STATE OF CONNECTICUT
`SUPERIOR COURT
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`SUPERIOR COURT
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`JUDICIAL DISTRICT OF
`STAMFORD-NORWALK
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`AT STAMFORD
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`COMPLEX LITIGATION
`DOCKET
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`AUGUST 30, 2022
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`DOCKET NO.: X08-FST-CV21-6055654-S
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`RYAN O’TOOLE and AMI O’TOOLE,
`for themselves and other similarly
`situated employees
`
`Plaintiffs,
`
`
`v.
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`MIX PRIME WOODBURY, LLC,
`MIX PRIME DANBURY, LLC, BNT, LLC,
`LJATIF RAMADANI, and KUNG H. WEI
`
`Defendants.
`
`
`PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
`MOTION TO STAY ALL DISCOVERY [144.00]
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`1
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`I.
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`Introduction
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`When discovery on multiple claims is inextricably intertwined and defendants challenge
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`a court’s subject matter jurisdiction over one of the claims, courts typically hold that discovery
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`will not be stayed when the discovery on the claim being challenged also relates to the claim
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`which will proceed. “The increased discovery burden on Defendant is minimal since many, if
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`not most, of the requests and potential deposition questions will relate to both claims.” Bitpay,
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`Inc. v. Massachusetts Bay Ins. Co., 315 F.R.D. 698, 700 (N.D. Ga. 2016) (denying defendant’s
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`motion to stay discovery); Tharpe v. Illinois Nat. Ins. Co., 199 F.R.D. 213, 215 (W.D. Ky. 2001)
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`(“The facts relating to the basis for denial of payment of the chiropractor's bill are applicable to
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`all of Tharpe's claims.”) (denying defendant’s motion to stay discovery).
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`Here, Defendants move to stay all proceedings [144.00] (discovery, class certification,
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`and summary judgment) until the court rules on Defendants’ motion to dismiss the E3 claims
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`(which was only just filed on Friday, August 26, 2022). This motion comes on the heels of a
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`ruling by Judge Noble in another case which held that Conn. State Agencies, Reg. Sec. 31-62-E3
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`was directory rather than mandatory, and that the servers in that case have no private right of
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`action, thus depriving the court of subject matter jurisdiction over E3 claims. Anderson v. Reel
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`Hosp., LLC, No. X07-CV-20-6123912-S, 2022 WL 2951945 (Conn. Super. Ct. July 26, 2022).1
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`The discovery on these claims is limited to wage records which determine whether the
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`Defendants included the amount they took for the tip credit into the wage record (Conn. State
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`Agencies, Reg. Sec. 31-62-E3); and whether the Defendants obtained weekly tip statements from
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`1 To determine whether the regulation is mandatory such that it provides a private right of action, Judge Noble’s
`decision analyzes six factors from a case called Electrical Contractors, Inc. v. Ins. Co of State, 314 Conn. 749
`(2014). Judge Noble held that the six Electrical Contractors factors favor that E3 does not provide a private right of
`action. Id. at *5-9.
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`2
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`

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`their service employees attesting that the amount of gratuities they received exceeded the amount
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`of the tip credit taken by the employer.
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`Defendants argue that discovery on the two claims are “inextricably intertwined,” and
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`from that, Defendants argue that it must follow that a stay of all discovery and proceedings is
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`warranted. Defendants are mistaken. As noted above, Courts often deny motions to stay
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`discovery when a claim’s subject matter jurisdiction is challenged but another claim will proceed
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`when the discovery on all claims is inextricably intertwined. Discovery being “inextricably
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`intertwined” is often a reason to deny a motion to stay discovery, not to grant it.
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`Here, this Court should deny Defendants’ latest motion to stay discovery because 1) the
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`subject matter is duplicative such that Defendants even agree the E4 discovery is “inextricably
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`intertwined” with E4 discovery which will proceed regardless; 2) Defendants propose a
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`substantial delay (quite possibly in excess of six months) and have already caused more than
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`nine months of unnecessary delays; and 3) there is great uncertainty surrounding the import of
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`the Anderson decision itself (it is nonbinding, it creates a split from the rulings of four other
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`Superior Court decisions, and it is currently subject to a motion for reconsideration by both
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`plaintiffs and defendants in that case).
