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Gaspar v. Personal Touch Moving, Inc.

United States District Court, S.D. New York

September 15, 2014

JULIAN GASPAR, Plaintiff,
v.
PERSONAL TOUCH MOVING, INC. et al., Defendant.

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge.

In this action, Plaintiff Julian Gaspar brings various claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, and New York law against Defendants Personal Touch Moving, Inc. ("Personal Touch"), Salvatore DiPiazza, and John Does #1-10, who represent Personal Touch's unknown "officers, directors and/or managing agents." Compl. ¶ 12. Before the Court are (1) Defendants' motion to dismiss pursuant to the Colorado River abstention doctrine, and (2) Plaintiff's motion for conditional certification and court-authorized notice pursuant to § 216(b) of the FLSA. For the following reasons, Defendants' motion is denied, and Plaintiff's motion is granted.

I. Background

Plaintiff commenced this action on November 18, 2013. In his complaint, Plaintiff states that Defendants run a moving business in Glendale, New York, where Plaintiff worked as a mover from December 2005 through July 2013. Compl. ¶¶ 20-21. DiPiazza is alleged to own, operate, and control the day-to-day operations of Personal Touch. Id. ¶ 11. According to Plaintiff, Personal Touch employed at least 40 other movers during the time that he worked there. Id. ¶¶ 22-24.

Plaintiff alleges that during his time working as a mover for Defendants, he worked fourteen-hour days, six days a week (Monday through Saturday). Compl. ¶¶ 27-39. He claims that he was paid a flat hourly rate: $10 per hour for his first six months, and $12 per hour thereafter. Id. ¶ 33. In addition, he alleges that Defendants failed to post notices informing employees of their minimum wage and overtime rights. Id. ¶ 30. Plaintiff further alleges that Personal Touch's customers gave movers tips, and although he was told that these tips would be included in his wages, Defendants actually kept the tips for themselves. Id. ¶¶ 35-42.

Plaintiff's complaint contains four causes of action. Count I alleges minimum wage, overtime, and record-keeping violations under the FLSA. Compl. ¶¶ 73-74. Count II alleges that Defendants failed to pay Plaintiff straight wages, overtime, and a "spread of hours" premium, failed to pay him the tips he had earned from customers, and failed to keep adequate records, all in violation of the New York Labor Law ("NYLL"). See id. ¶¶ 79-80. Counts III and IV allege common law breach of contract and unjust enrichment claims, respectively, arising from Defendants' alleged retention of Plaintiff's tips. Id. ¶¶ 86-87, 92. Pursuant to 29 U.S.C. § 216(b), the FLSA's collective action mechanism, Plaintiff brings his FLSA claims on behalf a collective comprising other non-exempt movers who were employed by Defendants "at any time since November 18, 2007... who were not paid minimum wages and/or overtime wages." Id. ¶ 14.

Defendants filed their motion to dismiss on February 10, 2014, Dkt. No. 11, and Plaintiff filed an opposition brief on February 25, Dkt. No. 29; Defendants did not file a reply brief. Plaintiff filed his motion for conditional certification and court-authorized notice on February 18, 2014, Dkt. No. 17, and it was fully submitted as of March 15.

II. Defendants' Motion to Dismiss

In their motion to dismiss, Defendants point to a similar action brought against them in New York state court by four other individuals who worked for Defendants as movers. This state court action was filed on June 3, 2013. See Heidecker Aff. Ex. A. In light of this state court action, Defendants argue that Plaintiff's claims should be dismissed under the Colorado River abstention doctrine. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). For the following reasons, Defendants' motion is denied.

A. Legal Standard

A federal court's obligation to hear cases properly within its jurisdiction is "virtually unflagging, " Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386 (2014) (quoting Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584, 591 (2014)), and the abstention doctrines recognized by the Supreme Court are narrow exceptions to this general rule. Colo. River, 424 U.S. at 817. Colorado River abstention, in particular, may be appropriate in contexts involving the "contemporaneous exercise of concurrent jurisdiction" by state and federal courts, where concerns relating to "conservation of judicial resources and comprehensive disposition of litigation" weigh in favor of having only one proceeding. Id.

The Second Circuit has cautioned that "a finding that the concurrent proceedings are parallel' is a necessary prerequisite to abstention under Colorado River." Dittmer v. County of Suffolk, 146 F.3d 113, 118 (2d Cir. 1998). "The Second Circuit has alternatively described two suits as parallel when substantially the same parties are contemporaneously litigating substantially the same issue in another forum, ' or when the two proceedings are essentially the same; that is, there is an identity of parties, and the issues and relief sought are the same.'" Uni-World Capital L.P v. Preferred Fragrance, Inc., No. 13-cv-7204 (PAE), 2014 WL 888372, at *3 (S.D.N.Y. Mar. 6, 2014) (quoting Dittmer, 146 F.3d at 117-18; and Nat'l Union Fire Ins. Co. v. Karp, 108 F.3d 17, 22 (2d Cir. 1997)) (citations and internal quotation marks omitted). If a parallel proceeding exists, a court then applies six factors to determine whether abstention is appropriate:

(1) assumption of jurisdiction over a res; (2) inconvenience of the forum;
(3) avoidance of piecemeal litigation; (4) order in which the ...

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