United States District Court, S.D. New York
July 6, 2015
DAVID ROSAS, JUAN PEREZ, IGNACIO TORRES, JOSE R. MALDONADO, ISABEL TORIBIO SOLIS, DAVID RIVERS-SOLIS, RAMIRO SALGADO-LANDA, ALFREDO ARELLANO-RODRIGUEZ, MARGARITO SALAS-FLORES, and MIGUEL A. RIVERA, on behalf of themselves and others similarly situated, Plaintiffs,
ALICE'S TEA CUP, LLC, ATC II LLC, and ATCIII, LLC, and/or any other business entity doing business as " ALICE'S TEA CUP," located at 102 West 73rd Street, New York, New York, and 156 East 64th Street, New York, New York, and 220 East 81st Street, New York, New York, and ZHARIFF MELGOZA, and HALEY FOX, individually, Defendants
[Copyrighted Material Omitted]
David Rosas, on behalf of themselves and others similarly
situated, Juan Perez, on behalf of themselves and others
similarly situated, Ignacio Torres, on behalf of themselves
and others similarly situated, Jose R. Maldonado, on behalf
of themselves and others similarly situated, Isabel Toribio
Solis, on behalf of themselves and others similarly situated,
David Rivera-Solis, on behalf of themselves and others
similarly situated, Ramiro Salgado-Landa, on behalf of
themselves and others similarly situated, Alfredo
Arellano-Rodriguez, on behalf of themselves and others
similarly situated, Margarito Salas-Flores, on behalf of
themselves and others similarly situated, Teofilo Toribio
Solis, Plaintiffs: Peter Hans Cooper, LEAD ATTORNEY, Cilenti
& Cooper, P.L.L.C., New York, NY.
Alice's Tea Cup, LLC, ATC II LLC, ATC III, LLC, located
at 102 West 73rd Street, New York, New York, and 156 East
64th Street, New York, New York, and 220 East 81st Street,
New York, New York, doing business as " Alices's Tea
Cup" , Zhariff Melgoza, Haley Fox, individually,
Defendants: Howard Matalon, LEAD ATTORNEY, Oleg Rabinovich,
Esq, Staten Island, NY; Christian John Jensen, Olender
Feldman LLP, Summit, NJ.
MEMORANDUM AND ORDER
C. FRANCIS IV, UNITED STATES MAGISTRATE JUDGE.
plaintiffs, current and former employees of Alice's Tea
Cup, LLC, ATC II LLC, and ATCIII, LLC (all restaurants doing
business under the name " Alice's Tea Cup" )
bring this action against the three associated entities
alleging violations of the Fair Labor Standards Act (the
" FLSA" ), 29 U.S.C. § § 201, et seq.,
and the New York Labor Law (the " NYLL" ), N.Y.
Lab. Law § § 190, et seq. The parties have
consented to my jurisdiction for all purposes pursuant to 28
U.S.C. § 636(c). In response to discovery requests from
the defendants, the plaintiffs filed a motion for a
protective order. The plaintiffs also seek leave to amend the
complaint. For the following reasons, both applications are
plaintiffs allege that during the course of their employment,
the defendants failed to pay them overtime compensation and a
" spread of hours" premium for days when the
plaintiffs worked more than ten hours. (Complaint ("
Compl." ), ¶ ¶ 2, 4). The Complaint asserts
claims against the three corporate defendants as well as
Zhariff Melgoza and Haley Fox, who " own the stock of
Alice's Tea Cup, own Alice's Tea Cup, and manage
and make all business decisions," including decisions
related to employee hours and salaries. (Compl., ¶
¶ 110, 111).
discovery requests dated May 11, 2015, the defendants demand
that the plaintiffs produce documents verifying their
immigration status, work authorization documents, federal and
state income tax returns, and documents " sufficient to
identify the current employer" for each plaintiff.
(Defendants' First Request for Documents (" Def.
