Michael A. Faillace MICHAEL FAILLACE & ASSOCIATES, P.C., New York, NY, Attorney for Plaintiffs.
Richard E. Signorelli, Esq. Bryan Ha, Esq. LAW OFFICE OF RICHARD E. SIGNORELLI New York, NY, Robert D. Lipman, Esq. LIPMAN & PLESUR, LLP Jericho, NY, Attorney for Defendants.
ROBERT W. SWEET, District Judge.
Defendants Spice Avenue Inc., Bangkok Palace II, Inc., Spice City, Inc., Spice West, Inc., Spice Thai Hot & Cool LLC, Kitlen Management, Inc., Spice Corner 236 Inc., Kittigorn Lirtpanaruk and Yongyut Limleartvate (collectively, "Defendants") have moved to dismiss the Amended Complaint in part pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Amended Complaint is dismissed to the extent it asserts claims seeking collective action or class action certification for any period of time prior to December 11, 2009.
Plaintiffs filed the initial complaint in this action on January 20, 2012. An Amended Complaint was filed on July 3, 2012 alleging that the corporate defendants are "seven corporations that act in partnership with one another in the operation and management of a chain of Thai restaurants in the state of New York" (Amended Compl. ¶ 2), and that they are allegedly "current and former employees of Defendants, primarily employed as delivery workers." (Id. ¶ 56). It is further alleged that, "[f]or at least six years prior to the filing of this action, " Defendants failed to pay them minimum and overtime wages as required under the Fair Labor Standards Act ("FLSA"), the New York Labor Law, and the spread of hours wage order of the New York Commissioner of Labor. (Id. ¶¶ 12-13).
Plaintiffs seek to bring this action "on behalf of themselves, individually, and all other similarly situated employees and former employees of Defendants, " (id. ¶¶ 14-15), and seek certification of this action as a collective action pursuant to the FLSA, 29 U.S.C. § 216(b), and as a class action pursuant to Fed.R.Civ.P. 23 for the period from "on or after the date that is six years before the filing of the complaint in this case, January 2006, to entry of judgment in this case (the New York Class Period')." (Amended Compl. ¶¶ 516, 13-14).
The instant action is substantively similar to three actions previously filed in this District: Marlon Castro, et al v. Spice Place, Inc., et al., 07 CV 4657 (RWS); Guillermo Gonzales v. Spice Place, Inc., et al., 08 CV 3887 (RWS); and Jose Castillo, et al. v. Spice Place, Inc., et al., 08 CV 6811 (RWS) (collectively, "prior actions"). Many of the defendants named in the prior actions are also named as defendants in the instant action, including Spice Avenue, Inc., Bangkok Palace II, Inc., Spice City, Inc., Spice West, Inc., Kitlen Management, Inc., Kittigorn Lirtpanaruk, and Yongyut Limleartvate. The plaintiffs in each of the prior actions alleged that defendants failed to pay them minimum and overtime wages as required under the FLSA and under New York law. (Castro Compl. ¶¶ 4-5; Gonzalez Amended Compl. $$ 37, 43, 51; Castillo Compl. ¶¶ 75, 81, 88, 108).
The Plaintiffs in each of the prior actions also sought collective action and class action certification on behalf of themselves and other similarly-situated employees. The Castro plaintiffs sought certification of a collective action and a class action for the period from "on or after the date that is six years before the filing of the complaint in this case, June 2001, to entry of judgment in this case (the New York Class Period')." (Castro Compl. ¶¶ 54, 6-7). In Gonzales, the plaintiff sought collective action and class action certification for "the period from April 30, 2002 to the date of this complaint [i.e., May 1, 2008]." (Gonzalez Amended Compl. T 6). In Castillo, the Plaintiffs sought collective action certification for the period from July 30, 2005 through July 30, 2008 and class action certification for the period from July 30, 2002 through July 30, 2008. (Castillo Compl. ¶¶ 66, 87.)
At the time that the prior actions were pending, the Office of the Attorney General of the State of New York ("OAG") was conducting an investigation of the Defendants' alleged wage law violations. (Order Facilitating Settlement, p. 1). In December 2009, "the OAG  negotiated a settlement of its investigation with defendants which serves the interests of plaintiffs  in the form of a document entitled Assurance of Discontinuance'." (Id.). The Assurance of Discontinuance was fully executed on December 14, 2009.
In connection with the settlement of the OAG's investigation, the parties also settled the Castro action and the Gonzales action, and these actions were dismissed with prejudice pursuant to stipulations of dismissal so-ordered by the Court (collectively, "Dismissal Orders"). Each of the Dismissal Orders contains a prohibition against the filing of any collective or class action against any of the defendants for alleged wage law violations, as follows:
Upon the full execution of the Assurance of Discontinuance executed by Andrew M. Cuomo, Attorney General of the State of New York, and the corporate defendants herein, no class or collective action may be brought against defendants for alleged wage-hour violations for any time up to the date of this Order.
The order dismissing the Castro action is dated November 17, 2009. The order dismissing the Gonzales ...