Bernecki et al v. Overdrive Espresso LLC et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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JAMES BERNECKI, WESLEY ELLING,
SHAWNA FINEIN, ROSARIO PITTA,
And NOLAN AVRAKOTOS,
Plaintiffs,
-v- 6:25-CV-74
OVERDRIVE ESPRESSO LLC and
HELEN “NITSA” FILIPPIDIS,
Defendants.
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APPEARANCES: OF COUNSEL:
MANSELL LAW LLC GREG MANSELL, ESQ.
Attorneys for Plaintiffs
1457 S. High Street
Columbus, OH 43207
KOHRMAN JACKSON THOMAS J. HUNT, ESQ.
& KRANTZ LLP
Attorneys for Defendants
1375 East Ninth Stret
Cleveland, OH 44114
WOODS OVIATT GILMAN LLP ANDREW J. RYAN, ESQ.
Attorneys for Defendants
1900 Bausch & Lomb Place
Rochester, NY 14606
DAVID N. HURD
Senior United States District Judge
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DECISION and ORDER
I. INTRODUCTION
On January 15, 2025, plaintiffs James Bernecki, Wesley Elling, Shawna
Finein, Rosario Pitta, and Nolan Avrakotos (collectively, “plaintiffs”)
commenced this action against defendants Overdrive Espresso LLC
(“Overdrive”) and Helen “Nitsa” Filippidis (“Filippidis”) for allegedly unlawful
employment practices. Dkt. No. 1. Specifically, plaintiffs’ seven-count
complaint sets forth claims for pay frequency violations, unlawful pay
deductions, failure to provide accurate notices, failure to provide accurate
wage statements, failure to pay overtime wages, and forced labor in violation
of the New York Labor Law (the “NYLL”), the Fair Labor Standards Act (the
“FLSA”), and the Trafficking Victims Protection Act. Id.
On April 15, 2025, defendants moved to dismiss plaintiffs’ complaint
pursuant to the doctrine of forum non conveniens and Federal Rules of Civil
Procedure (“Rule(s)”) 12(b)(1) and 12(b)(6). Dkt. No. 15. Plaintiffs have
opposed. Dkt. No. 19. The matter has been fully briefed and will be
considered on the basis of the submissions and without oral argument.1 Dkt.
No. 20.
1 Plaintiffs sought leave to file a sur-reply. Dkt. No. 21. Defendants opposed. Dkt. No. 22.
That motion was denied. Dkt. No. 23.
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II. BACKGROUND
Overdrive is an Ohio limited liability company that performs
maintenance, service, and repairs on coffee and espresso machines for clients
across multiple states. Compl. ¶¶ 12, 14, 15. Filippidis is an owner of
Overdrive. Id. ¶ 13. As an owner, Filippidis has the authority to set payroll
policies and practices, hire and fire employees, and to set wages as well as
other terms of employment. Id.
Plaintiffs are individual former employees of the defendants. Compl. ¶¶
7–11, 26. Filippidis recruited plaintiffs to work as hourly coffee/espresso
technicians for Overdrive. Id. ¶¶ 27, 29, 32. Plaintiffs worked for defendants
between 2018 and 2023. Id. ¶ 26.
Upon their hiring, Filippidis required each of the plaintiffs to sign
employment contracts. Compl. ¶ 30. These contracts contained a
“Reimbursement of Training Expenses” clause (the “training clause”). Id.
Under the training clause, plaintiffs were each obligated to reimburse
defendants for the cost of their training if their employment was terminated
within the first year. Id. Plaintiffs were also required to separately sign
Cognovit notes and confessions of judgments to enforce the training clause.
Id. ¶ 31.
Plaintiffs performed manual labor for Overdrive’s clientele. Id. ¶ 29.
Plaintiffs’ responsibilities included traveling to different coffee shops and
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servicing, maintaining, and repairing coffee and espresso machines for
clients. Id. ¶ 25. Plaintiffs’ work required them to drive between Overdrive’s
customers’ locations to perform manual manipulations with the customer’s
coffee/espresso equipment. Id. ¶ 33. The work was physically demanding
and required a high level of physical fitness. Id. ¶ 34. Traveling to and from
Overdrive’s customers also made for long hours. Id. ¶ 35. Plaintiffs were
paid an hourly wage for their labor and often worked in excess of forty (40)
hours in a week. Id. ¶¶ 29, 36.
