m otions to decertify and after a jury returned a verdict in favor of the class. Research has failed to reveal a single decided case or a single senten ce in the legal literature to which a sim ilar post-verdict m otion has been addressed. The lateness of that m otion counsel a determ ination that at this stage the door to that m otion has been firm ly shut. 11 To the extent defendants’ m otion requires consideration, Rule 23(a) states that the class m ust be “so n um erous that joinder of all m em bers is im practicable.” In this circuit, courts generally presum e that num erosity is satisfied where the class consists of forty or m ore m em bers, while “num bers under twenty-one have gen erally been held to be too few.” Town of New Castle v. Yonkers Contracting Co., Inc., 131 F.R.D. 38, 40 (S.D.N.Y. 1990 ) (quoting 3B J am es Wm . Moore et al., Moore’s Federal Practice ¶ 23.0 5 (2d ed. 198 7)). “However, no m agic m inim um num ber establishes num erosity,” Deen v. New School Univ., No. 0 5 Civ. 7174, 20 0 8 WL 331366, at *2 (S.D.N.Y. Feb. 4, 20 0 8) (quotation om itted), and “[n]um bers between twenty-one and forty have evoked m ixed responses.” New Castle, 131 F.R.D. at 40 -41 (citing cases and certifying class of 36 m em bers). In determ ining num erosity, “the relevant considerations a court m ay consider include: (1) judicial econom y arising from the avoidance of m ultiplicity of actions; (2) geographic dispersion of class m em bers; (3) financial resources of class m em bers; (4) the ability of claim ants to institute individual suits; and (5) requests for prospective injunctive relief which would involve future class m em bers.” Gortat VI, 20 12 WL 1116495, at *3 (citing Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)). As an initial m atter, the class consists of 24 m em bers, not 17. As the Court previously observed, “[t]he nam ed plaintiffs—the class representatives—are obviously m em bers of the class,” and “[d]efendants have no legal or factual basis on which to om it these individuals from the class.” Id. at *3 n.6. Furtherm ore, the decision of som e class m em bers to opt-out of the FLSA collective action has no bearing on the class action under the NYLL. Id. 12 The class of 24 m em bers satisfies num erosity for the sam e reasons that the potential class of 28 m em bers the Court considered in defendants’ prior decertification m otion satisfied num erosity: (1) “the class m em bers are im m igrant laborers who speak little English,” and their entire testim ony on direct and cross exam in ation was through a Polish interpreter; (2) “[t]hese individuals lack not only the financial resources to individually bring actions in federal court but also the incentive to do so in light of the relatively sm all recoveries m any of them [were] reasonabl[y] expect[ed] to receive”; (3) “[j]udicial econom y also continues to counsel against decertification”; and (4) “[s]uch an 11th hour m otion is of the sort that, if granted, would prejudice m em bers of the class who have not taken in depen dent steps to protect their rights precisely because they were m em bers of the class.” Id. at *3-4 (citations om itted). Rule 23(a) also requires that “there are questions of law or fact com m on to the class” an d that the representative plaintiffs’ claim s “are typical of the claim s . . . of the class.” Defendants argue that testifying plaintiffs’ inability to recall the nam es of all 17 non-appearing class m em bers com bined with m inor inconsisten cies in reporting tim es dem onstrate a lack of typicality and com m onality across the class. Dkt. No. 