Doc. Req." ), attached as Exh. A to Declaration of Peter
H. Cooper dated May 15, 2015 (" Cooper Decl." ),
Request nos. 12-15, 33). The defendants also request
admissions related to the plaintiffs' immigration status
and authorization to work. (Defendants' First Request for
Admissions to Plaintiffs (" Def. RFA" ), attached
as Exh. B to Cooper Decl., Request nos. 1-15, 20). They ask
the plaintiffs to admit that they " supplied false or
fictitious [S]ocial [S]ecurity numbers" to the
during the course of their employment and that " none of
the [S]ocial [S]ecurity numbers [the p]laintiffs provided . .
. were actually issued to [them] by the United States Social
Security Administration." (Def. RFA, Request nos. 11,
15, 2015, the plaintiffs filed the instant motion for a
protective order and for leave to amend the complaint. I will
address these two issues separately.
Motion for a Protective Order
plaintiffs seek an order " [p]rotecting plaintiffs from
any discovery demand that involves plaintiffs'
immigration status or citizenship at the present or any point
in time," barring the discovery of the plaintiffs'
federal or state income tax returns, and protecting the
plaintiffs from having to disclose their current employer.
(Notice of Motion at 1; Memorandum of Law in Support of
Plaintiffs' Motion for a Protective Order and Leave to
Amend the Complaint (" Pl. Memo." ) at 2; Reply
Memorandum of Law in Further Support of Plaintiffs'
Motion for a Protective Order and Leave to Amend the
Complaint (" Pl. Reply" ) at 6-7). Specifically,
the plaintiffs seek a protective order as to the
Defendants' First Request for Documents, paragraphs 12-15
and 33, and the Defendants' First Request for Admissions,
paragraphs 1-15 and 20. (Pl. Memo. at 2). The plaintiffs
contend that their immigration statuses, tax returns, and
current employers are irrelevant to the current proceedings.
(Pl. Memo. at 3-4, 6). The defendants oppose the
plaintiffs' motion, alleging that the information sought
is relevant to the plaintiffs' ability to recover under
the FLSA and the NYLL as well as their credibility, and would
explain the absence of some payroll records. (Memorandum of
Law of Defendants in Opposition to Plaintiffs' Motion for
a Protective Order and Leave to Amend the Complaint ("
Def. Memo." ) at 12-15).
Federal Rules of Civil Procedure allow " discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense." Fed.R.Civ.P. 26(b)(1).
" Evidence is relevant if: (a) it has any tendency to
make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in
determining the action." Fed.R.Evid. 401.
that is irrelevant or may result in undue prejudice is
outside the scope of discovery. A court may issue a
protective order for good cause in order to " protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense." Fed.R.Civ.P. 26(c); see
Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60
L.Ed.2d 115 (1979) (" [T]he district courts should not
neglect their power to restrict discovery where justice
requires [protection for] a party or person from annoyance,
embarrassment, oppression, or undue burden or expense."
(alteration in original)); In re Cooper Tire & Rubber
Co., 568 F.3d 1180, 1188-89 (10th Cir. 2009) (noting
that Rule 26(c)'s " good-cause standard is intended
to be flexible" ).
evidence sought is relevant, " the burden is upon the
party seeking non-disclosure or a protective order to show
good cause." Penthouse International, Ltd. v.
Playboy Enterprises, 663 F.2d 371, 391 (2d Cir. 1981).
Good cause is established by " demonstrating a
particular need for protection." Cipollone v.
Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986);
see In re Terrorist Attacks on Sept. 11, 2001, 454
F.Supp.2d 220, 222 (S.D.N.Y. 2006) (" Ordinarily, good
cause [for a protective order] exists when a party shows that
disclosure will result in a clearly defined, specific and
serious injury." ); Koster v. Chase Manhattan
Bank, 93 F.R.D. 471, 480 (S.D.N.Y. 1982). Moreover,
" the appropriateness
of protective relief from discovery depends upon a balancing
of the litigation needs of the discovering party and any
countervailing protectible interests of the party from whom
discovery is sought." Apex Oil Co. v. DiMauro,
110 F.R.D. 490, 496 (S.D.N.Y. 1985); accord Duling v.
Gristede's Operating Corp., 266 F.R.D. 66, 71-72
Recoverability of Backwages by Undocumented Workers Under the
FLSA and the NYLL
defendants contend that if the plaintiffs submitted invalid
employment authorization documents, their " claims for
wages under New York Labor Law are barred as a matter of
law," and that evidence regarding their immigration
status and work authorization is therefore relevant. (Def.
Memo. at 12). In support of their position, the defendants
cite Hoffman Plastic Compounds v. National Labor
Relations Board, 535 U.S. 137, 148-49, 122 S.Ct. 1275,
152 L.Ed.2d 271 (2002), in which the Supreme Court disallowed
an undocumented immigrant from recovering backpay on a
wrongful termination claim under the National Labor Relations
Act (the " NLRA" ) because such a result would
" run counter to policies underlying [the Immigration
Reform and Control Act (the " IRCA" ), 8 U.S.C.A.
federal courts have made " clear that the protections of
the FLSA are available to citizens and undocumented workers
alike." Flores v. Albertsons, Inc., CV
01-00515, 2002 WL 1163623, at *5 (C.D. Cal. April 9, 2002);
see also Colon v. Major Perry Street Corp., 987
F.Supp.2d 451, 459 (S.D.N.Y. 2013) (" FLSA's
mandatory language leaves no discretion for courts to alter
the statute's remedial scheme based on an employee's
immigration status." ); Contreras v. Corinthian
Vigor Insurance Brokerage, Inc., 25 F.Supp.2d 1053, 1056
(N.D. Cal. 1998). Therefore, in the context of wage and hour
violations under both the FLSA and the NYLL, immigration
status has generally been protected from discovery. See
Colon, 987 F.Supp.2d at 464-65 (finding immigration
status irrelevant to both FLSA and NYLL claims); Francois
v. Mazer, No. 09 Civ. 3275, 2012 WL 1506054, at *1
(S.D.N.Y. April 24, 2012) (" This Court finds that
evidence of immigration status is irrelevant and therefore
not admissible regarding any issue with respect to any [FLSA
or] New York state law claim." ); Flores v.
Amigon, 233 F.Supp.2d 462, 464-65 (E.D.N.Y. 2002);
Liu v. Donna Karan International, Inc., 207
F.Supp.2d 191, 192 (S.D.N.Y. 2002) (" [C]ourts
addressing the issue of whether defendants should be allowed
to discover plaintiff-workers' immigration status in
cases seeking unpaid wages brought under the FLSA have found
such information to be undiscoverable." ).
courts distinguish between " undocumented workers
seeking backpay for wages actually earned," as in FLSA
wage and hour violations, and " those seeking backpay
for work not performed," as in a termination in
violation of the NLRA. Flores, 233 F.Supp.2d at 463. This is
because denying undocumented workers the protection of the
FLSA would " permit abusive exploitation of
workers" and " create an unacceptable economic
incentive to hire undocumented workers by permitting
employers to underpay them," in violation of the spirit
of the IRCA. Id. at 463-64 (quoting Contreras, 25
F.Supp.2d at 1056). This distinction was clear before Hoffman
and has been reiterated since. See Colon, 987
F.Supp.2d at 453 (noting that " courts have consistently
and overwhelmingly distinguished NLRA precedents from FLSA
this reason, the defendants' contentions regarding the
claims fail. In arguing that a worker who violates the IRCA
is barred from recovery, the defendants rely only on cases in
which plaintiffs sought backpay for work not performed. (Def.
