CAJILEMA v. BARRETT ROOFS INC (2025)

MEMORANDUM AND ORDER

In this action brought under the Federal Labor Standards Act (“FLSA”), New York Labor Law (“NYLL”), and New York Codes, Rules and Regulations (“NYCRR”), Plaintiff Jose Manuel Cajilema (“Cajilema”) seeks leave to amend his Complaint to add four additional defendants. For the reasons stated below, the motion to amend is granted.¹

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Cajilema commenced this action on January 5, 2023, on behalf of himself and all others similarly situated, against Defendants Barrett Roofs, Inc. (“Barrett Roofs”) and Thomas Delancey (“Delancey”), the co-owner of Barrett Roofs (collectively “Defendants”). (Compl. dated Jan. 5, 2023 (“Compl.”), Dkt. No. 1). Cajilema worked for Barrett Roofs as a manual laborer from 2009 to December 2022. (Id. ¶ 29). Cajilema alleges Defendants failed to pay overtime wages in violation of FLSA, NYLL, and NYCRR, (id. ¶¶ 41–53); furnish wage statements in violation of NYLL, (id. ¶¶ 54–57); and furnish proper wage notices in violation of NYLL, (id. ¶¶ 58–61).

Cajilema served his motion to amend on March 11, 2025. (Mot. for Leave to File Am. Compl. dated Mar. 11, 2025, Dkt. No. 52; Mem. of Law in Supp. of Pl.’s Mot. for Leave to File Am. Compl. dated Mar. 11, 2025 (“Pl.’s Mem. of Law”), Dkt. No. 52-1). The proposed Amended Complaint adds four individuals as defendants: Vasiliki Apostolopoulos, Anastasios Pavlou, Brian Wynne, and Robert Moore. (Proposed Am. Compl. dated Mar. 11, 2025 (“Proposed Am. Compl.”), attached as Ex. 1 to Decl. of Jeffrey R. Maguire in Supp. of Pl.’s Mot. for Leave to File Am. Compl. dated Mar. 11, 2025, Dkt. No. 52-3). The proposed Amended Complaint asserts that Apostolopoulos was the co-owner (with Delancey) of Barrett Roofs prior to its sale, and as co-owner, exerted financial and operational control over the company. (Id. ¶ 12). Pavlou, Wynne, and Moore are alleged to have become co-owners and, respectively, the vice-president and Chief Operating Officer; president and Chief Executive Officer; and vice-president and Chief Fiscal Officer of Barrett Roofs following its sale. (Id. ¶¶ 13–15). In accordance with these roles, they are alleged to have had various supervisory responsibilities, management decision-making authority, and duties surrounding employee compensation. (Id. ¶¶ 13–15, 34–36). In the proposed Amended Complaint, the claims in the original Complaint are additionally asserted against Apostolopoulos, Pavlou, Wynne, and Moore. (Id. ¶¶ 51–71).

Thomas Delancey filed an opposition to the motion.² (Def. Thomas Delancey's Mem. of Law in Opp'n to Pl.’s Mot. for Leave to File Am. Compl. dated Apr. 11, 2025 (“Def.’s Mem. of Law in Opp'n”), Dkt. No. 53). Cajilema replied in further support of his motion on April 18, 2025. (Pl.’s Reply Br. in Further Supp. of Mot. for Leave to File Am. Compl. dated Apr. 18, 2025 (“Pl.’s Reply Mem. of Law”), Dkt. No. 54).

For the following reasons, Cajilema's motion is granted.

DISCUSSION

Federal Rule of Civil Procedure 15(a)(2)—which applies to Cajilema's motion because the time to amend as a matter of right has expired—permits a party to “amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2); 6 Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 1480 (3d ed. 2010) (“When this time period expires or the party already has amended the pleading, [amendment as of right] no longer applies and an amendment falls under Rule 15(a)(2), which requires leave of court or the written consent of the opposing party.”); CSX Transp., Inc. v. Emjay Env't Recycling, Ltd., No. 12-CV-1865, 2013 WL 12329546, at *2 (E.D.N.Y. Sept. 18, 2013).

“In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’ ” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (quoting prior version of Rule 15(a)(2)); see also Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (per curiam).

Delancey opposes Cajilema's motion to amend only as to the addition of defendant Apostolopoulos. (Def.’s Mem. of Law in Opp'n). Because Delancey did not contest the proposed additions of Pavlou, Wynne, and Moore, the Court grants their addition as defendants.

