UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-----------------------------------X 

CLAUDIO LAVEZZARE, 

Plaintiff, 

-against07 CV 3542 

ECF Case 

(LAK) 

FIRST HUNGARIAN 

OHAB ZEDEK, 

CONGREGATION 

Defendant. 

-----------------------------------x 

DEFENDANT'S REPLY MEMORANDUM OF LAW IN
 

FURTHER SUPPORT OF ITS MOTION TO DISMISS
 

On the Brief 

H.P.Sean Dweck 

Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 1 of 12
TABLE OF CONTENTS
 

TABLE	 OF CONTENTS l 

TABLE	 OF AUTHORITIES ii
 

DEFENDANT'S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITS
 

MOTION TO DISMISS 1
 

PRELIMINARY STATEMENT 1
 

ARGUMENT 3
 

A. Pleading Standards	 3
 

B. Enterprise Coverage	 4
 

C. Individua 1 Coverage	 6
 

D.	 Defendant's Motion to Dismiss Plaintiff's State Law
 

Claims 8
 

E. Defendant's Statute of Limitations Argument 8
 

CONCLUS ION 9
 

l 

Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 2 of 12
TABLE OF AUTHORITIES
 

Ca.ses 

Divins v . Hazeltine Electronics Corporation, 163 F. 2d 100 (2 nd 

Cir. 1947) 6 

Emmanuele v. Rochester Packaging Co., 182 Misc. 348, 45 N.Y.S.2d 

164 (Sup. Ct. Monroe County 1943) (Citations omitted) 3 

Figueroa v. America's Custom Brokers, Inc., 48 F.Supp. 2d 1372 

(S.D.Fla. 1999) 6 

Joles v. Johnson County Youth Service Bureau, Inc., 885 F. Supp. 

1169 (S.D.Ind. 1995) 7 

Marshall v. Victoria Transp. Co., Inc., 603 F.2d 1121, 1123 (5 th 

Cir. 1979) 6 

Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 

290 (1985) 4 

Torrico v. IBM, 213 F.Supp. 2d 390 (S.D.N.Y. 2002) 3 

Zhong v. August August Corp., 498 F.Supp. 2d 625 (S.D.N.Y. 2007) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 

ii 

Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 3 of 12
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

------------------------------------x 

CLAUDIO LAVEZZARE, 

07 CV 3542 (LAK) 

Plaintiff, 

ECF Case 

-againstFIRST HUNGARIAN CONGREGATION 

OHAB ZEDEK, 

Defendant. 

------------------------------------x 

DEFENDANT'S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITS 

MOTION TO DISMISS 

PRELIMINARY STATEMENT 

Defendant, First Hungarian Congregation Ohab Zedek 

(hereinafter "Defendant") respectfully submits this Memorandum 

of Law in Further Support of Its Motion to Dismiss the 

Complaint. 

The Plaintiff's opposition to the instant Motion recites 

certain propositions of law that Defendant does not dispute. 

What Defendant does dispute lS how those propositions of law 

apply to the instant case. Interestingly, while Plaintiff 

attempts to distinguish the cases cited by Defendant In its 

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Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 4 of 12
initial brief, Plaintiff has barely cited any cases supporting 

its position against dismissal of the Complaint. 

This Reply Memorandum of Law will address the arguments set 

forth by the Plaintiff in the same order in which they appear. 

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Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 5 of 12
ARGUMENT
 

A. Pleading Standards 

Plaintiff's brief correctly cites the applicable legal 

standards with respect to a motion to dismiss and notice 

pleadings. However, regardless of the correct recitation of law, 

the Complaint still fails to meet the minimum pleading standards 

required by law. As was set forth In the initial brief on 

Defendant's behalf, the pleading of the bare language of the 

statute is defective and is subj ect to dismissal. Emmanuele v. 

Rochester Packaging Co., 182 Misc. 348, 45 N.Y.S.2d 164 (Sup. 

Ct. Monroe County 1943) (Citations omitted). 

To support his proposition regarding the pleading standards 

Plaintiff relies, albeit incorrectly, on the case of Torrico v. 