While plaintiffs worked for Overdrive, Filippidis supervised plaintiffs, set
plaintiffs’ wages, controlled plaintiffs’ work schedule, and controlled
plaintiffs’ work conditions. Id. She had the power to hire and to fire
Overdrive employees. Id. Specifically, Filippidis was responsible for setting
policies for plaintiffs regarding work allocation, task supervision, and
monitoring work product. In addition, Filippidis was in control of the payroll
at Overdrive. Id. She also maintained plaintiffs’ employment records and
determined plaintiffs’ timekeeping policies. Id. ¶¶ 27–28.
However, according to plaintiffs, they were not provided with complete
and accurate wage statements or notices. Compl. ¶¶ 40–41. Specifically,
plaintiffs’ wage statements often failed to include their regular rate of pay,
their overtime rate of pay, or the hours they worked that pay period. Id. ¶
42. Without the proper wage notices, plaintiffs were unaware of defendants’
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failure to pay their overtime wages or pay them at the correct frequency. Id.
¶ 43. Simply put, they had no idea what defendants were doing was illegal.
According to plaintiffs, defendants’ alleged wrongdoing was knowing,
intentional, and willful. Compl. ¶ 79. Defendants were aware that failing to
properly pay their plaintiffs would financially harm them. Id. ¶ 81.
Defendants were also aware that failing to provide plaintiffs with their wage
noticies, defendants could conceal their wrongdoing. Id. ¶ 83.
1. Plaintiff James Bernecki
Plaintiff James Bernecki (“Bernecki”) worked for defendants between
December of 2018 and January of 2021. Compl. ¶ 44. Bernecki primarily
worked in New York, servicing Overdrive customers in “Utica, Erie, New
York, and Broome and Jefferson Counties.” Id. ¶ 46. Bernecki’s hourly rate
was initially $15.00 but was increased to $22.00 in 2020. Id.
During the course of Bernecki’s employment, he regularly received
bonuses and commissions. Compl. ¶ 47. However, defendants failed to
include his bonuses and commission in his overtime rate of pay when he
worked an excess of forty (40) hours. Id. ¶ 48. As a result, Bernecki was not
paid the correct hourly wage for his overtime hours. Id. ¶ 49.
2. Plaintiff Wesley Elling
Plaintiff Wesley Elling (“Elling”) worked for defendants between 2019 and
2023. Compl. ¶ 50. Elling’s hourly rate was originally $15.00 but was raised
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to $22.00 in 2021. Id. ¶ 51. Elling primarily worked in the State of New
York, in the counties of Monroe, Erie, and Onondaga. Id. ¶ 52. Elling would
occasionally work in Clinton and Oneida counties. Id.
During the course of his employment, Elling frequently received bonuses
and commissions for his work. Compl. ¶ 53. However, defendants neglected
to include Elling’s bonuses and commissions in his overtime rate of pay when
he worked more than forty (40) hours per week. Id. ¶¶ 53–55. As a result,
Elling was not paid the correct hourly wage for his overtime hours. Id. ¶ 55.
Additionally, when Elling left Overdrive, defendants withheld his final
paycheck, claiming that he was “negative on paid time off.” Id. ¶ 56.2
3. Plaintiff Shawna Finein
Plaintiff Shawna Finein (“Finein”) worked for defendants between 2022
and 2023. Compl. ¶ 58. At the start of her employment, Finein was paid an
hourly rate of $17.00. Id. ¶ 59. Her pay was later increased to $22. Id.
Finein worked predominantly in the State of New York, in the counties of
Onondaga, Monroe, Erie, and Broome. Id. ¶ 60.
Throughout her employment with Overdrive, Finein also received
commissions and bonuses for her work. Id. ¶ 61. However, defendants failed
to include Finein’s commissions and bonuses in her overtime rate of pay. Id.
2 Defendants also withheld $80.00 from Elling’s paycheck for a rachet that he claims was a gift
from his father. Id. ¶ 57.