In opposing the addition of Apostolopoulos, Delancey raises four arguments, all of which generally sound in futility or undue prejudice: first, Apostolopoulos did not act as an employer under FLSA; second, being listed as a seller on the contract of sale of Barrett Roofs does not implicate her liability as an employer under FLSA; third, there would be undue prejudice to Delancey and Barrett Roofs if she were made a defendant; and fourth, Cajilema's amendment is in bad faith. (Id. at 4–9). Each argument is addressed in turn below.

“A motion to amend will be considered futile if the Court determines, ‘as a matter of law, that proposed amendments would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.’ ” Charlot v. Ecolab, Inc., 97 F. Supp. 3d 40, 61 (E.D.N.Y. 2015) (quoting Panther Partners Inc. v. Ikanos Commc'ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012)) (adopting report and recommendation). And “[i]n assessing whether the proposed complaint states a claim [under Rule 12(b)(6)], we consider ‘the proposed amendment[s] ․ along with the remainder of the complaint,’ accept as true all non-conclusory factual allegations therein, and draw all reasonable inferences in plaintiff's favor to determine whether the allegations plausibly give rise to an entitlement to relief.” Panther Partners Inc., 681 F.3d at 119 (quoting Starr v. Sony BMG Music Ent., 592 F.3d 314, 323 n.3 (2d Cir. 2010)).

The proposed Amended Complaint adds several specific allegations of Apostolopoulos's involvement in Barrett Roofs—she “was responsible for reviewing employees’ hours worked, paying employees their wages, and maintaining employees’ time and pay records on the company's behalf.” (Proposed Am. Compl. ¶ 12). Cajilema claims that Apostolopoulos, with Delancey, “owned and operated Barrett Roofs with respect to all workplace conditions and operations, with control over all Barrett Roofs’ personnel, including its managers and manual laborers.” (Id. ¶ 33). And “Apostolopoulos maintained [Cajilema]’s employment records, was responsible for determining his hours worked in a week and the amount of wages he was to be paid, and paid [him] his wages until she sold Barrett Roofs[.]” (Id. ¶ 12).

Delancey argues that the addition of Apostolopoulos would ultimately be futile because the proposed Amended Complaint lacks the factual allegations necessary to establish her liability as an employer subject to FLSA. (Def.’s Mem. of Law in Opp'n at 4–5). Delancey contends that Apostolopoulos “did not have the power to hire and fire employees, did not supervise or controlled [sic] employee work schedules or conditions of employment, did not determine employees’ rate or method of payment, and did not maintain Barrett [Roof]’s employment records[.]” (Id. at 4).

In making these arguments, Delancey—by his own admission—relies on declarations attached to his opposition papers. (Id. at 5). The declarations from Delancey and Apostolopoulos counter the allegations in the proposed Amended Complaint. (Decl. of Vasiliki Apostolopoulos dated Apr. 9, 2025, attached as Ex. A to Def.’s Mem. of Law in Opp'n, Dkt. No. 53-1; Decl. of Thomas Delancey dated Apr. 9, 2025, attached as Ex. B to Def.’s Mem. of Law in Opp'n, Dkt. No. 53-2).

“At the Rule 15 motion to amend stage, the court is restricted by the limitations of a Rule 12(b)(6) inquiry and may not consider outside exhibits without converting the motion into a motion for summary judgment.” Taylor v. City of New York, No. 18-CV-5500, 2021 WL 848966, at *4 (E.D.N.Y. Mar. 4, 2021) (citing Goel v. Bunge, Ltd., 820 F.3d 554, 560 (2d Cir. 2016)); see, e.g., GB v. Town of Hempstead, No. 17-CV-6625, 2025 WL 1029439, at *3 n.5 (E.D.N.Y. Feb. 10, 2025) (“[I]n support of their futility arguments, Defendants have submitted extensive materials outside of the pleadings. This extrinsic material is not properly considered on a motion to amend.” (citations omitted)), report and recommendation adopted, 2025 WL 719125, at *3 (E.D.N.Y. Mar. 6, 2025).

The Court cannot, and will not, consider documents outside of the pleadings. Taking the allegations in the proposed Amended Complaint as true, the Court finds that Cajilema has made a plausible claim for violations of FLSA by Apostolopoulos.