Memo. at 9-12); see Madeira v. Affordable Housing
Foundation, Inc., 469 F.3d 219, 222-23 (2d Cir. 2006)
(holding that employee was not barred from recovering lost
future wages due to work site personal injury under NYLL
where employer knowingly employed undocumented workers);
Ambrosi v. 1085 Park Avenue LLC, No. 06 Civ. 8163,
2008 WL 4386751, at *13 (S.D.N.Y. Sept. 25, 2008) (holding
that employee who submitted false documentation in violation
of IRCA could not recover lost future wages in personal
injury action under NYLL); Balbuena v. IDR Realty
LLC, 6 N.Y.3d 338, 363, 845 N.E.2d 1246, 812 N.Y.S.2d
416, 430 (2006) (holding that employee could recover lost
future wages in personal injury action in absence of proof of
IRCA violation). These cases are inapplicable where a
plaintiff seeks backpay under the NYLL for work actually
performed. See Akin v. Anjon of Greenlawn, Inc., 35
F.Supp.3d 239, 241-42 (E.D.N.Y. 2014) (holding that Hoffman
and its progeny do not bar recovery of backpay for work
actually performed under NYLL or FLSA); Colon, 987
F.Supp.2d at 464-65 (finding plaintiffs' immigration
status irrelevant to both FLSA and NYLL wage and hour claims
and therefore denying discovery request).
the plaintiffs here seek payment under the FLSA and the NYLL
only for work already performed (Pl. Reply at 5), the IRCA
has no bearing on their ability to recover backpay.
Relevance of Immigration Status to Absence of Payroll
defendants also assert that information regarding the
plaintiffs' immigration status is relevant and
discoverable because it will " explain why [the
plaintiffs] were satisfied with the manner in which [the
d]efendants initially documented their wages, through the use
of cash sheets, and only took action after [the d]efendants
sought to move them to payroll." (Def. Memo. at 13). In
making this argument, the defendants rely solely on
Campos v. Lemay, No. 05 Civ. 2089, 2007 WL 1344344
(S.D.N.Y. May 7, 2007). (Def. Memo. at 14-15). In that case,
the court ruled that a plaintiff's immigration status was
discoverable notwithstanding " the in terrorem effect of
inquiring into a party's immigration status" because
it explained why the plaintiff's wages had been paid in
cash and had not been recorded, thereby undercutting the
credibility of the plaintiff's claims of underpayment.
Id. at *7-8. The Campos holding is not only "
inconsistent with the overwhelming weight of authority,"
Marquez v. Erenler, Inc., No. 12 Civ. 8580, 2013 WL
5348457, at *1 n.1 (S.D.N.Y. Sept. 20, 2013), but is
inapplicable here; unlike in Campos, 2007 WL 1344344, at *2,
the plaintiffs in this case were not paid exclusively in
cash, and the defendants have maintained payroll records.
(Payroll Journal, attached as Exh. C to Letter of Kurt D.
Olender dated Oct. 17, 2014 (attached as Exh. A to
Declaration Of Howard A. Matalon dated June 23, 2015)).
Relevance of Immigration Status to Credibility
the defendants claim that evidence regarding immigration
status is relevant to the plaintiffs' credibility.
However, " [w]hile it is true that credibility is always
at issue, that 'does not by itself warrant unlimited
inquiry into the subject of immigration status when such
examination would impose an undue burden on private
enforcement of employment discrimination laws.'"
Rengifo v. Erevos Enterprises, Inc., No. 06 Civ.
4266, 2007 WL 894376, at *3
(S.D.N.Y. March 20, 2007) (quoting Avila-Blum v. Casa de
Cambio Delgado, Inc., 236 F.R.D. 190, 192 (S.D.N.Y.