IBM, 213 F.Supp. 2d 390 (S.D.N.Y. 2002). That case is wholly 

inapposite to the facts herein. While the Court in Torrico 

recognized an extremely liberal and flexible pleading standard 

with respect to a complaint, that action involved a pro se 

litigant. Specifically, the Torrico Court held that, "Since a 

pro se Plaintiff lacks familiarity with the formalities of 

pleading requirements, we must construe pro se complaints 

liberally, applying a more flexible standard to evaluate their 

sufficiency than we would when reviewing a complaint submi tted 

by counsel. u Id at page 396. Plaintiff's counsel has completely 

failed to bring to this Court's attention that the pleading 

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Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 6 of 12
standards applied in the Torrico case were with respect to a pro 

5e litigant. That certainly does not apply in the instant Action 

inasmuch as the Plaintiff herein is represented by counsel. 

Whether Plaintiff's counsel's failure to bring this to the 

Court's attention was willful or not is not for Defendant to 

comment on, other than to bring it to the Court's attention. 1 

B. Enterprise Coverage 

Plaintiff attempts to counter Defendant's arguments 

regarding enterprise coverage by attempting to distinguish the 

reasoning applied by Plaintiff relating to the case of Tony and 

Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 

(1985) However, regardless of Plaintiff's attempt to 

distinguish the case, Plaintiff cannot escape the fact that the 

Supreme Court has held that the test 1S one of economic reality, 

with the focus being whether or not the enterprise is primarily 

engaged in competition with ordinary commercial enterprises. 

Further, if Plaintiff was so sure that Defendant was 

engaged in a commercial enterprise, he surely could have 

1 Plaintiff's counsel's footnote requesting permission to make a motion for 

sanctions is frivolous in and of itself. First, the case law cited within 

Defendant's initial brief clearly supports Defendant's legal arguments and 

are in no way frivolous. Further, Plaintiff was served with this Motion on 

July 6, 2007. Plaintiff requested numerous adjournments of the Motion and did 

not provide its response until September 28, 2007. This was more than 

sufficient time for Plaintiff to review the Motion and send a 21 day letter 

to Defendants had they believed that the Motion was frivolous. Plaintiff's 

failure to do so speaks volumes. Inasmuch as Defendant would rather focus its 

efforts on the merits of the Motion, no further attention will be addressed 

to the inappropriate threats for sanctions by Plaintiff's counsel. 

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Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 7 of 12
submi tted an affidavit asserting factual allegations sufficient 

to attempt to demonstrate that Defendant was an enterprise 

primarily engaged in competition with ordinary commercial 

enterprises, as required by the caselaw. Plaintiff's failure to 

submit such an affidavit speaks volumes as to that issue. In 

fact, Plaintiff was invited, wi thin Defendant's Memorandum of 

Law, to submit sufficient factual information relative to this 

issue. Obviously, he chose not to. Bare conclusory allegations 

are insufficient to sustain the pleading. While it is 

acknowledged that a notice pleading is to be construed 

liberally, bare conclusory allegations, which merely plead the 

bare language of the statute without the capability of being 

proved true, are insufficient and sUbject to dismissal. 

Emmanuele, supra. 

Interestingly, Plaintiff fails to address the other 

prevailing caselaw set forth within the brief submitted by 

Defendant on the initial Motion, other than to attack them based 

upon them having been decided prior to the amendment to the 

FLSA. However, the amendment to the FLSA does not change the 

holdings in the case, nor does it render them "bad law." 

Further, Plaintiff's reliance on Zhong v. August August 

Corp., 498 F.Supp. 2d 625 (S.D.N.Y. 2007) is inapplicable to the 

facts of this case. In fact, one of the holdings in that case 

set forth the basic premise that conclusions of law, or 

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Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 8 of 12
unwarranted deductions of fact, need not be accepted as true 

within a Complaint. Zhong, supra. at page 628. 

C. Individual Coverage 

Plaintiff's attack on Defendant's arguments regarding 

individual coverage must bear the same fate as well. Defendant's 

initial brief adequately demonstrates that Plaintiff is not 

entitled to individual coverage under the FLSA. 

