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Saravia v. 2799 Broadway Grocery LLC

United States District Court, S.D. New York

May 16, 2014

GUSTAVO SARAVIA, RONALD CUCOLO, and OMAR MORALES AGUILAR[1]; on behalf of themselves and all other persons similarly situated, Plaintiffs,
2799 BROADWAY GROCERY LLC d/b/a CASCABEL TAQUERIA, et al., Defendants.


PAUL A. CROTTY, District Judge.

This is a wage-and-hour case brought by Plaintiffs, former employees of Cascabel Taqueria ("Cascabel"), a restaurant, which has two locations in Manhattan. The Second Amended Class Action Complaint ("SAC") asserts claims under the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). The Court has previously granted Plaintiffs' motion for conditional certification of their FLSA claims as a collective action under 29 U.S.C. § 216(b). Plaintiffs now move for class certification of their NYLL claims under Federal Rule of Civil Procedure 23. For the reasons that follow, the motion for class certification is GRANTED IN PART.


Plaintiffs claim that Defendants violated the NYLL by failing to pay their employees the minimum wage, overtime compensation, "spread-of-hours" compensation, [2] and by unlawfully retaining gratuities. ( See SAC claims III, IV, V, and VI.) Plaintiffs also claim that Defendants failed to provide the notices concerning their compensation required by NYLL § 195 ( id. claim VII) and that Defendants retaliated against certain employees for participating in this lawsuit ( id. claim IX). With regard to their compensation claims, Plaintiffs allege that Defendants engaged in several unlawful policies and practices, including (1) "shaving" hours in order to pay employees for fewer hours than they actually worked; (2) failing to pay spread-of-hours compensation altogether; and (3) improperly distributing tips to non-tip-eligible employees from a "tip pool."

These state claims follow the FLSA claims that the Court has already conditionally certified as a collective action under that statute. See generally 29 U.S.C. § 216(b). Plaintiffs now seek class certification for their NYLL claims under the distinct standards of Federal Rule of Civil Procedure 23.

First, Plaintiffs seek certification of a liability-only class under the NYLL:

Each current and former employee of any Cascabel Taqueria restaurant who arefwere employed as front of the house workers such as servers (wait staff), bartenders, runners. bussers, ("FOH Workers"); and employed as kitchen back of the house workers such dishwashers, cooks, line cooks, prep cooks and any other kitchen-related tasks ("BOH Workers")[.] Managers, supervisors, officers, executives, managerial or administrative personnel are not part of the defined class.

(Pls.' Mem. at 1 ("the Class").) Second, Plaintiffs seek certification of "a liability and damages subclass consisting of FOH Workers that were required to share in the tip pool ("FOH Subclass")." ( Id. )

In other words, the Class would be certified only with respect to the issue of liability, but the FOH Subclass would be certified with respect to both liability and damages.


Timeliness of the Motion

As an initial matter, Defendants object to the motion for class certification as untimely, citing Rule 23(c)'s requirement that such a motion must be decided at "an early practicable time." They argue that since discovery has closed, it is too late to certify a class.

"The reason for th[e] rule [that class determinations be made early] is plain: fundamental fairness requires that a defendant named in a suit be told promptly the number of parties to whom it may ultimately be liable for money damages." Siskind v. Sperry Ret. Program, Unisys, 47 F.3d 498, 503 (2d Cir. 1995). "However, a decision about certification need not be made at the outset; a court should delay a certification ruling until information necessary to reach an informed decision is available." Macpherson v. Firth Rixson Ltd., No. 12-CV-6162, 2012 WL 2522881, at *3 (W.D.N.Y. June 28, 2012). Indeed, the Advisory Committee Notes to Rule 23(c) state that the "early practicable time" language was amended in 2003 from "as soon as practicable" in order to "reflect]] prevailing practice [and] capture[] the many valid reasons that may justify deferring the initial certification decision, " including the need for discovery.

Moreover, "the untimeliness of a class-certification motion, in and of itself, will not justify denying class status to the action." Wright, Miller, et al., 7AA Federal Practice & Procedure § 1785.3 (3d ed.). Rather, "certification will be denied only when the late timing of the determination may cause prejudice or unduly complicate the case." Id.

Defendants have not demonstrated prejudice, and they certainly have bad ample notice of the scope this lawsuit. From the outset, Plaintiffs styled this lawsuit as a "Class Action Complaint" with a specific set of "Rule 23 Class Allegations" associated with their NYLL Claims. ( See Dkt. 1 ¶¶ 53-59.) In discovery, Plaintiffs obtained from Defendants a list of more than 600 employees who have worked at Cascabel, which Defendants themselves characterize as "a list of potential class members." (Defs.' Opp'n at 4.) Defendants cannot claim to be surprised by Plaintiffs' motion for class certification.

Defendants do not specify what additional discovery they would need for purposes of this motion, and indeed they concede that they would not even seek additional discovery if given the opportunity, due to a lack of resources. ( Id. at 6-7.) Although they suggest that they need discovery on their employees' claims of fear of retaliation and the "allegations of unlawful wage payments" ( id. at 5), they give no explanation for why these merits issues require special discovery for purposes of class certification.[3] Perhaps the motion for ...

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