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¶ 62. As a result, Finein was not paid the correct hourly wage for her
overtime hours. Id. ¶ 63.
Eventually, Finein informed defendants of her intention to leave
Overdrive. Id. ¶ 64. In response, defendants informed Finein that they
intended to enforce the training clause of Finein’s employment agreement
unless she agreed to stay on a “part time basis.” Id. Finein eventually quit
her job with Overdrive before her one-year training clause expired. Id. ¶ 65.
When she quit, defendants again threatened Finein with legal action. Id.
Defendants later secured a judgment against her and are actively attempting
to enforce that judgement. Id. ¶¶ 64–65.
4. Plaintiff Rosario Pitta
Plaintiff Rosario Pitta (“Pitta”) worked for defendants between 2021 and
2022. Compl. ¶ 66. Pitta was paid and hourly wage of $15.00 which was
increased to $17.00 in 2021. Id. ¶ 67. Pitta primarily worked in the State of
New York. Id. ¶ 68. She worked in the counties of Erie, Chautauqua,
Niagara, Monroe, Genesee, Ontario, Oneida, Madison, Tompkins, Cayuga,
Saratoga, and Clinton. Id.
When Pitta tried to leave his job at Overdrive, defendants informed Pitta
that they intended to enforce the training clause of his employment contract.
Compl. ¶ 69. Pitta continued his employment with Overdrive on a part-time
basis for a full year until the training clause expired. Id. ¶ 70.
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5. Plaintiff Nolan Avrakotos
Plaintiff Nolan Avrakotos (“Avrakotos”) worked for defendants between
2021 and 2022. Compl. ¶ 71. Avrakotos was paid an hourly wage of $18.00.
Id. ¶ 72. He worked primarily in the State of New York in the counties of
Erie, Chautauqua, Monroe, Onondaga, and Clinton. Id. ¶ 73. Plaintiff also
worked in Ohio and Michigan on occasion for Overdrive. Id.
Like his coworkers, Avrakotos also regularly received commissions and
bonuses for his work at Overdrive. Compl. ¶ 74. However, defendants failed
to include these commission and bonuses in Avrakotos’s overtime rate when
he worked more than forty (40) hours per week. Id. ¶ 75. As a result he was
not paid the correct hourly wage for his overtime. Id. ¶ 76.
III. LEGAL STANDARD
A. Forum Non Conveniens
When reviewing a motion to dismiss pursuant to the doctrine of forum non
coveniens, a district court “typically relies strictly on the pleadings and
affidavits, but may also order limited discovery if deemed necessary.” Rei v.
Experience Outdoors LLC, 2022 WL 4324656, at *2 (N.D.N.Y. Sept. 19, 2022)
(citing Longo v. FlightSafety Int’l, Inc., 1 F. Supp. 3d 63, 67 (E.D.N.Y. 2014).
The court must view the facts in the light most favorable to the plaintiffs
“because the plaintiff risks losing its chosen forum by enforcement of the
forum-selection clause, . . . and no dispute [of] fact should be resolved against
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[the plaintiff]’ absent an evidentiary hearing.” Id. (citing Longo, 1 F. Supp.
3d at 67).
B. Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction under
Rule 12(b)(1) when the district court lacks the statutory or constitutional
power to adjudicate it.” Forjone v. Dep’t of Motor Vehicles, 414 F. Supp. 3d
292, 297–98 (N.D.N.Y. 2019) (cleaned up). Rule 12(b)(1) motions may be
either facial or fact-based. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56
(2d Cir. 2016).
Facial Rule 12(b)(1) motions are “based solely on the allegations of the
complaint . . . and exhibits attached to it[.]” Id. To resolve a facial motion,
the district court must “determine whether the pleading alleges facts that
affirmatively and plausibly suggest that the plaintiff has standing to sue.”
Id. (cleaned up). In doing so, the district court “must accept the complaint’s
allegations as true and draw all reasonable inferences in favor of the
plaintiff.” Wagner v. Hyra, 518 F. Supp. 3d 613, 623 (N.D.N.Y. 2021) (quoting
Nicholas v. Trump, 433 F. Supp. 3d 581, 586 (S.D.N.Y. 2020)).
