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Moreira v. Sherwood Landscaping Inc.

United States District Court, E.D. New York

September 16, 2014

CESAR MOREIRA, MARTIN CISNEROS, FREDIS GOMEZ, LUIS M. RAMIREZ, and ROBERTO CONTRERAS, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SHERWOOD LANDSCAPING INC., MAIN STREET NURSERY, and ROBERT MCKEAN, in his individual capacity, Defendants.

Delvis Melendez, Esq., Brentwood, NY, for Plaintiffs.

Elizabeth R. Gorman, Esq., Kerri Monyak Hoffman, Esq., Milber Makris Plousadis & Seiden, LLP, Woodbury, NY, Defendants.

MEMORANDUM & ORDER

JOANNA SEYBERT, District Judge.

Plaintiffs Cesar Moreira, Martin Cisneros, Fredis Gomez, Luis M. Ramirez, and Roberto Contreras (collectively, "Plaintiffs") commenced this action on May 1, 2013 against defendants Sherwood Landscaping Inc., Main Street Nursery, and Robert McKean (collectively, "Defendants"), seeking unpaid overtime wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law ("NYLL") § 190 et seq. Currently pending before the Court are: (1) Defendants' motion to dismiss the Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (Docket Entry 24); and (2) Plaintiffs' motion for leave to file a second amended complaint (Docket Entry 51). For the following reasons, Defendants' motion to dismiss is DENIED and Plaintiffs' motion to amend is GRANTED.

BACKGROUND

Plaintiffs are a group of landscaping workers who worked for Defendants' commercial landscaping business. Plaintiffs originally commenced this action as a putative collective and class action seeking unpaid overtime wages under the FLSA and the NYLL. On July 1, 2013, Plaintiffs filed a premotion conference letter seeking permission to move for conditional certification of their FLSA claims as a collective action pursuant to 29 U.S.C. § 216(b). (Docket Entry 9.) On July 15, 2013, at an initial conference, Magistrate Judge Tomlinson advised Plaintiffs' counsel that the Court does not require pre-motion conferences. (See Initial Conference Minute Order ("Minute Order"), Docket Entry 13, at 1.) However, in an effort to avoid extensive motion practice, Judge Tomlinson ordered the parties to meet and confer by July 26, 2013 to determine whether Defendants could consent to certification of this case as a collective action. (See Minute Order at 1.) Judge Tomlinson further set a briefing schedule for Plaintiffs' proposed motion (in the event that Defendants were unable to consent to certification), which required Plaintiffs to file their certification motion by August 19, 2013. (See Minute Order at 2.)

On July 24, 2013, Defendants made offers of judgment to Plaintiffs pursuant to Federal Rule of Civil Procedure 68. (See Gorman Aff., Docket Entry 24-1, Exs. J-N.) Plaintiffs did not accept the offers. On July 26, 2013, two days after serving the offers of judgment, Defendants advised Plaintiffs that they would not consent to conditional certification. (See Pls.' Opp. Br. to Mot. to Dismiss, Docket Entry 30, at 8.) Not having consent, Plaintiffs then filed their motion for conditional certification on August 13, 2013, in accordance with Judge Tomlinson's initial conference order. (Docket Entry 18.) On August 15, 2013, the undersigned referred the certification motion to Judge Tomlinson for decision. (Docket Entry 19.)

On August 30, 2013, Defendants moved to dismiss the Amended Complaint, arguing that the Court lacked subject matter jurisdiction because the Rule 68 offers of judgment had rendered the action moot. (Docket Entry 24.) Sometime thereafter, Plaintiffs identified Carlos Chavez as an opt-in plaintiff and, on September 9, 2013, Plaintiffs' counsel filed an opt-in notice on Chavez's behalf. (Docket Entry 29.) Defendants then made a Rule 68 offer of judgment to Chavez, which, as far as the Court can tell, has not been accepted. (See McKean Aff., Docket Entry 34-1, Ex. A.) Plaintiffs thereafter identified two additional plaintiffs who filed opt-in notices on January 10, 2014 and March 31, 2014, respectively. (Docket Entries 48 & 52.) It is not known whether Defendants have made offers of judgment to these plaintiffs.

On March 31, 2014, Judge Tomlinson granted Plaintiffs' motion for conditional certification subject to certain limitations detailed in her order. (Docket Entry 53.) Since that time, Plaintiffs have identified three additional opt-in plaintiffs. (Docket Entries 54, 55, 56.) Again, it is not known whether Defendants made offers of judgment to these plaintiffs. On February 12, 2014, Plaintiffs also moved for leave to amend the Amended Complaint.[1] (Docket Entry 51.)

Defendants' motion to dismiss and Plaintiffs' motions to amend and for class certification are pending before the Court.

DISCUSSION

The Court will first address Defendants' motion to dismiss before turning to Plaintiffs' motion to amend.

I. Motion to Dismiss

A. Legal Standard

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions. See Morrison v. Nat'l Australia Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008). The Court must accept as true the factual allegations contained in the complaint, but it will not draw argumentative inferences in favor of Plaintiffs because subject matter jurisdiction must be shown affirmatively. See id.; Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); Shipping Fin. ...


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