Guida v. Home Savings of America, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOSEPH GUIDA, individually and on behalf of all

others similarly situated,

Plaintiff,

-against- MEMORANDUM

AND ORDER

FEDERAL DEPOSIT INSURANCE CORPORATION,

as Receiver for Home Savings of America, CV 11-0009 (JMA) (AKT)

DAVID CIROCCO, GREGORY CAPUTO,

DIRK S. ADAMS, GREG RENIERE, and

MARTI TROMLEY,

Defendants.

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A. KATHLEEN TOMLINSON, Magistrate Judge:

I. PRELIMINARY STATEMENT

Plaintiff Joseph Guida (“Guida”), individually and on behalf of other persons similarly

situated (collectively, “Plaintiffs”) commenced this action against Defendants Federal Deposit

Insurance Corporation (“FDIC”), as receiver for Home Savings of America Inc. (“Home

Savings”), David Cirocco (“Cirocco”), Gregory Caputo (“Caputo”), Dirk S. Adams (“Adams”),

Greg Reniere (“Reniere), and Marti Tromley (“Tromley”) (collectively, “Defendants”), pursuant

to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207 et seq., and New York Labor Law

(“NYLL”), Article 19 and Article 6. Plaintiffs allege that Defendants’ failed to pay minimum

wage and overtime wages. See generally Second Amended Complaint (“Second Am. Compl.”)

[DE 39].

Individual Defendant Dirk S. Adams’ (“Defendant” or “Adams”) has moved for partial

summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. On

November 1, 2019, Judge Azrack referred the motion to this Court for a Report and

Recommendation as to whether the motion should be granted. See November 1, 2019 Electronic

Order. Thereafter, the parties consented to the jurisdiction of this Court for purposes of

adjudicating the motion and entering a final order, pursuant to 28 U.S.C. § 636(c). See DE 160-

161. For the reasons set forth below, Defendant’s motion for partial summary judgment is

GRANTED, in part, and DENIED, in part.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Preliminary Issue

At the outset, the Court notes that both Defendant Adams’ Rule 56.1(a) Statement of

Undisputed Material Facts and Plaintiffs’ Rule 56.1(b) Response to Defendant’s Statement of

Undisputed Material Facts are deficient in several respects. Defendant’s Rule 56.1(a) Statement

is voluminous, convoluted, occasionally lacks citation to evidence in the underlying record, and

contains lengthy factual paragraphs -- the majority of which are not material to the instant

motion. See I.M. v. United States, 362 F. Supp. 3d 161, 190 (S.D.N.Y. 2019) (“On a motion for

summary judgment, a fact is material if it might affect the outcome of the suit under the

governing law.”). Plaintiffs’ 56.1(b) Response routinely responds with denials but without

citation to evidence in the underlying record. Plaintiffs also omit statements of additional

material facts which they instead improperly seek to include by way of reference in their

memorandum in opposition to the instant motion. Plaintiffs attach several documents to their

56.1(b) Response and memorandum in opposition, without any affidavit attesting to the accuracy

and authenticity of the documents. Moreover, Plaintiffs exclude materially relevant information

regarding the documents, thereby creating as many questions as they answer.

Here, the parties’ failures to comply with Local Civil Rule 56.1 has “thwarted the purpose of the

rules, which is ‘to streamline the consideration of summary judgment motions by freeing district

courts from the need to hunt through voluminous records without guidance from the parties.’”

Hengjin Sun v. China 1221, Inc., 12-CV-0071, 2015 WL 5542919, at *3 (S.D.N.Y. Aug. 12,

2015) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001)); Martinez v. Pao's

Cleaning, Inc., No. 16-cv-6939, 2018 WL 6303829, at *4 (E.D.N.Y. Dec. 3, 2018). As a result

of these deficiencies, the Court has conducted an independent review of the underlying record,

the parties’ Rule 56.1 Statements, and the exhibits submitted in connection with the instant

motion. From these, the Court references what it considers to be the undisputed facts or facts

uncontroverted by admissible evidence. In doing so, the Court shall construe the facts in the

light most favorable to the non-moving party and will resolve all factual ambiguities in the non-

movant’s favor. See Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008); Capobianco v.

New York, 422 F. 3d 47, 50 n.1 (2d Cir. 2001). Where, as here, the procedural history and

material facts are often one in the same or are closely intertwined, the Court will recite them

together for purposes of this motion.

B. Undisputed Facts

1. Commencement of This Action

On January 3, 2011, Plaintiff Guida filed the initial Complaint against Defendants Home

Savings, Cirocco1, and Caputo2 asserting causes of action under the FLSA and the NYLL for

Defendants’ failure to pay minimum wage and overtime wages. See generally Compl. [DE 1].

1 The docket does not reflect that the Amended Complaint was ever served on

Defendant Cirocco. On April 30, 2013, the process server indicated that he was returning the

summons unexecuted and noted that “[t]his location is for Regis. David Cirocco has not been at

this location for approximately two – three years.” DE 27. A Second Amended Complaint – the

operative pleading in this matter -- was filed on September 26, 2013. See DE 39. The docket,

however, does not show any summons ever having been issued for Cirocco with respect to the

Second Amended Complaint.

2 Likewise, the docket does not reflect any summons having been issued to

Defendant Caputo with respect to any of the pleadings filed in this action.

In addition to the individual claims, Plaintiffs sought to certify a collective action for their FLSA

claims under 29 U.S.C. § 216(b), and to certify their NYLL claims as a class action under Rule

23(b)(3). Id.

Defendant Home Savings was a federally chartered stock savings and loan association.

See DE 5-3 ¶ 1. Plaintiffs were employed as loan officers by Home Savings and were paid on a

commission-only basis. See DE 39 at 1-2. Plaintiffs allege that they did not receive minimum

wage or overtime wages for the hours worked and were paid solely on a commission basis. See

id. If they did not earn a commission during the pay period, they received no wages.

