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Teresa Lara Benavidez, Maria De Lourdes Galvez, Jamie Huerta v. Piramides Mayas Inc.

April 16, 2013

TERESA LARA BENAVIDEZ, MARIA DE LOURDES GALVEZ, JAMIE HUERTA, FLORA ZURITA, MARIA DE LOURDES VASCONEZ ALARCON, LABRARMY GARCIA, AND ESTEBAN NADER,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
PIRAMIDES MAYAS INC., MAMA MEXICO MIDTOWN REALTY LLC, SHADDAI INC., MAMA MEXICO ENGLEWOOD REALTY LLC, JUAN ROJAS CAMPOS, AND LAURA CHAVEZ, DEFENDANTS. GUILLERMO PAEZ, EMILIANO ESPINOZA, AND PEDRO NASARIO, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
PIRAMIDES MAYAS INC., MAMA MEXICO MIDTOWN REALTY LLC, SHADDAI INC., MAMA MEXICO ENGLEWOOD REALTY LLC, JUAN ROJAS CAMPOS, AND LAURA CHAVEZ, DEFENDANTS.



The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge

MEMORANDUM AND ORDER

PROCEDURAL HISTORY

The plaintiffs, current and former "front-of-the-house workers" (case No. 09 Civ. 5076) and "back-of-the house workers" (case No. 09 Civ. 9574) employed by "Mama Mexico restaurants," commenced these two related actions in 2009, alleging various violations of the Fair Labor Standards Act ("FLSA") of 1938, 29 U.S.C. §§ 201-219, and state laws, by corporate employers Plaza Mexico, Inc. ("Plaza Mexico"), Piramides Mayas Inc. ("Piramides"), Mama Mexico Midtown Realty LLC ("Mama Mexico Midtown"), Shaddai Inc ("Shaddai"), Mama Mexico Englewood Realty LLC ("Mama Mexico Englewood") and their two officers, Juan Rojas Campos ("Campos") and Laura Chavez ("Chavez"). Thereafter, on December 24, 2009, defendant Plaza Mexico filed for Chapter 11 bankruptcy protection. The plaintiffs' subsequent motion to certify a class action conditionally pursuant to Rule 23 of the Federal Rules of Civil Procedure and for a collective action under the Fair Labor Standards Act was denied, without prejudice, as premature (Docket Entry No. 52).*fn1 The assigned district judge, directed the plaintiffs to file a motion to sever Plaza Mexico (Docket Entry No. 55). The plaintiffs' motion to sever Plaza Mexico, made pursuant to Rule 21 of the Federal Rules of Civil Procedure was granted, and the assigned district judge stated: "Plaintiffs have 20 days to amend their complaints, without prejudice to reinstating Plaza Mexico as a named defendant, depending on the outcome of the Bankruptcy Court proceedings." (Docket Entry No. 74). On October 6, 2010, the plaintiffs filed their amended complaints (case No. 09 Civ. 5076, Docket Entry No. 75; case No. 09 Civ. 9574, Docket Entry No. 31). The defendants filed their answer. Thereafter, the parties consented to jurisdiction by a magistrate judge, pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure.

On June 29, 2011, the magistrate judge authorized the FLSA collective action notice, pursuant to 28 U.S.C. § 216(b), informing any person employed by Mama Mexico restaurants as a server, busser, runner, bartender, cook or dishwasher, between May 29, 2006, and December 31, 2009, that if she or he wishes to join the lawsuits, her or his signed opt-in consent form must be postmarked by "90 days from mailing of the Notice." (Docket Entry No. 83). The notices to potential plaintiffs were mailed on August 5, 2011 (see Decl. of Rachel Bien ¶ 13, Docket Entry No. 43), making November 3, 2011, the last day to postmark signed opt-in consent forms to join the lawsuits.