By contrast, a defendant who makes a fact-based Rule 12(b)(1) motion
submits extrinsic evidence. Carter, 822 F.3d at 57. If defendant’s extrinsic
evidence reveals a dispute of fact whether jurisdiction is proper, plaintiff
must proffer evidence to controvert defendant’s evidence. Id. To resolve a
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fact-based motion, the district court must then make findings of fact to
determine whether plaintiff has standing to sue. Id.
C. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual
allegations must be enough to elevate the plaintiff’s right to relief above the
level of speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So
while legal conclusions can provide a framework for the complaint, they must
be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). In short, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
To assess this plausibility requirement, the court must accept as true all of
the factual allegations contained in the complaint and draw all reasonable
inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94
(2007). In doing so, the court generally confines itself to the facts alleged in
the pleading, any documents attached to the complaint or incorporated into it
by reference, and matters of which judicial notice may be taken. Goel v.
Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).
IV. DISCUSSION
Plaintiffs have set forth seven claims against defendants for (1) pay
frequency violations in violation of the NYLL; (2) unlawful wage deductions
in violation of the NYLL; (3) inaccurate wage notices in violation of the
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NYLL; (4) inaccurate wage statements in violation of the NYLL; (5) failure to
pay overtime wages in violation of the NYLL; (6) failure to pay overtime
wages in violation of the FLSA; (7) forced labor in violation of the TVPA.
Compl. ¶¶ 85–147.
Defendants have moved to dismiss plaintiffs’ complaint in its entirety.
Defs.’ Motion to Dismiss, Dkt. No. 15 at 1. Plaintiffs offer three arguments in
favor of dismissal. First, defendants argue that plaintiffs’ employment
agreements prevent them from litigating an employment dispute in this
Court under the doctrine of forum non conveniens. Defs.’ Mem. at 3–10.
Second, defendants argue that plaintiffs’ NYLL claims for lack of accurate
wage notices and wage statements should be dismissed for lack of standing
pursuant to Rule 12(b)(1). Defs.’ Mem. at 10–12. Third, defendants argue
that plaintiffs have failed to state a legally cognizable claim under TVPA §§
1589(2)–(4) because plaintiffs freely signed their employment agreements—
including their Cognvovit Notes. Id. at 12–13.
But before turning to the parties’ arguments for or against dismissal of
this case, the Court begins with a bit of housekeeping: As an initial matter,
plaintiffs’ employment contracts are central to this dispute. Supra. Plaintiffs
refer to various provisions such as the training clause, Compl. ¶ 30, in the
body of the complaint. Defendants have also appended copies of these
agreements to Filippidis’s affidavit. See Ex. A–E to Affidavit of Helen “Nitsa”
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Filippidis, Dkt. Nos. 15-1–15-6. The Court notes that defendants attached an
unsigned copy of plaintiff Avrakotos’s employment agreement to the
Filippidis affidavit, see Ex. C to Affidavit of Helen “Nitsa” Filippidis (“Ex. C”),
Dkt. No. 15-4 at 10, but have since provided the Court with a signed copy of
the same agreement later in their reply papers. Ex. 1 to Affirmation of Maria
J. Orlando (“Ex. 1”), Dkt. No. 20-2. Upon review of the relevant affidavits,
the Court is satisfied that defendant’s error was inadvertent due to the use of
an electronic signature on the agreement and does not require additional
briefing nor does this issue require a separate evidentiary hearing. See
Affirmation of Maria J. Orlando, Dkt. No. 20-1 at 1–2; see also Dkt. No. 23
(denying leave to file sur-reply).
With that settled, the Court will now move on to address defendants’
arguments relating to the doctrine of forum non conveniens.
A. Forum Non Conveniens
Defendants have moved to dismiss plaintiffs’ claims under the NYLL and
FLSA pursuant to the doctrine of forum non conveniens. Defs.’ Mem. at 3–9.
