The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Before the court is the plaintiffs' motion for certification of a collective action, pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and for class certification, pursuant to Rule 23 of the Federal Rules of Civil Procedure. Defendants do not oppose the plaintiffs' motion for collective certification; however, they do oppose the application for class certification on the grounds that plaintiffs do not satisfy the requirements of Rule 23. For the following reasons, plaintiffs' motion is granted in its entirety.
Familiarity with the facts of the underlying action is presumed. For a complete recitation of the facts, the parties are referred to the Memorandum Opinion and Order dated April 14, 2011, which was issued in connection with the parties' cross-motions for summary judgment. See Garcia v. Pancho Villa's of Huntington Vill., No. CV 09-486, 2011 U.S. Dist. LEXIS 40740, at *2-5 (E.D.N.Y. Apr. 14, 2011).
By Memorandum Opinion and Order dated January 15, 2010, the Court granted plaintiffs' motion to conditionally authorize a collective action, pursuant to the FLSA, finding that plaintiffs had demonstrated that they were similarly situated in that: (1) they all performed similar duties during their employment with defendants; (2) they all assert that they routinely worked in excess of forty hours per week but were not provided overtime compensation; (3) there was common ownership of all three restaurant locations by defendants; (4) employees were shared between the three restaurant locations; and (5) at least some employees in all three locations were paid part of their wages in cash. See Garcia v. Pancho Villa's of Huntington Vill., 678 F. Supp. 2d 89, 92-94 (E.D.N.Y. 2010).
By that same Order, defendants were directed to provide plaintiffs with a list of the names and addresses of potential plaintiffs who may have claims in this action. See id. at 95. Defendants complied with that order and, on January 25, 2010, provided plaintiffs with a list of forty-four individuals and their addresses. (Kessler Decl. ¶ 16.) Defendants advised plaintiffs that "there are other potential employees that [defendants] have not been able to identify by full name and/or address . . . the only identifying information [defendants] have for these employee is their first names as they appear on the work schedule." (Id. and Ex. 18, annexed thereto.)
Defendants' list did not include seven of the eleven named plaintiffs herein. (Id.)
Upon the completion of discovery, both plaintiffs and defendants cross-moved for partial summary judgment. By Memorandum Opinion and Order dated April 14, 2011, the Court granted plaintiffs' motion in part, dismissing defendants' Twenty-Second, Twenty-Third and Twenty-Fourth Affirmative Defenses contained in their Answer, all of which asserted that plaintiff Antonio Garcia is exempt from the FLSA's coverage. See Garcia v. Pancho Villa's of Huntington Vill., No. CV 09-486, 2011 U.S. Dist. LEXIS 40740, at *7-11 (E.D.N.Y. Apr. 14, 2011). The Court denied the remaining portions of plaintiffs' motion for summary judgment and denied defendants' motion in its entirety.
Plaintiffs now move for collective certification of this action under the FLSA and class certification of plaintiffs' New York Labor Law claims, pursuant to Federal Rule of Civil Procedure 23.
I. Collective Certification Under the FLSA "Generally, courts proceed in two stages in determining whether a matter should be certified as a FLSA collective action." Ayers v. SGS Control Servs., No. 03 Civ. 9078, 2007 U.S. Dist. LEXIS 19634, at *15 (S.D.N.Y. Feb. 26, 2007) (quoting Torres v. Gristede's Operating Corp., No. 04 Civ. 3316, 2006 WL 2819730, at *7 (S.D.N.Y. Sept. 29, 2006)). The first stage requires plaintiffs to satisfy the "minimal burden" of demonstrating that they are similarly situated. Id. Plaintiffs met this burden and the Court conditionally certified the collective action by Memorandum Opinion and Order dated January 15, 2010.
"At the second stage, the court examines the record again, with the benefit of discovery, and revisits the question of whether plaintiffs are similarly situated." Id. (quoting Torres, 2006 WL 2819730, at *7). Plaintiffs bear the burden of demonstrating that they are indeed similarly situated. See Ayers, 2007 U.S. Dist. LEXIS 19634, at *16 (citation omitted). "[P]laintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members." Id. (citation and quotation marks omitted) (alteration in original). "[T]he 'similarly situated' requirement of 29 U.S.C. § 216(b) is considerably less stringent than the requirement of Fed. R. Civ. P. 23(b)(3) that common questions 'predominate.'" Id. (quoting Rodolico v. Unisys Corp., 199 F.R.D. 468, 481 (E.D.N.Y. 2001)).
Defendants' opposition to the within motion fails entirely to address plaintiffs' request for certification of a collective action under the FLSA. Accordingly, that portion of plaintiffs' motion is deemed unopposed.
For the same reasons that the Court conditionally certified this action as a collective action, contained in the Memorandum Opinion and Order dated January 15, 2010, and based on the evidence presented by plaintiffs in connection with the instant motion, the Court finds that plaintiffs are similarly situated, entitling them to proceed as a collective action. Accordingly, this action is certified as a collective action, pursuant to 29 U.S.C. § 216(b).
II. Class Certification Under Rule 23
Plaintiffs seek to certify a class consisting of "[a]ll persons who have been employed by the defendants, in a non-managerial position, in the State of New York, at any time from February 6, 2003 (six years prior to the filing of the complaint) through the present ("the Class").
(Kessler Decl. ¶ 2.) In order to certify such a class, plaintiffs must satisfy the four prerequisites of Federal Rule of Civil Procedure 23(a) and one of the three prerequisites of Rule 23(b).
See Fed. R. Civ. P. 23; see also Alonso v. Uncle Jack's Steakhouse, Inc., No. 08 Civ. 7813, 2011 U.S. Dist. LEXIS 106356, at *13 (S.D.N.Y. Sept. 21, ...