On November 2, 2011, the magistrate judge granted a motion to withdraw as counsel to the defendants, stating:

The corporate Defendant [sic] is hereby advised that it may not proceed pro se in this action. Accordingly, unless new counsel files a Notice of Appearance in this action by December 5, 2011, a default will be entered against the corporate Defendant [sic]. If Plaintiffs still wish to proceed with a summary judgment motion, it shall be filed by December 16, 2011. (Docket Entry No. 100).

On December 16, 2011, the plaintiffs filed a motion for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil procedure, against Piramides, Shaddai and Campos. In their notice of motion, the plaintiffs sought a finding from the court and a concomitant order that: (1) Piramides, Shaddai and Campos "willfully failed to pay overtime, spread-of-hours pay, and statutory uniform maintenance payments, reimburse them for the cost of required uniforms, and give notice of the tip credit under Section 203(m) of the Fair Labor Standards Act"; (2) Campos is individually liable as the plaintiff's employer; and (3) Piramides, Shaddai, Mama Mexico Midtown and Mama Mexico Englewood "are in default for failing to comply with the Court's November 2, 2011 Order." (Docket Entry No. 107).

On February 15, 2012, the magistrate judge granted the plaintiffs' motion, finding, inter alia, that: (a) the "Defendants failed to pay overtime, spread-of-hours pay, and uniform-related pay, including reimbursement for purchasing and maintaining uniforms"; (b) the "Defendants failed to inform Plaintiffs of the minimum wage laws, their relation to the tip credit, and of their intention to take a tip credit"; (c) the defendants' violations were willful; (d) the plaintiffs are entitled to liquidated damages under both FLSA and New York law; and (e) Campos is the plaintiffs' employer under FLSA. (Docket Entry No. 116). Although the magistrate judge noted in a footnote that, "with respect to the corporate Defendants, [the plaintiffs] contend that they are in default," he did not make any determination on that issue.

On May 9, 2012, the plaintiffs made a motion for an award of damages, attorneys' fees and costs against Piramides, Shaddai and Campos. (Docket Entry No. 120). Thereafter, the cases were reassigned to the undersigned. (Docket Entry No. 126). A damages inquest hearing was conducted on October 16 and 24, 2012.

On November 30, 2012, the plaintiffs requested that the Clerk of Court "enter the attached Certificate of Default against Defendants Piramides Mayas Inc., Mama Mexico Midtown Realty LLC, Shaddai Inc., and Mama Mexico Englewood Realty LLC." (Docket Entry No. 140). On the same day, the Clerk of Court entered the default of the "Corporate Defendants,"*fn2 based on their failure to engage counsel by December 5, 2011. (Docket Entry No. 142).

On March 6, 2013, the Court raised certain issues of concern with the plaintiffs, namely: (a) the liability of Mama Mexico Midtown, Mama Mexico Englewood and Chavez; (b) the exact number of opt-in plaintiffs; (c) the status of an opt-in plaintiff, Kevin Santa; and (d) the late opt-in notices.

On March 13, 2013, the plaintiffs made a motion for judgment by default, pursuant to Rule 55 of the Federal Rules of Civil Procedure, against Mama Mexico Midtown and Mama Mexico Englewood (Docket Entry No. 143). On the same date, the plaintiffs submitted a letter to the Court, stating, inter alia that: (i) the "correct number of Plaintiffs is seventy-four"; (ii) the opt-in plaintiff Kevin Santa was reinstated after he was erroneously terminated; and (iii) opt-in consent notices for five plaintiffs should be deemed timely submitted; and (iv) although Juan Chino and Nestor Sanchez did not submit timely opt-in consent forms, the Court should exercise its discretion to extend their filing deadlines.

On March 19, 2013, the plaintiffs made a "Motion to Amend the Complaints to Reinstate Plaza Mexico, Inc. as a Defendant, . . . pursuant to Federal Rules of Civil Procedure 15(a)(2), 20(a)(2), and 21," because the Bankruptcy Court dismissed Plaza Mexico's petition on March 6, 2013. (Docket Entry No. 149). Thereafter, the plaintiffs made a motion to dismiss claims ...


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