Defendants argue that the forum selection clauses contained in plaintiffs’
respective employment agreements bar litigation in this Court. Defs.’ Mem.
at 3. Defendants argue that plaintiffs Elling, Finein, Pitta, and Avrakotos’s
NYLL and FLSA claims should be dismissed under the doctrine of forum non
conveniens because their claims are subject to the forum selection clause
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contained in their employment agreements. Id. at 3–8. Defendants further
argue that although Bernecki did not sign the employment agreement,
Bernecki’s claims arising under the NYLSS and FLSA should still be
dismissed because they are intertwined with his fellow plaintiffs’ claims. Id.
at 8–9.
In opposition, plaintiffs argue that forum non conveniens does not apply in
this case. Pls.’ Opp’n, Dkt. No. 19 at at 5–8. Plaintiffs argue that, as an
initial matter, Bernecki did not sign an agreement containing a forum
selection clause.3 Id. at 5. Plaintiffs argue that with respect to Finein, Pitta,
and for Elling’s work for Overdrive prior to July 2021,4 the forum selection
clause is unenforceable. Pls.’ Opp’n at 5–9.
Forum Non Conveniens is the appropriate mechanism to enforce a forum
selection clause that identifies a state or foreign court as the selected forum.
See Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49,
60 (2013) (“[T]he appropriate way to enforce and a forum-selection clause
pointing to a state or foreign forum is through the doctrine of forum non
conveniens.”). “In order to prevail on a motion seeking enforcement of a
3 Plaintiffs also argue that Avrakotos either did not sign an employment agreement with a
forum selection clause or did not sign an employment agreement at all by noting that the agreement
defendants have appended to their motion papers itself is unsigned. See Ex. C at 10. However, as
discussed supra, defendants have since provided the Court with a signed copy of this agreement.
4 Plaintiffs note that Elling signed his employment agreement containing a forum selection
clause two years of working with Overdrive. Pls.’ Opp’n at 5–6; Ex. D to Affidavit of Helen “Nitsa”
Filippidis (“Ex. D”), Dkt. No. 15-5 at 10.
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forum-selection clause, the movant must demonstrate: (1) the clause was
reasonably communicated to the party resisting enforcement; (2) the clause
was mandatory and not merely permissive; and (3) the claims and parties
involved in the suit are subject to the forum selection clause.” Rei, 2022 WL
4324656, at *2 (citing Longo, 1 F. Supp. 3d at 67). Once “the movant satisfies
these elements, the burden shifts to the party opposing enforcement to (4)
rebut the presumption of enforceability by making a sufficiently strong
showing that enforcement would be unreasonable or unjust, or that the
clause was invalid for such reasons as fraud or overreaching.” Id. at *2
(quoting Longo, 1 F. Supp. 3d at 67–68).
The parties do not dispute that the forum selection clauses were
reasonably communicated to them or that the clauses are mandatory. The
parties only dispute the third element of this analysis: applicability of the
forum selection clause. That is, whether plaintiffs’ claims are “subject to” the
forum selection clause. Supra.
Forum selection clauses are merely contractual provisions. Contracts are
generally governed by state law. However, where a federal court is charged
with determining the enforceability of a forum selection clause, federal law
applies. Martinez v. Bloomberg LP, 740 F.3d 211, 218 (2d Cir. 2014) (quoting
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 18 (1972) (“Federal law
must govern the ultimate enforceability of a forum selection clause to ensure
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that a federal court may decline to enforce a clause if ‘trial in the contractual
forum [would] be so gravely difficult and inconvenient that [the resisting
party] will for all practical purposes be deprived of his day in court,’ or ‘if
enforcement would contravene a strong public policy of the forum in which
suit is brought, whether declared by statute or by judicial decision.’”). But
where the federal court must interpret the language of the forums selection
clause itself, the body of law selected by the parties governs the analysis. See
id. at 217–18 (citation omitted) (“In answering the interpretive questions
posed by parts two and three of the four-part framework, however, we
normally apply the body of law selected in an otherwise valid choice-of-law
clause.”).
In opposition to applicability, plaintiffs argue that the forum selection
clause contains narrow language that requires a causal connection between
the claims asserted and the employment agreement itself. Pls.’ Opp’n at 5–8.
