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X Khalid Mcbeth and Carmine Cascone v. Gabrielli Truck

February 3, 2011

X KHALID MCBETH AND CARMINE CASCONE,
INDIVIDUALLY AND ON BEHALF OF ALL OTHER
PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY GABRIELLI TRUCK SALES, LTD.; GABRIELLI TRUCK SALES OF CONNECTICUT, L.L.C.;
GABRIELLI TRUCK SERVICE, INC.; AND
GABRIELLI FORD TRUCK SALES & SERVICE, INC.;
AND/OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY
GABRIELLI TRUCK SALES, LTD.; GABRIELLI TRUCK SALES OF CONNECTICUT, L.L.C.;
GABRIELLI TRUCK SERVICE, INC.;
GABRIELLI FORD TRUCK SALES & SERVICE INC.;
ARMANDO GABRIELLI, AND/OR AMEDEO GABRIELLI, PLAINTIFFS,
v.
GABRIELLI TRUCK SALES, LTD.; GABRIELLI TRUCK SALES OF CONNECTICUT, L.L.C.; GABRIELLI TRUCK SERVICE, INC.; GABRIELLI FORD TRUCK SALES & SERVICE INC.;
ARMANDO GABRIELLI; AMEDEO GABRIELLI; AND/OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY GABRIELLI TRUCK SALES, LTD.; GABRIELLI TRUCK SALES OF CONNECTICUT, L.L.C.; GABRIELLI TRUCK SERVICE, INC.; GABRIELLI FORD TRUCK SALES & SERVICE INC.;
ARMANDO GABRIELLI, AND/OR AMEDEO GABRIELLI, DEFENDANTS.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the Court is the parties' dispute concerning the contents of the Notice of Pendency to be sent to putative members in this collective action brought pursuant to Section 216 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 etseq. For the following reasons, both plaintiffs' and defendants' proposed Notices of Pendency are approved in part and rejected in part.

FACTS

This action arises out of claims by the plaintiffs, on behalf of themselves and the putative class members they seek to represent, that defendants failed to pay them overtime compensation in accordance with the FLSA and the New York Labor Law. Familiarity with the underlying facts of this action is presumed.

By Order dated January 13, 2011, the Court granted plaintiffs permission to move for conditional collective action certification, pursuant to the FLSA. By letter dated January 21, 2011, counsel for plaintiffs advised the Court that the parties had reached an agreement to conditionally certify the action but that certain disputes existed concerning the contents of the FLSA Notice of Pendency to be circulated to potential class members. (Letter from Ambinder, L. to Boyle, J. dated Jan. 21, 2011.) The parties thereafter each submitted letters setting forth their positions with respect to the contents of the Notice of Pendency.

The parties' letters advise that there are three areas of dispute concerning the Notice of Pendency. The first concerns whether the description of the employees eligible to participate in the collective action should identify those excluded from the class definition contained in the Second Amended Complaint. The second dispute centers around the scope of the notice period; specifically, whether notice should be limited to the two or three-year statute of limitations provided under the FLSA or the six-year limitations period provided by the New York Labor Law. Finally, the parties dispute whether reference to plaintiffs' counsel's website address should be included within the Notice of Pendency.

DISCUSSION

I. Legal Standard "The FLSA vests the district court with broad discretion with respect to the content of the

Notice of Pendency to be provided to potential class members." Garcia v.Pancho Villa's of Huntington Vill., Inc., 678 F. Supp. 2d 89, 95 (E.D.N.Y 2010) (citing Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 59 (S.D.N.Y. 2000)). "'Courts consider the overarching policies of the collective suit provisions' and whether the proposed notice provides 'accurate and timely notice concerning the pendency of the collective action, so that [an individual receiving the notice] can make an informed decision about whether to participate.'" Delaney, 261 F.R.D. at 59 (quoting Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 322 (S.D.N.Y. 2007)) (alteration in original).

II. Resolution of the Parties' Disputes

A. Definition of Class Members

The first dispute concerns the description provided in the Notice of Pendency as to which employees are eligible to participate in this litigation. While the plaintiffs favor a broader description of eligible employees, the defendants assert that the description should state that it excludes "any employees who operated vehicles exceeding 10,000 pounds gross vehicle weight for any calendar quarter in which they operated such vehicles" because these individuals are explicitly excluded from the class definition contained in the Second Amended Complaint. (Def. Letter dated Jan. 26, 2011 at 3; 2d Am. Compl. ¶ 15.) According to defendants, the exclusion of these employees from the class definition in the Second Amended Complaint "reflects the exempt status of such workers under the motor carrier exemption." (Def. Letter dated Jan. 26, 2011 at 3.)

Plaintiffs argue, however, that referencing those employees in the Notice of Pendency that are excluded from the class definition "will only cause confusion and discourage workers from participating in the case." (Pl. Letter dated Jan. 26, 2011 at 2.) As plaintiffs point out, many workers may not be aware if they meet the definition of having driven a truck "exceeding 10,000 pounds gross weight vehicle for any calendar quarter." (Id.) Moreover, some workers may incorrectly believe they are ineligible to participate in the collective action if they drove a truck at any time during the past six years. (Id.)

More importantly, as plaintiffs assert - and defendants do not dispute - the burden of proof that certain employees are exempt pursuant to the Motor Carrier Act falls upon the defendants as employers. See Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir. 2009) (noting that under the FLSA, the "employer has the burden of proving that the employee clearly falls within the terms of [an] exemption"). According to plaintiffs, defendants have failed to produce any proof thus far as to the names, dates and vehicles purportedly driven by any of the collective ...


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