Case 1:16-cv-02218-FB-SMG Document 88 Filed 03/22/18 Page 1of 1_9 PageiD #: 1484
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Case No. 16-CV-02218(FB)
ROSELYN ISIGI, *
Plaintiff,
v.
HARRY’S NURSES REGISTRY, et al. ,
Defendants
Brooklyn, New York
February 16, 2018
* * * * * * * * * * * * * * * *
TRANSCRIPT OF CIVIL CAUSE FOR TELEPHONE CONFERENCE BEFORE THE HONORABLE STEVEN M. GOLD
UNITED STATES MAGISTRATE JUDGE
APPEARANCES:
For the Plaintiff) JONATHAN A. BERNSTEIN, ESQ.
Levy Davis & Maher LLP
39 Broadway, Suite 1620, New York, NY 10006
For the Defendants: EDWARD IRIZARRY, ESQ.
Law Office of Edward Irizarry, P.C.
260 Madison Avenue, New York, NY 10016
Proceedings recorded by electronic sound recording, transcript produced by transcription service.
Fiore Reporting and Transcription Service, Inc.
4 Research Drive, Suite 402
Shelton, Connecticut 06484 (203)929-9992
Case 1:16-cv-02218-FB-SMG Document 88 Filed 03/22/18 Page 2 of 19 PageiD #: 1485
1 (Proceedings commenced at 4:01 p.m.)
2 THE COURT: Good afternoon. This is Judge Gold.
3 This is Isigi vs. Dorvillier and Harry’s Nurses Registry, 16-CV-2218.
5 Who’s on for the plaintiff?
6 MR. BERNSTEIN: Jonathan Bernstein, of Levy Davis and Maher, for the plaintiff. Good afternoon, Your Honor.
8 THE COURT: Hi, Mr. Bernstein. Who’s on for the defendant
9 MR. IRIZARRY: Edward
10 THE COURT: Go ahead.
11 MR. IRIZARRY: Edward Irizarry for the defendant.
12 Good afternoon, Your Honor.
13 THE COURT: Good afternoon.
14 So pending before me is the plaintiff’s motion for
15 entry of a default judgment. And I’ve been reviewing the
16 documents and some questions have come to my mind.
17 I would like to pose those questions during this
18 phone conference and I could invite you either to answer them,
19 if you feel prepared, or I could schedule a conference at
20 which you could address them, if you would prefer.
21 The questions are primarily addressed to the
22 defendant but, of course, I’ll be happy to hear from Mr.
23 Bernstein as well.
24 My first question is this. The first step in
25 calculating the wages damages is to determine the numbers of
1 hour that Ms. Isigi worked.
2 My understanding is that although there’s an
3 argument about whether she began working for the defendants in
4 March of 2009, or May of 2009, there’s a little quarrel over the
5 number of hours she worked once we reached the start date that
6 the defendants concede.
7 Am I correct about that or mistaken, Mr. Irizarry?
8 MR. IRIZARRY: Well, think that there is a bit of
9 ambiguity there, because there is an assertion that it was an
10 84 hour workweek.
11 However, the records that we have provided, and
12 defendant has provided, indicated that she worked 12 hours a
13 day for the week, and also there were periods of time that she
14 did not work because the various patients were in the
15 hospital and there are various times when she worked four or
16 five hours.
17 And there is a question if I recall correctly,
18 concerning her extrapolating or generalizing from a series of
19 weeks, and I would have to double-check to be precise, where
20 she extrapolates from a certain week to a general statement of
21 working 84 hours per week.
22 But, again, I would have to look at all of the
23 records and see where she does that.
24 THE COURT: All right.
1 generalize and that no, it is not as she asserts in her
2 affirmation.
3 THE COURT: All right. Well, then I will read your
4 submissions more closely looking for the documents that I
5 assume you have presented as exhibits to your position to
6 support that statement.
7 MR. IRIZARRY: Yes. Yes. I have, yes.
8 THE COURT: I want to talk a little bit about the
9 good-faith arguments next.
10 First of all —
11 MR. IRIZARRY: Okay.
12 THE COURT: in terms of the period of time that
13 would be covered I — my understanding is that the good faith
14 argument is irrelevant in that the same remedies are available
15 under the FLSA and the New York Labor Law, and it matters
16 little in terms of just wage loss per se, without getting into
17 liquidated for the moment.
18 It matters little whether the plaintiff is awarded
19 two years of damages under FLSA and four years under New York
20 Labor law, or three years under FLSA and three years under New
21 York Labor law.
22 Can we agree on that, Mr. Irizarry?
23 MR. IRIZARRY: Well, I too am a bit confused about
24 the law in this area.
25 THE COURT: Oh, I don’t feel confused about the law.
1 I feel confused about your hesitation to agree with that
2 analysis.
3 What is the argument that says that for the wage
4 loss itself it matters whether it’s a two plus four or a three
5 plus three?
6 MR. IRIZARRY: Well, I — in terms of — I think
7 what I was trying to say in my submission is that this court
8 can look at everything that’s relevant concerning the
9 plaintiff’s request for damages.
10 And what I’m saying with respect to the good faith
11 argument is that this court can look at the history of the
12 litigation, can look at the history of the defendant’s attempt
13 to explain why his payment structure and his payment practices
14 were as they were, and decide whether or not a three year, or
15 whether or not he’s going to be found to have acted willfully
16 in violation of either the federal law or the state law.
17 So my position is that in terms of whether or not
18 he’s going to be found to have acted willfully and to be
19 subject to this — liquidated damages, as well as any issues
20 of retaliation and so forth, that the good faith argument has
21 to be or should be considered and that this court has the
22 power to do so.
23 So I mean, I guess that is my short answer to that –
24
25 THE COURT: All right.
1 MR. IRIZARRY: Other than what I’ve submitted in my
2 paperwork.
3 THE COURT: All right.
4 MR. IRIZARRY: But yes, I can clarify that -
5 THE COURT: Well, here’s
6 MR. IRIZARRY: if you need further submission.
7 THE COURT: I don’t. Unless you wish to address
8 what I think is a far more serious question that Mr. Bernstein
9 didn’t raise in his papers.
10 MR. IRIZARRY: Okay.
11 THE COURT: I will concede to you, Mr. Irizarry, in
12 candor, that among the reasons I wanted this phone conference
13 is to give you an opportunity to respond either today, or at a
14 hearing, or in writing, to a very serious concern I have about
15 whether these defendants have any legitimate basis to make
16 this good faith argument at all.
17 The reason I say that is one that I will explain to
18 you in some detail now.
19 I have taken the liberty of reviewing the
20 proceedings in the previous case of Gayle v. Harry’s Nurses
21 Registry, 07-CV-4672.
22 I believe that the earliest date on which plaintiff
23 could have — which plaintiff claims to have been employed by
24 the defendants is March of 2009.
25 Mr. Bernstein, are you with me so far?
1 MR. BERNSTEIN: I am.
2 THE COURT: In March of 2009, by coincidence, Judge
3 Sifton entered an order finding that with respect to Ms.
4 Gayle, a member of a group that was ultimately certified for
5 collective proceedings under 216(b), that the defendants had
6 utterly failed to demonstrate any good faith.
7 Now it’s true that in Judge Sifton’s March, 2009
8 opinion, he did not reach the question of whether the others
9 similarly situated to Ms. Gayle could claim that they were
10 denied overtime wages without good faith or not.
11 But that wasn’t the end of the question, because on
12 December 30th, 2010 Judge Garaufis issued his order in which
13 he concluded at page 11 that the defendants utterly failed to
14 demonstrate their good faith, the burden being on them.