Plaintiffs argue that because their NYLL, FLSA, and TVPA claims do not
arise out of the agreement or breach of the agreement, these claims are not
covered by the forum selection agreement and may be asserted in this forum.
Pls.’ Opp’n at 7.
In support of applicability, defendants argue that these claims are subject
to the forum selection clauses because they necessarily arise out of plaintiffs’
employment with and pay by Overdrive. Defs.’ Mem. at 7. Defendants urge
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that all of plaintiffs’ claims, with the exception of their TVPA claims, relate
directly to pay and compensation—issues directly contemplated by plaintiffs’
employment agreements. Id.; Defs.’ Reply, Dkt. No. 20 at 5. Defendants
further argue that plaintiffs’ TVPA claim disputes another aspect of
plaintiffs’ employment agreements: the training clause. Defs.’ Mem. at 8.
As discussed, the issue of whether certain claims are covered by, or subject
to, a forum selection clause is an interpretive dispute as opposed to an
enforceability dispute. See Martinez, 740 F.3d at 244. Thus, as the Second
Circuit has directed, the parties’ choice of law—Ohio law5—governs the
Court’s analysis instead of federal law. See id.
The question becomes one of contract interpretation. We begin with the
plain text of the agreement itself. Plaintiffs Finein, Pitta, Elling, and
Avrakotos each signed employment agreements that contained the following
language:
Ohio’s laws shall govern all disputes, controversies,
matters of interpretation, and litigation arising
hereunder. Company and Employee agree that, even if
Employee is or becomes a resident of another State,
County, or Country exclusive venue for all litigation
arising under this Agreement lies with the Trumbull
County Court of Common Pleas, Trumbull County,
5 Plaintiffs’ employment agreements each contain a choice of law provision designating Ohio
state law as the governing law. See Ex. A to Affidavit of Helen “Nista” Filippidis (“Ex. A”), Dkt. No.
15-2 at 9; Ex. B to Affidavit of Helen “Nitsa” Filippidis, Dkt. No. 15-3 at 9; Ex. D to Affidavit of Helen
“Nitsa” Filippidis (“Ex. D”), Dkt. No. 15-5 at 10; Ex. E to Affidavit of Helen “Nitsa” Filippidis (“Ex.
E”), Dkt. No. 15-6 at 7; Ex. 1 at 10.
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Ohio and, further, agree to submit (jointly and
individually) to the personal jurisdiction of such Court.
Ex. A at 9; Ex. B at 9–10; Ex. D at 10; Ex. 1 at 10. The key language here is
“arising hereunder.”
Defendants cite Ohio caselaw defining the term “arise under” as
“‘stemming from’ or ‘originating in’”. Reichert v. Lauren Int’l., Ltd., 2012 WL
4848906 (Ohio App. 5 Dist., 2012) (quoting BLACK'S LAW DICTIONARY 102 (7th
Ed. 1999)). Plaintiffs, on the other hand, have offered Second Circuit
precedent defining how broad or narrow the language “arising under” is in
this context. Pls.’ Opp’n at 6–7. However, as discussed, it is Ohio state laaw,
not Second Circuit case law that applies in this case. Supra.
1. Finein, Pitta, Elling, and Avrakotos
The Court will first address defendants’ forum non conveniens arguments
as to plaintiffs Finein, Pitta, Elling, and Avrakotos. Upon review and
construing the facts in the light most favorable to these plaintiffs, the Court
finds that the forum selection clauses apply to Finein, Pitta, Elling,6 and
Avrakotos’s NYLL, FLSA, and TVPA claims. The contract language “arising
hereunder” refers broadly to all issues stemming from the employment
agreement itself. As defendants point out, the employment agreement
6 As discussed Elling only signed an employment agreement two years into his employment with
Overdrive. As a result, the forum selection clause only bars his claims stemming from defendants’
employment practices prior to July 2021.
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contemplated rate of pay, frequency of pay, and the training clause. A review
of plaintiffs’ well plead complaint reveals that the instant litigation arises out
of a wage and hour dispute as well as the enforceability of the training
clause—or “claw back” provision. In sum, the litigation relates entirely to the
employment relationship between the parties and the rights and obligations
of the parties under various state and federal laws.