361-1. However, typicality and com m onality m erely require that “each class m em ber’s claim arises from the sam e course of events and each class m em ber m akes sim ilar legal argum ents to prove the defen dant’s liability.” Gortat III, 20 10 WL 14230 18, at *4 (quoting In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 20 0 9)). Indeed, “the typicality requirem ent is usually m et irrespective of m in or variations in the fact patterns underlying individual claim s.” Id. (quoting Robidoux, 987 F.2d at 936-37). Accordingly, defen dants’ m otion to decertify the class is denied. 13 B. Ju d gm e n t as a Matte r o f Law N o tw ith s tan d in g th e Ju ry Ve rd ict Defendants claim that the jury erred by findin g that their FLSA and NYLL violations were willful, and seek relief under Rule 50 (b). 5 They argue that the jury’s request for further instruction on “m inim al working activities” com bined with testim ony presented by neighbors on this issue render the jury’s finding of willfulness unreasonable. Defs.’ Mem . at 16-18 . This m otion is m eritless. Plaintiffs’ urging that this m otion m ust be denied for the reason that it was not m ade prior to the subm ission of the case to the jury is correct. “A post-trial Rule 50 (b) m otion for judgm ent as a m atter of law is properly m ade only if a Rule 50 (a) m otion for judgm ent as a m atter of law has been m ade before subm ission of the case to the jury. Though a procedural requirem ent, it m ay not be waived by the parties or excused by the district court.” Bracey v. Bd. of Educ. of City of Bridgeport, 368 F.3d 10 8, 117 (2d Cir. 20 0 4) (citations om itted). Notwithstanding that procedural im pedim ent, the m otion is fatally flawed in every other respect. See Hicks v. Vane Line Bunkering, Inc., No. 11 Civ. 8 158 , 20 13 WL 174780 6, at *8 (S.D.N.Y. Apr. 16, 20 13) (“[T]he Court’s review is severely lim ited where the Rule 50 (b) m otion is m ade after the jury returns a verdict, but no com panion Rule 50 (a) m otion has been m ade prior to the verdict.”). “In entertaining a m otion for judgm ent as a m atter of law, the court should review all of the eviden ce in the record. In doing so, the court m ust draw all reasonable inferences in favor of the non-m oving party, and it m ay not m ake credibility determ inations or weigh the evidence.” Gottlieb v. Carnival Corp., No. 0 4 CV 420 2, 5 In their reply brief, defendants also raise issues under Rules 51, 59, and 60 . Dkt. No. 375. The Court declines to consider these new theories since “new argum ents m ay not be m ade in a reply brief.” Ernst Hass Studio, Inc. v. Palm Press, Inc., 164 F.3d 110 , 112 (2d Cir. 1999). 14 20 11 WL 70 4690 4, at *1 (E.D.N.Y. Feb. 1, 20 11) (quoting Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 113, 150 (20 0 0 )). The Court “m ay set aside the verdict only where there is such a com plete absence of eviden ce supporting the verdict that the jury’s findings could only have been the result of sheer surm ise and conjecture, or such an overwhelm ing am ount of evidence in favor of the m ovant that reasonable and fair m inded m en could not arrive at a verdict against him .” Id. at *2 (quoting Harris v. Niagara Mohawk Power Corp., 242 F.3d 592 (2d Cir. 20 0 1)). The testim ony of the plaintiffs’ witnesses the jury obviously found credible, buttressed by exhibits which endorsed their credibility led naturally to a verdict reasonable and fair m inded m en would readily reach. The jury’s request for further instruction has no bearing on the validity of its verdict. See Pierrelouis ex rel. Pierrelouis