On January 19, 2011, four individuals filed consent forms to opt-in to the action. These

individuals included Guida, Michael Esposito (“Esposito”), Daniel McGorman (“McGorman”),

and Jahn Ramirez (“Ramirez”). See DE 2. Defendant Home Savings moved to dismiss the

Complaint and compel arbitration on March 15, 2011. See DE 5. Judge Bianco granted

Defendant Home Savings’ motion, finding that the dispute should be arbitrated but also

determining that it was a matter for the arbitrator to decide whether the arbitration could proceed

on a class basis. See June 28, 2011 Memorandum and Order [DE 14] at 3. Judge Bianco then

stayed this action pending resolution of the arbitration proceeding. Id.

2. Arbitration Between 2011 and 2013l

On July 21, 2011, Plaintiffs filed a demand for arbitration with the American Arbitration

Association (“AAA”). See Plaintiffs’ Memorandum in Opposition to Defendant’s Motion for

Summ. J. (“Pls.’ Opp’n”), Ex. A [DE 156-1]. That same day, three individuals submitted opt-in

consent forms with AAA, including Bryant F. Magee (“Magee”), Perry DeSantis (“DeSantis”),

and Artem Uvaydov (“Uvaydov”). See Defendant’s Rule 56.1(a) Statement of Undisputed

Material Facts (“Def.’s SOMF”), Ex. 17 [DE 154-6]. Up until the filing of the instant motion,

Plaintiffs Magee, DeSantis, and Uvaydov never filed their opt-in consent forms with the Court.

On December 5, 2011, the following nine individuals submitted opt-in consent forms to AAA:

David Ambaln (“Ambaln”), Michael Ciavarella (“Ciavarella”), Nelson Hernandez

(“N. Hernandez”), Richard Hernandez (“R. Hernandez”), Maria Keegan (“Keegan”), Kenneth

Laudante (“Laudante”), Daniel Montenegro (“Montenegro”), Jason Shannon (“Shannon”), and

John Viteritti (“Viteritti”). See Plaintiffs’ Memorandum of Law in Opposition to Defendant’s

Motion for Summ. J., Ex D (Exhibits) [DE 156-4]. The Plaintiffs who filed their opt-in consent

forms in the arbitration proceeding on December 5, 2011 thereafter filed their consent forms in

the Court.

On February 24, 2012, the Office of the Comptroller of the Currency closed Defendant

Home Savings. See DE 17-1 at 5; DE 44-1 at 2. As a result, the Federal Deposit Insurance

Corporation (“FDIC”) was appointed as receiver for Home Savings. See DE 17-1 at 10. On July

9, 2012, Judge Bianco granted the FDIC’s motion to substitute FDIC, as receiver for Home

Savings, as the Defendant in this action, and to continue staying the action pending arbitration.

See DE 19. Shortly thereafter, on July 20, 2012, Defendant FDIC repudiated all agreements

between Home Savings and its employees including, but not limited to, the agreement to

arbitrate all legal claims against Home Savings. See DE 20; DE 20-1. Defendant FDIC

subsequently published notice regarding its appointment as receiver and advised all potential

claimants to submit claims to the FDIC by May 31, 2012.3 See DE 44-1 at 2. A total of 20

individuals submitted claims to Defendant FDIC (collectively, “Claimants”). See id.

3 The Financial Institutions Reform, Recovery, and Enforcement Act of 1989

(“FIRREA”), Pub. L. No. 101-73, § 183 et seq, imposes a mandatory administrative claims

procedure by which claims must be submitted to the receiver of the failed financial institution for

review.

3. Continuation of the Action in District Court from 2013

On February 15, 2013, Plaintiffs moved to lift the stay in this action based on Defendant

FDIC’s repudiation of the arbitration agreements and sought leave to file an Amended Complaint

to add Home Savings’ executives Adams, Reniere, and Larry D. Hartwig (“Hartwig”) as

Defendants in their individual capacities. See DE 20. No opposition was filed to Plaintiffs’

motion. Consequently, Judge Bianco lifted the stay and granted Plaintiffs leave to file an

Amended Complaint on March 15, 2013. See March 15, 2013 Electronic Order. An Amended

Complaint was filed on March 20, 2013. See DE 24. The parties stipulated to the dismissal of

this action against Defendant Hartwig. See DE 31. On September 26, 2013, Plaintiffs filed a

Second Amended Complaint which added Marti Tromley as a Defendant to the action. See

Second Am. Compl.

On November 26, 2013, the parties filed an executed settlement agreement between

Defendant FDIC and 18 of the Claimants (the “Settlement Agreement”), which resolved the

affected Claimants’ FLSA and NYLL claims subject to Judge Bianco’s Cheeks review and

approval. See DE 44; DE 44-1. The two Claimants who did not reach a settlement with

Defendant FDIC were DeSantis and Uvaydov “due to the fact that Home Savings[] had no

records of [their] employment with Home Savings[].” See DE 44-1 at 5. That same day, 12

individuals filed opt-in consent forms to join the court action: Ambaln, Ciavarella, N.

Hernandez. R. Hernandez, Keegan, Laudante, Daniel Montenegro, Shannon, Viteritti, William

Mansi (“Mansi”), Robert Metrock (“Metrock”), and Dennis W. Nelson (“Nelson”). See DE 43.

On December 3, 2013, Judge Bianco approved the Settlement Agreement as fair and reasonable.

As a result, the FDIC was dismissed from this action. See DE 46.

Nicholas Castaldo (“Castaldo”) filed an opt-in consent notice to join the court action on

February 7, 2014. See DE 48. On September 16, 2014 and December 2, 2014, the parties filed

stipulations dismissing Defendant Reniere [DE 63] and Defendant Tromley [DE 73] from the

case. As a result, Defendant Adams became the sole remaining defendant in this action.

