DANIEL SLAMNA and MIROSLAV VAJIC, individually and on behalf of all other similarly situated, Plaintiffs,
API RESTAURANT CORP., CELLA FINE FOODS INC., PIO RESTAURANT, LLC, SETA RESTAURANT CORP., GIOVANNI APICELLA and ANTONIO SPIRIDIGLIOZZI, jointly and severally, Defendants.
Justin Alexander Zeller, Esq., Brandon David Sherr, Esq., THE LAW OFFICE OF JUSTIN A. ZELLER, P.C., New York, NY, Attorney for Plaintiffs.
Netanel Newberger, Esq., Joseph Martin Labuda, Esq., Richard I. Milman, Esq., MILMAN LABUDA LAW GROUP, PLLC, Lake Success, NY, Attorney for Defendants.
OPINION & ORDER
ROBERT W. SWEET, District Judge.
Plaintiffs Miroslav Vajic ("Vajic") and Daniel Slamna ("Slamna", and collectively, "Plaintiffs") have moved for an order (1) conditionally certifying the instant action as a collective action pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b) ("FLSA") against defendants API Restaurant Corp. ("API"), Cella Fine Foods Inc. ("Cella"), Pio Restaurant, LLC ("Pio"), Seta Restaurant Corp. ("Seta"), Giovanni Apicella ("Apicella") and Antonio Spiridigliozzi ("Spiridigliozzi, " and, collectively, the "Defendants"); (2) approving the content of the proposed notice of this action to the putative party plaintiffs and authorizing its mailing to all putative party plaintiffs and its posting in the workplaces of Defendants' employees; and (3) compelling the Defendants to produce the name, last known mailing address, telephone number, primary language, and dates of employment of each putative party plaintiff.
Based on the conclusions set forth below, Plaintiffs' motion is granted, but the content of the proposed notice is subject to the modifications set forth below.
On January 31, 2012, Vajic filed an initial complaint against Defendants. Defendants moved to dismiss the complaint on April 27, 2012, and the motion to dismiss was marked returnable on May 23, 2012. However, on May 18, 2012, Plaintiffs filed an amended complaint ("Amended Complaint"), in light of which the Defendants withdrew their motion to dismiss. On June 4, 2012, Defendants filed a motion to dismiss the Amended Complaint, and in an opinion issued on July 20, 2012, the motion was denied in part and granted in part.
On January 28, 2013, Plaintiffs filed the instant motion for conditional certification of collective action pursuant to the FLSA. The motion was heard and marked fully submitted on March 13, 2013.
Conditional Certification of Collective Action is Granted
Under the FLSA, employees may bring a collective action "[on] behalf of... themselves and other employees similarly situated." 29 U.S.C. § 216(b). The Second Circuit has long recognized that FLSA cases should, if possible, be certified as collective actions in light of the "the broad remedial purpose of the [FLSA], which should be given a liberal construction, as well as with the interests of the courts in avoiding a multiplicity of suits." Braunstein v. E. Photographic Labs., Inc. , 600 F.2d 335, 336 (2d Cir. 1978).
Courts in this Circuit utilize a two-step process for determining whether an action may proceed collectively under Section 216(b). See, e.g., Myers v. Hertz Corp. , 624 F.3d 537, 554 (2d Cir.2010). In the first stage of the analysis, the court must make an initial determination as to whether the named plaintiffs are "similarly situated" to the putative collective members. Id .; see also Cunningham v. Elec. Data Sys. Corp. , 754 F.Supp.2d 638, 644 (S.D.N.Y. 2010) (quoting Lynch v. United Svcs. Auto. Ass'n , 491 F.Supp.2d 357, 368 (S.D.N.Y. 2007)); Morales v. Plantworks, Inc., No. 05 Civ. 2349 (DC) , 2006 WL 278154, at *1-2 (S.D.N.Y. Feb. 2, 2006). If the named plaintiffs make a "modest factual showing'" that they and the potential opt-in plaintiffs "together were victims of a common policy or plan that violated the law, '" conditional certification and court-facilitated notice is appropriate. Myers , 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc. , 982 F.Supp. 249, 261 (S.D.N.Y. 1997)); see also Cunningham , 754 F.Supp.2d at 644; Lynch , 491 F.Supp.2d at 368. For this reason, the initial phase is often termed the "notice stage." See Lynch , 491 F.Supp.2d at 368.
As explained in Ranier v. Citigroup Inc. , 827 F.Supp.2d 294 (S.D.N.Y. 2011),
Because certification at this first early stage is preliminary and subject to reevaluation, the burden for demonstrating that potential plaintiffs are similarly situated is very low. The leniency of this requirement is consistent with the broad remedial purpose of the FLSA.
At this initial step, Plaintiffs need only provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist. Plaintiffs may satisfy this requirement by relying on their own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members. In some cases, it may be appropriate to find plaintiffs and potential plaintiffs similarly situated based simply on plaintiffs' substantial allegations that they and potential plaintiffs were common victims of a FLSA violation, particularly where defendants have admitted that the actions challenged by plaintiffs reflect a company-wide policy. At this stage, the ...