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Olvera v. Bareburger Group LLC

United States District Court, S.D. New York

July 10, 2014

EDUARDO OLVERA; DELFINO OLVERA; FERNANDO PERALTA; and MODESTO PERALTA, individually and on behalf of others similarly situated, Plaintiffs,
v.
BAREBURGER GROUP LLC; BAREBURGER INC.; EAST 87 BURGERS LLC, d/b/a 1681 FIRST AVENUE BAREBURGER; EAST SIDE BURGERS LLC, d/b/a 1370 FIRST AVENUE BAREBURGER; BAREBURGER EAST SIDE LLC, d/b/a BAREBURGER; EURIPIDES PELEKANOS; GEORGIOS RODAS; JOSEPH BUSUTTIL; PANTELIS TZANIDAKIS; PETROS TZANIDAKIS; GEORGIOS TZANIDAKIS; and JOHN KAPSALIS, Defendants

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For Eduardo Olvera, individually and on behalf of all others similarly situated, Delfino Olvera, individually and on behalf of all others similarly situated, Fernando Peralta, individually and on behalf of all others similarly situated, Modesto Peralta, individually and on behalf of all others similarly situated, Plaintiffs: Michael Antonio Faillace, Michael Faillace & Associates, P.C., New York, NY.

For Bareburger Group LLC, Bareburger Inc., Euripides Pelekanos, Georgios Rodas, Defendants: Salvatore Joseph Acquista, LEAD ATTORNEY, Acquista & Associates, PC, Astoria, NY.

For East 87 Burgers LLC, doing business as 1681 First Avenue Bareburger, East Side Burgers LLC, doing business as 1370 First Avenue Bareburger, Joseph Busuttil, Pantelis Tzanidakis, Petros Tzanidakis, Georgios Tzanidakis, John Kapsalis, Defendants: Stephen D. Hans, LEAD ATTORNEY, Stephen D. Hans & Associates, P.C (LIC), Long Island City, NY.

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OPINION & ORDER

Paul A. Engelmayer, United States District Judge

Plaintiffs Eduardo Olvera, Delfino Olvera, Fernando Peralta, and Modesto Peralta, on behalf of themselves and others similarly situated (collectively, " plaintiffs" ), bring this action against two sets of defendants: (1) the entities and individuals who operated the franchise restaurants that directly employed plaintiffs--East 87 Burgers LLC, East Side Burgers LLC, Bareburger East Side LLC, Joseph Busuttil, Pantelis Tzanidakis, Petros Tzanidakis, Georgios Tzanidakis, and John Kapsalis (collectively, " franchisee defendants" ); and (2) the entities and individuals who owned the franchise trademarks to those restaurants--Bareburger Group LLC, Bareburger Inc., Euripides Pelekanos, and Georgios Rodas (collectively, " franchisor defendants" ). Plaintiffs allege that these defendants violated the Fair Labor Standards Act (" FLSA" ) and New York Labor Law (" NYLL" ) by, inter alia, failing to pay minimum wage, overtime, and spread-of-hours compensation.

On May 27, 2014, the franchisee defendants submitted an answer to the First Amended Complaint. Dkt. 24 (" FAC" ). On May 27, 2014, the franchisor defendants moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the First Amended Complaint as to them, asserting that the it had failed to plausibly plead that the franchisor defendants were " joint employers" for purposes of the FLSA or NYLL. For the reasons that follow, the motion is denied.

I. Background

A. Facts[1]

The franchisee defendants own, operate, and control several " organic fast food restaurants," operating under the trade name " Bareburger." FAC ¶ 1. The two restaurants relevant here are located at 1681 First Avenue, New York, N.Y. 10028 (" 87th Street Location" ) and 1370 First Avenue, New York, N.Y. 10021 (" 73rd Street Location" ). Id. The franchisee defendants operate these restaurants pursuant to contracts with two corporate entities, Bareburger Group LLC and Bareburger Inc., which, together with defendants Pelekanos and Rodas, have been designated in the FAC as the franchisor defendants. Id. ¶ ¶ 2-3. The franchisor defendants " grant franchises to operate Bareburger stores in New York and grant sublicenses to franchisees to use the Bareburger trademarks." Id. ¶ 29.

Plaintiffs were employed, between 2012 and 2014, as " porters, dishwashers, food preparers, and cooks" at the 73rd Street and 87th Street locations. Id. ¶ 5. Specifically, between February 2012 and January 2014, plaintiff Olvera worked at the 73rd Street Location, id. ¶ 17; between May 2013 and January 28, 2014, plaintiff Delfino worked at the 87th Street Location, id. ¶ 19; between September 2013 and February 2014, plaintiff Peralta worked at the 87th Street Location, id. ¶ 21; and between August 2013 and February 2014, plaintiff Modesto worked at the 87th Street Location, id. ¶ 23. Plaintiffs allege that defendants failed to pay minimum

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wage, overtime, or spread-of-hours compensation, and that they failed to maintain accurate records of hours worked. Id. ¶ ¶ 6-9.

B. Procedural History

On February 28, 2014, plaintiffs filed their original Complaint. Dkt. 2. On March 20, 2014, the franchisee defendants filed their Answer. Dkt. 4. On April 21, 2014, the franchisor defendants submitted a motion to dismiss the Complaint as to them, Dkt. 13, and a supporting memorandum of law, Dkt. 14. On May 13, 2014, plaintiffs filed the FAC. Dkt. 20. On May 27, 2014, the franchisee defendants filed their Amended Answer. Dkt. 24. On May 27, 2014, the franchisor defendants submitted a motion to dismiss the FAC as to them, Dkt. 21, with an accompanying memorandum of law, Dkt. 23 (" Def. Br." ). On June 13, 2014, plaintiffs submitted a memorandum of law in opposition to ...


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