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Gonzalez v. Nicholas Zito Racing Stable Inc.

March 31, 2008


The opinion of the court was delivered by: Townes, United States District Judge


This action, brought by Domingo Gonzalez on behalf of himself and others similarly situated ("Plaintiffs"), arises from the alleged failure of Defendant, Nicholas Zito Racing Stables ("Zito Stables"), and its principal, Nicholas Zito ("Zito") (collectively, "Defendants"), to pay the appropriate overtime wage rate to employees of Zito Stables. This action was brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 206, and New York Labor Law § 655 and 12 NYCRR § 142-3.2 (2004) ("New York Minimum Wage Act" or "MWA"). Plaintiffs now move for: (1) an Order amending the Complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure, to change the class representative for this putative class action and to add a claim under New York Code of Rules and Regulations ("NYCRR") § 142-2.4; and (2) an Order certifying this action as a class action, pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiffs' motion is granted.


Zito operates a horse racing enterprise and numerous stables throughout New York and the United States. To maintain the stables and the horses, Zito Stables employed workers to care for the horses, clean the stables, and otherwise assist in the racing of the horses. Most of the potential class members in this action were employed by Zito Stables as either grooms or hot walkers. Grooms are required to prepare their horses for training each day. They typically work every morning, seven days a week, and get paid a set weekly salary, plus bonuses if the horses they care for win prizes. Grooms also return every other afternoon for one and a half hours, but are allowed to adjust their schedules with their paired partners to allow more personal time in the afternoons by arranging to alternate covering the afternoon work.

Hot walkers are responsible for cooling the race horses by walking them around after they return from training or racing. Because the horses are trained in the early mornings, a hot walker's workday ends by 10:00 a.m., but he or she is permitted to return in the afternoons on a strictly voluntary basis. Hot walkers, like grooms, are paid a set weekly salary for their work in the mornings, but any hot walker who returns to work in the afternoon is paid an additional amount. In addition to working as hot walkers and grooms, some potential class members may have worked as watchmen for the stables. Mr. Gonzalez was employed by Zito Stables as a night watchman at its facilities at Belmont Racetrack. His employment was terminated by Defendants on or about December 12, 2003.

On January 6, 2004, Mr. Gonzalez filed his Complaint on behalf of himself and others similarly situated, alleging that Defendants violated the FLSA and MWA by failing to pay him and other employees an appropriate overtime wage. The Plaintiffs, who are mainly immigrant workers from South and Central America who do not speak, read, or write English, allege that they typically worked 7-8.5 hours per day, seven days per week, 52 weeks per year, for which they were compensated at the flat rate of $400.00 per week. They allege their hours increased to as much as 12-13 hours per day during the racing season.

In July 2004, Mr. Gonzalez's counsel moved to certify this action as a collective action pursuant to the FLSA, and by Memorandum and Order dated July 23, 2004, Magistrate Judge James Orenstein granted the application to circulate a Notice of Pendency and Consent to Joinder pursuant to 29 U.S.C. § 216(b). The Notice was circulated to hundreds of prospective claimants in both English and Spanish. Although twelve additional claimants decided to join the action, that number eventually dwindled down to only six claimants plus Mr. Gonzalez. On June 22, 2005, when Mr. Gonzalez was scheduled to be deposed, he inexplicably fled the office where the deposition was scheduled to take place and refused to return. Plaintiff's counsel later advised Defendants that Mr. Gonzalez wished to discontinue his claims with prejudice.

On December 28, 2005, Plaintiffs filed the instant action, seeking to amend the complaint. Plaintiffs request leave to amend the complaint for two reasons. First, Plaintiffs seek leave to amend because the currently named plaintiff, Mr. Domingo Gonzalez, is unable to serve as the named plaintiff in this action any longer. Plaintiffs would like to change the named plaintiffs to two willing individuals, David Berrios and Ignacio Chavez, both of whom are already plaintiffs in the FLSA action.

Plaintiffs also request leave to amend the complaint to seek recovery of unpaid wages pursuant to New York Code of Rules and Regulations § 142-2.4. This law, known as the "spread of hours law" states, in part, that "an employee shall receive one hour's pay at the basic minimum hourly wage rate, in addition to the minimum wage required in this Part for any day in which (a) the spread of hours exceeds 10 hours; or (b) there is a split shift; or (c) both situations occur." N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4. Plaintiffs learned through discovery that members of the defined class were required to work in excess of 10-hour shifts, or in a double (or "split") shift.

In addition, Plaintiffs request an Order certifying this action as a class action, pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, for a class consisting of:

The plaintiffs and all individuals including past or present employees of Nicholas Zito Racing Stables who worked as watchmen, grooms, hot walkers, and in other occupations related to the horse racing industry within the state of New York from 1999 through the present.


A. Plaintiff's Motion to Amend

Rule 15(a) of the Federal Rules of Civil Procedure generally governs the amendment of complaints*fn1 and instructs courts that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed. 2d 222 (1962). Amendments are favored as they tend "to facilitate a proper decision on the merits." Junior Gallery, Ltd. v. Neptune Orient Line, Ltd., No. 94-4518, 1997 WL 26293, at *2 (S.D.N.Y. Jan. 22, 1997) (quoting Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957)).

Reasons to deny a motion for leave to amend include undue delay, bad faith, futility of the amendment, or prejudice to the opposing party. See Foman, 371 U.S. at 182. "The district court has discretion whether or not to grant leave to amend, and its discretion is not subject to review on appeal except for abuse of discretion." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (internal quotations and citations omitted).

1. Plaintiffs Have Not Unreasonably Delayed Seeking Leave to Amend

Defendants argue that Plaintiffs' motion to amend should be denied because Plaintiffs delayed making the motion until months after the close of discovery. However, Plaintiffs sought leave to amend the Complaint in the manner proposed on November 23, 2004, approximately one year before this Court allowed Plaintiffs to make their motion.

Furthermore, Plaintiffs only learned about the class-wide nature of the spread-of-hours claim by speaking with the Plaintiffs who came forward after mailing the notice of pendency of the class action, in or about October 2004. Plaintiffs point out that Mr. Gonzalez, as a night watchman, was not required to work split shifts. It was only through additional discovery that Plaintiffs realized that they had an ...

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