v. Pekritsky, No. 0 8 Civ. 123, 20 12 WL 670 0 217, at *2-4 (S.D.N.Y. Dec. 21, 20 12) (rejecting Rule 50 (b) m otion where jury requested additional instruction); Green v. Gronem an, 634 F. Supp. 2d 274, 276 (E.D.N.Y. 20 0 9) (denying Rule 50 (b) m otion where jury requested a written copy of instructions but reached a verdict before receiving it); see also United States v. Thom as, 116 F.3d 60 6, 620 (2d Cir. 1997) (“The m ental processes of a deliberating juror with respect to the m erits of the case at hand m ust rem ain largely beyond exam in ation an d second-guessing, shielded from scrutiny by the court as m uch as from the eyes and ears of the parties and the public.”). Accordingly, defen dants’ Rule 50 (b) m otion is denied. III. D am age s Calcu latio n s Defendants represent that the parties have agreed, in essence, to a determ ination of liquidated dam ages as follows, except for plaintiffs Kosiorek and Stoklosa: 15 Pla in tiff Bienkowski Filipkowski Gortat Lapinski Swaltek Kosiorek Stoklosa Class (17 m em bers) Ju ry D am age s $ 37,0 26.0 0 $ 36,487.0 0 $ 18,291.0 0 $ 7,175.0 0 $ 14,0 0 4.0 0 $ 435.0 0 $ 1,880 .0 0 $ 20 ,450 .0 0 FLSA Liqu id ate d D am age s $ 17,740 .0 0 $ 16,998.0 0 $ 8 ,825.0 0 $ 7,175.0 0 $ 6,973.0 0 $ 435.0 0 $ 1,880 .0 0 $ - N YLL Liqu id ate d D am age s $ 4,826.0 0 $ 4,629.0 0 $ 954.0 0 $ $ 1,758.0 0 $ $ $ 5,113.0 0 Su bto tal $ 59,592.0 0 $ 58 ,114.0 0 $ 28 ,0 70 .0 0 $ 14,350 .0 0 $ 22,735.0 0 $ 8 70 .0 0 $ 3,760 .0 0 $ 25,563.0 0 Dkt. Nos. 359, 374. I find these am ounts reasonable, consistent with the above rulings, and, therefore, adopt them . However, I do n ot adopt the parties’ determ ination of liquidated dam ages for plaintiffs Kosiorek an d Stoklosa because they began working for defendants in 20 0 5 and, therefore, are only entitled to liquidated dam ages under the FLSA. The jury also awarded som e plaintiffs unpaid wages for their final week or two weeks of em ploym ent, and these plaintiffs are entitled to 10 0 % liquidated dam ages on these awards under the FLSA. They are as follows: Plain tiff Bienkowski Gortat Lapinski Swaltek FLSA Liqu id ate d D am age s $ 1,60 0 .0 0 $ 1,20 0 .0 0 $ 760 .0 0 $ 1,640 .0 0 Ju ry D a m age s $ 1,60 0 .0 0 $ 1,20 0 .0 0 $ 760 .0 0 $ 1,640 .0 0 Finally, plaintiffs are entitled to 9% annual prejudgm ent interest on their NYLL claim s only. “When unpaid wages ‘were incurred at various tim es,’ . . . [s]im ple prejudgm ent interest is calculated from a singular, m idpoint date. . . through the date judgm ent is entered.” Maldonado, 20 12 WL 1669341, at *11 (quoting C.P.L.R. § 50 0 1(b)). The relevant tim e periods for prejudgm ent interest are calculated as follows: 16 Pla in tiff Start D ate En d D a te Bienkowski Filipkowski Gortat Swaltek Class (17 m em bers) May 11, 1998 Oct. 20 , 1997 Mar. 5, 20 0 0 Mar. 4, 20 0 1 Aug. 29, 20 0 1 Apr. 1, 20 0 7 J an. 14, 20 0 7 Apr. 1, 20 0 7 Apr. 8 , 20 0 7 Aug. 29, 20 0 7 Mid p o in t D a te Oct. 20 , 20 0 2 J une 2, 20 0 2 Sept. 17, 20 0 3 Mar. 21, 20 0 4 Aug. 28, 20 0 4 Ye a rs to J u d gm e n t D ate 10 .64 11.0 3 9.73 9.22 8 .79 Applying these tim e periods to plaintiffs’ NYLL dam ages, prejudgm ent interest is awarded as follows: Pla in tiff Bienkowski Filipkowski Gortat Swaltek Class (17 m em bers) N YLL D am age s $ $ $ $ $ In te re s t Rate Tim e Pe rio d 9% 9% 9% 9% 9% 10 .64 11.0 3 9.73 9.22 8.79 19,286.0 0 19,489.0 0 9,466.0 0 7,0 31.0 0 20 ,450 .0 0 Pre ju d gm e n t In te re s t $ $ $ $ $ 18,471.17 19,337.96 8 ,292.22 5,8 35.73 16,170 .84 Sum m ing the jury awards, liquidated dam ages, and prejudgm ent interest, I award