United States District Court, N.D. New York
Michael P. ANDREWS and Jason Mace, on behalf of themselves and others similarly situated, Plaintiffs,
A.C. ROMAN & ASSOCIATES, INC.; and Anthony C. Roman, Defendants.
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Brian J. LaClair, Kenneth L. Wagner, Blitman, King Law Firm, Syracuse, NY, for Plaintiffs.
Stephanie J. Kaufman, Beekman, Schwartz Law Firm, Garden City, NY, for Defendants.
DECISION & ORDER
THOMAS J. McAVOY, Senior District Judge.
Plaintiff Michael P. Andrews commenced this action alleging that Defendants:  failed to pay wages and overtime compensation in violation of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 201 et seq., and the New York Labor Law (" NYLL" ), N.Y. Labor Law, Art. 19, § 650 et seq.;  retaliated against him in violation of the FLSA, 29 U.S.C. § 215(a), and the NYLL, N.Y. Labor Law § 215(2);  discriminated against him on account of his sexual orientation and retaliated against him in violation of the New York Human Rights Law (" NYHRL" ), N.Y. Ex. L, § 296; and  were in breach of contract, unjustly enriched, and indebted to him under a theory of quantum meruit. See Compl. dkt. # 1.
Andrews thereafter filed an Amended Complaint in which Jason Mace was added as a plaintiff. Am. Compl. dkt. # 14. Andrews and Mace assert the same claims under the FLSA and the NYLL as previously asserted, and Andrews reasserts his individual claims of  retaliation in violation of 29 U.S.C. §§ 215(a)(3), 216(b);  retaliation in violation of N.Y. Labor Law § 215;  discrimination based on sexual orientation in violation of N.Y. Exec. Law § 296; and  retaliation in violation of N.Y. Exec. Law § 296. Id. In addition, Andrews and Mace seek to proceed " on behalf of themselves and others similarly situated" in collective and class actions on the claims alleging violations of the FLSA and the NYLL. See id.
On September 16, 2012, Defendants filed a motion pursuant to 28 U.S.C. § 1404(a) to change venue to the United States District Court for the Eastern District of New York. See DKT. # 29. On September 17, 2012, Plaintiffs filed a motion seeking conditional certification of a collective action pursuant to 29 U.S.C. § 216(b). See DKT. # 31. And on November 11, 2012, Plaintiffs filed a motion for equitable tolling of the statute of a limitations under the FLSA. See DKT # 41. After an adjournment of the original change of venue motion return date occasioned by Hurricane Sandy, the matter came before the Court on its December 10, 2012 motion calendar. Because the Court finds that transfer of this action to the United States District Court for the Eastern District of New York is warranted, the Court will address only the transfer motion so that the Court that will preside over the action can decide the two related issues raised by Plaintiffs' motions.
Plaintiffs Michael P. Andrews and Jason Mace (collectively, " Named Plaintiffs" ) bring this action against Defendants A.C. Roman & Associates, Inc. (" Romans & Associates" ) and Anthony C. Roman (collectively, " Defendants" ). Roman & Associates employs private investigators, or " Field Investigators," who operate throughout New York State and elsewhere. Andrews and Mace were both employed by Romans & Associates as Field Investigators.
Named Plaintiffs bring the action on behalf of themselves and others similarly situated Field Investigators, asserting that Romans & Associates failed to pay wages and overtime compensation as required by the FLSA and NYLL. See generally Am. Compl. In this regard, Named Plaintiffs allege that Romans & Associates improperly utilized a " fluctuating workweek" method of calculating overtime compensation resulting in Field Investigators receiving a fixed salary for all hours worked in a workweek whatever the number of hours worked, and receiving only one-half times (instead of one and one-half times) their regular rates of pay for overtime hours. See id. Named Plaintiffs also allege that Defendants neither paid Field Investigators for certain work actually performed at their home offices and in the field, nor counted that time for the purpose of determining the total number of hours they worked in a given workweek. See id.
On the FLSA claims, Andrews and Mace seek to represent:
All persons who are, were, or will be employed by Defendant A.C. Roman & Associates, Inc., in the position of " Investigator" or " Field Investigator" at any time between July 19, 2009, and the date of entry of judgment in this action (" FLSA Class" ).
Am. Compl. ¶ 20. They assert that these other Field Investigators are similarly situated to them
in almost every relevant respect. That is, they had the same job title and duties, the same hours of work, reported to the same supervisors, and were subject to the same unlawful policies and practices whereby Defendants: (a) purported to pay them a fixed salary for all hours worked in a workweek, whatever their number; (b) did not pay them overtime compensation at one and one-half times their regular rate of pay for hours worked in excess of 40 hours per workweek; and (c) did not pay them for certain hours actually worked or count such hours for the purpose of determining the total number of hours they worked in a given workweek.
Plf. MOL in Supp. of Cond. Cert., p. 2; see Am. Compl. ¶¶ 21-27.
On the NYLL claims, Named Plaintiffs seek to represent:
All persons who are, were, or will be employed by Defendant A.C. Roman & Associates, Inc., in the position of " Investigator" or " Field Investigator" at any time between July 19, 2006, and the date of entry of judgment in this action (" NYLL Class" ).
Am. Compl. ¶ 28.
With regard to the putative NYLL class, Named Plaintiffs assert that " [u]pon information and belief, there are more than 100 persons who belong to the NYLL Class," and that the " members of the NYLL Class are geographically dispersed throughout New York State and other parts of the country." Id. ¶¶ 33, 34.
Andrews also brings individual claims for retaliation under the FLSA, 29 U.S.C. § 215(a), and the NYLL, N.Y. Labor Law § 215(2), and discrimination based on sexual orientation and unlawful retaliation under the NYHRL. See generally Am. Compl. Andrews alleges that Defendants took adverse actions against him, including termination of his employment and retaliation, because of his sexual orientation and because he lodged complaints about Defendants' alleged unlawful discrimination and pay practices. See id.
Roman & Associates' office is located in Lynbrook, New York. Defendant Anthony C. Roman, who resides In Rockville Center, New York, is the chief executive officer, sole owner, and principal manager of Roman & Associates. ...