Lopez-Serrano v. Rockmore

132 F. Supp. 3d 390, 2015 U.S. Dist. LEXIS 126493, 2015 WL 5559693
CourtDistrict Court, E.D. New York
DecidedSeptember 16, 2015
DocketNo. 14-cv-6056(ADS)(GRB)
StatusPublished
Cited by16 cases

This text of 132 F. Supp. 3d 390 (Lopez-Serrano v. Rockmore) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lopez-Serrano v. Rockmore, 132 F. Supp. 3d 390, 2015 U.S. Dist. LEXIS 126493, 2015 WL 5559693 (E.D.N.Y. 2015).

Opinion

MEMORANDUM OF DECISION AND ORDER

• SPATT, District Judge:

On October 15, 2014, the Plaintiff Karla Lopez-Serrano (“Lopez-Serrano” or the “Plaintiff’) commenced this action against her former employer, the Defendant Allison Rockmore (“Rockmore” or the “Defendant”), alleging violations of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).

On the same day, the Plaintiff filed an amended complaint, which is currently the operative pleading in this case.

On December 1, 2014, Rockmore filed a motion, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6), seeking to dismiss the amended complaint. Rockmore’s motion to dismiss is presently before the Court.

On January 5, 2015, Lopez-Serrano opposed the motion to dismiss and cross-moved, pursuant to Fed.R.Civ.P. 15(a), seeking leave of the Court to further amend her complaint. Lopez-Serrano’s [394]*394cross-motion is also presently before the Court.

For the reasons set forth in this opinion, the Defendant’s motion is denied and the Plaintiffs cross-motion is granted.

I. Background

The following facts are drawn from the amended complaint and are construed in favor of the Plaintiff.

A. The Plaintiffs Employment

The parties are both adult individuals residing in Nassau County, New York. Rockmore is an attorney licensed to practice in the State of New York.

In December 2011, Lopez-Serrano became employed as a live-in domestic worker in Rockmore’s home in Syosset, New York. Rockmore allegedly paid Lopez-Serrano a salary of $425 to $500 per week. It is alleged that Rockmore neither recorded the hours worked by Lopez-Serrano nor has personal knowledge of the actual hours she worked. Nevertheless, allegedly, the Plaintiffs typical workweek, during which she resided in Rockmore’s home, was from Monday morning to Friday evening. Rockmore usually paid the Plaintiff on Fridays.

Lopez-Serrano alleges that she worked for Rockmore on September 10, 11, 12, 13, and 14, 2012 (the “Relevant Time Period”). However, allegedly she did not receive payment on Friday, September the 14th, as would have been the usual occurrence. To date, Lopez-Serrano asserts that she has not received payment for her work during the Relevant Time Period.

The amended complaint sets forth a series of excerpted text messages that, allegedly, were exchanged between the parties in the following days and weeks. The Court notes that the sampling of messages specifically identified in the amended complaint does not reflect the parties’ complete conversations. In addition, Rock-more provided a computer print-out, which reflects more of the conversations, but that version, too, is obviously incomplete. Without expressing an opinion at this time as to the appropriateness of considering the text message printouts on a motion under Rule 12(b)(6), the court will reproduce the parties’ conversation insofar .as it has been provided in the record:

(Sun. 9/16/12) LOPEZ-SERRANO: Hi Mrs. A, hope u n kids r ok, Mrs. A can u give off tomorrow? Is not inportant i’m just asking to have the day off to do stuff.

ROCKMORE: I’m sorry Karla. But I can’t this time. It’s a holiday [Rosh Hashana] and I really need your help. Another time. Ok?

LOPEZ-SERRANO: Ok i will see you tomorrow

(Mon. 9/17/12) ROCKMORE: Hi Karla. Good morning. Just checkung to see what time u will be here I have to leave soon. Thank u

LOPEZ-SERRANO: Hi, Mrs. A, i’m sorry but i can come to work because i had an emergency of a sister she’s sick n she’s might go back to el salvador n that’s why she ask for my sister n me to come over before she any thing happen. She leave at 5 hours away from here we r not coming back in to tomorrow night.

(Tues. 9/18/12) ROCKMORE: Hi Karla. I’m sorry you have family emergency. It sounds like u have a lot to deal with. The weather is so bad too. You might as well take care of ur sister for the rest of the week. I’ll see uMonday. Take care.

[395]*395LOPEZ-SERRANO: Hi, thank you so much.i will see u monday.tell Lande i say hi thanks

(Sun. 9/23/12) ROCKMORE: Hi Karla. It’s Been a long week. I haven’t heard from u. I Don’t even know if you are back from your sister who lives far away. Anyway tomorrow is not a good day so don’t come. I will call you tomorrow.

LOPEZ-SERRANO: Hi, ok i’ll talk to u tomorrow thank you, good night.

(Mon. 9/24/12) LOPEZ-SERRANO: Hi, Mrs. Allison, I’m been waiting for your call, what r u want me to do.come back to work for you or not any more? I really need to know so i know what to do.please let me know soon.

(Tues. 9/25/12) LOPEZ-SERRANO: Hi Mrs. A, I’m sorry about all this, i really need to talk to you.please call me soon u can thanks, i’m back, i was gonna come to ur house tomorrow.but i don’t know if u want me to come to ur house tomorrow or no.please call me.

ROCKMORE: Hi Karla I can’t talk right now. I will call u tomorrow. Tomorrow is not a good day. So don’t come tomorrow. I will call u tomorrow.

ROCKMORE: Karla I’m in court right now. U left me hanging at a really bad time. U didn’t even have the courtesy to call me that Monday morning [Sept. 17, 2012]. You knew it was a holiday [Rosh Hashana] and u know I have to go to work. To not call or come to work monday morning after u said u would was not right. I allowed your little sister to stay in the house this Summer etc. I thought we had a better relationship than that.

LOPEZ-SERRANO: Im so sorry what i did to u i just want my stuff and my week pay because u may not let me work for u i am so sorry please forgive me mrs. allison

ROCKMORE: I was hoping that you would be working for me for many years. December would’ve been 1 year at my house. I’ve paid u for days off when ur mother needed you, given u holidays off. I just have you Labor Day even though I really needed you that day. There were no kids home this summer, yet the house is a mess and disorganized. I overlooked it all.

LOPEZ-SERRANO: At least let me get my cloths. If u r going to pay me pay me when I go get my cloths and if ur not going to pay me then don’t

(Sun. 9/30/12) LOPEZ-SERRANO: Hi, Mrs. Alison, please Mrs. let me come back to work for you.or just let me get my stuff back please. I’m sorry what i did to you please for give me and give me another chanse.

(Mon. 10/8/12) LOPEZ-SERRANO: Hi, Mrs. good morning, I just want to let u know ... [Omitted from Court Exhibit ]

[Date Omitted ] ROCKMORE: I still can’t get over what you did to me. Not coming to work for days. Not having the courtesy and respect to call me that u weremt coming. I had to call you hours after you were supposed to be here. It was a holiday. I had family coming. You left me hanging. I had to go hire people on an emergency basis. That cost me money to replace you on an emergency basis. Mot to men[396]*396tion that i work and ... [Omitted from Court Exhibit ]

(Sat. 10/20/12) ROCKMORE: Hi Karla. Ur clothes are at the end of the driveway. Please get them before 9 like I said in my last message. Thank u

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Bluebook (online)
132 F. Supp. 3d 390, 2015 U.S. Dist. LEXIS 126493, 2015 WL 5559693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-serrano-v-rockmore-nyed-2015.