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`Notwithstanding, Plaintiffs hereby consent to a stay of class certification and dispositive
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`motion proceedings until E3 subject matter jurisdiction is adjudicated here. Plaintiffs
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`respectfully submit that Defendants’ motion should be granted in part and denied in part.
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`II.
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`Standard and Legal Principles
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`“Connecticut courts have taken note of at least six factors in ruling on motions to stay.
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`They are as follows: (i) similarity of subject matter between actions; (ii) promotion of judicial
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`economy; (iii) possibility of causing injustice or prejudice to the plaintiff; (iv) whether the
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`3
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`foreign suit was initiated to the forestall domestic suit; (v) possibility of conflicting judicial
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`decisions; and (vi) ability of the court to monitor parallel litigation.” Shipman Assocs., LLC v.
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`White & Case, LLP, No. X08FSTCV206046192, 2021 WL 2013022, at *4 (Conn. Super. Ct.
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`May 3, 2021) (citing KI, Inc. v. KP Acquisition Partners, LLC, Superior Court, judicial district of
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`Stamford-Norwalk, Complex Litigation Docket, Docket No. X05-CV-09-60027474-S
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`(September 24, 2010, Blawie, J.).
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`III. Relevant Procedural History
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`On December 8, 2021, Plaintiffs issued written discovery and six depositions notices to
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`Kung Wei (owner), Sev Mazari (bookkeeper for Defendants), Llatif (“Tony”) Ramadani
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`(owner), the corporate representative for Mix Prime Woodbury, LLC, the corporate
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`representative for Mix Prime Danbury, LLC, and the corporate representative for BNT, LLC.
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`On December 13, 2021, Plaintiffs noticed a seventh deposition of Rick Raci (manager of Mix
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`Prime Woodbury, LLC). The depositions were scheduled January 18, 2022 to January 28, 2022.
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`On January 6, 2022, Defendants, through their counsel Ryan O’Donnell (Ford Harrison),
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`requested postponement of the depositions. Ex. 1 (email chain from January 3, 2022 to January
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`6, 2022) (highlights added to exhibits for ease of reference). Plaintiffs then obtained dates from
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`the Defendants thereafter, scheduling the depositions in late March of 2022.
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`On February 2, 2022, Defendants then requested Plaintiffs’ position on a 60-day
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`extension of written discovery; Plaintiffs consented on the condition that the extension be limited
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`to 30 days so that Plaintiff could proceed with the depositions on the dates noticed in late March
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`of 2022 with the written discovery responses. Defendant agreed to limit their request to a 30-day
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`extension to produce written discovery responses and production. Ex. 2 (Email chain from
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`February 2, 2022 to February 4, 2022). Plaintiffs then re-noticed the depositions on dates which
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`4
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`Defendants provided. On February 4, 2022, Plaintiffs issued seven deposition notices to Kung
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`Wei (owner), Sev Mazari (bookkeeper for Defendants), Llatif (“Tony”) Ramadani (owner), the
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`corporate representative for Mix Prime Woodbury, LLC, the corporate representative for Mix
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`Prime Danbury, LLC, the corporate representative for BNT, LLC, and Rick Raci (manager of
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`Mix Prime Woodbury, LLC). Defendants sought an extension of time to respond to written
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`discovery until March 9, 2022 with the aforementioned conditional consent, and it was granted.
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`Dkt. 111.00, 111.01. The depositions were scheduled from March 22, 2022 to March 30, 2022.
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`From March 8, 2022 to March 10, 2022, Defendants informed Plaintiffs that despite their
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`previous assurances, they would seek an additional 30 days to respond / object to written
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`discovery (pushing the date for receipt of such discovery production until after the noticed
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`deposition dates). Ex. 3 (Email chain from March 8, 2022 to March 10, 2022).