2006)). Even if evidence regarding immigration status were
relevant, " the risk of injury to the plaintiffs if such
information were disclosed outweighs the need for its
disclosure" because of the danger of intimidation and of
undermining the purposes of the FLSA. Liu, 207
F.Supp.2d at 192-93; see also Flores, 233 F.Supp.2d
at 464-65 (" [T]he potential for prejudice far outweighs
whatever minimal probative value  information [about
plaintiffs' immigration status] would have." );
Fed.R.Evid. 403 (allowing courts to exclude relevant evidence
if its probative value is substantially outweighed by danger
of unfair prejudice). In the instant case, because "
[d]iscovery into a FLSA plaintiff's immigration status is
irrelevant and impermissible," Colon, 987
F.Supp.2d at 464, the plaintiffs' application for a
protective order is granted, and the defendants are precluded
from seeking evidence regarding the plaintiffs'
immigration status and work authorization.
defendants also seek discovery of the plaintiffs' federal
and state income tax returns. (Def. Doc. Req., Request nos.
14, 15; Def. RFA, Request nos. 14, 15). Income tax returns
are not inherently privileged. However, " courts are
typically reluctant to compel their disclosure because of
both the private nature of the sensitive information
contained therein and the public interest in encouraging the
filing by taxpayers of complete and accurate returns."
Uto v. Job Site Services Inc., 269 F.R.D. 209, 212
(E.D.N.Y. 2010). In order for a court to compel discovery of
income tax returns, a two-pronged test must be met: "
first, the court must find that the returns are relevant to
the subject matter of the action; and second, that there is a
compelling need for the returns because the information
contained therein is not otherwise readily obtainable."
Securities and Exchange Commission v. Cymaticolor
Corp., 106 F.R.D. 545, 547 (S.D.N.Y. 1985); accord
Rengifo, 2007 WL 894376, at *2. Modern courts tend to place
the burden on the " party seeking discovery to
demonstrate both relevancy and a compelling need." Uto,
269 F.R.D. at 212; see, e.g., Ellis v. City of New
York, 243 F.R.D. 109, 111-12 (S.D.N.Y. 2007).
the defendants have failed to demonstrate either relevance or
a compelling need. While the defendants contend that "
the returns will further corroborate [the] [d]efendants'
position that [the plaintiffs] were paid the amount of
compensation required by state and [f]ederal law" (Def.
Memo. at 16), " the corporate defendants possess
relevant data on hours and compensation, and there is no
reason to assume that [the] defendants' records are less
reliable than any records maintained by [the
plaintiffs]." Rengifo, 2007 WL 894376, at *2.
Indeed, the plaintiffs' tax returns would only include
total income and not details that would be relevant in an
FLSA and NYLL suit, such as weekly wages and specific hours
worked. Rather, " tax information from plaintiffs would
serve no obvious purpose other than intimidation."
Marquez, 2013 WL 5348457, at *2. The plaintiffs'
income tax returns need not be disclosed.
Identity of Current Employers
the defendants request that the plaintiffs identify their
current employers and admit that they are being paid in cash.
(Def. Doc. Req., Request no. 33; Def. RFA, Request no. 20).
Generally, information from or about plaintiffs' current
employers is irrelevant in determining whether the
defendant-employers violated wage and hour laws. See
Campos v. Zopounidis, No. 3:09 CV 1138, 2011 WL
4852491, at *3 (D. Conn. Oct. 13, 2011) (holding all
testimony of plaintiff's current
employers " inadmissible because it is wholly irrelevant
to issue of whether or not Plaintiff received adequate
compensation from the Defendants" ); Wagner v.
Viacost.com, No. 06 81113 CIV, 2007 WL 1879914, at *1-2
(S.D. Fla. June 29, 2007) (holding that documents from
plaintiff's current employer " are not relevant to
the defense of this [FLSA] lawsuit" ); Barrington v.