Defendant Adams filed an Answer to the Second Amended Complaint on July 27, 2015. See DE

99. Thereafter, the parties began exchanging discovery.

4. Discovery

In relation to the instant motion, Defendant Adams attempted to gather information by

way of interrogatories and document demands regarding the opt-in Plaintiffs’ identities, dates of

employment with Home Savings, locations of employment with Home Savings, and earned

wages from Home Savings. Plaintiff Guida served responses to Defendant’s “First

Interrogatories” which had requested, among other things, the name, address, job history

between 2009 and 2012, and dates and locations of employment with Home Savings for the

“individuals filing consents for the collective action.” See Def.’s SOMF, Ex. 14, Response to

Defendant Adams “First Interrogatories,” Interrogatory No. 2 [DE 154-6]. In response to the

request, Plaintiff Guida identified 19 opt-in Plaintiffs and listed the office address of Plaintiffs’

counsel as the address for each opt-in. See id. No other information regarding the opt-ins was

provided in those specific responses.4

Plaintiffs served responses to Defendant’s “Document Production Requests to Collective

Action Filers” which sought, among other things, all documents exchanged between the opt-in

4 Thereafter, Plaintiff Guida served a supplemental response to Defendant’s “First

Interrogatories” on December 4, 2015. However, the supplemental responses did not include any

additional information regarding the opt-in Plaintiffs, except for Plaintiff Guida. See Def.’s

SOMF, Ex. 15.

Plaintiffs and Home Savings as well as the first two pages of the opt-in Plaintiffs’ federal tax

returns for the year(s) the opt-in Plaintiffs were employed by Home Savings. See DE 110 at

10-12. Plaintiffs objected to the requests. Id. Subsequently, Plaintiffs served supplemental

responses to Defendant’s “Document Production Request to Collective Action Filers” which

indicated that no documents other than those already produced existed. Id. With respect to the

income tax returns, Plaintiffs indicated that they would be amenable to requesting the records

from the IRS. See Def.’s SOMF, Ex. 12.

Plaintiffs served responses to Defendant’s “Document Requests Number One” which

sought, among other things, “all documents filed by either lawyer or firm in the arbitration …

held under the auspices of the American Arbitration Association.” See Def.’s SOMF, Ex. 13. In

response, Plaintiffs produced documents bates-stamped GUIDA000001-802. Id. Among the

documents produced was Plaintiff Magee’s opt-in consent form filed with AAA. See Def.’S

SOMF, Ex. 17, GUIDA 961[DE 154-6]. In conjunction with the discovery demands served on

the Plaintiffs, Defendant also reached out to AAA and the arbitrator who presided over the

dispute to request a copy of the arbitration record. See Def.’s SOMF, Ex. 18 [DE 154-6].

Defendant Adams included in his submission a February 1, 2018 email he received from

Jonathan Weed, Manager of ADR Services at AAA stating that he was the administrator

handling the matter for AAA. In pertinent part, the Weed email states that Arbitrator Dineen

“must decline to respond to your request as she must remain neutral and cannot assist either party

with discovery inquiries. She has also confirmed that she has destroyed any records related to

this matter in the time since it was closed.” Id., Ex. 18.

Defendant Adams filed a motion to compel Plaintiff Guida to respond to Defendant’s

First Interrogatories seeking, among other things, the names, addresses, and employment

information of the opt-in Plaintiffs.5 See DE 107. Judge Brown denied the motion, without

prejudice, based on the Defendant’s failure to adequately meet and confer by way of an actual

conversation with Plaintiffs’ counsel as required under Local Civil Rule 37.3. See November 17,

2015 Electronic Order. A few days later, Defendant Adams filed a motion to preclude testimony

at trial regarding any of the topics covered by the document demands served on the Plaintiffs

based on their failure to provide adequate responses to the demands. See DE 110. Judge Brown

denied the motion to preclude, without prejudice, one again based on Defendant’s failure to

adequately meet and confer in the manner previously instructed by Judge Brown. See

December 2, 2015 Electronic Order.

Between January 19, 2016 and February 16, 2016, Defendant filed an additional five

discovery motions. 6 See DE 111-113; DE 118-119. None of these motions involved any of the

5 That same day, Defendant Adams also filed a motion to preclude Plaintiff Guida

from introducing evidence of the computation of damages at trial in light of his failure to provide

any such information in his Rule 26(a) Initial Disclosure. See DE 106. Judge Brown denied

Defendant’s motion based on the failure to adequately meet and confer. See November 17, 2015

Electronic Order.

6 On January 19, 2016, Defendant Adams renewed his motion to preclude Plaintiff

Guida from introducing any evidence of damages at trial. See DE 112. That same day, Adams

also filed two separate motions to compel the deposition of Plaintiffs’ counsel [DE 111] and

Plaintiff Guida [DE 113]. Judge Brown denied all three of Defendant’s motions on the grounds

that Defendant’s attempts to meet and confer continued to be inadequate. See February 12, 2016

Electronic Order. With respect to evidence of damages, Judge Brown further found that

Defendant “failed to meet his burden that Plaintiff has not provided the documents and

information in his possession.” Id. Defendant was not permitted to depose Plaintiffs’ counsel.

However, to move the action forward, Judge Brown compelled the deposition of Plaintiff Guida,

notwithstanding Defendant’s failure to adequately meet and confer. Id. Defendant Adams was

also cautioned that notwithstanding his pro se status, he is an attorney, and that his continued

failure to meet and confer could result in the imposition of sanctions. Id.

