United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO
Michael P. Shea, U.S.D.J.
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).
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.
following reasons, the Motion to Dismiss is DENIED.
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.)
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.)
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.)
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.)
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.)
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.)
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.)
Rule 12(b)(5) Motion to Dismiss
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.
Rule 12(b)(6) Motion to Dismiss
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).
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. 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.
for Good Cause
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.
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).
Darowski’s Efforts to Effect Service
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 ¶ 8), requested the Court to issue a
summons (Request for Clerk to Issue Summons), ...