United States District Court, S.D. New York
ATAVIA THOMAS, individually and on behalf of all others similarly situated, Plaintiff,
APPLE-METRO, INC. d/b/a APPLEBEE'S, ZANE TANKEL, and ROY RAEBURN, Defendants.
MEMORANDUM OPINION AND ORDER
VALERIE CAPRONI, District Judge.
Plaintiff, a former hourly employee of Applebee's restaurants located in the Bronx and Manhattan, New York, filed the Complaint in this action on June 6, 2014, asserting putative collective action claims under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), against Defendants, her former employers, for violations of the FLSA's wage-and-hour requirements. Plaintiff brings FLSA claims on behalf of herself and other similarly situated employees of Applebee's restaurants located throughout the five boroughs of New York City, as well as in Westchester and Rockland counties. Plaintiff also, individually, brings claims against Defendants under 29 U.S.C. § 215 and the New York Labor Law ("NYLL") for retaliatory termination.
Defendants have moved to dismiss Plaintiff's collective action claims pursuant to the "first-filed" rule, based on the prior filing of two substantially similar lawsuits, Marin v. Apple Metro, Inc. et al., 12 Civ. 5274 (E.D.N.Y.) (ENV) (CLP) and Dove v. Apple-Metro, Inc., et al., 13 Civ. 1417 (E.D.N.Y.) (ENV) (CLP), which have been pending as related cases before Judge Vitaliano in the U.S. District Court for the Eastern District of New York since October 2012 and March 2013, respectively (the "Eastern District Actions"). In the alternative, Defendants argue that Plaintiff's collective action claims should be stayed pending the resolution of the Eastern District Actions. In opposing the Motion to Dismiss, Plaintiff counters that the first-filed rule either favors this forum or does not apply, and, in the alternative, suggests that this case be transferred to the Eastern District of New York. For the following reasons, Defendants' motion is GRANTED, and Plaintiff's collective actions claims are dismissed.
I. The Eastern District Actions
On October 22, 2012, Carlos Marin filed a putative collective-class action complaint against, among others, Apple-Metro, Inc., Zane Tankel and Roy Raeburn in Marin v. Apple Metro, Inc., et al., 12 Civ. 5274 (E.D.N.Y.) (ENV) (CLP) (the " Marin Action"). Since then, the complaint has been amended twice and the Marin Action has been consolidated with another putative collective-class action, Lebron, et al. v. Apple-Metro, Inc., et al., 13 Civ. 1411 (E.D.N.Y.) (ENV) (CLP). In addition, a third putative collective-class action, seeking substantially the same relief, has been dismissed by Judge Vitaliano as "duplicative" of the Marin action under the first-filed rule. See Mem. & Order, Greenaway v. Apple-Metro Inc., et al., 13 Civ. 2818 (E.D.N.Y. Nov. 19, 2013), ECF No. 23.
In the Marin Action, Plaintiff seeks to recover unpaid minimum wage and overtime pay allegedly due because Defendants allegedly required employees to work off the clock and shaved employees' time. See Benson Decl. Ex. A, 2d Am. Compl. ¶¶ 61, 101, 106, 115, 123-24. Marin's motion for conditional certification was granted on July 29, 2014, with respect to the class of all "non-managerial employees at Apple-Metro's 36 area restaurants, including servers, hosts, cooks, bartenders, expediters, runners, dishwashers, and maintenance workers." See Benson Decl. Ex. B, Order at 17-18. Discovery in the Marin Action is now well-advanced, with certain party depositions having already been taken. See Order, Marin v. Apple Metro, Inc., et al., 12 Civ. 5274 (E.D.N.Y. Mar. 5, 2014), ECF No. 57.
On March 18, 2013, Shaunta Dove filed another putative collective-class action complaint against, among others, Apple-Metro, Inc., Zane Tankel and Roy Raeburn in Dove v. Apple-Metro, Inc., et al., 13 Civ. 1417 (E.D.N.Y.) (ENV) (CLP) (the " Dove Action"). Dove seeks to recover wages allegedly due because Defendants allegedly required servers to declare more tips than they earned, failed to provide employees all of the tips to which they were entitled in the tip share and otherwise failed to pay the minimum wage. Benson Decl. Ex. C, Am. Compl. ¶¶ 62, 93, 95-96, 101-02. Dove's motion for conditional certification was granted together with the same motion in the Marin Action on July 29, 2014, with respect to the class of all "tipped hourly employees - servers, hosts, hostesses, and bartenders." Benson Decl. Ex. B, Order at 22. As in the Marin Action, considerable discovery has already taken place in the Dove Action, including the taking of certain depositions. See Order, Dove v. Apple-Metro, Inc., et al., 13 Civ. 1417 (E.D.N.Y. Mar. 5, 2014), ECF No. 33.