On February 16, 2016, Defendant Adams moved to compel the production of documents

and depositions of four opt-in Plaintiffs -- none of whom are involved in any disputes raised in

the instant motion. See DE 118-119. Since Defendant presented evidence that Plaintiffs’

counsel refused to engage in any meet and confer session over the telephone, Judge Brown

Plaintiffs affected by the disputes raised in the instant motion. A month later, Defendant Adams

filed a motion seeking, among other things, sanctions against Plaintiffs’ counsel for their

purported refusal to provide Defendant with “any and all discovery access to any of the

collective action filers identified by plaintiff’s counsel.” See DE 122. Although convoluted and

unclear, it appears that the gravamen of the motion was counsel for Plaintiffs’ purported failure

to produce any discovery related to the opt-in Plaintiffs. Id. at 1-2, 4. It also appears from the

language in Defendant’s motion that he narrowed his request for discovery to only four opt-in

Plaintiffs -- seemingly to preempt any argument regarding the purported burden associated with

production of the requested discovery as to all Plaintiffs. Id. at 4. On April 5, 2016, Judge

Brown permitted Defendant to conduct the depositions of the four opt-in Plaintiffs identified in

the motion and denied Defendant’s request for sanctions. See May 5, 2016 Electronic Order.

The remaining issues raised in Defendant’s March 24, 2016 motion, however, were not

addressed. Id.

Fact discovery concluded on September 6, 2016. See May 19, 2016 Electronic Order.

Discovery limited to Defendant’s ability to satisfy any judgment in this matter concluded on

February 28, 2018. See September 25, 2017 Electronic Order.

C. Motion for Partial Summary Judgment

Between March 16, 2018 and April 5, 2018, Defendant filed five letter requests for a pre-

motion conference in anticipation of moving for summary judgment against the various

Plaintiffs. See DE 143-147. Judge Bianco waived his pre-motion conference requirement and

set a briefing schedule for Defendant’s motions for partial summary judgment. See DE 149. On

denied the motion, without prejudice, and with the right to renew, and directed Plaintiff’s

counsel to meet and confer with Defendant. See March 2, 2016 Electronic Order.

July 12, 2019, Defendant filed a motion for partial summary judgment on the NYLL minimum

wage and overtime claims (Counts I and II) brought by Plaintiffs Christian Benitez (“Benitez”),7

DeSantis, Magee, Metrock, Nelson, and Uvaydov and on Plaintiffs’ FLSA minimum wage and

overtime wage claims (Counts III and IV) as to Ambaln, Benitez, Castaldo, Ciavarella, DeSantis,

N. Hernandez, R. Hernandez, Keegan, Laudante, Magee, Mansi, Montenegro, Shannon,

Uvaydov and Viteritti. See Defendant’s Memorandum of Law in Support of Mot. for Partial

Summ. J. (“Def.’s Mem.”) [DE 154-1]. Defendant’s motion is based on three primary defenses,

including collateral estoppel, statute of limitations, and choice-of-law/due process. See generally

id. Plaintiffs opposed Defendant’s motion and submitted documentation in support of their

opposition. See Pls.’ Opp’n. Defendant Adams filed a reply, chiefly taking issue with the

documentation attached to Plaintiffs’ opposition, claiming it was not produced during discovery.

As a result, Adams requests that the evidence be precluded. See Defendant’s Reply

Memorandum in Support of Mot. for Partial Summ. J. (“Def.’s Reply.”) [DE 158].

This action was thereafter reassigned to Judge Azrack, who referred Defendant’s motion

for partial summary judgment to this Court for a report and recommendation as to whether the

motion should be granted. See November 1, 2019 Electronic Order. On December 4 and

December 5, 2019, pursuant to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of a

United States Magistrate Judge to conduct all proceedings and enter a final order on this motion.

DE 160. Judge Azrack “so ordered” the consent on December 5, 2019. DE 161.

7 Christian Benitez did not file an opt-in consent form in the arbitration proceeding

or in this Court.

III. STANDARD OF REVIEW

Rule 56(a) of the Federal Rules of Civil Procedure provides that a “court shall grant

summary judgment 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.” The moving party bears the initial

burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986); Mihalik v. Credit Agricole Cheuvreux North America,

Inc., 715 F. 3d 102, 108 (2d Cir. 2013); Holcomb v. Iona Coll., 521 F. 3d 130, 137 (2d Cir.

2008). To determine whether the moving party has satisfied this burden, the Court is required to

view the evidence and all factual inferences arising from that evidence in the light most

favorable to the non-moving party. Doro v. Sheet Metal Workers’ Int’l Ass’n, 498 F. 3d 152, 155

(2d Cir. 2007); Woodman v. WWOR-TV, Inc., 411 F. 3d 69, 75 (2d Cir. 2005). In dispatching

this task, a court need only consider admissible evidence. Porter v. Quarantillo, 722 F. 3d 94,

97 (2d Cir. 2013) (quoting Raskin v. Wyatt Co., 125 F. 3d 55, 66 (2d Cir. 1997)).

Where the movant shows a prima facie entitlement to summary judgment, “the burden

shifts to the non-movant to point to record evidence creating a genuine issue of material fact.”

Salahuddin v. Goord, 467 F. 3d 263, 273 (2d Cir. 2006); Miller v. Nassau Health Care Corp.,

No. 09-CV-5128, 2012 WL 2847565, at *3 (E.D.N.Y. July 11, 2012). “[T]he non-movant

cannot rest on allegations in the pleadings and must point to specific evidence in the record to

carry its burden on summary judgment.” Salahuddin, 467 F. 3d at 273; see McPherson v. N.Y.C.

Dep’t of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) (“[S]peculation alone is insufficient to

defeat a motion for summary judgment.”); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F. 3d

93, 101 (2d Cir. 2001) (“Even where facts are disputed, in order to defeat summary judgment,

the non-moving party must offer enough evidence to enable a reasonable jury to return a verdict

in its favor.”).

