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Jose Enriquez, Individually and On Behalf of Other Persons Similarly v. Cherry Hill Market Corp. and Cherry Hill Gourmet

February 10, 2012

JOSE ENRIQUEZ, INDIVIDUALLY AND ON BEHALF OF OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY CHERRY HILL MARKET CORP. AND/OR CHERRY HILL GOURMET, INC. AND/OR DAVID ISAEV OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY CHERRY HILL MARKET CORP. AND/OR CHERRY HILL GOURMET, INC. AND DAVID ISAEV, PLAINTIFFS,
v.
CHERRY HILL MARKET CORP. AND CHERRY HILL GOURMET, INC. AND DAVID ISAEV AND/OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY CHERRY HILL MARKET CORP. AND/OR CHERRY HILL GOURMET, INC. AND/OR DAVID ISAEV, DEFENDANTS.



The opinion of the court was delivered by: Block, Senior District Judge:

MEMORANDUM AND ORDER

The plaintiffs in this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201--19, seek conditional certification as a collective action under 29 U.S.C. § 216(b), so that notice may be provided to potential opt-in plaintiffs. The defendants oppose conditional certification and, in addition, object to certain provisions of the notice and consent form proposed by the plaintiffs. For the following reasons, the motion is granted.

Cherry Hill Market Corp. operates a gourmet grocery store in Bath Beach, Brooklyn. Cherry Hill Gourmet, Inc., does the same in Sheepshead Bay. Both are owned and managed by David Isaev, and will be referred to collectively as "Cherry Hill."

The named plaintiff, Jose Enriquez, worked at both Cherry Hill stores between November 2008 and November 2010. Opt-in plaintiff Emilio Yax Lopez worked at the Bath Beach location during the same period. Both attest that they worked twelve-hour shifts, six days a week-72 hours per week-primarily as grocery stockers. Enriquez attests that he was paid from $280 to $400 per week, while Lopez attests that he was paid from $350 to $450 per week. The minimum pay allowed by the FLSA for the relevant time period ranged from $576 to $638.*fn1

Both Enriquez and Lopez attest that "no less than 70 individuals" worked similar shifts for similar pay. Enriquez Aff. ¶ 7; Lopez Aff. ¶ 8. They further attest that these co-workers "perform[ed] similar tasks, such as packaging and stocking shelves, receiving deliveries, cleaning the store, washing produce, arranging flowers, preparing foods, and in other grocery-related jobs." Id. Enriquez and Lopez and their co-workers would regularly discuss that they were not being paid overtime. See Enriquez Aff. ¶ 10; Lopez Aff. ¶ 12.

II

A. Conditional Certification

The FLSA allows a plaintiff to sue on behalf of "other employees similarly situated," provided that the other employees give their consent in writing. 29 U.S.C. § 216(b). Plaintiffs have moved for conditional certification of a collective action under the FLSA, which provides a right of action for "any one or more employees for and in behalf of himself or themselves and other employees similarly situated." In this context, "similarly situated" means that the named plaintiff and the potential opt-in plaintiffs "together were victims of a common policy or plan that violated the law." Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (collecting cases). Unlike Federal Rule of Civil Procedure 23, the FLSA "requires no showing of numerosity, typicality, commonality, or representativeness." Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 369 (S.D.N.Y. 2007).

Certification as a collective action unfolds in two steps. At the first step, the district court need only make a conditional determination whether "similarly situated potential plaintiffs exist." Schwed v. General Elec. Co., 159 F.R.D. 373, 375-76 (N.D.N.Y. 1995). If so, the potential plaintiffs must be given notice of the action and an opportunity to opt in. Because the determination is only preliminary and must necessarily be made early in the proceedings, the first step imposes on the named plaintiff the minimal burden of making "a modest factual showing" based on the pleadings and affidavits. Sbarro, 982 F. Supp. at 261.

Once the opt-in period is over and discovery is completed, the court-usually at the defendant's instance-applies "a more heightened scrutiny" to the question. Jacobs v. New York Foundling Hosp., 483 F. Supp. 2d 251, 265 (E.D.N.Y. 2007). If the facts developed during discovery refute the step-one determination, the court will decertify the collective action and only the named plaintiff's claims will proceed. See id.

The defendants complain that only Enriquez and Lopez have submitted affidavits, and that their affidavits are hearsay with respect to the assertions of their co-workers. In the first place, "there is no requirement in this circuit that a certain number of Covered Employees opt-in before a court can conditionally certify a class." Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 59 (S.D.N.Y. 2009). In the second, courts routinely allow plaintiffs to rely on their own declarations for purposes of conditional certification. See, e.g., Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y. 2007) ("Plaintiffs have easily made the modest showing that is required of them at this preliminary stage: they were subjected to certain wage and hour practices at the defendants' workplace and to the best of their knowledge, and on the basis of their observations, their experience was shared by members of the proposed class."); Guzman v. VLM, Inc., 2007 WL 2994278, at *4 (E.D.N.Y. Oct. 11, 2007) ("It is hardly realistic, or consistent with the lenient standards of the notice phase of FLSA litigation, to expect plaintiffs to have any more specific knowledge of how much their co-workers are paid than [allegations of conversations with named individuals in which those individuals claimed not to have been paid overtime].").

Notwithstanding the defendants' objections, the averments of conversations with co-workers who complained about not receiving overtime satisfy the Court that there are other Cherry Hill employees with potential FLSA claims against the defendants. That is all that is required to warrant conditional certification.

B. Proposed Notice and Consent Form

The details of a § 216(b) notice are "left to the broad discretion of the trial court."

Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 106 (S.D.N.Y. 2003) (citing Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 170 (1989)). The Court understands its discretion to be guided by the goals of the notice: to make as many potential plaintiffs as possible aware of this action and their right to opt in without devolving into a fishing expedition or imposing undue burdens on the defendants. The Court ...


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