Legal Document: Helwani Ali Vs Calandra Enterprises , Inc.

On December 30, 2022 a MOTION TO STRIKE ANSWER FOR FAILURE TO MAKE DISCOVERY submitted by KOCHER, CHARLES, J of MCOMBER MCOMBER & LUBER, PC on behalf of ALI HELWANI against CALANDRA ENTERPRISES, INC., CALANDRA'S ITALIAN & FRENCH BAKERY, INC., ABC CORPORATIONS 1-5, JOHN DOES 1-5 *LINKED FILING* was filed involving a dispute between Ali Helwani, and Abc Corporations 1-5, Calandra Enterprises, Inc., Calandra'S Italian &French Ba, John Does 1-5, for Law Against Discrimination (Lad) Cases in the District Court of Essex County.

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Charles J. Kocher, Esq. - NJ ID # 016952004
cjk@njlegal.com
Matthew A. Luber, Esq. – NJ ID # 017302010
mal@njlegal.com
Tyler J. Burrell, Esq. - NJ ID # 377942021
tjb@njlegal.com
McOmber McOmber & Luber, P.C.
39 E. Main Street
Marlton, NJ 08053
(856) 985-9800 Phone
(856) 263-2450 Fax
Attorneys for Plaintiff Ali Helwani and the Putative Class
ALI HELWANI, on behalf of himself and all SUPERIOR COURT OF NEW JERSEY
others similarly situated, ESSEX COUNTY
LAW DIVISION
Plaintiffs,

v. DOCKET NO.: ESX-L-007771-22

CALANDRA ENTERPRISES, INC., Civil Action
CALANDRA’S ITALIAN & FRENCH
BAKERY, INC., ABC CORPORATIONS 1-5 PLAINTIFF’S MOTION TO STRIKE
(fictitious names describing presently DEFENDANTS’ ANSWER AND
unidentified business entities); and JOHN DOES AFFIRMATIVE DEFENSES WITH
1-5 (fictitious names of unidentified individuals), PREJUDICE FOR FAILING TO
ANSWER DISCOVERY PURSUANT
Defendants.
TO R. 4:23-5.

TO: James M. McDonnell, Esq.
Jackson Lewis P.C.
200 Connell Drive, Suite 2000
Berkely Heights, NJ 07922
Attorneys for Defendants, Calandra Enterprises, Inc. and
Calandra’s Italian & French Bakeries, Inc.

PLEASE TAKE NOTICE that on Friday, November 3, 2023 at 9:00 a.m. or as soon

thereafter as counsel may be heard, Plaintiff Ali Helwani on behalf of himself and all other

similarly situated (“Plaintiff”), by and through his attorneys, McOmber McOmber & Luber, P.C.,

shall move before the Superior Court of New Jersey, Law Division, Essex County for an Order

Striking Defendants Calandra Enterprises, Inc. and Calandra’s Italian & French Bakery, Inc.
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(collectively “Defendants”) Answer and Affirmative Defenses with prejudice for Failing to

Answer Discovery Pursuant to Rule 4:23-5.

PLEASE TAKE FURTHER NOTICE that Plaintiff will rely on the Certification of

Charles J. Kocher, Esquire filed herewith.

PLEASE TAKE FURTHER NOTICE that this matter is being submitted to the Court

pursuant to Rule 1:6-2, and a copy of the proposed Order is attached hereto.

PLEASE TAKE FURTHER NOTICE that Plaintiff hereby waives oral argument with

regard to this application and consents to the disposition upon the papers submitted unless

opposition is filed.

McOMBER McOMBER & LUBER, P.C.
Attorneys for Plaintiff, Ali Helwani
and the Putative Class

By: /s/ Charles J. Kocher, Esq.
Dated: October 18, 2023 CHARLES J. KOCHER
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CERTIFICATION OF SERVICE

I hereby certify that the within Notice of Motion, Certification and proposed form of Order

have been filed with the Superior Court of New Jersey within the time prescribed, and that copies

of same have been delivered to:

James M. McDonnell, Esq.
Jackson Lewis P.C.
200 Connell Drive, Suite 2000
Berkely Heights, NJ 07922
via eCourts;

The Honorable Cynthia Santomauro
Essex County Superior Court
465 Martin Luther King Jr. Blvd
Newark, NJ 07102;

via UPS.

McOMBER McOMBER & LUBER, P.C.
Attorneys for Plaintiff, Ali Helwani and
the Putative Class

By: /s/ Charles J. Kocher, Esq.
Dated: October 18, 2023 CHARLES J. KOCHER
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v. DOCKET NO.: ESX-L-007771-22

CALANDRA ENTERPRISES, INC., Civil Action
CALANDRA’S ITALIAN & FRENCH
BAKERY, INC., ABC CORPORATIONS 1-5 ORDER
(fictitious names describing presently
unidentified business entities); and JOHN DOES
1-5 (fictitious names of unidentified individuals),

Defendants.
THIS MATTER being brought before the Court on the Motion of McOmber McOmber

& Luber, P.C., attorneys for Plaintiff, Ali Helwani on behalf of himself and all others similar

situated (“Plaintiff”), upon notice to counsel of record, James M. McDonnell, Esq., attorneys for

Calandra Enterprises, Inc. and Calandra’s Italian & French Bakery, Inc. (collectively

“Defendants”) and the Court having considered all papers submitted and having heard the

argument of counsel, if any, and for good cause shown;

IT IS, ON THIS ____________ DAY OF ________________, 2023;

ORDERED, Plaintiff’s Motion to Strike Defendants’ Answer and Affirmative Defenses

for Failing to Answer Discovery Pursuant to Rule 4:23-5 is GRANTED WITH PREJUDICE;

and
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IT IS FURTHER ORDERED, that this Order be served upon all parties within (7) days

of the date hereof.

J.S.C.
[ ] Opposed
[ ] Unopposed

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v. DOCKET NO.: ESX-L-007771-22

CALANDRA ENTERPRISES, INC., Civil Action
CALANDRA’S ITALIAN & FRENCH
BAKERY, INC., ABC CORPORATIONS 1-5 CERTIFICATION OF CHARLES J.
(fictitious names describing presently KOCHER, ESQ.
unidentified business entities); and JOHN DOES
1-5 (fictitious names of unidentified individuals),

Defendants.

CHARLES J. KOCHER, ESQ., hereby certifies and states as follows:

1. I am an attorney at law of the State of New Jersey with the law firm of McOmber

McOmber & Luber, P.C., counsel for Plaintiff Ali Helwani, on behalf of himself and all others

similarly situated (“Plaintiff”), in the above-entitled matter. I am fully familiar with the facts set

forth herein.

2. I make this Certification in support of Plaintiff’s Notice of Motion to Strike

Defendants, Calandra Enterprises, Inc. and Calandra’s Italian & French Bakery, Inc. (collectively

“Defendants”) Answer and Affirmative Defenses for Failing to Answer Discovery Pursuant to

Rule 4:23-5.
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3. The current discovery end date is July 7, 2024.

4. Plaintiff filed his class action complaint on behalf of himself and all others

similarly situated on December 30, 2022. A copy of Plaintiff’s Complaint is attached hereto and

made a part hereof as “Exhibit A.”

5. On or about April 14, 2023, James M. McDonnell (hereinafter “Mr. McDonnell”),

counsel for Defendants, filed their Answer to Plaintiff’s Complaint.

6. Plaintiff propounded his First Set of Interrogatories and First Request for the

Production of Documents (“Discovery Demands”) to Defendants on or about May 4, 2023. A

copy of Plaintiff’s Discovery Demands are attached hereto and made a part hereof as “Exhibit

B.”

7. On August 15, 2023, Plaintiff’s counsel emailed Mr. McDonnell requesting a

timeframe as to when Plaintiff can expect Defendants’ Responses to Plaintiff’s Discovery

Demands. At that time, Plaintiff’s counsel had already granted two extensions for responses to

Plaintiff’s Discovery Demands, first until July 31, 2023, and subsequently to August 14, 2023.

See Exhibit C, p. 2. A copy of the email exchange between Plaintiff’s counsel and Mr.

McDonnell is attached hereto and made a part hereof as “Exhibit C.”

8. On September 12, 2023, Mr. McDonnell’s colleague, Lena Kim (hereinafter “Ms.

Kim”), emailed Plaintiff’s counsel informing him that “we will also have Defendants’ discovery

responses out to you shortly.” See Exhibit C, p. 1.

9. On September 15, 2023, Plaintiff’s counsel responded to Ms. Kim regarding when

Plaintiff could expect responses to the Discovery Demands. See Exhibit D, p. 1. A copy of the

email chain between Plaintiff’s Counsel and Ms. Kim is attached hereto and made a part hereof

as “Exhibit D.”

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10. Plaintiff’s counsel followed up again with Ms. Kim on September 20, 2023, and

received no response. See Exhibit D, p. 1.

11. On October 5, 2023, having not received responses to the Discovery Demands,

Plaintiff’s counsel followed up with Mr. McDonnell for an update on the responses. See Exhibit

C, p. 1.

12. After not receiving a response from Mr. McDonnell, Plaintiff’s counsel followed

up again on October 16, 2023. See Exhibit C, p. 1.

13. To date, approximately five (5) months since Defendants were served with

Plaintiff’s Discovery Demands, Defendants have failed to provide Plaintiff with their Discovery

Responses.

14. With respect to Plaintiff’s request for the production of documents, R. 4:18-

1(b)(2) provides that the parties to whom the request is served shall serve a written response

within 35 days after the service of the request, except that a defendant may serve a response

within 50 days after service of the summons and complaint on the Defendant.

15. With respect to Plaintiff’s interrogatories, R. 4:17-4(b) provides that the party

served with interrogatories shall serve answers thereto upon the party propounding them within

60 days after being served with the interrogatories.

16. Pursuant to R. 4:23-5, Plaintiff is not in default of any discovery obligations owed

to Defendants.

17. It is respectfully submitted that Defendants’ continued failure to produce the

outstanding discovery demanded by Plaintiff has unduly prejudiced Plaintiff in his efforts to

prosecute his claims under New Jersey’s Conscientious Employee Protection Act, N.J.S.A.

34:19-1 (“CEPA”), et seq.

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18. Therefore, it is respectfully requested that the Court strike Defendants’ Answer

and Affirmative Defenses with prejudice for their repeated failure to respond to discovery as

detailed herein.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

McOMBER McOMBER & LUBER, P.C.
Attorneys for Plaintiff, Ali Helwani and the Putative
Class

By: /s/ Charles J. Kocher, Esq.
Dated: October 18, 2023 CHARLES J. KOCHER

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Exhibit A
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v. DOCKET NO.:

CALANDRA ENTERPRISES, INC., Civil Action
CALANDRA’S ITALIAN & FRENCH
BAKERY, INC., ABC CORPORATIONS 1-5 CLASS ACTION COMPLAINT &
(fictitious names describing presently DEMAND FOR TRIAL BY JURY
unidentified business entities); and JOHN DOES
1-5 (fictitious names of unidentified individuals),

Defendants.

Plaintiff Ali Helwani (“Plaintiff”) brings this wage and hour class action on behalf of all

others similarly situated who deliver bread and related products, such as Danish pastry and donuts,

(“Bread Distributors”) to retail stores and other end users for Defendant Calandra Enterprises, Inc.

and Defendant Calandra’s Italian & French Bakery, Inc. (“Corporate Defendants” or “Calandra’s”)

based in Newark, New Jersey – the official bakery and bread supplier of MetLife Stadium, the

Prudential Center, and the Red Bull Arena.

Calandra’s has misclassified its Bread Distributors as “independent contractors” when they

are, in fact, employees under the law. N.J.A.C. 12:56-16.1; N.J.S.A. 43:21-19(i)(6)(A)(B)(C).

Plaintiff alleges that Calandra’s has subjected him and the Class members to improper pay
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deductions in violation of the alleging violations of the New Jersey Wage Payment Law

(“NJWPL”), N.J.S.A. §§ 34:11-4.1, et seq., as well as to the failure to pay the proper overtime

premium payments under the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a4; N.J.A.C.

12:56-6.1.

Accordingly, Plaintiff, on behalf of himself and all others similarly situated, seek all

damages available under New Jersey law to recover for the unlawful deductions taken from their

pay, as well as to recover other business expenses they have been required to incur without

reimbursement for years. In addition, Plaintiff also seeks unpaid overtime premium pay for the

weeks when he and the Class members worked over 40 hours.

Finally, when Calandra’s terminated Plaintiff on June 18, 2022 it took back the exclusive

delivery route he paid $53,000 for years earlier in 2015 and unjustly kept his money without any

refund. As such, Plaintiff also brings individual claims for unjust enrichment and conversion to

recover his substantial investment that Calandra’s unjustly and unlawfully retained without

repaying after it took back his route.

PARTIES

1. Plaintiff Ali Helwani resides at 29 Notch Park Road, Little Falls, New Jersey

07424. Plaintiff was a distributor for Calandra’s in New York, New York (“New York City”)

from February 2015 until June 2022, when he was terminated by Calandra’s. Plaintiff delivered

bread and related Calandra’s products to stores in New York City from Calandra’s Newark, New

Jersey bakery.

2. Defendant Calandra Enterprises, Inc. is a New Jersey corporation with its

principal place of business in Newark, New Jersey in Essex County, New Jersey.

3. Defendant Calandra’s Italian & French Bakery, Inc. is a New Jersey corporation

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with its principal place of business at 204 First Avenue, Newark, New Jersey 07107, in Essex

County, New Jersey.

4. Calandra’s misclassifies its employees, who deliver bread and related products

from its New Jersey distribution centers, as independent contractors. Calandra’s is and was, at all

relevant times, an employer under New Jersey law.

JURISDICTION AND VENUE

5. This Court has jurisdiction over Corporate Defendants because they are

employers under New Jersey law. Upon information and belief, Corporate Defendants have

employed over 40 distributors in New Jersey during the Class Period who deliver not only in

New Jersey but also in Pennsylvania, New York and Connecticut. Critically, all of the bread

products they deliver is sourced from one of Corporate Defendants three (3) bakery locations in

New Jersey – all of which are located in Essex County, New Jersey.

6. Venue is proper pursuant to R. 4:3-2(a)(3) and R. 4:3-2(b)) because Plaintiff’s

claims arose in Essex County, New Jersey and because Corporate Defendants reside in – and

directed business into and out of – Essex County, New Jersey.

FACTS

7. Calandra’s maintains a network of distributors in New Jersey to distribute its

bread and related baked good products throughout the State of New Jersey, as well as in

Pennsylvania, New York, and Connecticut. See https://calandrasbakery.com/products/breads/

(last visited Dec. 29, 2022) (detailing over 50 bread products and noting that “exactly 26 types of

white bread are available in each of our bakeries, from a simple panella and a French baguette to

an intricate twist and a beautiful bastone”) (emphasis added).

8. Calandra’s website makes it clear: it is selling its bread from one of its three

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bakeries. It is not selling generic bread without a brand name. As Calandra’s promotes its

bread: “What’s more, when you purchase our delicious bread from Calandra’s Bakery, you

never have to worry about extra additives or harmful elements. We make each loaf to be 100%

all-natural, and craft them by hand, from scratch, every single hour that the bakery is open.”

https://calandrasbakery.com/products/breads/ (last visited Dec. 29, 2022) (all emphasis added);

see also id. (“Disclosure: You’re probably not going to be able to buy just one product, whether

it be cookies and cake, pastries or breakfast items! Please contact us by filling out a form online.

We look forward to serving you!”) (all emphasis added). Thus, Calandra’s is actively soliciting

customer orders directly on the internet and marketing its products; its bakery; its order form;

and its “old-fashioned break-making process” to serve its customers. Id.

9. Calandra’s sells bread products to various retail stores such as grocery stores,

stadiums, areas, delis, restaurants, catering facilities, and casinos in New Jersey, as well as in

New York, Connecticut, and Pennsylvania. The Bread Distributors deliver, stock, merchandise,

promote, and remove Calandra’s products for stores in defined territories.

https://calandrasbakery.com/where-to-buy/retail-locations-supermarkets/ (last visited Dec. 29,

2022); https://calandrasbakery.com/wholesale-accounts/ (last visited Dec. 29, 2022) (“Our bread

is available at most major supermarkets in New Jersey, New York, Pennsylvania, and

Connecticut area. We are the first choice of many fine restaurants, catering facilities, delis,

hotels, and casinos. We are also the official bakery and bread supplier of MetLife Stadium, the

Prudential Center, and Red Bull Arena.”) (emphasis added).

10. Calandra’s bakery is in Newark, New Jersey, which is a 50,000 square foot

operation. https://calandrasbakery.com/ (last visited Dec. 29, 2022). Calandra’s has additional

bakeries in Fairfield, New Jersey and Caldwell, New Jersey, which are both located in Essex

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County. Id.

11. Plaintiff and Class members performed delivery and merchandising services on

behalf of Calandra’s in New Jersey, including ordering and delivering bread and baked goods.

12. In February 2015, Plaintiff paid Cengiz Bayer approximately $53,000 for an

exclusive delivery route to distribute bread and other baked goods for Calandra’s between 59th

Street in Manhattan to the Financial District. Calandra’s required that Plaintiff set up a corporate

entity in order to be a distributor, which Plaintiff named Imperial One Trade Group LLC.

13. Calandra’s has employed of over forty (40) distributors since August 6, 2019.

14. Bread Distributors like Plaintiff pay for the opportunity to enter into an agreement

for an assigned distribution territory. Calandra’s right to control, and extensive actual control,

over Plaintiff and Class members is such that the distributors are actually employees under New

Jersey law.

15. Pursuant to New Jersey labor law, all workers are presumed to be employees

unless and until all elements of the “ABC test” are found in the affirmative. East Bay Drywall,

LLC v. Dep’t of Labor & Workforce Dev., 251 N.J. 477 (2022). Under the economic and

practical realities of the relationship between the parties, Plaintiff and the Class members are

employees of Calandra’s based upon their job requirements and obligations and the level of

control that Calandra’s exerts over their routes, as set forth herein. Their daily work is/was

performed under the constant supervision, control, and strict scrutiny of Calandra’s and its

management team.

16. The work performed by Plaintiff and the Class members, i.e. driving trucks to

deliver Calandra’s bread, was performed within the usual course of Calandra’s business, which

was to transport its bread from its three (3) New Jersey bakeries to its customers or clients.

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17. The work performed by Plaintiff and the Class members was performed within

Calandra’s places of business, including the bakeries and its routes it established.

18. Plaintiff and the Class members do not work in an independently established

trade, occupation, profession, or business.

19. Plaintiff and the Class members do not have their own clientele and rely/relied

exclusively upon Calandra’s for work.

20. Once Calandra’s decided to terminate Plaintiff and/or the Class members’

working relationship, Plaintiff and the Class members joined the ranks of the unemployed.

21. Calandra’s directed Plaintiff and Class member Bread Distributors to fill the

bread racks at supermarkets, but if Calandra’s determined that a particular supermarket

underperformed, then it will eliminate all the worst performing stores. Therefore, Calandra’s

solely controlled which stores Plaintiff and the Class members would serve and when; Plaintiff

and the Class members could not build their business at stores that in Calandra’s estimation

underperformed, according to its own criteria.

22. Calandra’s employed Route Sales Managers, including Amide Koxhaxhiku

Turan, who supervised the Bread Distributors’ work, including that of Plaintiff. Ms. Turan and

the “Calandra Team” communicated directly with Calandra’s store customers about allocation of

bread products, including putting some multigrain, whole wheat, and toast bread products in the

stores.

23. Calandra’s determines the price of their bread and baked goods, including any

price increases. On November 29, 2021, Calandra’s wrote to Plaintiff and the Class members:

“Attached is the price list for the Supermarkets Cost, Deli, and Bakery Loose Items for Shoprites

and your Cost List. I did notify all the supermarkets today – make sure you notify your

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customers for this price increase …” (ellipsis in original). By way of example only, on May 6,

2022, Calandra’s raised the price of their bread and pastry prices six percent (6%) effective June

5, 2022.

24. Calandra’s also determined – in its sole discretion – the allocation of bread for

Plaintiff and the Class members, including sometimes shorting bread orders based on its own

criteria. On November 29, 2018, Ms. Turan wrote to Plaintiff and the Class members, “[p]lease

increase your order of while-wheat, multigrain and the toast bread and push them in the

Supermarkets effective immediately. It’s not nice what a customer calls every week and

complains that they can not [sic] locate it.” (emphasis added).

25. Plaintiff and the Class members were required by Calandra’s to provide

distribution service to retail stores and all Calandra’s customers seven (7) days a week. The shelf

life of the bread was short, and on or about January 25, 2020 Calandra’s reduced the shelf life of

its bread from two (2) days to one (1) day.

26. Plaintiff often worked in excess of forty (40) hours per week without receiving

overtime premium compensation.

27. In particular, Plaintiff recalls, without the benefit of any records of Defendant or

any discovery, workweeks in which he worked over forty (40) hours in a seven-day workweek.

This includes approximately 7 to 7.5 hours of delivery work seven days a week and

approximately 2 hours of paperwork per week during a seven-day workweek.

28. This violates the NJWHL. N.J.S.A. 34:11-56a4(b)(1).

29. Through its sales managers and other agents, Calandra’s conducted regular

evaluations of Bread Distributors’ sales and store performance. Ms. Turan would direct her

communications to Plaintiff and the Class members via email, often directing them, as she did on

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February 16, 2021, to “[m]ake sure we deliver enough bread please. Lately almost every store

calls me saying that our bread is sold out…” (ellipsis in original).

30. Calandra’s also informed Plaintiff and the Class members that “if there is a

request from any supermarket for an invoice that has no proof of delivery, scan sheet or does not

have a stamp, you will be charged back for that invoice…NO EXCEPTIONS!!! You have one

week to bring a scan sheet to us for the Sunday Invoices…. This is going to be start [sic]

effective 01.04.2021.” (emphasis in original).

31. As exhibited by Calandra’s termination of Plaintiff, Calandra’s retained the right

to terminate the Bread Distributors’ employment at any time without cause and without notice to

any Distributor.

32. If a Bread Distributor’s performance was deemed inadequate, Calandra’s retained

the right to terminate the Bread Distributor and reclaim the route for itself.

33. Calandra’s provided uniforms to Plaintiff and the Class members. On July 31,

2018, Angel Rodriguez, Sales Executive for Calandra’s Bakery, wrote Plaintiff that “[s]tarting

Monday morning August 6th [2018]… [ellipsis in original] any distributor picking up bread or

making a delivery, who is not wearing a Calandra’s uniform shirt.. [ellipsis in original] will be

fined $100. We have gone out of our way to get you shirts with your specific sizes for all your

poeple [sic] and we need you to do your part.” (emphasis in original).

34. In that same July 31, 2018 email, Angel Rodriguez wrote “[s]tarting Monday

morning August 6th [2018]…[ellipsis in original] if any one of our Mgmt Team or mgt walks

into a supermarket and sees a bread rack or floor basket Pole with out a New Calandra’s sign in

them .. you will be fined $100. We have spent considerable time and money on a new ad

campaign and we have asked you all to please pick up the signs you need from us. We need you

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to do your part.” (emphasis in original).

35. Calandra’s had the right to, and in fact exercised, control over Plaintiff and the

Class members, using its financial penalties to enforce compliance with its policies. By way of

another example, failure to transmit paperwork to Calandra’s Director of Wholesale Operations

resulted in a $250 first time fine and $500 for a second violation. As Ms. Turan demanded,

“[y]our job is to make sure you have your paper work on time.”

36. The financial penalties imposed by Calandra’s on Plaintiff and the Class

continued when Calandra’s brazenly charged them to pay Calandra’s own attorneys at McCarter

& English, LLP in connection with a bankruptcy matter (In re The Great Atlantic & Pacific Tea

Company, Inc., et al., Case No. 23007 (RDD)) that was pending in the United States Bankruptcy

Court for the Southern District of New York in 2017. Indeed, the legal bills were sent by counsel

to their clients: Calandra’s Italian & French Bakery and Anthony Calandra. This is an unlawful

expense that should not have been borne by Plaintiff or any of Calandra’s employees under the

NJWPL. N.J.S.A. §§ 34:11-4.1. Calandra's should repay these unlawful expenses and/or

deductions to Plaintiff and the Class members.

37. On June 18, 2022, Plaintiff was terminated by Calandra’s after he had arranged to

have a substitute driver cover his route while he was away for four (4) days. Calandra’s advised

Plaintiff that they were going to simply take his route and give it to someone else without

reimbursement for his original payment. Calandra’s never refunded Plaintiff’s $53,000 purchase

price from 2015; they kept Plaintiff’s money.

38. Calandra’s misclassified Plaintiff and the Class members knowingly and willfully.

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33. Calandra’s paid Plaintiff and Class members under a common compensation plan

and policy where the Bread Distributors were paid a sales commission based on the quantity of

items sold.

34. As a result of Calandra’s misclassification of Plaintiff and the Class members as

“independent contractors,” Calandra’s has failed to indemnify Plaintiffs and similarly situated

Class members for employment-related expenses, including without limitation: fuel, tolls, charges

for stale or damaged product, fines assessed by Calandra’s, and business liability insurance and

automotive insurance.

35. The policies related to any deductions from the wages of Plaintiff and the Class

regarding stale products were set by Calandra’s only without any negotiation or participation by

Plaintiff or Calandra’s distributors.

36. As a result of Calandra’s misclassification of Plaintiff and the Class as

“independent contractors,” Calandra’s has willfully and knowingly subjected them to unlawful

deductions and has failed to reimburse Plaintiff and other Class members for the types of work-

related expenses set forth above. Calandra’s also failed to pay the proper overtime rate.

CLASS ACTION ALLEGATIONS

37. This action is brought by Plaintiff as a class action pursuant to Rule 4:32 and for

all claims asserted herein, on behalf of themselves and the following, initially defined, Class: All

persons or entities who have been employed by Calandra’s as bread delivery drivers for any of its

bakeries at any time since December 30, 2016 (hereinafter “Class”).

38. Class action treatment of this action is appropriate because all of the class action

requisites of Rule 4:32 are satisfied. In particular:

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39. Numerosity – R. 4:32-1(a)(1). Although the exact number of Class members is

uncertain and can only be ascertained through appropriate discovery, including discovery of

Calandra’s records, the Class is so numerous that the joinder of all members is impracticable. The

Class is comprised of an easily ascertainable set of persons or entities who performed worked for

Calandra’s as a Bread Distributor since August 6, 2019.

40. Commonality – R. 4:32-1(a)(2); (b)(3). There are questions of law and fact common

to the Class, which predominate over any questions affecting only individual Class members.

Questions of law and fact are common to all class members because, inter alia, this action concerns

Calandra’s common business policies, as described herein. These common questions of law and

fact include, without limitation:

a. Whether Calandra’s engaged in the conduct as alleged herein;

b. Whether Plaintiffs and the Class members were misclassified as

“independent contractors” when they were actually employees;

c. Whether Plaintiffs and the Class members were deprived the protections of

employee status under the law;

d. Whether Plaintiff and the Class members are entitled to damages, and the

amount of such damages.

41. Typicality – R. 4:32-1(a)(3). Plaintiff’s claims are typical of the claims of the Class

members in that Plaintiff, like all Class members, performed worked for Calandra’s as a Bread

Distributor since August 6, 2019.

42. Adequacy of Representation – R. 4:32-1(a)(4). Plaintiff will fairly and adequately

protect the interests of the Class. Plaintiff has retained counsel who are experienced in consumer

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class-action litigation. Plaintiff has no interests which are adverse to, or in conflict with, other

members of the Class.

43. Superiority of Class Action – R. 4:32-1(b)(3). A class action is superior to other

available methods for the fair and efficient adjudication of the controversy. Class treatment of

common questions of law and fact is superior to multiple individual actions or piecemeal litigation.

Moreover, absent a class action, most Class members would likely find the cost of litigating their

claims prohibitively high and would therefore have no effective remedy at law. The prosecution

of separate actions by the individual Class members would create a risk of inconsistent or varying

adjudications with respect to individual Class members, which would establish incompatible

standards of conduct for Calandra’s. In contrast, a class action presents far fewer management

difficulties, conserves judicial as well as the parties’ resources, and protects the rights of each

Class member.

COUNT ONE

VIOLATION OF THE NEW JERSEY WAGE PAYMENT LAW
(N.J.S.A. 34:11-4.2 and 34:11-4.4)

(On Behalf of Plaintiff and the Class)

44. All previous paragraphs are incorporated as though fully set forth herein.

45. Plaintiff and the Class members are employees entitled to the NJWPL’s protections.

46. Calandra’s is an employer covered by the NJWPL that is required to pay Plaintiff

and the Class members in accordance with the NJWPL.

47. The NJWPL requires that Plaintiffs and other Class members receive all wages

owed. N.J.S.A. 34:11-4.2.

48. The NJWPL generally provides that “[n]o employer may withhold or divert any

portion of an employee’s wages.” See N.J.S.A. §§ 34:11-4.4. The types of wage

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withholdings/diversions described above in Paragraph 34 are not exempted from this general

prohibition.

49. As set forth herein, Calandra’s has misclassified Plaintiff and the Class members

as independent contractors when they are actually employees under the NJWPL, thereby entitled

to the protections and benefits of these laws.

50. Calandra’s Defendant has violated the NJWPL by subjecting Plaintiff and other

Class members to the wage withholdings/diversions in violation of the NJWPL.

51. Calandra’s unlawful deductions from Plaintiff and the Class members’ wages

denied/denies them compensation to which they were/are legally entitled to receive.

COUNT TWO

OVERTIME VIOLATION (N.J.S.A. 34:11-56a(4))

(On Behalf of Plaintiff and the Class)

52. All previous paragraphs are incorporated as though fully set forth herein.

53. Plaintiff and the Class members are employees entitled to NJWHL’s protections.

54. Calandra’s is an employer covered by the NJWHL.

55. The NJWHL provides that employees who work over 40 hours of working time in

a workweek shall receive “1 ½ times such employee’s regular hourly wage for each hour of

working time in excess of 40 hours in any week.” N.J.S.A. 34:11-56a4; see also N.J.A.C. 12:56-

6.1 (“For each hour of working time in excess of 40 hours in any week, except for those exemptions

set forth in N.J.S.A. 34:11-56a4 or as provided in N.J.A.C. 12:56-7.1, every employer shall pay to

each of his or her employees, wages at a rate of not less than 1 1/2 times such employee's regular

hourly wage.”).

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56. By treating Plaintiff and the Class members as independent contractors, Calandra’s

fails to keep track of their hours of work.

57. Calandra’s violated N.J.S.A. 34:56a4 by failing to pay Plaintiff and Class members

overtime premium compensation for hours worked over forty (40) hours during the workweek.

COUNT THREE

CONVERSION

(On Behalf of Plaintiff Only)

58. All previous paragraphs are incorporated as though fully set forth herein.

59. Plaintiff purchased an exclusive territory route to deliver Calandra’s products for

approximately $53,000 in February 2015. He did not sign any written contract to purchase the

exclusive delivery route.

60. On or about June 18, 2022, Plaintiff’s route was taken back by from him Calandra’s

Defendant without justification when he requested to have a substitute driver make his deliveries.

Plaintiff was terminated from employment with Calandra’s as of this date and was left with nothing

in return. Calandra’s kept his exclusive route for which he had paid $53,000. Calandra’s then

staffed Plaintiff’s former route territory with another driver without any input from Plaintiff.

61. Following his termination of employment by Calandra’s, Plaintiff was not

compensated any monies after it took his route back.

62. On or about June 18, 2022, Plaintiff owned, possessed, and had the right to

immediate possession of his route.

63. Calandra’s wrongfully interfered with that right and exercised unlawful dominion

over Plaintiff’s bread route when it took his route back and did not compensate Plaintiff for the

route

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64. As a direct and proximate result of Calandra’s conversion, Plaintiff suffered

immediate financial harm.

COUNT FOUR

UNJUST ENRICHMENT

(On Behalf of Plaintiff Only)

65. All previous paragraphs are incorporated as though fully set forth herein.

66. Plaintiff purchased an exclusive territory route to deliver Calandra’s products for

approximately $53,000 in February 2015. He did not sign any written contract to purchase the

exclusive delivery route.

67. On June 18, 2022, Plaintiff’s route was taken back by from him Calandra’s

Defendant without justification when he requested to have a substitute driver make his deliveries.

Plaintiff was terminated from employment with Calandra’s as of this date and was left with nothing

in return. Calandra’s kept his route for which he had paid $53,000. Calandra’s then staffed

Plaintiff’s former route territory with another driver without any input from Plaintiff.

68. Following his termination of employment by Calandra’s, Plaintiff was not

compensated any monies after it took his route back.

69. Calandra’s received the benefit of Plaintiff’s $53,000 payment for the exclusive

route territory.

70. Calandra’s retention of the payment for Plaintiff’s route territory is inequitable and

contrary to fundamental principles of justice, equity, and good conscience.

71. This results in unjust enrichment to Calandra’s in violation of New Jersey common

law.

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PRAYER FOR RELIEF

WHEREFORE, based on the foregoing allegations, Plaintiff respectfully requests that the

Court:

a) Certify the putative Class;

b) Appoint Plaintiff the Class Representative of the Class;

c) Enter judgment Calandra’s and award the reimbursement to Plaintiff and the Class

of all improper pay deductions, fees, charges, and/or other out-of-pocket

expenditures;

d) Issue a declaratory judgment that Calandra’s classification of Plaintiff and the other

delivery driver Class members whom Plaintiff seeks to represent violates New

Jersey law;

e) Order Calandra’s to pay all costs and fees, including attorneys’ fees;

f) Order Calandra’s to pay liquidated damages pursuant to the New Jersey Wage

Payment Law and/or the New Jersey Wage Theft Act during the Class period

(Dece

Case Info

Judge

Stephen L Petrillo Track Judge’s New Case

Case No.

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Document Filed Date

October 18, 2023

Case Filing Date

December 30, 2022

County

Parties

Abc Corporations 1-5 Defendant
Ali Helwani Plaintiff
Calandra Enterprises, Inc. Defendant
Calandra'S Italian &French Ba Defendant
Charles J Kocher Attorney for the Plaintiff
James Mc Donnell Attorney for the Defendant
John Does 1-5 Defendant
Lena K Kim Attorney for the Defendant
Mark J Gottesfeld Attorney for the Plaintiff
Daniel Aiken Attorney
Thomas Jackson Attorney
Tyler Burrell Attorneys for Plaintiffs

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Document for Helwani Ali Vs Calandra Enterprises , Inc.

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Case Info

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