When considering a motion for summary judgment, the district court “must also be

‘mindful of the underlying standards and burdens of proof’ ... because the evidentiary burdens

that the respective parties will bear at trial guide district courts in their determination of summary

judgment motions.” SEC v. Meltzer, 440 F. Supp. 2d 179, 187 (E.D.N.Y. 2006) (quoting Brady

v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988)) (internal citations omitted). “Where

the non-moving party would bear the ultimate burden of proof on an issue at trial, the burden on

the moving party is satisfied if he can point to an absence of evidence to support an essential

element of the non-movant's claim.” Meltzer, 440 F. Supp. 2d at 187.

IV. DISCUSSION

A. Collateral Estoppel/Issue Preclusion

Defendant moves for summary judgment against DeSantis and Uvaydov on their

minimum wage and overtime claims under the FLSA and the NYLL (Counts I-IV) on the basis

that the claims are barred by issue preclusion. See Def.’s Mem. at 13-17. Defendant argues that

the FDIC’s findings of fact made in support of its rejection of DeSantis and Uvaydov’s claims

must be given a preclusive effect. See id. Specifically, the Defendant relies on language

contained in the Settlement Agreement explaining that the FDIC disallowed DeSantis and

Uvaydov’s claims “due to the fact that Home Savings[] had no records of [their] employment

with Home Savings[].” See id. at 13.

The doctrine of issue preclusion, also known as “collateral estoppel,” “prevents parties or

their privies from relitigating in a subsequent action an issue of fact or law that was fully and

fairly litigated in a prior proceeding.” Forrester v. Corizon Health, Inc., 278 F. Supp. 3d 618,

625 (E.D.N.Y. 2017), aff'd, 752 Fed. App'x 64 (2d Cir. 2018) (citing Marvel Characters, Inc. v.

Simon, 310 F.3d 280, 288 (2d Cir. 2002)). Under federal law, issue preclusion applies when “(1)

the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and

decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the

issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on

the merits.” Id. (citing Marvel Characters, Inc., 310 F. 3d at 288-289). There is “no discernible

difference between federal and New York law concerning … collateral estoppel.” Marvel

Characters, Inc., 310 F. 3d at 286. “Under certain circumstances, final decisions of

administrative agencies acting in their adjudicative capacity may also be given collateral estoppel

effect.” Sec. & Exch. Comm'n v. Hansen, No. 13-CV-1403, 2017 WL 1298022, at *4 (S.D.N.Y.

Mar. 31, 2017), aff'd sub nom. United States Sec. & Exch. Comm'n v. Hansen, 712 Fed. App'x 99

(2d Cir. 2018).

While the FDIC is an administrative agency that was acting in an adjudicative capacity

regarding the claims filed against Home Savings, see 12 U.S.C. § 1821 (d)(3)-(5), Defendant has

not explained how the FDIC’s findings in the Settlement Agreement served as “resolution of the

issue [] necessary to support a valid and final judgment on the merits.” After the FDIC makes

findings in support of either the allowance or disallowance of a claim, a claimant may either

request an administrative review, file suit on the claim, or continue the action commenced before

the appointment of a receiver. See 12 U.S.C. § 1821 (d)(6)(A). It is unclear how the FDIC’s

findings in the Settlement Agreement supported a valid and final judgment on the merits,

especially in the light of the language contained in the Settlement Agreement providing that

DeSantis and Uvaydov “have elected not to challenge the FDIC’s disallowance of their claims,

without prejudice to their claims against any other defendants in this Action.” See DE 44-1 at 5.

While the Court is not entirely persuaded that issue preclusion necessarily bars DeSantis and

Uvaydov’s FLSA and NYLL claims, DeSantis and Uvaydov have nonetheless expressly stated

that they do not oppose entry of summary judgment against them on their FLSA and NYLL

claims. See Pls.’ Opp’n at 1, n. 3. Accordingly, the Court finds that DeSantis and Uvaydov

have abandoned their minimum wage and overtime claims under the FLSA and NYLL (Counts

I-IV). Therefore, the Court GRANTS summary judgment in favor of Defendant Adams on

Counts I - IV of the Second Amended Complaint.

B. Due Process Clause of the Fourteenth Amendment

Defendant moves for summary judgment against Magee, Metrock, and Nelson on their

minimum wage (Count I) and overtime (Count II) claims under the NYLL on the assertion that

no evidence was provided to Defendant that these individuals “had any employment contacts

with New York State” and, “[a]s a consequence, New York State Labor Law does not apply.”

See Def.’s Mem. at 11; Maco v. Baldwin Union Free Sch. Dist., 249 F. Supp. 3d 674, 678

(E.D.N.Y. April 13, 2017) (“Where the non-moving party would bear the ultimate burden of

proof on an issue at trial, the burden on the moving party is satisfied if he can point to an absence

of evidence to support an essential element of the non-movant’s claim.”) (citation omitted).

The Court points out that Defendant does not clearly articulate under what legal theory he

is moving for summary judgment against Magee, Metrock, and Nelson. However, he refers to

the Ninth Circuit’s opinion in Sullivan v. Oracle Corp., 662 F. 3d 1265, 1271 (9th Cir. 2011)

where Oracle argued that the state substantive law which was applied in that action violated the

constitutional limitations on choice of law mandated by the Due Process Clause of the

Fourteenth Amendment and the Full Faith and Credit Clause of Article IV, § 1. Notwithstanding

that argument, Plaintiffs Magee, Metrock, and Nelson do not dispute the allegations made

regarding their contacts with New York and expressly state that they do not oppose the entry of

summary judgment against them on their NYLL claims. See Pls.’ Opp’n at 1, n. 2. Accordingly,

the Court finds that Magee, Metrock, and Nelson have abandoned their minimum wage (Count I)

and overtime (Count II) claims under the NYLL. Consequently, the Court GRANTS summary

judgment in favor of Defendant Adams on these claims.