Under FLSA, an “employer” is defined as “any person acting directly or indirectly in the interest of an employer in relation to an employee[.]” 29 U.S.C. § 203(d). An individual may be jointly and severally liable to an employee under FLSA where the individual exercises “operational control” over that employee. Irizarry v. Catsimatidis, 722 F.3d 99, 110 (2d Cir. 2013). “A person exercises operational control over employees if his or her role within the company, and the decisions it entails, directly affect the nature or conditions of the employees’ employment.” Id. “In identifying the persons or entities who qualify as ‘employers[,]’ ․ statutory definitions sweep broadly.” Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 140 (2d Cir. 2008).

In making this determination, the “economic reality” of the employment relationship is the core of the inquiry. Irizarry, 722 F.3d at 104. That is, courts look to “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (quotations omitted); see, e.g., Irizarry, 722 F.3d at 110 (applying Carter); Vasto v. Credico (USA) LLC, No. 15-CV-9298, 2016 WL 4147241, at *6 (S.D.N.Y. Aug. 3, 2016) (“Generally, corporate officers and owners held to be employers under the FLSA have had some direct contact with the plaintiff employee, such as personally supervising the employee's work, including determining the employee's day-to-day work schedules or tasks, signing the employee's paycheck or directly hiring the employees.” (quotations omitted)) (collecting cases).

By asserting that Apostolopoulos “was responsible for reviewing employees’ hours worked, paying employees their wages, and maintaining employees’ time and pay records on the company's behalf” and “operated Barrett Roofs with respect to all workplace conditions and operations, with control over all Barrett Roofs’ personnel,” (Proposed Am. Compl. ¶¶ 12, 33), Cajilema pleads facts sufficient to infer that the economic reality of Apostolopoulos's position made her an employer subject to FLSA. Without any of Delancey's denials—which rely on extrinsic evidence that cannot be considered—there is no other conclusion to be drawn, particularly when Cajilema also adds in specific allegations about Apostolopoulos's role in paying him and determining his hours. See, e.g., Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74, 80 (E.D.N.Y. 2011) (“[A]n attack on the factual validity of the Plaintiffs’ claims ․ is irrelevant to the Court's motion to amend analysis․ Thus, the Defendants[’] refutation of the facts, based on inadmissible extrinsic evidence, do not provide a basis for denying the motion to amend.”).

Delancey next argues that Apostolopoulos's inclusion as a seller on the contract of sale of Barrett Roofs is “legally insufficient to establish ownership or justify the imposition of individual liability.” (Def.’s Mem. of Law in Opp'n at 5). He claims that she was “nominal[ly]” listed on the contract of sale “solely due to her status as the spouse of Mr. Delancey[.]” (Id. at 6). The question here, however, is not whether mere inclusion on a contract of sale of a business can make someone an employer under FLSA. Cajilema pleads other specific facts evidencing Apostolopoulos's involvement in Barrett Roofs. Cajilema alleges that she exerted operational and financial control; “was responsible for reviewing employees’ hours worked” and “maintaining employees’ time and pay records”; and “operated Barrett Roofs with respect to all workplace conditions and operations, with control over all Barrett Roofs’ personnel[.]” (Proposed Am. Compl. ¶¶ 12, 33). These allegations go well beyond alleging mere ownership via contract, and in their totality suggest a far greater role—one sufficient to make out a plausible claim under FLSA.

Delancey then makes arguments grounded in alleged prejudice and bad faith. “[A]n amendment clearly will not be allowed when the moving party has been guilty of delay in requesting leave to amend and, as a result of the delay, the proposed amendment, if permitted, would have the effect of prejudicing another party to the action.” 6 Wright & Miller et al., supra, § 1488. “As a general rule, the risk of substantial prejudice increases with the passage of time.” Id. “[T]he longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice.” Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993) (quoting Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983)). “In gauging prejudice, [courts] consider, among other factors, whether an amendment would require the opponent to expend significant additional resources to conduct discovery and prepare for trial or significantly delay the resolution of the dispute.” Ruotolo v. City of New York, 514 F.3d 184, 192 (2d Cir. 2008) (quotations omitted).

Delancey contends that “expansion of the litigation scope would not only prolong the proceedings but also impose significant financial and emotional strain on ․ Apostolopoulos.” (Def.’s Mem. of Law in Opp'n at 7). (Of course, Delancey does not object to the addition of the other three proposed defendants who stand to face the same burdens.) The supposed prejudice results from her non-involvement, confusion of issues, and discovery burdens. (Id.).

