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Lucio L. Alvarez, On Behalf of Himself and All Other Similarly Situated, Lucio v. Ibm Restaurants Inc.

March 15, 2012

LUCIO L. ALVAREZ, ON BEHALF OF HIMSELF AND ALL OTHER SIMILARLY SITUATED, LUCIO VENTURA, ANIBAL JERONIMO, CARLOS A. PORTILLO AMAYA, ROBERTO A. ESPERANZA, AND JOSE HERNANDEZ MEMBRANO, INDIVIDUALLY,
PLAINTIFFS,
v.
IBM RESTAURANTS INC., D/B/A/ MANGIAMO, ROGER BEDOIAN, AN INDIVIDUAL, DANIEL IANNUCCI, AN INDIVIDUAL, AND VINCENZO IANNUCCI AN INDIVIDUAL,
DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

The Plaintiffs Lucio Alvarez, Lucio Ventura, Anibal Jeronimo, Carlos A. Portillo Amaya, Roberto A. Esperanza, and Jose Hernandez Membrano ("the Plaintiffs"), filed a putative collective action suit against IBM Restaurants, Roger Bedoian, Daniel Iannucci, and Vincenzo Iannucci under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA") and the New York State Labor Law ("N.Y. Labor Law"), to recover unpaid overtime and minimum wage compensation. The Plaintiffs now move for conditional certification of the class for the collective action and to facilitate notice under 29 U.S.C. §216(b). The Defendants oppose the motion.

For the reasons set forth below, the Court grants Plaintiffs' motion for conditional certification of a class consisting of all persons employed by the Defendants in the last three years and the parties are directed to submit a revised Notice of Pendency.

I. BACKGROUND

The Plaintiffs are employees who worked for Defendants IBM Restaurants d/b/a Mangiamo, Roger Bedoian, Daniel Iannucci, and Vincenzo Iannucci (collectively "the Defendants"). The Plaintiffs' responsibilities included serving and preparing food, busing tables and general cleaning on behalf of the Defendants. Plaintiff Lucio Alvarez was employed by the Defendants from in or about October 2008 until in or about August 2010. Plaintiff Lucio Ventura was employed by the Defendants either from in or about 1998 until in or about August 2010 (according to the Plaintiffs) or from in or about January 2001 to in or about August 2010 (according to Defendants). Plaintiff Anibal Jeronimo was employed by the Defendants either from in or about August 2009 until in or about May 2010 (according to the Plaintiffs) or in or about March 2009 to in or about September 2009 (according to the Defendants). Plaintiff Carlos

A. Portillo Amaya was employed by the Defendants from in or about March 2008 until in or about July 2010. Plaintiff Roberto A. Esperanza was employed by the Defendants from in or about July 2006 until in or about August 2010. Plaintiff Jose Hernandez Membrano was employed by the Defendants either from in or about August 2006 until in or about August 2010 (according to the Plaintiffs) or from in or about October 2008 to in or about August 2010 (according to the Defendants).

On November 4, 2010, the Plaintiffs commenced the present suit as a putative collective action against the Defendants. In their complaint, the Plaintiffs allege that during the period of their employment, they were subjected to a policy and practice requiring them to work in excess of forty hours per week without adequate compensation under the federal overtime pay and minimum wage laws. The Plaintiffs allege that other laborers working for the Defendants were similarly deprived of lawful pay.

On March 26, 2011, this Court granted a default judgment against Defendant Roger Bedoian for failure to appear. On July 21, 2011, the Plaintiffs moved to certify the collective action class to recover overtime pay under the FLSA and N.Y. Labor Law, and to facilitate notice under 29 U.S.C. §216(b). The Plaintiffs named as a class for the collective action "every person employed by the defendants, beginning six (6) years from the commencement of this lawsuit." (Pl. Mem. in Support at 8.) The Defendants oppose the conditional certification and argue that if conditional certification is to be granted, it should only be granted to persons employed by the Defendants in the last two years.

II. DISCUSSION

A. Legal Standard

28 U.S.C. § 216(b) provides that parties suing for relief under 28 U.S.C. §§ 206, 207, and 215(a)(3) may proceed "for and in behalf of himself or themselves and other employees similarly situated." A proceeding under this provision is traditionally termed a "collective action." Here, the Plaintiffs seek relief pursuant to Section 207 of the FLSA, which governs overtime compensation. Thus, the collective action provision of Section 216(b) is applicable.

A collective action under Section 216 is distinguishable in several ways from the more common class action under Rule 23 of the Federal Rules of Civil Procedure. First, a collective action requires class members to opt into the case, rather than opt out. See Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367 (S.D.N.Y. 2007). In addition, a party seeking conditional certification of a collective action need not demonstrate the Rule 23 requirements of numerosity, commonality, typicality, and adequacy of representation. See Levinson v. Primedia Inc., No. 02-CV-2222, 2003 WL 22533428, at *1 (S.D.N.Y. Nov. 6, 2003) ("The strict requirements of Rule 23 of the Federal Rules of Civil Procedure do not apply to FLSA "collective actions," and thus no showing of numerosity, typicality, commonality and representativeness need be made." (citing Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)).

1. Two Step Certification Approach

Certification of a collective action class is analyzed through a two step approach. The first step, called conditional certification, is generally completed prior to the commencement of any significant discovery. Lynch v. United Services Auto. Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007). Once a court conditionally certifies a collective action, it may then facilitate notice to all of the putative class members by approving a notice form. Id., 491 F. ...


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