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Bah v. Shoe Mania

May 13, 2009



In this putative collective action for overtime pay under the Fair Labor Standards Act ("FLSA" or "the Act"), 29 U.S.C. § 201 et seq., and the New York Labor Law, Plaintiff Thierno Bah ("Plaintiff") moves, inter alia, for a "conditional certification" of this collective action in the form of an order authorizing him to issue notice to other potential plaintiffs. Defendants Shoe Mania, Inc., Shoe Mania IX, Inc., Shoe Mania V, Inc., Shoe Mania VII, Inc., Shoe Mania XI, Inc., and Shoe Mania DC, Inc. (collectively, "Defendants"), oppose Plaintiff's request in part and move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment, or Rule 12(b)(1), for dismissal, on the basis of lack of subject-matter jurisdiction on grounds of mootness.

The Court has jurisdiction of Plaintiff's claims as plead in the complaint pursuant to 28 U.S.C. §§ 1331 and 1367. The Court has reviewed thoroughly and considered carefully all of the parties' submissions and, for the reasons stated below, denies Defendants' motion and grants in part Plaintiff's motion.


According to Plaintiff's complaint filed on October 31, 2008, Plaintiff was a stockperson employed by Defendants from July 2006 to October 2007, and his duties included maintaining the warehouse, packing and unpacking goods and inventory. (Compl. ¶¶ 12, 13, 25, 33.) Plaintiff's hourly wage was from $6.75 to $8.15. (Id. ¶ 32.) Throughout this period, Plaintiff worked six or seven days a week, in shifts of approximately ten hours, but was not paid time-and-a-half overtime pay for each hour worked beyond forty hours, nor were employees with similar job titles or duties as Plaintiff paid proper overtime pay. (Id. ¶ 31.)

Plaintiff submitted a personal affidavit attesting to the above allegations in support of his motion for conditional certification. (See Aff. of Thierno Bah dated Jan. 21, 2009, annexed to Pl.'s Notice of Mot. as Ex. C.) In addition, Plaintiff avers that his regularly received paycheck only covered 40 hours of the work that he put in each week, and that the remaining payment for his overtime hours was both insufficient and made in the form of cash. (Bah Aff. ¶¶ 12, 13.) Plaintiff further avers that these payroll practices were imposed on all non-exempt employees, including a friend and former co-worker, along with other employees, including "retail employees," with whom Plaintiff spoke and whom Plaintiff observed. (Id. ¶¶ 21-28.)

Defendants, having extended to Plaintiff an Offer of Judgment of $6,603.75, moved for dismissal of Plaintiff's claims on grounds of mootness. The proffered amount reflected, inter alia, Defendants' calculation of actual overtime wages owed to Plaintiff (no amount was specified in the complaint or in Plaintiff's affidavit) and liquidated damages under the relevant statutes. Defendants also offered $1,700 in attorneys fees (representing four hours of work at $350 an hour) and $300 in costs and expenses. (See Pl.'s Notice of Mot. Ex. E.) Plaintiff submitted affidavits and affirmations in response, disputing these calculations. (See Pl.'s Opp'n Exs. B, H.) In addition, Plaintiff proffers an affidavit from Mohamed Diallo ("Diallo"), a stockperson working for Defendants, who avers that he and other non-exempt employees also were not paid the proper amount for their overtime work, and a consent by Diallo opting-in as a party plaintiff in this action. (See Pl.'s Opp'n Exs. C, G.)


Plaintiff's federal claim is premised on Section 216(b) of the FLSA. This section provides a private right of action to recover unpaid overtime compensation and liquidated damages from employers who violate the Act's overtime provisions. "Section 216(b) allows such a case to be brought as a collective action, that is, an action by one or more employees for and in behalf of himself [or herself] or themselves and other employees similarly situated." Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 103 (S.D.N.Y. 2003) (quotation and citation omitted). "Unlike a class action lawsuit brought pursuant to Federal Rule of Civil Procedure 23, in an FLSA collective action, only potential plaintiffs who 'opt in' can be 'bound by the judgment' or 'benefit from it.'" Id. (citations omitted).

The Court first addresses Defendants' motion for dismissal on the grounds that Plaintiff's action is moot, and then addresses Plaintiff's motion for an order authorizing the issuance of a notice to potential plaintiffs in this putative collective action.


"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). "When a defendant offers the maximum recovery available to a plaintiff, the Second Circuit has held that the case is moot and 'there is no justification for taking the time of the court and the defendant in the pursuit of minuscule individual claims which defendant has more than satisfied.'" Ward v. Bank of New York, 455 F. Supp. 2d 262, 267 (S.D.N.Y. 2006) (quoting Abrams v. Interco Inc., 719 F.2d 23, 32 (2d Cir. 1983)). "Courts have, however, denied a defendant's motion to dismiss on mootness grounds where the plaintiff potentially could recover more than the relief offered by defendant, such as where the offer is not comprehensive, or where the amount due to plaintiff is disputed." Id. (citing cases).

"Courts also have refused to allow Rule 68 offers of judgment to moot actions where additional plaintiffs have opted in to the FLSA collective action, but have not been made offers of judgment by defendant." Ward, 455 F. Supp. 2d at 268 (citing cases). "Furthermore, courts are wary of attempts by defendants to evade FLSA collective actions by making Rule 68 offers of judgment at the earliest possible time." Id. (citing cases, quotations omitted).

The Court has considered thoroughly the cases cited and arguments made by both sides as to whether dismissal on mootness grounds is appropriate. Even if the amount recoverable by Plaintiff were not in dispute, it cannot be said at this early stage, in the context of a potential collective action under the FLSA, that Defendants' offer of judgment moots this action. Plaintiff filed his motion for an order directing Defendants to turn over contact information of its employees and authorizing the issuance of an opt-in notice to potential plaintiffs only a few months after the complaint was filed, and an additional plaintiff has already opted in. Under these circumstances, this action is not mooted by Defendants' offer of judgment, which only purports to cover Plaintiff's claims. See Yeboah v. Central Parking Sys., No. 06 Civ. 0128 (RJD)(JMA), 2007 WL 3232509, *4 (E.D.N.Y. Nov. 1, 2007) (dismissal on mootness grounds inappropriate because an additional plaintiff had opted in); Rubery v. Buth-Na-Bodhaige, Inc., 494 F. Supp. 2d 178, 181 (W.D.N.Y. 2007) (dismissal on mootness grounds premature where motion was made prior to the court's determination of plaintiff's pending motion for certification as a collective action); Ward, 455 F. Supp. 2d at 269-70 (dismissal appropriate in part because no other plaintiffs had opted in over the course of a year); cf. Deposit Guar. Nat'l Bank v. Roper, 445 ...

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