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`As set forth above, Plaintiffs had previously consented to a first extension on discovery
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`of 30 days so that Plaintiffs could proceed with the depositions on the dates noticed (such that on
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`March 8, 2022, Defendants broke that agreement). Plaintiffs nonetheless engaged with
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`Defendants in a colloquy which resulted in an informal agreement that Defendants would
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`provide the written discovery responses and production consistent with the order compelling
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`them to produce discovery in Boytchev v. Hawli, HHD-CV21-6142550-S (“Boytchev”) by April
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`8, 2022, and that Defendants would provide new deposition dates. Id. Defendants agreed to
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`provide discovery on that date, did not seek an extension of time from the court, and filed
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`untimely objections (without issuing any actual responses) on March 18, 2022. On March 18,
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`2022, Defendant provided deposition dates in late April and early May of 2022 and assured that
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`discovery responses would be provided by April 8, 2022. Ex. 4 (Email chain from March 18,
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`2022 to April 25, 2022).
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`5
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`On March 28, 2022, consistent with the dates provided by Defendants, Plaintiffs issued
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`seven deposition notices to Kung Wei (owner), Sev Mazari (bookkeeper for Defendants), Llatif
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`(“Tony”) Ramadani (owner), the corporate representative for Mix Prime Woodbury, LLC, the
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`corporate representative for Mix Prime Danbury, LLC, the corporate representative for BNT,
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`LLC, and Rick Raci (manager of Mix Prime Woodbury, LLC). The depositions were scheduled
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`from April 26, 2022 to May 5, 2022 on the dates provided by Defendants.
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`On April 8, 2022, Defendants again failed to proved discovery responses or production.
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`Defendants did not communicate why they were breaking their agreement. Defendants at this
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`time were a month past any court-approved deadline to provide written discovery responses, and
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`their objections were filed untimely.
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`On April 25, 2022, Plaintiffs notified Defendants that their discovery responses were
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`untimely—two weeks outstanding past what they had agreed; Plaintiffs further stated they
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`intended to move forward with depositions anyway; Defendants refused to produce their
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`witnesses, claiming that they would not proceed with their own depositions or respond to written
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`discovery because they had filed motion to stay discovery on April 18, 2022. Id. In their motion
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`to stay, Defendants claimed they had sufficient basis to stay the case to determine whether
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`plaintiff’s counsel had conducted secret depositions (which aside from being an absurd
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`accusation, would have nothing to do with the production of their own witnesses or written
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`discovery responses and production). Dkt. 126.00. Defendants later withdrew this motion for a
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`stay at Plaintiffs’ request. Dkt. 133.00.
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`On July 7, 2022, Plaintiffs’ counsel noticed the depositions of the same seven witnesses
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`on dates provided by Defendants. Ex. 5.
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`6
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`In the weeks that followed, Plaintiffs’ counsel communicated with defense counsel about
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`rescheduling depositions and the provision of other discovery. The Court is already familiar
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`with this history as it was the subject of a hearing which the court ordered on July 27, 2022.
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`Defendants were ordered to submit a proposed protective order and the parties See Dkt. 127.03.
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`On August 16, 2022, Defendants filed another motion to stay discovery. Dkt. 144.00.
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`On August 23, 2022, Plaintiffs sought confirmation on proceeding with the agreed-upon
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`depositions dates, but Defense counsel instead confirmed that they would not produce the
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`witnesses yet again (requiring Plaintiffs’ counsel to submit a fifth round of deposition notices)
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`despite that their motion to stay had not yet been granted. Ex. 6.
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`Defense counsel has not yet provided dates of availability for this upcoming fifth attempt
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`at noticing and deposing the same seven witnesses.
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`Since suit was filed ten (10) months ago, after Plaintiffs have issued to Defendants
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`approximately twenty-eight deposition notices (for seven witnesses), six interrogatories, and
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`sixteen simple requests for production (which have been repeatedly upheld as reasonable
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`discovery requests in similar tip credit cases). Defendants have produced only 51 pages of
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`documents, no interrogatory responses, and no witnesses such that the case has been
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`substantially delayed by Defendants’ refusal to proceed with discovery thus.