Therefore, the movant defendants have satisfied the initial prima facie
showing that the forum selection clauses are enforceable. Thus, the burden
now shifts to Finein, Pitta, Elling, and Avrakotos to make a “sufficiently
strong showing that enforcement would be unreasonable or unjust, or that
the clause was invalid for such reasons as fraud or overreaching.” Rei, 2022
WL 4324656, at *2 (citing Longo, 1 F. Supp. 3d at 67).
Upon review, Finein, Pitta, Elling, and Avrakotos have not made such a
showing in their opposition papers. These four plaintiffs have not offered any
arguments against the enforcement of the forum selection clause due to
fraud, overreaching, etc. Therefore, the forum selection clauses contained in
Finein, Pitta, Elling, and Avrakotos’s employment agreements bar litigating
their NYLL, FLSA, or TVPA claims in this forum. Accordingly, defendants’
motion to dismiss Finein, Pitta, Elling, and Avrakotos’ claims under the
doctrine of forum non conveniens will be granted.
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2. Bernecki
This leaves only plaintiff Bernecki. It is undisputed that Bernecki did not
sign a forum selection clause at any point during his employment with
defendants. In support of dismissing Bernecki’s claims, defendants argue
that if the Court allows Bernecki to proceed with his claims in this Court,
there would be duplicative litigation in multiple venues based on the same
facts, same legal theories, and pursuing the same relief. Defs.’ Mem. at 9.
In support of their argument, defendants cite Magi XXI, Inc. v. Stato della
Citta del Vaticano, in which the Second Circuit held that “a non-signatory to
a contract containing a forum selection clause may enforce the forum
selection clause against a signatory when the non-signatory is ‘closely related’
to another signatory.” 714 F.3d 714, 723 (2d Cir. 2013). However, here
defendants are asking this Court to permit a signatory to a forum selection
clause to enforce it against a non-signatory. Defs.’ Mem. at 9. Defendants
argue that Bernecki has a close relationship with the remaining plaintiffs
and “coordination”7 with them supports enforcing the forum selection clause
against Bernecki. Id. Defendants further argue that it was foreseeable for
Bernecki that he would be required to litigate an employment dispute in Ohio
because of the Ohio choice of law provision in his employment agreement. Id.
7 Defendants do not explain how Bernecki and the remaining plaintiffs “conspired” in this case.
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The Court does not find these arguments, nor defendants’ cited authority,
to be persuasive here. It would be unusual to bind a non-signatory to a
contract. Though exceptions certainly exist in the law, defendants have not
identified one that applies in this case. Accordingly, defendants’ motion to
dismiss Bernecki’s NYLL, FLSA, and TVPA claims pursuant to the doctrine
of forum non conveniens will be denied.
B. Bernecki’s Remaining Claims
Defendants have also advanced arguments pertaining to Bernecki’s
remaining claims for violations of the NYLL and the TVPA pursuant to Rule
12(b)(1) and 12(b)(6), respectively. Defendants do not argue in favor of
dismissal of Bernecki’s FLSA claims on separate grounds.
1. NYLL §§ 195(1) and (3)
Bernecki alleges that defendants violated NYLL §§ 195(1) and (3) when
they failed to provide him with accurate wage statements and wage notices.
Compl. ¶¶ 99–112.
Defendants have moved for dismissal of these claims pursuant to Rule
12(b)(1). Defendants argue that Bernecki lacks standing to pursue these
claims because he has not identified a causal connection between a concrete
injury-in-fact and defendants’ alleged violations of NYLL §§ 195 (1) and (3).
Defs.’ Mem. at 10–11.
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Article III standing is a constitutional requirement to be heard in federal
court. After all, federal courts are courts of limited jurisdiction. To have
standing at the pleadings stage, the plaintiff must plausibly allege that they
“have (1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (U.S.,
2016).