As set forth in Defendant's initial brief, individual 

coverage under the FLSA is dependant upon the extent to which an 

employee is engaged In commerce, and whether "the employee's 

work is so closely related to the movement of commerce that it 

may be deemed ... part of it rather than merely an isolated local 

activity." Figueroa v. America's Custom Brokers, Inc. , 48 

F.Supp. 2d 1372 (S.D. Fla. 1999), citing Marshall v. Victoria 

Trans p . Co. , Inc., 603 F. 2d 1121, 1123 (5th Ci r. 197 9) . 

Plaintiff's attempt to distinguish the case of Divins v. 

Hazeltine Electronics Corporation, 163 F.2d 100 (2 nd Cir. 1947) 

is completely unavailing. While it is conceded that Divins was 

decided on summary judgment, the Plaintiff has failed to advise 

this Court that it was a summary judgment motion made pursuant 

to FRCP 56 (b) prior to an answer being served. Thus, while it 

was a summary judgment motion, it was merely on affidavits, and, 

presumably, wi thout any di scovery having been conducted. Thus, 

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Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 9 of 12
Plaintiff's statement that it was decided "on summary judgment" 

as opposed to a "motion to dismiss" lS misleading. Plaintiff 

further attempts to distinguish Divins by quoting that the 

question of the employee's work activities related to commerce 

was one "to be proved at trial", however, that was after a 

motion, with affidavits, having been submitted. Here, the 

Plaintiff, clearly, is not precluded from submitting any 

affidavits with respect to the amount of activities he allegedly 

engaged in that are purportedly related to commerce. The failure 

of the Plaintiff to avail himself of this opportunity speaks 

volumes. 

Plainly and simply, the Plaintiff cannot escape the fact 

that 29 USCA 203(b) defines commerce as "trade, commerce, 

transportation, transmission, or communication among the several 

states or from any state to any place outside thereof." Nowhere 

does the work of the Plaintiff support, as alleged in the 

Complaint, or in Plaintiff's brief, the proposition that 

Plaintiff's work involved "commerce" within the meaning of the 

statute. 

Therefore, it also follows that Plaintiff's attempt to 

distinguish Joles v. Johnson County Youth Service Bureau, Inc., 

885 F.Supp. 1169 (S.D. Ind. 1995) is equally unavailing. The fact 

that that matter was decided on a bench trial is of no import 

7
 

Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 10 of 12
inasmuch as Plaintiff cannot demonstrate that he was involved in 

commerce within the meaning of the statute. 

D.	 Defendant's Motion to Dismiss Plaintiff's State Law 

Claims 

Defendant withdraws the portion of its Motion that seeks 

dismissal of the state law claims, as argued in its initial 

brief. Defendant does request, however, that, if this Court 

dismisses the claims under the FLSA that this Court choose not 

to exercise supplemental jurisdiction and dismiss the state law 

claims without prejudice. 

E. Defendant's Statute of Limitations Argument 

Defendant's Motion as it pertains to timeliness only seeks 

to prevent Plaintiff from pursuing any claims beyond the 

statutory time limits set forth wi thin the respective statutes 

(FLSA and State Law). As for the issue of the two-year statute 

of limitations on the FLSA claim or the three-year statute, if 

willfulness is found, Defendant is agreeable to have that issue 

addressed after discovery or at a time determined by the Court. 

This Court should be aware that this portion of Defendant's 

Motion was made inasmuch as Plaintiff's Complaint makes 

references to hours worked that date back to 1999 (see Complaint 

paragraph 9) which under any set of facts is outside of any of 

the applicable statues of limitation. 

8 

Case 1:07-cv-03542-LAK Document 19 Filed 10/25/2007 Page 11 of 12
CONCLUSION
 

BASED UPON THE OUTSTANDING LEGAL PRECEDENTS, THE
 

DEFENDANT'S MOTION SHOULD BE GRANTED TOGETHER WITH
 

SUCH OTHER AND FURTHER RELIEF AS TO THIS COURT MAY
 

SEEM JUST AND PROPER.
 

Respectfully submitted, 

The Dweck Firm 

Attorneys Defendant 

By: --------,~------------

S:\Secretary 2\Client Docs\First Hungarian Congregation\reply memo of law 10-22-2007.doc 

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