15 Indeed, they essentially ignore the issue of good
16 faith, said Judge Garaufis, and in any event they would be
17 hard pressed to demonstrate it because they continued to not
18 properly compensate nurses for their overtime ever after Judge
19 Sifton’s decision.
20 In other words, whatever good faith belief Mr.
21 Dorvillier may have had in February of 2009, it has already
22 been held by another court — by this court in a related
23 litigation that he lost any credible claim to assert a good
24 faith defense on March 9th, 2009 when Judge Sifton told him
25 that his categorization of Nurse Gayle was incorrect.
1 And he didn’t come forward in the Gayle litigation
2 with a single fact that would distinguish Gayle from the other
3 nurses, who would have included Isigi.
4 And so I looked further at the case to see who was
5 defending Harry’s Nurses Registry and Mr. Dorvillier to see if
6 perhaps in arguing to this court, despite the substantial
7 record you might not have been aware of it, and I found that
8 you, Mr. Irizarry, were one of the attorneys who represented
9 the defendants in the Gayle litigation and were thus amply
10 familiar, I presume, with all of the orders I’m reading.
11 Can you explain to me today either — or in a legal
12 brief you will submit shortly on what good faith basis you
13 have to argue that these defendants are not precluded by
14 virtue of having fully litigated these questions and laws from
15 taking a contrary position now?
16 That is to say why this case is not collateral
17 estoppel or issue preclusion on the question of good faith,
18 even if Mr. Bernstein’s default argument were not as powerful
19 as it already is?
20 MR. IRIZARRY: Well, I did represent the defendants
21 in the U.S. Supreme Court. I filed a petition for certiorari.
22 And I did become familiar with the orders.
23 And I also did become familiar with the type of
24 representation that Mr. Dorvillier received, as I’ve become
25 familiar with the type of representation he’s received in this case.
2 And what I can say in terms of the good faith is
3 what Mr. Dorvillier was attempting to litigate and say in the
4 Gayle matter, as well as what he attempted to say here, that
5 he was in receipt of a decision, a state court decision, by an
6 Administrative Law Judge Bell in 1999 that held, and I have
7 that attached as an exhibit, that held that similarly situated
8 individuals were held to be independent contractors and not
9 entitled to Workers Compensation or unemployment insurance and
10 — by definition because they were found to be independent
11 contractors, to overtime pay.
12 And he was relying through that — throughout the
13 time of the Gayle matter upon those decision — and he —
14 decisions, and relied upon his attorney’s understanding of his
15 actions and understanding of these decisions that he had
16 turned over. He turned these over to every attorney and he
17 had about three or four in that Gayle litigation before I came
18 and represented him in the Supreme Court.
19 And I made the argument that I’m making now
20 concerning what his good faith belief was in the law —
21 THE COURT: Mr. Irizarry, I think — I do think
22 you’re missing my point.
23 As I understand it, Gayle resulted in a final
24 judgment, did it not?
25 MR. IRIZARRY: The Gayle case resulted in summary judgment being granted to the plaintiffs, yes.
2 THE COURT: That judgment was never reversed,
3 correct?
4 MR. IRIZARRY: It was not reserved, no.
5 THE COURT: And, therefore, I need to understand why
6 it doesn’ t preclude, as a matter, of law Mr. Dorvillier and
7 Harry’s from arguing that it acted in good faith as a matter
8 of issue preclusion?
9 You can disagree with the decision —
10 MR. IRIZARRY: Well —
11 THE COURT: counselor, all you like, but I have
12 yet to hear from you a good faith basis to argue to this court
13 that your client isn’t precluded by a judgment he challenged
14 and lost from being bound by it here. What’s the basis for
15 that?
16 MR. IRIZARRY: Well, what I’m arguing is that
17 because this court on the question of damages is free to
18 consider, you know, almost anything in terms of what has
19 transpired, why this default came to be. Why the defendant
20 never argued good faith.
21 And because his attorney simply disappeared on him
22 in this case, he filed a grievance against Mr. Schirtzer. Mr.
23 Schirtzer did not respond to his correspondence.
24 And he was trying to, as he did before in the Gayle
25 matter, submit his own affidavit, his own arguments concerning
1 his good faith belief.
2 I believe that the court can consider that with
3 respect to damages here. That is my argument.
4 THE COURT: Well
5 MR. IRIZARRY: I think that the court in respect to
6 damages
7 THE COURT: Again, this has nothing to do with
8 collateral estoppel. The good faith at issue here has nothing
9 to do with the good faith that led to the default and I can
10 tell you’re too smart not to know that, sir.
11 The good faith at issue here occurred between 2009
12 and when Ms. Isigi and Mr. Dorvillier parted employer/employee
13 status, and there can’t he’s already been found on
14 identical facts to have acted without being able to
15 demonstrate good faith.
16 Clearly, the same holding has to apply here as a
17 matter of issue preclusion. I’ve given you, ample opportunities
18 to tell me why not and you haven’t chosen do to that.
19 MR. IRIZARRY: But it was never litigated, his
20 reliance upon the state court decision —
21 THE COURT: Of course it was.
22 MR. IRIZARRY: That was never litigated.
23 THE COURT: Of course it was.
24 MR. IRIZARRY: That was never litigated by any of
25 the attorneys prior in the Gayle matter
1 THE COURT: I see. So your position is that res
2 judicata and collateral estoppel only apply if every argument
3 that could have been raised was. The fact that a full and
4 fair opportunity to litigate occurred and a final judgment
5 entered that was never reversed is not the test.
6 If that’s your position, I will give you until
7 Tuesday to submit a brief that has case law supporting it. I
8 know that not to be the law though.
9 Last question. You —
10 MR. BERNSTEIN:
Your Honor, may I speak briefly to
11 this issue?
12 THE COURT: Sure.
13 MR. BERNSTEIN: Now the defendant was represented in
14 the first instance in the Gayle matter by a firm called Dealy
15 and Silberstein, which Your Honor may be aware is an
16 experienced labor and employment firm.
17 Even taking Mr. Irizarry at his word that Mr.
18 Dorvillier tried to get his attorney to advance this state
19 court judgment, this state ALJ judgment, I think there’s a
20 very good reason that Mr. Silberstein didn’t do so and that is
21 that it was a meritless argument.
22 The employee independent contractor distinction
23 under the Fair Labor Standards Act, is quite different from
24 the common-law test applied for unemployment benefits and
25 Worker’s Compensation purposes.
1 And if the argument was indeed presented to Mr.
2 Silberstein, he properly refused to make it because it was
3 sanctionable.
4 THE COURT:
Thank you. I have a last question, Mr. Irizarry.
6 There’s a debate about whether plaintiff’s damages
7 should begin in March of 2009 or May of 2009.
8 In the grand scheme of things I’m not sure it
9 matters much, but your argument, as I understand it, is that
10 Ms. Isigi was not included on a list of employees who should
11 have received the 216 notice because she wasn’t an employee
12 when that list was provided to plaintiff’s counsel in the
13 Gayle matter, correct?
14 MR. IRIZARRY: Yes.
From the records that my client
15 has given to me —
16 THE COURT: Yes.
17 MR. IRIZARRY: And from his assertions, she was not
18 employed at the time that the list was required.
19 THE COURT:
So in general my understanding is that
20 when a demand for information is propounded by one side to
21 another in a litigation and a complete response is made at the
22 time the demand is propounded, and new information comes to
23 light thereafter, there is a duty to supplement the
24 information.
25 Is there any reason that you’d like to share with
1 this court why that duty to supplement didn’t arise when Ms.
