May 7, 2013
PABLO TOBIAS NAVARRO, individually and on behalf of others similarly situated, Plaintiff,
PGM NEW YORK, INC. (d/b/a MADISON BISTRO) AND CLAUDE PHILIP GODARD, Defendants.
MEMORANDUM OPINION AND ORDER
JESSE M. FURMAN, District Judge.
Upon review of the parties' submissions, Plaintiff's Second Motion for Class Certification and Notice (Docket No. 29) is hereby GRANTED.
Although the question is a close one, Plaintiff has carried his "low" burden at this stage of making a "modest factual showing" that he and "potential opt-in plaintiffs together were victims of a common policy or plan that violated the law." Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) (internal quotation marks omitted); see also, e.g., Amador v. Morgan Stanley & Co. LLC, No. 11 Civ. 4326 (RJS), 2013 WL 494020, at *2 (S.D.N.Y. Feb. 7, 2013) (noting that a plaintiff may rely "on [his] own pleadings, affidavits, [and] declarations" to support a motion for class certification (quoting Hallissey v. Am. Online, Inc., No. 99 Civ. 3785 (KTD)), 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008)); Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 367-68 (S.D.N.Y. 2007) (noting that, on a motion for preliminary certification of collective action, the court does not resolve factual disputes, decide ultimate issues on the merits, or make credibility determinations).
Furthermore, after discovery, Defendants may move for decertification of the collective action. See, e.g., Davis v. Abercrombie & Fitch Co., No. 08 Civ. 1859 (PKC), 2008 WL 4702840, at *10 (S.D.N.Y. Oct. 23, 2008). "At that point, the court determines on a full record, and under a more stringent standard, whether the additional plaintiffs are in fact similarly situated." Id. If the Court finds "that all plaintiffs are similarly situated, the collective action proceeds to trial; otherwise, the class is decertified and the claims of the opt-in plaintiffs are dismissed without prejudice." Id.
Accordingly, and mindful that Defendants have not raised any specific objections to the Proposed Notice and Consent to Join Lawsuit forms, it is hereby ordered that:
1. The Court approves the form of Notice of Pendency and Consent to Join Lawsuit, in the modified form attached to this Order, and finds that the mailing of such Notice substantially in the manner and form set forth in paragraph 2 of this Order will constitute the best notice practicable under the circumstances to members of the Class. Plaintiffs may engage a third party notice administrator to facilitate mailing of the Notices to putative class members.
2. On or before thirty (30) days after entry of this Order, the plaintiffs or their designated representatives shall cause a copy of the Notice of Pendency and Consent to Join Lawsuit form, as modified by the Court and attached to this Order, to be mailed by first class mail to:
All current and former employees of PGM NEW YORK, INC. (d/b/a MADISON BISTRO) and CLAUDE PHILIP GODARD, and/or any other entities affiliated with or controlled by any one or more of the foregoing businesses and/or individuals, who performed restaurant labor as cooks, sous chefs, dishwashers, salad preparers, food runners, busboys, wait staff, and all other restaurant-related labor from August 31, 2009, through the present. Corporate officers, shareholders, directors, administrative employees, and other customarily exempt employees are not part of the defined class.
3. Within 15 days after entry of this Order, Defendants shall furnish to Plaintiffs' counsel and the designated notice administrator a list containing the names and last known address of all individuals employed by Defendants from August 31, 2009, through the present. This mailing list is to be furnished in electronic form and shall be treated by the Parties as confidential.
4. The modified Notice of Pendency and Consent to Join Lawsuit form shall be published in English and Spanish. Plaintiffs' counsel shall file with the Clerk of the Court a certification from the Spanish interpreter retained to translate the modified Notice of Pendency and Consent to Join Lawsuit form.
5. Should a significant number of Notices be returned as undeliverable with no forwarding address, Plaintiffs reserve the right to apply to the Court for permission to cause a copy of this Notice, substantially in the same form attached hereto, to be published in a Spanish-language newspaper.
6. The deadline for a Consent to Join Lawsuit form to be postmarked or received by the Court shall be ninety days from the earliest date of mailing of the notice.
7. Discovery is hereby extended until three months after the end of the opt-in period.
8. The parties shall appear for a conference with the Court on September 10, 2013, at 3:15 p.m.
The Clerk of Court is directed to terminate the Motion for Conditional Collective Certification. (Docket No. 29).