C. Statute of Limitations

1. Equitable Tolling

Defendant moves for summary judgment against Plaintiffs Ambaln, Benitez, Castaldo,

Ciavarella, N. Hernandez, R. Hernandez, Keegan, Laudante, Magee, Mansi, Montenegro,

Shannon, and Viteritti on their minimum wage and overtime claims (Counts III and IV) under

the FLSA on the grounds that these claims are time-barred.8

Under the FLSA, a plaintiff must commence a suit within two years after the cause of

action has accrued, unless a plaintiff can demonstrate that a defendant's violation of the FLSA

was willful, in which case a three-year statute of limitations applies. 29 U.S.C. § 255. “A cause

of action under the FLSA accrues on the regular payday immediately following the work period

for which services were rendered and not properly compensated.” Shu Qin Xu v. Wai Mei Ho,

111 F. Supp. 3d 274, 277 (E.D.N.Y. 2015) (citing D'Arpa v. Runway Towing Corp., No. 12-CV-

1120, 2013 WL 3010810, at *5 (E.D.N.Y. June 18, 2013)). In an FLSA collective action, “the

statute of limitations application to a plaintiff’s claim continues to run until he or she has filed a

written consent with the court to join the lawsuit.” Garriga v. Blonde Builders Inc., No. 17-CV-

8 Defendant also seeks summary judgment against DeSantis and Uvaydov on the

same basis. The Court need not address Defendant’s argument at it relates to these two Plaintiffs

because the Court has already granted summary judgment against them on all NYLL and FLSA

claims as set forth above in under Section IV(B) of this Memorandum and Order.

0497, 2018 WL 4861394, at *10 (E.D.N.Y. Sept. 28, 2018); see also 29 U.S.C. § 256(b) (A

claim is deemed commenced in the case of an individual claimant on the “date on which such

written consent is filed in the court in which the action was commenced.”). Consequently, unlike

the statute of limitations in a Rule 23 class action, which is tolled for all putative class members

upon the filing of the complaint, “the limitations periods in a FLSA action continues to run until

an individual affirmatively opts into the action.” Werst v. Sarar USA Inc., No. 17-CV-2181,

2018 WL 1399343, at *9 (S.D.N.Y. Mar. 16, 2018) (citing Yahraes v. Rest. Assocs. Events

Corp., No. 10-CV-0935, 2011 WL 844963, at *1 (E.D.N.Y. Mar. 8, 2011). Further, “[s]igned

consents do not relate back to the original filing date of the complaint.” Lee v. ABC Carpet &

Home, 236 F.R.D. 193, 199 (S.D.N.Y. 2006).

In certain limited circumstances, a court has discretion to equitably toll the limitations

period. “Equitable tolling generally may be applied to avoid inequitable circumstances and may

be applied as a matter of fairness where a [party] has been prevented in some extraordinary way

from exercising his rights.” Alvarado Balderramo v. Taxi Tours Inc., No. 15-CV-2181, 2017

WL 2533508, at *5 (S.D.N.Y. June 9, 2017) (citing Lee, 236 F.R.D. at 200). When determining

whether equitable tolling applies, a court must consider whether the plaintiff (1) has acted with

reasonable diligence during the period he seeks to have tolled, and (2) has proved that the

circumstances are so extraordinary that the doctrine should apply. Id. (citing Zerilli-Edelglass v.

New York City Transit Auth., 333 F.3d 74, 80–81 (2d Cir. 2003), as amended (July 29, 2003)).

For purposes of the instant motion, Defendant applies the three-year statute of limitations

for willful conduct under the FLSA. See Def.’s Mem. at 4. However, Defendant argues that the

statute of limitations should be calculated from the date the opt-in consent forms were filed in

court, namely, on November 26, 2013 and February 7, 2014. See Def.’s Mem. at 6-8. Relying

on Sullivan v. PJ United, Inc., No. 13-CV-01275, 2017 WL 10581105, at *2 (N.D. Ala. Feb. 13,

2017), Plaintiffs argue that the statute of limitations should instead be equitably tolled from the

date the opt-in consent forms were filed in the arbitration proceeding.

In Sullivan, the plaintiffs instituted an FLSA action in district court which was thereafter

stayed, at the request of the defendants, until arbitration was conducted under the parties’ binding

arbitration agreement. Id. at *1. During arbitration, the defendants moved -- on three separate

occasions -- to vacate three of the arbitrator’s rulings favorable to the plaintiff. Id. These

motions were subsequently denied by the district court. Id. After approximately three years of

arbitration, the plaintiffs moved to lift the stay of the FLSA action on the basis that the

defendants had waived their right to proceed in arbitration by failing to pay the arbitrator’s fees.

Id. In conjunction with their motion to lift the stay, the plaintiffs filed with the court hundreds of

opt-in consent forms that were filed in the arbitration proceeding. Id. at *2. After the stay was

lifted, the defendants moved to strike the opt-in consent forms filed with the court. Id. at *1.

The court in Sullivan denied the defendants’ motion and instead equitably tolled the

statute of limitations from the time in which the consents were filed in the arbitration

proceedings until they were filed with the court. Id. at *3. In so doing so, the court reasoned that

the delay in filing the consent forms with the court was caused by “extraordinary circumstances”

which were “beyond [plaintiffs’] control and unavoidable.” Id. at *2. The court found that the

consent forms would have been timely filed if not for the defendants’ misconduct in demanding

arbitration and then failing to pay the arbitrator. Id. Noting that the plaintiffs immediately filed

the opt-in consent forms with the court after the arbitration was terminated, the court held such

action demonstrated that the delay was attributable to the defendants as opposed to any lack of

diligence on the part of the plaintiff. Id.