II. The Instant Action
Plaintiff filed her Complaint on June 6, 2014, shortly before conditional certification was granted in the Eastern District Actions. Plaintiff alleges that Defendants failed to pay proper minimum wages and overtime compensation and took unlawful deductions, all in violation of the FLSA. Compl. ¶¶ 6, 8, 20, 79-111. Plaintiff's allegations regarding off-the-clock work and time-shaving are similar to allegations in the Marin Action, and her allegations regarding tipping policies are similar to those in the Dove Action. Plaintiff's Complaint also includes several unique claims, however, including her retaliation claim, her claim regarding required uniforms and other equipment, and her claim that Defendants violated the so-called 20% Rule. Compl. ¶¶ 84, 100. At the same time, Plaintiff's Complaint does not include several of the claims asserted in the Dove and Marin Actions, including minimum wage, overtime, conversion, and other claims specifically brought under the NYLL. Plaintiff's action has yet to be certified as a collective action and to date, only one other person has consented to become a party. See FLSA Consent of Todd Whittington, Thomas v. Apple-Metro Inc., et al., 14. Civ. 4120 (S.D.N.Y. Nov. 21, 2014), ECF No. 23.
The first-filed rule is a well-established Second Circuit doctrine, based on the principle that "where there are two competing lawsuits, the first suit should have priority, absent the showing of balance of convenience or special circumstances giving priority to the second." First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989) (alterations, citations, and internal quotation marks omitted). See also AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 722 (2d Cir. 2010) ("Deference to the first filing embodies considerations of judicial administration and conservation of resources and recognizes that a party who first brings an issue into a court of competent jurisdiction should be free from the vexation of concurrent litigation over the same subject matter.") (citations and internal quotation marks omitted). Pursuant to this rule, "a district court has broad discretion to dismiss a lawsuit that is duplicative of a prior action." See Castillo v. Taco Bell of Am., LLC, 960 F.Supp.2d 401, 404 (E.D.N.Y. 2013) (citation omitted). In the alternative, courts may opt to transfer a case to the first-filed district or stay the second case pending resolution of the first-filed case. See Wyler-Wittenberg v. MetLife Home Loans, Inc., 899 F.Supp.2d 235, 247-250 (E.D.N.Y. 2012).
As a presumption, rather than a rigid rule, the first-filed doctrine "may be rebutted by proof of the desirability of proceeding in the forum of the second-filed action." Berisford Capital Corp. v. Cent. States, Se. & Sw. Areas Pension Fund, 677 F.Supp. 220, 222 (S.D.N.Y. 1988). In particular, the Second Circuit has identified two exceptions to the first-filed rule: "(1) where the balance of convenience favors the second-filed action, and (2) where special circumstances warrant giving priority to the second suit." Employers Ins. of Wausau v. Fox Entm't Grp., Inc., 522 F.3d 271, 275 (2d Cir. 2008) (citations and internal quotation marks omitted). The factors to be considered in the balance of convenience analysis are "essentially the same as those considered in connection with motions to transfer venue pursuant to 28 U.S.C. § 1404(a), " Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 178 F.Supp.2d 459, 465 (S.D.N.Y. 2002), namely: "(1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of the parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative means of the parties." Employers Ins. of Wausau, 522 F.3d at 275 (citations omitted). "Special circumstances, " which the Second Circuit has noted are "quite rare, " include manipulative or deceptive behavior by the first-filing plaintiff ( e.g., when the first lawsuit is an improper anticipatory declaratory judgment action) and instances in which forum shopping alone motivated the choice of forum for the first suit. Id. at 275-76. See also Tate-Small v. Saks Inc., No. 12 CV 1008 (HB), 2012 WL 1957709, at *2 (S.D.N.Y. May 31, 2012).
Plaintiff asserts that the first-filed rule is inapplicable because her case is not identical to the Dove or Marin Actions. See Opp. at 5 ("Apple-Metro has failed to make out their proof under the first-filed' rubric that this case is identical to the two pending cases in the Eastern District.") (emphasis in original). This argument is unavailing, however, because courts in this Circuit frequently apply the first-filed rule to cases that are similar, but not identical. See Castillo, 960 F.Supp.2d at 404 ("The lawsuits need not be identical, but the claims and rights raised in the two actions must not differ substantially.") (citing Wyler-Wittenberg, 899 F.Supp.2d at 244; Byron v. Genovese Drug Stores, Inc., No. 10-CV-03313, 2011 WL 4962499 (JBW), at *3 (E.D.N.Y. Oct. 14, 2011); Oleg Cassini, Inc. v. Serta, Inc., 2012 WL 844284 (PAE), at *3 (S.D.N.Y. March 13, 2012) (for first-filed rule to apply "issues need not be identical, and the named parties need not be entirely the same provided that they represent the same interests")). See also Wyler-Wittenberg, 899 F.Supp.2d at 244-46 (applying first-filed rule to second-filed suit even though opt-in plaintiffs were not the same and ...