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`IV.
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`Law and Arguments
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`A. The scope of discovery relevant to E4 (wage records subsumes the scope of
`discovery relevant to E3 (wage records and testimony on wage records kept).
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`When discovery on multiple claims is inextricably intertwined and defendants challenge
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`a court’s subject matter jurisdiction over one of the claims, courts typically hold that discovery
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`will not be stayed when the discovery on the claim being challenged also relates to the claim
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`which will proceed. “The increased discovery burden on Defendant is minimal since many, if
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`7
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`not most, of the requests and potential deposition questions will relate to both claims.” Bitpay,
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`Inc. v. Massachusetts Bay Ins. Co., 315 F.R.D. 698, 700 (N.D. Ga. 2016) (denying defendant’s
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`motion to stay discovery); Tharpe v. Illinois Nat. Ins. Co., 199 F.R.D. 213, 215 (W.D. Ky. 2001)
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`(“The facts relating to the basis for denial of payment of the chiropractor's bill are applicable to
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`all of Tharpe's claims.”) (denying defendant’s motion to stay discovery).
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`Defendants request a stay of all proceedings, in particular discovery on E4 proceedings,
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`which will remain in the case regardless of the outcome of the E3 claims here. Defendants argue
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`in their brief that all discovery should be stayed because Plaintiffs’ E3 and E4 claims are
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`“inextricably intertwined.” Mot. at *4. Defendants argue that a stay would “conserv[e] time,
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`money and resources of both parties.” Id. at *5. The Court should reject this argument.
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`Defendants do not argue that they will in fact incur “undue burden or expense” if discovery is
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`not stayed, just that they may incur such expenses. See id. (“Even allowing discovery on E4
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`claims to continue could subject Defendants to two times the work give that the same deponents
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`and witnesses have information related to both claims.”). Defendants do not attempt to show the
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`“particularized harm” necessary to prevail in their motion.
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`That is because the E3 discovery will, for all practical purposes, be completely subsumed
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`by the E4 discovery. The discovery on E3 claims consists of wage records and tip statements
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`(which will be no burden for Defendants to produce because their witnesses have already
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`testified in another proceeding that they did not keep such tip statements at any of the Red
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`Rooster or Mix Prime restaurants they operate and own). The discovery on E4 claims consists of
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`the same wage records and additional documents and testimony which concern what activities
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`servers performed and how long they take. Defendants’ wage records will show whether they
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`segregated non-service work from service work as to the class and will prove damages for the
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`8
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`class. Defendants’ wage records are relevant to class certification of E4 because those records
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`will show whether the class is sufficiently numerous, commonality, typicality, and
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`predominance. If Defendants’ wage records, as they are related to E4, are uniform, that supports
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`a finding of predominance. See Std. Petroleum Co. v. Faugno Acquisition, LLC, 330 Conn. 40,
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`67-68 (2018) (concluding that plaintiffs established predominance on their breach of contract
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`claims because part of those claims could be proven with common proof consisting of the
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`defendant’s records). While Defendants’ wage records, time records, and testimony of their
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`payroll provider would be relevant to E3 claims, they would also be relevant to, or at least
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`reasonably calculated to lead to the discovery of admissible evidence on, E4, and thus, discovery
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`should go forward.
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`Defendants argue “allowing proceedings to continue on E4 claims could subject
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`Defendants to two times the work given that the same documents, deponents and witnesses have
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`information related to both claims.” In contrast to this bold claim of double the work, since the
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`discovery of the E4 claims completely subsumes E3 discovery, there may be no efficiencies at all
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`from staying discovery. In fact, to wit, there isn’t any specific discovery relevant to the E3
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`claims which is not also relevant to the E4 claims (especially since there are no tip statements in
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`this case). If there is any discovery of the E3 claims which is not also relevant to E4 discovery,
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`such evidence is scant, and Defendants have not identified any specific time-savings which
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`would result in bifurcating discovery based upon the types of claims brought.