Like Sullivan, Plaintiffs’ delay in filing the opt-in consent forms with the Court -- during

the time the action was stayed -- was caused by Home Savings. In response to then-defendant

Home Savings’ motion to compel arbitration, this case was stayed pending the resolution of the

arbitration on June 28, 2011. This led Plaintiffs to believe that the opt-in consent forms should

properly be filed in the arbitration proceeding instead of with the Court. While the parties were

in arbitration, Home Savings was closed down and Defendant FDIC, as the receiver of Home

Savings, repudiated the arbitration agreements. Thereafter, Plaintiffs were required to participate

in an administrative claims review process mandated by FIRREA. Only after the administrative

claim review process concluded were Plaintiffs able to have the stay lifted in this action on

March 15, 2013. Here, Home Savings’ demand to arbitrate and subsequent closure resulted in

circumstances beyond Plaintiffs’ control causing the delay in filing the opt-in consent forms with

the Court prior to the stay being lifted. However, the Court notes that unlike Sullivan, where the

plaintiff filed the opt-in consent forms with the court immediately upon moving to lift the stay,

the Plaintiffs here inexplicably waited until November 26, 2013 and February 7, 2014 to file the

remaining opt-in consent forms with the Court.

Accordingly, the statute of limitations period will be tolled from the time in which the

opt-in consent forms were filed in the arbitration proceeding until the stay was lifted by the Court

in this action on March 15, 2013. Having determined that the statute of limitations should be

tolled during this time, the Court will now assess the Plaintiffs’ individual FLSA claims to

determine whether they are time-barred.

2. Application

i. Benitez

Potential opt-in Benitez has not filed an opt-in consent form with the Court and did not

file an opt-in consent form in the arbitration proceeding. See Pls.’ Opp’n at 2, n. 4; Def’s Mem.

at 2, 7. Consequently, Defendant Adams contends that Benitez is now time-barred from doing

so. See Def’s Mem. at 2, 7. Although the exact date is unknown, the latest conceivable date

Benitez could have worked for Home Savings is February 2012, when Home Savings closed.

Accordingly, since he has not yet filed his opt-in consent form with the Court, Benitez’s FLSA

claims are time-barred.9

ii. Castaldo

Plaintiff Castaldo filed an opt-in consent form with the Court on February 7, 2014. See

DE 48. Plaintiff Castaldo acknowledges that his FLSA claims are time-barred and does not

oppose the entry of summary judgment against him on these claims.

iii. Magee

Plaintiff Magee filed an opt-in consent form in the arbitration proceeding on July 21,

2011. Def.’s SOMF, Ex. 17. However, except in connection with the instant motion, Plaintiff

Magee never filed an opt-in consent form with the Court. As stated, the latest conceivable date

Plaintiff Magee could have worked for Home Savings is February 2012, when Home Savings

closed. Accordingly, since Plaintiff Magee has not yet filed his opt-in consent form with the

court, his FLSA claims are time-barred.

9 Benitez’s claims, if any, under the NYLL would similarly be time-barred. Perez

Garcia v. Hirakegoma Inc., No. 17-CV-7608, 2020 WL 1130765, at *7 (S.D.N.Y. Mar. 9, 2020)

(“Under the NYLL, the statute of limitations is six years.”) (citing NYLL ¶ 198(3))

iv. Mansi

Plaintiff Mansi filed an opt-in consent form with the Court on November 26, 2013. See

DE 43. As discussed further below, Defendant seeks to preclude new factual materials

introduced for the first time in Plaintiff’s opposition to the instant motion. However, even

assuming the factual materials introduced by Plaintiffs were not contested by Defendants, the

evidence does not demonstrate that Plaintiff Mansi filed an opt-in consent form in the arbitration

proceeding. It does, however, demonstrate that Plaintiff Mansi last worked for Home Savings on

April 22, 2010. See Pls.’ Opp’n, Ex. C at 17 [DE 157-3]. Accordingly, even considering all the

evidence available to Plaintiffs, based on the date Plaintiff Mansi filed his opt-in consent form

with the Court (i.e., November 26, 2013) and the date he last worked for Home Savings (i.e.,

April 22, 2010), his FLSA claims are time-barred.

v. Ambaln, Ciavarella, N. Hernandez, R. Hernandez, Keegan,

Laudante, Mansi, Montenegro, Shannon, and Viteritti

Plaintiffs Ambaln, Ciavarella, N. Hernandez, R. Hernandez, Keegan, Laudante,

Montenegro, Shannon, and Viteritti filed opt-in consent forms with the Court on November 26,

2013. See DE 43. In opposition to the instant motion, Plaintiffs introduce, for the first time,

evidence that Plaintiffs Ambaln, Ciavarella, N. Hernandez, R. Hernandez, Keegan, Laudante,

Montenegro, Shannon, and Viteritti filed opt-in consent forms in the arbitration proceeding on

December 5, 2011. See Pls.’ Opp’n, Ex D. Specifically, Plaintiffs attach as an exhibit to their

memorandum in opposition, an email correspondence dated December 5, 2011 from Plaintiffs’

counsel to a AAA representative as well as then-Defendants’ counsel which attaches a number of

opt-in consent forms. Id. Plaintiffs also introduce, for the first time, evidence regarding the

Plaintiffs’ dates of employment with Home Savings. See Pls.’ 56.1(b) Response, Ex. C.

Specifically, Plaintiffs attach as an exhibit to their Rule 56.1(a) Response partially unredacted

opt-in consent forms which reveal the Plaintiffs’ employment dates with Home Savings. See id.

These documents evidence both the opt-in consent dates and accrual dates for Plaintiffs Ambaln,

Ciavarella, N. Hernandez, R. Hernandez, Keegan, Laudante, Montenegro, Shannon, and

Viteritti’s FLSA claims.

Defendant Adams contends that, notwithstanding his discovery demands seeking

documents exchanged and filed during the arbitration as well as employment dates of the opt-in

Plaintiffs, these documents were never produced in discovery. See Def.’s Reply 8-12.