Mortage IT, Inc., No. 07 61304 CIV, 2007 WL 4370647, at
*4 (S.D. Fla. Dec. 10, 2007) (" The Court finds that the
records of Plaintiffs' former employers do not appear
relevant to the claims or defenses herein -- whether
Plaintiffs worked for Defendant more than 40 hours a week
without receiving overtime compensation and whether Defendant
properly classified Plaintiffs' positions as exempt from
the FLSA overtime provisions." ).
the defendants argue that the identity of the plaintiffs'
current employers is relevant because the plaintiffs were
" content being paid in cash because of their
undocumented status." (Def. Memo. at 16). The defendants
seek to prove that the plaintiffs " are continuing to be
paid on a cash basis . . . precisely because they want to . .
. avoid scrutiny." (Def. Memo. at 16). But whatever the
plaintiffs' arrangement with their current employers
might be, it says nothing about the hours that the plaintiffs
worked for the defendants or what they were paid. Thus, the
defendants have " failed to offer any valid argument in
support of [their] position that the requested documents are
necessary for the defense of this case." Wagner, 2007 WL
1879914, at *2. Accordingly, the plaintiff's application
for a protective order for the identity of their current
employers is granted.
Motion for Leave to Amend Complaint
plaintiffs also seek leave to amend the complaint to add an
additional defendant, add an opt-in plaintiff, and remove the
collective and class action allegations. (Notice of Motion at
1; Pl. Memo. at 6; Proposed First Amended Complaint ("
Amend. Compl." ), attached as Exh. C to Cooper Decl.,
¶ ¶ 17, 114-120, 123).
parties are free to amend their pleadings once as a matter of
course within twenty-one days of serving a complaint or
receiving a responsive pleading or motion, Fed.R.Civ.P.
15(a)(1), " [i]n all other cases, a party may amend its
pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave
when justice so requires." Fed.R.Civ.P. 15(a)(2). The
Supreme Court has interpreted this rule liberally, stating:
In the absence of any apparent or declared reason -- such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc. -- the leave sought should, as the rules require, be
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9
L.Ed.2d 222 (1962).
Adding an Employer
plaintiffs seek to add Lauren Fox as a defendant, arguing
that she served as an employer of the plaintiffs. (Amend.
Compl., ¶ ¶ 17, 123). Motions to amend are
generally governed by Rule 15(a) of the Federal Rules of
Civil Procedure. However, Rule 21 of the Federal Rules of
Civil Procedure controls if the proposed amendment adds new
parties. Bridgeport Music, Inc. v. UMG Recordings,
Inc., 248 F.R.D. 408, 2008 WL 113672, at *2 (S.D.N.Y.
2008). Rule 21 states that a party may be added
to an action " at any time, on just terms." In
deciding whether to permit joinder, courts apply the "
same standard of liberality afforded to motions to amend
pleadings under Rule 15." Soler v. G & U, Inc.,
86 F.R.D. 524, 528 (S.D.N.Y. 1980); accord Smith v. P.O.
Canine Dog Chas, No. 02 Civ. 6240, 2004 WL 2202564, at
*12 n.11 (S.D.N.Y. Sept. 28, 2004); Momentum Luggage and
Leisure Bags v. Jansport, Inc., No. 00 Civ. 7909, 2001
WL 58000, at *1 (S.D.N.Y. Jan. 23, 2001); Clarke v. Fonix
Corp., No. 98 Civ. 6116, 1999 WL 105031, at *6 (S.D.N.Y.
March 1, 1999)).
FLSA defines " employer" as " any person
acting directly or indirectly in the interest of an employer
in relation to an employee." 29 U.S.C. § 203(d).
" [C]ontinuous monitoring of employees, looking over
their shoulders at all times, or any sort of absolute
control" is not required, and " [c]ontrol may be
restricted, or exercised only occasionally, without removing
the employment relationship from the protections of the
FLSA." Herman v. RSR Security Services Ltd.,
172 F.3d 132, 139 (2d Cir. 1999).
someone is an employer is analyzed using an " economic
reality test," which requires consideration of four
factors: " whether the alleged employer (1) had the
power to hire and fire the employees, (2) supervised and
controlled employee work schedules or conditions of
employment, (3) determined the rate and method of payment,
and (4) maintained employment records." Id.