In the context of NYLL § 195 claims, district courts within the Second
Circuit are in agreement that “a plaintiff has standing if he plausibly alleges
that, by failing to provide the required wage statements, the employer was
‘able to hide [its] violations of wage and hour laws’ and thus prevent the
employee from ‘determining and seeking payment for the precise amount of
[his] unpaid wages.’” Johnson v. Best Bev LLC, 2025 WL 2734204, at *6
(N.D.N.Y., 2025) (quoting Freeland v. Findlay’s Tall Timbers Dist. Ctr., LLC,
2024 WL 4652251, *2 (W.D.N.Y. Nov. 1, 2024)).
Upon review, Bernecki has satisfied the Article III standing requirement
to pursue his NYLL claims in federal court. The complaint states that
“plaintiffs have been harmed by this willful failure to provide notices because
it concealed Defendants’ improper conduct and delayed Plaintiffs’ realization
that Defendants were stealing wages.” Compl. ¶¶ 104, 111. As discussed,
this is sufficient at the pleadings stage to satisfy the injury-in-fact and
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causation requirements of Article III standing. See Johnson, 2025 WL
2734204, at *6 (N.D.N.Y., 2025).
2. TVPA
Finally, defendants argue that Bernecki’s TVPA claim must be dismissed
for failure to state a claim. Defs.’ Mem. at 12–14. Defendants argue that
because Bernecki freely entered into his employment agreement and
Cognovit Note. Id. at 13. In opposition, Bernecki argues that the liquidated
damages penalty included in the training clause constitutes a threat of
serious harm. Pls.’ Opp’n at 11–14.
“To establish a claim of forced labor under TVPA § 1589(a), plaintiff must
show that defendants knowingly provided or obtained her labor or services by
means of ‘serious harm or threats of serious harm,’ ‘the abuse or threatened
abuse of law or legal process,’ or ‘any scheme, plan or pattern intended to
cause [her] to believe that, if [she] did not perform such labor or services, that
[she] or another person would suffer serious harm or physical restraint.’”
N.Y.S. Nurses Ass’n v. Albany Med. Ctr., 473 F. Supp. 3d 63, 67 (N.D.N.Y.
2020) (quoting Paguirigan v. Prompt Nursing Emp't Agency LLC, 2018 WL
4347799, *8, 2018 U.S. Dist. LEXIS 156331, *20-*21 (E.D.N.Y. Sept. 12,
2018) (cleaned up).
Upon review, plaintiff’s TVPA claim will be dismissed. Bernecki has
alleged that he freely signed his employment contract and Cognovit Note.
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Compl. ¶ 30. There are no allegations of fraud or of duress. Instead,
Bernecki has attempted to fashion a TVPA claim out of a contract dispute.
Whether a liquidated damages clause results in a penalty is not within the
purview of the TVPA. Accordingly, Bernecki’s TVPA claim will be dismissed.
V. CONCLUSION
In sum, plaintiffs Finein, Pitta, Elling, and Avrakotos’s claims will be
dismissed pursuant to the doctrine of forum non conveniens. Each of these
signed employment agreements containing forum selection clauses that
expressly limit litigation to a state forum. The Court finds that the forum
selection clauses are prima facie valid and enforceable. The Court notes the
relative difficulty of this decision. On one hand, the Court should afford
weight to the plaintiffs’ choice of forum by filing their lawsuit here. On the
other hand, the Court must respect—and afford proper weight—to the
contractual intent of the parties to litigate disputes “arising under” the
employment agreement in Ohio state court. The Court is confident that this
result strikes the appropriate balance.
Therefore, it is
ORDERED that
1. Defendants’ motion to dismiss is GRANTED in part and DENIED in
part;
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2. Defendants’ motion to dismiss plaintiffs Finein, Pitta, Elling, and
Avrakotos’ claims pursuant to forum non conveniens is GRANTED;
3. Defendants’ motion to dismiss Bernecki’s claims pursuant to forum non
conveniens is DENIED;
4. Defendants’ motion to dismiss Bernecki’s NYLL claims pursuant to
Rule 12(b)(1) is DENIED;
5. Defendants’ motion to dismiss Bernecki’s TVPA claims pursuant to
Rule 12(b)(6) is GRANTED; and
6. Defendants are ordered to file an answer to all remaining claims by no
later than February 23, 2026.
The Clerk is directed to terminate the pending motion and set deadlines
accordingly.
IT IS SO ORDERED.
Dated: February 9, 2026
Utica, New York.
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