2 Isigi became an employee of the defendant?
3 MR. IRIZARRY: Well, I don’t — I’m not privy to the
4 client’s conversations with his attorneys and I don’t know
5 whether or not — but I do know that Ms. Isigi was informed of
6 the litigation and she did — and she chose not to opt in —
7 THE COURT:
Yeah, that’s not my question.
8 MR. IRIZARRY: after being informed by a
9 clleague.
10 THE COURT: As Mr. Bernstein points out -
11 MR. IRIZARRY: But your question —
12 THE COURT: As Mr. Bernstein points out, the content
13 of the notice is often a litigated matter carefully reviewed
14 by the court.
15 It’s one thing to hear talk about a lawsuit around
16 the office and quite another to get the notice that the court
17 has approved.
18 In any event, it’s not responsive to my question,
19 which you can choose not to answer and leave me to my own
20 inferences, but I’ll ask it again to give you an opportunity
21 to answer it. What —
22 MR. IRIZARRY:
You know, I do not know why it was
23 not — if it was not supplemented, I do not know and I don’t
24 know of any reason why he also supplemented it.
25 THE COURT: Thank you.
1 MR. IRIZARRY: I do not know.
2 THE COURT: Now I remain quite troubled, frankly, by
3 the failure– by the defendant’s assertion of the argument
4 that it has a good faith defense here. I just think that that
5 is so beyond the pale that I will have to consider carefully
6 what consequences flow from it.
7 But it does occur to me
8 MR. IRIZARRY: Well, Your Honor, I’d like-
9 THE COURT: Go ahead.
10 MR. IRIZARRY: If I could just — if I could just
11 respond to Mr. Bernstein.
12 This litigant, this client, Mr. Dorvillier, was
13 trying to understand these arguments and trying to understand
14 these decisions that were provided to him as a lay person.
15 Now Mr. Bernstein may have understood all of the
16 ramification of the administrative law court’s
17 decision. However, we can’t say that Harry Dorvillier, as the owner of a small business —
19 THE COURT: Yeah, but that —
20 MR. IRIZARRY: understood that.
21 THE COURT: That’s not my point, Mr. Irizarry.
22 My point is that when you submitted your papers in this case
24 MR. IRIZARRY:
25 THE COURT:
Yes. you knew full well that defendants
1 had vigorously litigated a good faith defense on the same
2 facts and circumstances, and the same group of employees that
3 Ms. Isigi is a member of.
4 And knowing full well —
5 MR. IRIZARRY: But these decisions — these
6 decisions were never these ALJ decisions were never
7 THE COURT:
I’m not talking about ALJ decisions.
8 I’m talking about Judge Sifton’s and Judge Garaufis’ decision.
9 He litigated the question. He lost. When a party
10 litigates the same issues and loses, he has no legitimate
11 basis to take a contrary position to the one he’s already
12 lost.
That’s what collateral estoppel and issue preclusion
13 are all about. You know that. You know what happened in
14 Gayle and you made the argument anyway. I don’t know how to
15 abide that. That’s my challenge.
16 MR. IRIZARRY: Well, I — I know what happened in
17 Gayle, but I also know the type of representation that he
18 received in Gayle and the type of representation that he’s
19 received here.
20 Now this court itself was unable to locate Mr.
21 Dorvillier’s attorney on several occasions when –during
22 discovery proceedings.
23 So understanding the type of representation that he
24 received then and understanding the type of representation
25 that he received now, I believe that this court can consider
1 the arguments that he has for good faith now
2 THE COURT: All right.
3 MR. IRIZARRY: — because of these decisions that he
4 had in his position.
5 THE COURT: All right.
6 MR. IRIZARRY: And these decisions that he provided,
7 and the reasons why he was acting the way he was acting, that
8 he communicated to these representatives of his —
9 THE COURT: Well —
10 MR. IRIZARRY: — and that he expected
11 representation from.
12 THE COURT: You just are not addressing the
13 collateral estoppel point and I understand why not. I have
14 never seen a successful defense to issue or claim preclusion
15 on the grounds that the final judgment was obtained in a
16 lawsuit where I could have been better represented. I’ve
17 never heard that argument.