(citing Carter v. Dutchess Community College, 735
F.2d 8, 12 (2d Cir. 1984)). " No one of the four factors
standing alone is dispositive" and " the
overarching concern is whether the alleged employer possessed
the power to control the workers in question with an eye to
the 'economic reality' presented by the facts of each
case." Id. (internal citation omitted); see
also Irizarry v. Catsimatidis, 722 F.3d 99, 103-05
(2d Cir. 2013), cert. denied, 134 S.Ct. 1516, 188 L.Ed.2d 450
(2014); Moon v. Kwon, 248 F.Supp.2d 201, 236-37
(S.D.N.Y. 2002). Individuals may therefore be deemed "
employers" whether or not they have an ownership
interest in the employing corporation as long as they have
" operational control" over the enterprise. See
Herman, 172 F.3d at 140 (finding that non-controlling
shareholder qualified as employer under FLSA); Ling Nan
Zheng v. Liberty Apparel Co., 556 F.Supp.2d 284, 299
(S.D.N.Y. 2008) (same); Ansoumana v. Gristede's
Operating Corp., 255 F.Supp.2d 184, 192-93 (S.D.N.Y.
2003). While the New York Court of Appeals has not determined
whether the employer test is the same under the NYLL and
FLSA, Irizarry, 722 F.3d at 117, " [d]istrict
courts in this Circuit have interpreted the definition of
employer under the [NYLL] coextensively with the definition
used by the FLSA," Sethi v. Narod, 974
F.Supp.2d 162, 188 (E.D.N.Y. 2013).
plaintiffs here have made factual allegations that may meet
the elements of the economic reality test, because they
allege that Ms. Fox " supervised and controlled
plaintiffs' work,  controlled their compensation"
(Pl. Memo. at 6), and was " present on a daily
basis" (Pl. Rep. Memo. at 8). The plaintiffs may uncover
evidence during discovery to support these allegations. While
the defendants argue that Ms. Fox " was not involved in
any of the Company's daily operations, particularly
employment decisions" (Def. Memo. at 19), this is an
issue for the factfinder to resolve. In the instant case, the
plaintiffs have made sufficient factual allegations for
Lauren Fox to be added as an additional employer in the
" Opt-in" Plaintiff
plaintiffs also seek to add Teofilio Toribio as an opt-in
plaintiff. (Pl. Memo.
at 6). The Federal Rules of Civil Procedure allows a
plaintiff to join a lawsuit if: " (a) they assert any
right to relief jointly, severally, or in the alternative
with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and (b)
any question of law or fact common to all plaintiffs will
arise in the action." Fed.R.Civ.P. 20(a)(1). The FLSA
requires plaintiffs to submit a consent to join in writing in
order to become a party to the case. See FLSA, 29
U.S.C. § 216(b) (" No employee shall be a party
plaintiff to any such action unless he gives his consent in
writing to become such a party and such consent is filed in
the court in which such action is brought." ). In the
instant case, the plaintiffs allege that Mr. Toribio is
asserting a right arising out of the same transaction or
occurrence as the existing claims and there is a common
question of law or fact. Mr. Toribio has filed a consent to
join (Pl. Memo. at 6 n.1), and the defendants do not oppose.
Therefore, Mr. Toribio may be joined as a plaintiff to the
Collective and Class Action Allegations
plaintiffs finally seek to remove the collective and class
action allegations. (Pl. Memo. at 6). This issue is not
contested by the defendants. The plaintiffs are granted leave
to remove the collective and class action allegations.
plaintiffs' motion (Docket no. 21), is granted. The
plaintiffs' application for a protective order is granted
to the extent that the defendants may not seek discovery of
the plaintiffs' immigration status, tax returns, or
current employers. The plaintiffs are also granted leave to
amend the complaint to add Lauren Fox as a defendant, add
Teofilio Toribio as a plaintiff, and remove the collective
and class action allegations.