According to the Defendant, some of the email correspondence and partially redacted opt-in

consent forms lack bates-stamp numbers which Defendant asserts supports his argument that the

documents were never produced in discovery. Id. at 9. On that basis, Defendant maintains that

the Court should preclude Plaintiffs from being able to rely on those materials in opposing the

instant motion for partial summary judgment. Id. at 10.

Of note, Defendant Adams acknowledges that there is no record of the Arbitration

proceeding. He references the February 1, 2018 email sent to him from AAA Manager Jonathan

Weed confirming that any records concerning the Arbitration were destroyed by Arbitrator

Dineen after the proceeding. Without any basis in the record, Defendant Adams wants the

Plaintiffs held responsible for that fact:

There could have been a reliable record. The American Arbitration

Association Rules for Employment Arbitrations (effective

November 1, 2009, found at adr.org, Employment Arbitrations

Rules, pg. 24) provides that the parties can request a certified copy

of the Arbitration record.

Plaintiff’s counsel could have requested an order from the Arbitrator

about the filing of the consents.

The Federal Arbitration Act, 9 U.S.C. section 1 et seq., clearly

contemplates records from the Arbitration being made part of the

record of a subsequent court proceeding. Federal Arbitration Act

sections 9-13, 9 U.S.C. sections 9-13.

Judge Bianco retained jurisdiction over this case while it was in

Arbitration. Plaintiffs could have made a motion to the Judge about

preserving the Arbitration record.

There could have been a provision in the Settlement Agreement

between the CAPs and the FDIC as Receiver. Docket #44-1 or they

could have requested some acknowledgement of the filings in the

Arbitration in Judge Bianco’s Order approving the Settlement

Agreement. Docket #46.

Plaintiffs took none of those actions.

Id. at 5-6. Defendant Adams faults the Plaintiffs for not taking any of those actions. Besides

placing a non-existent burden on the Plaintiffs in this context, Defendant Adams’ statements

constitute speculation, not facts or evidence. The FDIC as Receiver could just as well have

requested a copy of the Arbitration record but apparently did not do so.

In continuing his argument, the Defendant attempts to ask and answer why certain things

were done or not done with respect to the consent forms – again, not based on facts but rather on

conjecture. Such hypothesizing serves only to reinforce the fact that there are two different

versions of what occurred here. Plaintiffs have submitted as exhibits copies of the consent forms

which presumably came from the files of Plaintiffs’ counsel. Plaintiffs’ counsel states in his

opposition papers that these forms were submitted to the Arbitrator. Defendant, on the other

hand, contends that he requested such materials in discovery and never received them, implying

that the materials just recently appeared as part of Plaintiffs’ attempt to ward off summary

judgment. As noted, there is no record of the Arbitration proceeding to establish one way or the

other whether these forms were part of the Arbitration record or something else. The Court is

also cognizant of the fact that Plaintiffs did not have the opportunity to address a number of the

specific assertions made by the Defendant since they were not raised until the Reply. The

bottom line here is that one party says the material was part of the record and the other says it

was not. That issue is not properly resolved on summary judgment and should be left to a jury to

decide whom they believe.

It is also worth noting, particularly in view of his reliance on Rule 37, that Defendant

Adams had the opportunity to address the purported failure by Plaintiffs to produce certain

documents during the multiple years while discovery was being conducted. As noted previously,

Defendant did so and filed multiple applications seeking Court intervention to compel discovery

or to preclude Plaintiffs from introducing documents at a later date. Two of those motions,

namely, DE 106 and 107, were denied by Judge Brown for Defendant Adams’ failure to comply

with the meet-and-confer requirements of Local Civil Rule 37.3. The denials were without

prejudice and with the right to renew. A flurry of other motions followed, most of which were

once again denied, without prejudice, based on the lack of compliance with Rule 37.3. Judge

Brown’s Electronic Order of March 2, 2016 denying DE 117 and 118, without prejudice, reflects

his admonishment in this regard. Judge Brown did grant, in part, DE 122, Defendant’s motion to

compel document production and depositions of four collective action filers. See April 5, 2016

Electronic Order. The record does not reflect any further action by Defendant Adams to seek

relief with respect to document production before discovery eventually closed.

The Court finds somewhat artful the argument that Plaintiffs never turned over their dates

of employment when, in reality, that information was within the purview of Home Savings as the

employer of the Plaintiffs and the entity for whom Defendant Adams served as CEO. There is

no surprise here. Moreover, if Defendant was intent on obtaining that information and Plaintiffs

maintained that they did not have it, the Defendant had other alternatives available, including the

use of a subpoena to the FDIC. As noted, these are factual disputes which are best left to a jury.

For these reasons, the Court declines to grant summary judgment in favor of Defendant Adams

on Counts III and IV as to Plaintiffs Ambaln, Ciavarella, N. Hernandez, R. Hernandez, Keegan,

Laudante, Montenegro, Shannon, and Viteritti.

IV. CONCLUSION

For the foregoing reasons, Defendant Adams’ motion for partial summary judgment is

GRANTED, in part, and DENIED, in part, as follows:

• Summary judgment in favor of Defendant Adams on Counts I and II (NYLL claims)

as to Plaintiffs Benitez, DeSantis, Magee, Metrock, Nelson and Uvaydov is

GRANTED;

• Summary judgment in favor of Defendant Adams on Counts III and IV (FLSA claims)

as to Plaintiffs Benitez, Castaldo, DeSantis, Magee, Mansi and Uvaydov is

GRANTED;

• Summary judgment as to Plaintiffs Ambaln, Ciavarella, Nelson Hernandez, Richard

Hernandez, Keegan, Laudante, Montenegro, Shannon and Viteritti on Counts III and

IV (FLSA claims) is DENIED.

SO ORDERED.

Dated: Central Islip, New York

May 21, 2020

/s/ A. Kathleen Tomlinson

A. KATHLEEN TOMLINSON

U.S. Magistrate Judge