Opinion
00 Civ. 2002 (AJP)
July 10, 2001
OPINION AND ORDER
Plaintiff Anthony Conte sued defendants Restaurant Management Services, Inc., Jerral Enterprises, Inc. d/b/a Metro Delicatessen, and Ralph Scotto for their refusal to permit Conte to take a leave of absence from employment in order to be with his pregnant wife, and his subsequent discharge from employment, allegedly in violation of Section 102 of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615. (Dkt. No. 5: Amended Compl. ¶¶ 10-11.)
Defendants moved for summary judgment on the ground that Jerral had fewer than the fifty employee threshold for coverage of an "employer" under the FMLA. The parties consented to decision of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, defendants' summary judgment motion is granted.
FACTS
Plaintiff Anthony Conte was employed by defendants as a limousine driver for Ralph Scotto, owner of Jerral and Restaurant Management, from around January 1997 until May 1999. (Dkt. No. 5: Amended Compl. ¶¶ 4, 6, 10-11; Dkt. No. 13: Scotto 4/5/01 Aff. ¶¶ 2, 4; Dkt. No. 13: Defs.' Rule 56.1 Stmt. ¶¶ 1-6.) Specifically, Conte was employed by defendant Jerral to be a limousine driver for Jerral' s President, defendant Scotto. (Defs.' 56.1 Stmt. ¶¶ 1, 5-6.)
Plaintiff Conte did not file any papers opposing defendants' summary judgment motion. S.D.N.Y. Local Civil Rule 56.1(c) provides that "[a]ll material facts set forth in the [Rule 56.1] statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." Accordingly, the facts in defendants' Rule 56.1 statement are deemed admitted.
Conte's complaint alleged that on or about May 14, 1999, Conte informed Scotto "that he needed time off from work in order to be with his pregnant wife, who was undergoing a difficult pregnancy." (Am. Compl. ¶ 10.) According to Conte, Scotto immediately terminated Conte's employment. (Am. Compl. ¶ 11.) Conte's complaint seeks "damages caused by defendant's refusal to permit plaintiff to take leave of absence from employment and subsequent discharge of plaintiff from employment, in violation of Section 102 of the Family and Medical Leave Act of 1993, ( 29 U.S.C. § 2615)." (Am. Compl. ¶ 1.)
Defendants' summary judgment motion asserts that "Jerral did not have 50 employees during the week plaintiff alleges he was terminated. . . . Nor did Jerral have fifty or more employees for the weeks prior to the plaintiff' s departure from the company" and that, therefore, the FMLA does not apply to defendants. (Dkt. No. 13: Scotto 4/5/01 Aff. ¶¶ 7-10; Dkt. No. 13: Defs.' 56.1 Stmt. ¶¶ 7-10.) Jerral submitted its weekly payroll summaries, prepared by ADP, for the period from March 26, 1999 to April 30, 1999, showing that Jerral had between forty-four and forty-eight employees in the weeks prior to Conte's termination. (Defs.' 56.1 Stmt. ¶¶ 7-8; Scotto 4/5/01 Aff. ¶¶ 6-8, 11 Ex. C.) In addition, Scotto swore that Jerral did not have 50 or more employees for each of the twenty weeks before the end of Conte's employment. (Defs.' 56.1 Stmt. ¶ 10; Scotto 4/5/01 Aff. ¶¶ 7,10.)
Based upon the information in the payroll summaries, provided by defendants in discovery (see, e.g., Scotto 4/5/01 Aff. ¶¶ 14-18 Exs. D-F), Conte's attorney urged Conte "in no uncertain terms, to withdraw the action" even before defendants formally moved for summary judgment. (Scotto 4/5/01 Aff. Ex. F: Conte's Attorney's Letter.) Despite this advice, Conte refused to stipulate to dismissal of the case. (Id.) The Court granted Conte's attorney's application to be relieved as counsel. (Dkt. No. 16:4/24/01 Conf. Tr. at 11-14.) The Court also granted Conte an extension of time to respond to defendants' summary judgment motion (see Dkt. Nos. 15-16), but Conte did not submit any papers in opposition to the motion.
ANALYSIS
The Family and Medical Leave Act provides that an eligible employee is entitled to leave, inter alia, "[i]n order to care for the spouse . . . of the employee, if such spouse . . . has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). The FMLA further provides that "it shall be unlawful for any employer to interfere with, restrain or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a)(1).
The FMLA defines "employer" as "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calender workweeks in the current or preceding calendar year." 29 U.S.C. § 2611(4)(A)(i).
The undisputed evidence is that Jerral had no more than forty-eight employees. (See pages 2-3 above.) Therefore, Jerral is not an employer under the FMLA. 29 U.S.C. § 2611(4)(A)(i). Accordingly, the defendants are granted summary judgment dismissing plaintiff Conte's FMLA damages claim.
Defendants' Request for Sanctions Against Conte is Denied. Defendants seek costs and attorneys' fees from Conte as a sanction for continuing this action after defendants provided information in discovery showing that Jerral had less than fifty employees. (Dkt. No. 14: Defs.' Br. at 5-6.) At the April 24, 2001 conference, defendants stated that they were not seeking sanctions from Conte's withdrawing lawyer. (Dkt. No. 16:4/24/01 Conf. Tr. at 7.) At the conference, the Court indicated that if Mr. Conte did not oppose defendants' pending summary judgment motion, the Court was inclined not to impose sanctions on him. Conte did not file papers opposing defendants' summary judgment motion and defendants did not submit any additional papers after the conference. The Court has read the cases cited in defendants' brief and, in accordance with its indication at the conference, declines in its discretion to impose sanctions on Conte.
CONCLUSION
For the reasons set forth above, the Court grants summary judgment to defendants, but declines to impose sanctions on Conte.
SO ORDERED.