The arguments of non-involvement and confusion of issues again mix up the merits inquiry with what is to be resolved—and what may be considered—on a motion to dismiss. And there is no cognizable burden beyond that which is attendant to every defendant who faces involvement in a lawsuit—and that is not enough to deny their addition. Prejudice standing alone cannot bar amendment; it must be “undue.” It is not.

As of the date of service of Cajilema's reply brief—April 18, 2025—the opt-in period for the FLSA collective was still open, and the parties had not begun depositions. (Pl.’s Reply Mem. of Law at 2). See, e.g., Cook v. City of New York, 243 F. Supp. 3d 332, 356 (E.D.N.Y. 2017) (finding no undue prejudice where “no depositions ha[d] occurred, no motions for summary judgment or motions to dismiss ha[d] been filed and a trial date ha[d] not yet been set, events which would indicate that the parties have progressed far beyond the stage of discovery”).

If anything, any potential prejudice runs in favor of Cajilema. Cajilema claims he did not previously know Apostolopoulos's full name—only knowing her as “[Delancey]’s wife.” (Pl.’s Reply Mem. of Law at 4–5). Without her full name, she could not be added as a defendant. And one of the barriers to identifying her full name was Defendants’ continued failure to produce the contract of sale. Cajilema first raised the contract of sale at the initial conference on October 24, 2023, but did not receive any version of the document until over a year later on December 27, 2024, after he had served Defendants a deficiency letter. (Scheduling Order dated Oct. 24, 2023; Pl.’s Mem. of Law at 3). And then Defendants did not produce the final, executed version of the contract until January 8, 2025. (Pl.’s Mem. of Law at 4).

In other words, it was Defendants’ own delay that prevented Cajilema from ascertaining the full identity and name of his employer.

Finally, Delancey argues that Cajilema is acting in bad faith by now attempting to add Apostolopoulos as a defendant. He argues that Plaintiff was “on clear notice” that Apostolopoulos “never held an ownership stake, officer position, or directional role, and has never exercised operational or financial control over the company or its employees,” and that Plaintiff's addition of her as a defendant “evinces an intent to harass and pressure ․ through improper means.” (Def.’s Mem. of Law in Opp'n at 8–9). But like all his other arguments, Delancey confuses his view of the facts—which he supports through documents the Court may not consider—with what is alleged in the Amended Complaint—which the Court must accept as true.

There was also no delay. Cajilema promptly acting to add Apostolopoulos 2 months after learning of her identity ³ —by requesting a document that Defendants themselves delayed in producing, no less—does not constitute bad faith. See, e.g., Amaya v. Roadhouse Brick Oven Pizza, Inc., 285 F.R.D. 251, 254 (E.D.N.Y. 2012) (“[T]here is nothing in the record which suggests that Plaintiff knew definitively that Canoe was the entity which employed Plaintiff. Seeking confirmation of this fact through an interrogatory response prior to bringing a party into a lawsuit is not construed as a dilatory tactic[.]”).

CONCLUSION

For the reasons explained above, the Court grants Cajilema's motion to amend in full. Cajilema shall file his Amended Complaint as a separate docket entry by May 21, 2025.

SO ORDERED.

FOOTNOTES

1.   Although the motion to amend is brought only by the original Plaintiff, Cajilema, other Plaintiffs who have or will opt-in also gain the benefit of the amendment. Lubas v. JLS Grp., Inc., No. 18-CV-6611, 2024 WL 3492985, at *10 (E.D.N.Y. July 1, 2024) (“[W]hen an opt-in plaintiff joins a case, they ha[ve] party status. As a party, they are deemed to have asserted all the claims of each of the other parties—not just FLSA claims.” (emphasis omitted) (citations and quotations omitted)), report and recommendation adopted, (Order Adopting R. & R. dated July 18, 2024).

2.   Barrett Roofs did not file any opposition to the motion.

3.   Cajilema received the final version of the contract of sale on January 8, 2025. (Pl.’s Mem. of Law at 4). He then initiated the process of amending on March 5, 2025. (Letter Mot. for Premot. Conf. for Leave to File Am. Compl. dated Mar. 5, 2025, Dkt. No. 50).

BULSARA, United States District Judge: