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Darowski v. Wojewoda

United States District Court, D. Connecticut

August 7, 2016

KRZYSZTOF DAROWSKI, Plaintiff,
v.
ELZBIETA WOJEWODA, Defendant.

          MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS

          Michael P. Shea, U.S.D.J.

         I. Introduction

         Plaintiff, Krzysztof Darowski, brings this action against Defendant, Elzbieta Wojewoda, for failure to pay wages owed by law. Darowski brings claims under the overtime wage provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., and the overtime and minimum wage provisions of the Connecticut Minimum Wage Act (CMWA), Connecticut General Statutes §§ 31-58, et seq. He seeks his unpaid wages, liquidated damages pursuant to the FLSA, double damages pursuant to the CMWA, and reasonable attorney’s fees and costs. (Compl., ECF No. 1 ¶ 1). Wojewoda has filed a Motion to Dismiss, citing insufficient service of process and failure to state a claim. Fed.R.Civ.P. 12(b)(5), (6).

         The issues before the Court are: (1) whether the Court should extend the period for service of process; (2) whether Darowski has alleged facts sufficient to state a FLSA claim; and (3) whether the complaint sufficiently alleges grounds on which the statute of limitations for Darowski’s FLSA and CMWA claims should be equitably tolled.

         For the following reasons, the Motion to Dismiss is DENIED.

         II. Facts

         The following facts are accepted as true for the purpose of deciding this motion. At all times relevant to this matter, Wojewoda owned and operated Huntingtown Farm, a horse-boarding facility in Newtown, Connecticut. (ECF No. 1 ¶ 7.) From approximately September 6, 2010, until February 9, 2013, she employed Darowski as a “general laborer.” (Id. at ¶ 9.) Darowski agreed to work a fixed schedule totaling 65 hours per week. (Id. at ¶ 14.) His duties were as follows:

[T]aking care of the horses, the stables, and 30 acres of land, including feeding and grooming the animals, and cleaning and maintaining the paddocks and stables. The plaintiff was also required to mow grass, rake leaves, mend fences, paint, trim trees, and shovel several driveways in wintertime. In addition, the plaintiff was required to perform tasks unrelated to the Huntingtown Farm operation, including the retiling of the defendant’s indoor pool.

(Id. at ¶ 10.) Because he was “rarely” able to complete his assigned tasks in the allotted time, Darowski worked an average of 71 hours per week. (Id. at ¶ 15-16.)

         In return for his services, Wojewoda agreed to pay Darowski fixed wages of $550.00 per week. (Id. at ¶ 14.) Connecticut’s minimum wage was $8.25 per hour throughout Darowski’s employment under Wojewoda (id. at ¶ 18), and both federal and state law required employers to pay employees an overtime rate for hours worked in excess of forty hours each week (id. at ¶¶ 22, 34). Wojewoda did not comply with these laws. (Id. at ¶¶ 21-22.)

         Darowski remained unaware of his rights under the FLSA and CMWA until May 7, 2015. (Id. at ¶ 32.) During his employment, Wojewoda failed to post notices of employee rights as required by federal and state law. (Id. at ¶ 11-12.) She also failed to provide Darowski with a sufficient record of his hours worked and wages earned (id. at ¶ 13), restricted his ability to leave the facility, and prohibited him from communicating with clientele (id. at ¶ 24). Darowski also does not speak or read English. (Id.) He alleges that these factors prevented him from learning of the alleged violations of his rights. (Id.)

         In February 2015, a friend informed Darowski that he might be “eligible for a ‘T visa’ as a victim of labor trafficking.” (Id. at ¶ 30.) In March 2015, Darowski met with the International Institute of Connecticut (IICONN) for assistance in filing for a “T visa.” (Id. at ¶ 31.) On May 7, 2015, an attorney for IICONN informed him that he might have rights to recover unpaid wages. (Id. at ¶ 32.) On May 21, 2015, Darowski met with his current attorney, Mariusz Kurzyna, who informed him of his rights under the FLSA and CMWA. (Id. at ¶ 33.)

         On May 27, 2015, Darowski commenced this action and submitted an application to proceed in forma pauperis (IFP). (Mot. Leave Proceed In Forma Pauperis, ECF No. 2.) That day, Kurzyna also mailed the following documents to Wojewoda’s address: a copy of the Complaint, a copy of all other docketed documents, and a request for waiver of service. (Kurzyna Aff., ECF No. 25-1 ¶ 3.) On June 8, 2015, Kurzyna received an email from Wojewoda’s attorney, Daniel Young, stating that his law firm, Wofsey, Rosen, Kweskin & Kuriansky, LLP, was representing Wojewoda and that Young had reviewed the Complaint. (Id. at ¶ 4; Pl.’s Mem. Opp. Def.’s Mot. Dismiss, Ex. C, ECF No. 25-4.) On July 9, 2015, Kurzyna asked Young, by phone, whether Wojewoda “was going to waive service.” (ECF No. 25-1 ¶ 5.) Young said that Wojewoda had not given him the service waiver forms, and asked Kurzyna to resend them directly to Young. (Id.) On July 20, 2015, Kurzyna mailed a second request for waiver of service, this time directly to Young. (Id. at ¶ 6.) Wojewoda did not return either request. (Id. at ¶ 7.)