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`Defendants might argue the different claims will present differing deposition questions,
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`but Plaintiffs completed the depositions of many of the same witnesses (in the Red Rooster
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`proceedings) in approximately two hours each (and sometimes less than an hour). These are the
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`relatively short and efficient depositions Defendants have been delaying. While it is true that
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`dividing these depositions into different claims makes no sense and is likely to increase the costs
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`moving forward (since the claims are “inextricably intertwined), that only supports that the
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`discovery should be conducted at once immediately (not that it should necessarily be delayed).
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`If it were the reverse (that E4 discovery was subsumed by E3 discovery), Defendants’ argument
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`might make sense, but here, it is the opposite, and as such, all discovery should proceed on all
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`topics material to the E4 claims. Practice Book Section 13-2. The scope of discovery is broad,
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`allowing discovery even where the information is otherwise inadmissible if it is reasonably
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`calculated to lead to the discovery of admissible evidence. Id.
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`Plaintiffs are presently conducting discovery on their E4 claims, Defendants’ good faith
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`defense, and whether Defendants are a single-integrated enterprise2 (in addition to discovery
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`over their E3 claims). Plaintiffs seek discovery including the wage record of Defendants’ servers,
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`the time records of the class, and Defendants’ side work procedures generally. Regardless of the
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`outcome of this Court’s holding on E3, Defendants will have to produce all this information
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`anyway.
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`B. The delays Defendants seek are likely to be significant and likely to result in
`significant prejudice to the Plaintiffs.
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`Defendants seek to delay this proceeding until this court rules on Defendants’ motion to
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`dismiss two of the three counts in Plaintiff’s Complaint [100.31] (for lack of subject matter
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`jurisdiction over the E3 claims in this case).3 Their motion for a stay of discovery would extend
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`“until this Court determines its subject matter jurisdiction of Plaintiffs’ claims[.]” Allowing 120
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`2 Discovery involving into Defendants’ payroll procedures at all of their restaurants could reveal evidence relevant
`to Plaintiffs’ claim that all that the Defendants operate all of their locations as a common enterprise, an allegation
`in this compliant. see Marsteller v. Butterfield 8 Stamford LLC, 2017 WL 4286364, at *4 (D. Conn. Sept. 27, 2017)
`(For interrelation of operations, “courts look to factors such as common offices, long distance shipping, bank
`accounts, payroll, and shared facilities rather than to an overlap of personnel as an indicia of integration.”)
`(internal citation omitted).
`3 If Judge Noble takes up whether it has jurisdiction over the E3 claims on October 5, 2022, the court will have until
`February 2, 2022 to issue its ruling. If Judge Noble grants Plaintiffs’ motion to continue this hearing due to the
`Nettleton appeal, it is unclear if or when the hearing would actually be convened.
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`10
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`days for the court to rule after the parties have finished briefing, it is very likely that the delay the
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`Defendants seek would exceed six months. Defendants have already caused substantial delay.
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`See Sec. II. Relevant Procedural History, infra.
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`Plaintiffs will further be prejudiced by additional delay here. Defendants’ motion should
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`be denied at least as to discovery. Defendants have been very successful in frustrating the
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`discovery process thus far, but this Court should consider the extent to which permitting said
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`delay has resulted in prejudice to the Plaintiffs and putative class members, and whether
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`permitting additional delay is provides a substantial cost savings to Defendants since the
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`information sought by Plaintiffs will be discoverable as the E4 claims proceed in any event.
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`Defendants have not made any showing of any potential efficiencies from delaying discovery.
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`Defendants motion to stay discovery should be denied.
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`C. The Anderson decision is currently being challenged by both sides, and may have no
`impact at all on the instant litigation.
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`In determining the potential impact of Anderson it must be noted that it the decision not
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`binding, and that three Connecticut Superior Court judges (Judge Moukawsher, Judge Cobb, and
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`Judge Noble himself) have already specifically held that E3 is mandatory rather than directory,
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`and that the regulation has always provided servers with a private right of action when
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`restaurants violate E3:
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`The regulations in force at the relevant time are quite specific. They are in
`Regulations of Connecticut State Agencies § 31-62-E3. They are in the
`Department of Labor’s Mandatory Order No. 8. … With emphasis added, General
`Statutes § 31-68 permits employees not paid the minimum due under a wage
`order like number 8 – an order incorporating the regulations – to recover in court
`‘twice the full amount of such minimum wage.
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`McCants, 2021 WL 4507496, *1-2 (emphasis in the original) (April 20, 2021, Moukawsher, J);
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`Moreland v. C&L Diners, LLC, X07-HHD-CV19-6113453-S, Dkt. 167.86 (Apr. 29, 2021,
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`11
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`Moukawsher, J.) (denying motion to strike and adopting the McCants holding that the Electrical
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`Contractors factors favored that servers have a private right of action under E3); Granger v.
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`Craveable Hospitality Group, LLC, HHD-CV-20-6133127-S, Dkt. 107.86 (finding with respect
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`to E3 claims “that Section 31-68(a) expressly permits employees to initiate civil actions against
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`their employers if they are ‘paid … less than the minimum fair wage or overtime wage to which
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`he or she is entitled … or by virtue of a minimum fair wage order.’”) (Jun. 21, 2021, Cobb, J.).4
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`Just a month before the Anderson decision, Judge Noble issued two decisions which
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`reached the opposite conclusion from of his E3 ruling in Anderson. On June 23, 2022, Judge
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`Noble twice adopted the McCants ruling as “well-reasoned.” (McCants analyzed the same six
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`Electric Contractor factors and determined that they favor that the regulation is mandatory rather
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`directory, and that it provides for a private right of action.) See Reyes v. Rodriguez, No.
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`X07HHDCV216140915S, 2022 WL 2751768, at *5 (Conn. Super. Ct. June 23, 2022) and
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`Boytchev v. Hawli, No. X07HHDCV216142550S, 2022 WL 2751734, at *5 (Conn. Super. Ct.
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`June 23, 2022).
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`Judge Noble of course is free to change his mind, and he may yet again. His changed
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`position as to the six Electrical Contractor factors (as analyzed in McCants and adopted in Reyes
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`and Boytchev), and the Anderson decision is currently the subject of a motion for reconsideration
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`from plaintiffs and defendants. See Anderson, supra, Plaintiffs’ Memo. in Support of Motion to
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`4 Every Connecticut court to generally address E3 (other than Anderson) has held that restaurants that fail to
`comply with E3(b) or E3(c) cannot claim a tip credit and are liable for back wages. Stevens v. Vito’s by the Water,
`LLC, 2017 WL 6045302, *6 (Conn. Super. Ct. Nov. 9, 2017) (restaurant liable for violating E3(c) as to server where
`its payroll records did not constitute “signed” tip statements under that regulation); Konopka v. Penny Corner Pub,
`Inc., 2019 WL 4015671, *1-2 (Conn. Super. Ct. Aug. 5, 2019) (summary judgment granted under § 31-62-E3(b) and
`(c) because the restaurants’ payroll records failed to demonstrate compliance with either regulation); Martin v.
`United Capital Corp., WL 7811345, *17-18 (Conn. Super. Ct. Dec. 27, 2019) (upholding a jury verdict in favor of a
`bartender on E3(c) because the restaurant’s documents did not comply with the regulation); Nettleton, 2020 WL
`9074463, *1-2 (summary judgment in favor of server on E3(b) and (c) claims when restaurant failed to keep
`“required records”).
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`12
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`Reargue, Dkt. [186.00] and Plaintiffs’ Notice of Supplemental Authority [190.00]. See also
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`Defendants’ Motion to Reargue in Anderson, [187.00], challenging Judge Noble’s grant of
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`summary judgment to the Plaintiffs on their E4 claims, and his grant of summary judgment to the
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`plaintiffs on defendants’ good faith defense.
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`Plaintiffs have also filed notices of supplemental authority in these cases regarding
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`legislative history both from the 1950’s and from this past May of 2022 which makes clear that
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`the legislature intended and understood a private right of action for E3 claims. For instance,
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`when House Bill No. 5469 was brought up at the May 4, 2022, Senate Session, Senator Paul
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`Formica confirmed that the proposed bill permitted a private right of action under E3. The
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`relevant exchange is as follows:
`
`SENATOR FORMICA (20TH): Thank you, Madam President. Thank you,
`Senator I except the yield. This is kind of a cleanup Bill, as the Senator indicated
`having to do with wages, employee wages with regard to both tips and payments,
`per hour payments, this fix is a reporting requirement that would avail employers
`the opportunity to use multiple opportunities for reporting. And it also protects the
`employee should there be any thing that the employee needs to challenge. So,
`Madam President, I urge adoption.
`…
`
`SENATOR KUSHNER (24TH):5 Thank you, Madam President. I just want to
`clarify that there's a clear understanding that this does not preclude a private
`cause of action, but only limits those private causes of action to the newly
`enacted regulations. Is that correct? Through you, Madam President.
`…
`
`SENATOR FORMICA (20TH): Thank you, Madam President. Yes, that would
`be correct.
`
`
`Ex. 7, pgs. 175-77 (emphasis added).
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`Accordingly, the legislative history of Section 31-60(d)(4) makes clear that
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`servers have a private right of action to sue for a violation of Section 31-62-E3.
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`5 Senator Kushner, prior to becoming a state senator, served as the Director of the United Auto Workers (UAW)
`Union, Region 9A. CONN. ST. DEMOCRATS, State Senator Julie Kushner, http://www.senatedems.ct.gov/kushner-about
`(last visited Aug. 19, 2022)
`
`13
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`Of course, this Court will make its own determination as to subject matter jurisdiction.
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`But the argument raised by Defendants appears to be a minority rationale (contrary to the same
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`Judge’s decisions just a month before) which was issued without the benefit of the
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`aforementioned legislative history. The legislative history overlooked by Judge Noble puts to
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`bed this misguided notion that the legislature did not intend that the wage order at issue here,
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`appropriately titled Mandatory Order No. 8, be construed as directory rather than mandatory.
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`This Court should therefore deny Defendants’ motion to stay at least for the purposes of
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`discovery.
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`V.
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`CONCLUSION
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`There is a strong likelihood that all discovery will proceed, the effect of prejudice on
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`Plaintiffs is high because of previous delays entirely attributable to Defendants, and any benefit
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`of delaying discovery further would be minor or nonexistent at this stage. For all the reasons
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`stated above, Defendants’ Motion to Stay should be granted in part, but denied in part with
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`respect to discovery.
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`PLAINTIFFS, RYAN O’TOOLE and AMI
`O’TOOLE, for THEMSELVES and other similarly
`situated employees
`
` /s/ Michael T. Petela
`By:
` Michael T. Petela, Jr.
`Hayber, McKenna & Dinsmore, LLC
`900 Chapel Street, 11th Floor
`New Haven, CT 06510
`Juris No. 426871
`Tel: (203) 691-6491
`Fax: (860) 218-9555
`mpetela@hayberlawfirm.com
`Attorney for Plaintiffs
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the above was mailed or electronically delivered on August
`30, 2022, to all counsel and pro se parties of record:
`
`Attorney Ryan O’Donnell
`Ford & Harrison LLP
`CityPlace II, Suite 610
`185 Asylum Street
`Hartford, CT 06103
`rodonnell@fordharrison.com
`
`Attorney Joshua Hawks-Ladds
`Pullman & Comley, LLC
`90 State House Square
`Hartford, CT 06103
`jhawks-ladds@pullcom.com
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` /s/ Michael T. Petela
`Michael T. Petela, Jr.
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`15
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`EXHIBIT 1
`EXHIBIT 1
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`

`

`Michael Petela, Jr.
`From:
`Ellen Wallin
`Sent:
`Thursday, January 6, 2022 2:27 PM
`To:
`Ryan O'Donnell; Maria Filindarakis
`Cc:
`Michael Petela, Jr.
`Subject:
`RE: O'Toole v. Mix Prime
`
`Good afternoon, 
` 
`No worries, thank you for getting back to me. How does 3/7‐3/11 and 3/14‐3/15 sound for Mix Prime, and 3/8‐3/9 for 
`Viron Rondo? The following week is available as well at the moment. 
` 
`Thank you for the kind wishes. We hope everyone at your office recovers swiftly! 
` 
`Sincerely, 
`Ellen Wallin 
`Paralegal 
`Hayber, McKenna & Dinsmore, LLC 
`900 Chapel Street, 11th Floor 
`New Haven, CT 06510 
`(203) 691‐6491 
`Direct Dial: (203) 390‐5354 
`Fax: (860) 218‐9555 
`ellen@hayberlawfirm.com 
`www.hayberlawfirm.com 
`
`  
`
`This is a confidential transmission from the law offices of Hayber, McKenna & Dinsmore, LLC.  The information contained is 
`privileged and confidential and therefore exempt from disclosure under applicable law. If the reader of this message is not the 
`intended recipient, or the employee or agent responsible for delivering this message to the intended recipient, you are hereby 
`notified that any dissemination, distribution or copying of this transmission is strictly prohibited. If you have received this 
`transmission in error, please notify us immediately by return e‐mail or by telephone at (203) 691‐6491 and delete the original, 
`including all attachments, without reproducing it in any way. Thank you. 
`
` 
`From: Ryan O'Donnell <RODonnell@fordharrison.com>  
`Sent: Thursday, January 6, 2022 1:16 PM 
`To: Ellen Wallin <ellen@hayberlawfirm.com>; Maria Filindarakis <MFilindarakis@fordharrison.com> 
`Cc: Michael Petela, Jr. <mpetela@hayberlawfirm.com> 
`Subject: Re: O'Toole v. Mix Prime 
` 
`Good Morning Ms. Wallin: 
`
` I
`
` apologize for the delay in responding. For both the Mix Prime and Rondo matters, we need to push those dates out a 
`bit. Both restaurants are dealing with covid issues including severe staff shortages. Our office is likewise dealing with 
`covid as well. Ideally we could schedule both Mix Prime and Rondo depositions for early/mid March (at which point this 
`current wave of covid will have hopefully subsided). That will ensure our clients have sufficient time to prepare and we 
`wont have to worry about covid‐related availability.  
` 
`
`1
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`

`

`Hope your team is well and staying healthy. 
` 
`Best, 
`Ryan 
` 
`From: Ellen Wallin <ellen@hayberlawfirm.com> 
`Date: Thursday, January 6, 2022 at 11:02 AM 
`To: Ryan O'Donnell <RODonnell@fordharrison.com>, Maria Filindarakis <MFilindarakis@fordharrison.com> 
`Cc: "Michael Petela, Jr." <mpetela@hayberlawfirm.com> 
`Subject: FW: O'Toole v. Mix Prime 
` 
`Good morning, 
`
` I
`
` am following up on the below request for confirmation. Kindly advise at your earliest convenience so that we can 
`arrange different dates if necessary. 
` 
`Thank you, 
`Ellen Wallin 
`Paralegal 
`Hayber, McKenna & Dinsmore, LLC 
`900 Chapel Street, 11th Floor 
`New Haven, CT 06510 
`(203) 691‐6491 
`Direct Dial: (203) 390‐5354 
`Fax: (860) 218‐9555 
`ellen@hayberlawfirm.com 
`www.hayberlawfirm.com 
`
`  
`
`This is a confidential transmission from the law offices of Hayber, McKenna & Dinsmore, LLC.  The information contained is 
`privileged and confidential and therefore exempt from disclosure under applicable law. If the reader of this message is not the 
`intended recipient, or the employee or agent responsible for delivering this message to the intended recipient, you are hereby 
`notified that any dissemination, distribution or copying of this transmission is strictly prohibited. If you have received this 
`transmission in error, please notify us immediately by return e‐mail or by telephone at (203) 691‐6491 and delete the original, 
`including all attachments, without reproducing it in any way. Thank you. 
`
` 
`From: Ellen Wallin  
`Sent: Monday, January 3, 2022 1:24 PM 
`To: O'Do