18 If it was a strong enough argument to reverse the
19 judgment, I’m sure you would have asserted it and succeeded.
20 It wasn’t. Therefore, judgment
21 MR. IRIZARRY:
22 THE COURT: But in your stands and, therefore, it binds the
23 defendant. So there’s just —
24 MR. IRIZARRY: But in considering damages though,
25 when you’re considering damages you have the discretion to
1 look at that has transpired and the level of representation
2 that he’s received.
3 THE COURT: Oh, I don’t understand it that way. All
4 right. Good for you. I understand your position better now.
5 I would seem to me that it would be quite prudent of Mr.
6 Dorvillier to make a very handsome offer to the plaintiff.
7 If you’d like me to refer you to you a mediation,
8 you can make an opening offer and I will consider referring
9 the matter to mediation.
10 Otherwise, even by your best arguments, even if
11 they’re accepted, there’s going to be a six-figure judgment in
12 this case, right, I mean, even if she didn’t work quite the
13 hours she worked.
14 Clearly, you and I don’t see eye to eye on
15 liquidated damages and whether those are going to be awarded.
16 You’ve already made– that argument’s already been made by
17 these defendants and they’ve lost it. They’ re not going to
18 I’m certainly not going to come out differently than Judge
19 Sifton or Judge Garaufis when there are no different facts to
20 guide me.
21 And so, you know, if he wants to stop the legal fees
22 from running and get this dealt with, I would urge him to do
23 it quickly. That’s all.
24 Thank you very much, everybody.
25 MR. IRIZARRY: I will communicate everything with my client. Thank you very much.
THE COURT: Goodbye.
- MR. BERNSTEIN: Thank you. (Proceedings concluded at 4:26p.m.)
I, CHRISTINE FIORE, Certified Electronic Court Reporter
and Transcriber and court-approved transcriber, certify that the foregoing is a correct transcript from the official electronic sound recording of the proceedings in the above- entitled matter.
Christine Fiore, CERT
March 20, 2018
Fiore Reporting
LAW OFFICE OF EDWARD IRIZARRY, P.C.
260 MADISON A VENUE • EIGHT FLOOR NEW YORK, NEW YORK 10016 TEL:
212 216-2 127 FAX : 646 2 1 6-2001
By ECF
The Honorable Steven M. Gold United StateMagistrate Judge United States Court House Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Dear Magistrate Judge Gold:
February 23, 2018
Re: Isigi v. Harry’s Nurses Registry, Inc. et al.,
16 Civ. 2218 (FB) (SMG)
We represent the defendants in this action. I write pursuant to Your Honor ‘s Minute Entry of February 16, 2018 (Dkt. No. 84) to advise the court that Defendants do have an interest in settling this matter, however have insisted that prior to any offer of settlement, Plaintiffs’ counsel file with both the Office of the Clerk of the County of Queens, New York, and the Clerk of the Court of the Eastern District legal, proper and binding satisf2.ctions of judgment in the Gayle matter which would be wholly effective as against e(‘l.ch and every plaintiff in the judgment. In this regard, defendants have inquired whether the attorny for the plaintiffs in the Gayle litigation has exceeded his powers in providing certain satisfaction of judgments that were previously rejected by the clerk’s office and whether he will be protected from future claims of the Plaintiffs. See De Mets v. Dragon, 53 N.Y. 635 (1873); Allison Lewis , 15 How. Pr. 539 (Sup. Ct.
1858.) Defendants reiterate that there is a pending pro-se motion before Magistrate Go, where defendants have, among other things, asserted that Counsel Bernstein, as agent, has transcended his warrant in providing the satisfactions of judgment and have demanded to see the proof (via cancelled check) of the exact and full payment made to each of the plaintiff nurses.
Thank you for your attention to this matter.