         On September 1, 2015, Kurzyna called the Court to express that a ruling on the IFP application was “needed to expedite service” because the service deadline was “weeks away.” (Id. at ¶ 8.) On September 17, 2015, he requested that the Court issue a summons. (Request for Clerk to Issue Summons.) On September 18, 2015, he “sent all the documents necessary to effect service to the U.S. Marshals Service, pending approval of the IFP application, ” including the USM-285 form. (ECF No. 25-1 at ¶ 9; Summons Returned Executed, ECF No. 13.) That day, the Court issued a summons. (Electronic Summons Issued, ECF No. 10.)

         At an undetermined point after September 18, 2015, an individual in the U.S. Marshals office wrote “IFP Granted” on the USM-285 form even though the Court had not yet ruled on the IFP application. (Order, ECF. No. 16.) On September 21, 2015, a U.S. Marshal accepted the service documents and formal service procedures were initiated. (ECF No. 13.) On October 23, 2015, Wojewoda’s attorney accepted service on his client’s behalf-twenty-nine days after the original service deadline. (Id.) On November 10, 2015, the Court granted Darowski’s request to proceed IFP. (ECF No. 14.)

         III. Standard

         A. Rule 12(b)(5) Motion to Dismiss

         Valid service is required before a federal court may exercise personal jurisdiction over a defendant. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). It is the plaintiff’s burden to prove valid service when a defendant moves to dismiss under Rule 12(b)(5) of the Federal Rules of Civil Procedure. Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010). Prior to discovery, a plaintiff may establish personal jurisdiction with a prima facie showing. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). In assessing a motion to dismiss for insufficient service of process, a court must look to matters outside the complaint, such as the steps taken by the plaintiff to effectuate service, to determine whether it has jurisdiction. Torres v. Gaines, 130 F.Supp.3d 630, 635 (D. Conn. 2015).

         B. Rule 12(b)(6) Motion to Dismiss

         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must determine whether the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court accepts all of the complaint’s factual allegations as true when evaluating a motion to dismiss. Id. at 572. The Court must “draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). “When a complaint is based solely on wholly conclusory allegations and provides no factual support for such claims, it is appropriate to grant [a] defendant[‘]s motion to dismiss.” Scott v. Town of Monroe, 306 F.Supp.2d 191, 198 (D. Conn. 2004). For a complaint to survive a motion to dismiss, “[a]fter the court strips away conclusory allegations, there must remain sufficient well-pleaded factual allegations to nudge plaintiff’s claims across the line from conceivable to plausible.” In re Fosamax Products Liab. Litig., 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010). In assessing a motion to dismiss for failure to state a claim, courts are limited to the complaint, documents attached to or incorporated in the complaint, and matters of which judicial notice may be taken. Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991).

         IV.Discussion

         A.Service of Process

         Wojewoda moves to dismiss Counts One and Two because she argues that she did not receive personal service until after the deadline for service had passed. Fed.R.Civ.P. 12(b)(5), 4(m). A defendant must be served within 120 days after the complaint is filed.[1] Fed.R.Civ.P. 4(m). If a defendant is not served by the deadline, “the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Id. However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.

         1.Extension for Good Cause

         Darowski argues that he has shown good cause for the failure to serve Wojewoda by September 24, 2015-120 days from when he filed the complaint-because he made reasonable efforts to effect service on Wojewoda, and Wojewoda was not prejudiced by the 29-day delay in service. (See ECF No. 13.) In the alternative, Darowski argues that a good cause extension is warranted because his IFP status entitled him to rely on the Court to effect service on his behalf.

         Courts consider two factors in deciding whether good cause exists: (1) a plaintiff’s reasonable efforts to effect service; and (2) prejudice to the defendant from the delay. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Barney Assocs, 130 F.R.D. 291, 293 (S.D.N.Y. 1990) (citing Gordon v. Hunt, 116 F.R.D. 313, 319-21 (S.D.N.Y.), aff’d, 835 F.2d 452 (2d Cir.1987) (per curiam), cert. denied, 486 U.S. 1008 (1988)). Good cause is usually found only in “exceptional” situations where the plaintiff’s failure is due to “circumstances beyond its control.” E. Refractories Co. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999).

         a. Darowski’s Efforts to Effect Service

         Darowski argues that he made reasonable attempts to effect service. His attorney, Kurzyna, mailed a request for waiver of service to Wojewoda’s business (ECF No. 25-1 ¶ 3), sent another to Wojewoda’s attorney (id. at ¶ 7), contacted the Court to “expedite service” (id. at ΒΆ 8), requested the Court to issue a summons (Request for Clerk to Issue Summons), ...


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