plaintiffs the following: Plain tiff To tal D am age s Bienkowski Filipkowski Gortat Lapinski Swaltek Kosiorek Stoklosa Class (17 m em bers) $ $ $ $ $ $ $ $ 8 1,263.17 77,451.96 38,762.22 15,870 .0 0 31,850 .73 870 .0 0 3,760 .0 0 41,733.84 The total dam ages awarded for all plaintiffs are $ 291,561.91, exclusive of attorneys’ fees. Defendants Capala Bros., Robert Capala, and Pawel Capala are jointly and severally liable for the judgm ent, since each defendant acted as plaintiffs’ joint 17 em ployer and is responsible both individually and jointly for defen dants’ federal and state law violations. Gortat II, 257 F.R.D. at 368. IV. Fin al Ju d gm e n t Rule 54(b) of the Federal Rules of Civil Procedure perm its the Court to “direct entry of a final judgm ent as to one or m ore, but fewer than all, claim s or parties.” “Rule 54(b) contains three prerequisites for concluding that a decision or order is a final judgm ent: (1) m ultiple claim s or m ultiple parties m ust be present, (2) at least one claim , or the rights and liabilities of at least one party, m ust be finally decided within the m eaning of 28 U.S.C. § 1291, and (3) the district court m ust m ake an express determ ination that there is no just reason for delay and expressly direct the clerk to enter judgm ent.” In re Air Crash at Belle Harbor, 960 F.3d 99, 10 8 -0 9 (2d Cir. 20 0 7) (quotations om itted). “Generally, a final order is an order of the district court that ends the litigation on the m erits and leaves nothing for the court to do but execute the judgm ent.” Rabbi J acob J oseph Sch. v. Province of Mendoza, 424 F.3d 20 7, 210 (2d Cir. 20 0 5) (quotation om itted). The first factor is plain ly satisfied. Regarding the second factor, the Suprem e Court adopted a “bright-line rule . . . that a decision on the m erits is a ‘final decision’ for purposes of § 1291 whether or not there rem ains for adjudication a request for attorneys’ fees attributable to the case.” Budin ich v. Becton Dickinson & Co., 486 U.S. 196, 20 2-0 3 (1988 ). Finally, in light of plaintiffs’ accusations that defendants are hiding assets, Dkt. No. 362, the Court finds “that there is no just reason [to] delay” entry of a judgm ent that would perm it the plain tiffs to proceed to enforce it. Fed. R. Civ. P. 54(b). Accordingly, this opinion constitutes a final judgm ent for all issues excluding attorneys’ fees. See 18 Petrello v. White, No. 0 1-CV-30 82, 20 0 8 WL 5432230 , at *2-5 (E.D.N.Y. Dec. 30 , 20 0 8) (granting Rule 54(b) motion to enter final judgm ent despite “unresolved issues of attorneys’ fees”). CON CLU SION For all of the foregoing reasons, plaintiffs’ m otions are hereby GRANTED in part and DENIED in part, and defen dants’ m otions are hereby DENIED. Pursuant to Rule 54 of the Federal Rules of Civil Procedure, the Clerk of the Court is directed to enter judgm ent against defendants Capala Brothers, Inc., Robert Capala, and Pawel Capala, jointly and severally, and in favor of (1) Henryk Bienkowski in the am ount of $ 81,263.17; (2) Miroslaw Filipkowski in the am ount of $ 77,451.96; (3) Miroslaw Gortat in the am ount of $ 38,762.22; (4) Artur Lapinski in the am ount of $ 15,8 70 .0 0 ; (5) J an Swaltek in the am ount of $ 31,850 .73; (6) Artur Kosiorek in the am ount of $ 870 .0 0 ; (7) Henryk Stoklosa in the am ount of $ 3,760 .0 0 ; and (8) to the m em bers of the class com m on fund in the am ount of $ 41,733.84. SO ORDERED. Dated: Brooklyn, New York J une 12, 20 13 / s/ ILG_ _ _ _ _ _ _ _ _ _ I. Leo Glasser Senior United States District J udge 19
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
