United States District Court, E.D. New York
FLORENCIO ALCANTARA-FLORES, EDIE ARGENTO BARRERA, ISAIAS HERNANDEZ ZAPATA, and BENJAMIN JIMENEZ, individually and on behalf of all others similarly situated, Plaintiffs,
VLAD RESTORATION LTD and VLAD TOMCZAK, an individual, Defendants.
MEMORANDUM AND ORDER
M. LEVY United States Magistrate Judge
Florencio Alcantara-Flores, Edie Argento Barrera, Isaias
Hernandez Zapata, and Benjamin Jimenez
("plaintiffs") move for conditional certification.
Defendants Vlad Restoration Ltd. and Vlad Tomczak
("defendants") oppose the motion. Upon review of
the parties' submissions, plaintiffs' motion for
conditional certification is granted.
Plaintiffs commenced this action in
July 2016, asserting, inter alia, claims for unpaid
overtime wages under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201, et seq.,
and the New York Labor Law ("NYLL"). (See
Collective Action Complaint, dated July 5, 2016, Dkt. No. 1;
Amended Collective Action Complaint, dated Sept. 21, 2016,
Dkt. No. 14.) Plaintiffs now seek an order conditionally
certifying this case as a collective action pursuant to 29
U.S.C. § 216(b) on behalf of a purported class of
employees who shared comparable work duties and were not
adequately compensated by defendants for overtime work.
(See Memorandum of Law in Support of Plaintiffs'
Motion to Conditionally Certify as a Collective Action, dated
Oct. 27, 2016 (“Pls.' Mem.”), Dkt. No. 16, at
2-3.) Plaintiffs additionally request that the court
authorize notice to potential opt-in plaintiffs.
(Id. at 9-10.) Defendants object on the ground that
twenty-one potential collective action members, or
approximately two-thirds of defendants' employees, have
executed release agreements waiving any claims in this
lawsuit. (See Defendants' Memorandum of Law in
Opposition to Plaintiffs' Motion to Conditionally Certify
as a Collective Action, dated Nov. 15, 2016
(“Defs.' Mem.”), Dkt. No. 18-5, at 2-3, Ex.
the FLSA, an individual may file suit against an employer on
behalf of himself and “other employees similarly
situated” who give “consent in writing” to
become party plaintiffs. 29 U.S.C. § 216(b). The process
of seeking certification of an FLSA collective action
consists of two stages. Jeong Woo Kim v. 511 E. 5th
Street, LLC, 985 F.Supp.2d 439, 445 (S.D.N.Y. 2013);
see 29 U.S.C. § 216(b). At the first stage, the
“court makes ‘an initial determination to send
notice to potential opt-in plaintiffs who may be
“similarly situated” to the named plaintiffs with
respect to whether a FLSA violation has occurred.'”
Garcia v. Chipotle Mexican Grill, Inc., No. 16 CV
601, 2016 WL 6561302, at *3 (S.D.N.Y. Nov. 4, 2016) (quoting
Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir.
2010)). “At the second stage, the district court will,
on a fuller record, determine whether a so-called
‘collective action' may go forward by determining
whether the plaintiffs who have opted in are in fact
‘similarly situated' to the named
plaintiffs.” Agerbrink v. Model Services LLC,
No. 14 CV 7841, 2016 WL 406385, at *1 (S.D.N.Y. Feb. 2, 2016)
(quoting Myers, 624 F.3d at 555). At that point, the
district court typically looks to the “(1) disparate
factual and employment settings of the individual plaintiffs;
(2) defenses available to defendants which appear to be
individual to each plaintiff; and (3) fairness and procedural
considerations counseling for or against [collective action
treatment].” Zivali v. AT&T Mobility, LLC,
784 F.Supp.2d 456, 460 (S.D.N.Y. 2011) (alteration in
original) (quoting Laroque v. Domino's Pizza,
LLC, 557 F.Supp.2d 346, 352 (E.D.N.Y. 2008)).
standard at the first stage is not a stringent one-all that
is required is a “‘modest factual showing'
based on the ‘pleadings and affidavits' that the
putative class members were ‘victims of a common policy
or plan that violated the law.'” Fernandez v.
Sharp Mgmt. Corp., No. 16 CV 551, 2016 WL 5940918, at *2
(S.D.N.Y. Oct. 13, 2016) (quoting Cardenas v. AAA
Carting, 12 CV 7178, 2013 WL 4038593, at *1 (S.D.N.Y.
Aug. 9, 2013)); see also Mentor v. Imperial Parking Sys.,
Inc., 246 F.R.D. 178, 181 (S.D.N.Y. 2007)
(“Because minimal evidence is available” at this
early stage of the proceedings, and because the court
“retain[s] the ability to reevaluate whether the
plaintiffs are similarly situated, ” plaintiff faces a
“relatively lenient evidentiary standard.”). To
meet this burden, the plaintiff's own declaration or the
declarations of other potential class members are sufficient.
Trinidad v. Pret a Manger (USA) Ltd., 962 F.Supp.2d
545, 557-58 (S.D.N.Y. 2013). Courts have granted motions for
conditional certification where only one plaintiff submitted
a declaration. See, e.g., Khamsiri v. George
& Frank's Japanese Noodle Rest. Inc., No. 12 CV
265, 2012 WL 1981507, at *1 (S.D.N.Y. June 1, 2012). The
decision whether to grant a motion for conditional
certification of an FLSA collective action lies within the
court's discretion. Auffray v. FXFL, LLC, No. 15
CV 9379, 2016 WL 6810863, at *2 (S.D.N.Y. Nov. 16, 2016).
two plaintiffs have submitted affidavits stating that
defendants failed to pay them overtime premium wages for
hours worked in excess of forty per work-week; furthermore,
the plaintiffs assert that they have personal knowledge of
other employees-not named in the lawsuit-who were subject to
the same unlawful practices. (See Affidavit of
Florencio Alcantara-Flores, sworn to Oct. 26, 2016, Dkt. No.
16-1; Affidavit of Edie Barrera, sworn to Oct. 26, 2016, Dkt.
No. 16-1.) This is an adequate showing. Therefore,
plaintiffs' motion to conditionally certify an FLSA
collective action is granted.
29 U.S.C. § 216(b) does not expressly provide for notice
to potential opt-in plaintiffs, it is well settled that a
court may authorize such notice. Cohen v. Gerson Lehrman
Grp., Inc., 686 F.Supp.2d 317, 331 (S.D.N.Y. 2010);
see also Myers, 624 F.3d at 554-55 (district courts
have “‘discretion, in appropriate cases, to
implement [§ 216(b)] . . . by facilitating notice to
potential plaintiffs of the pendency of the action and of
their opportunity to opt-in as represented
plaintiffs.'” (quoting Hoffman-La Roche Inc. v.
Sperling, 493 U.S. 165, 169 (1989) (alteration in
original)). “‘When exercising [their] broad
discretion to craft appropriate notices . . ., District
Courts consider the overarching policies of the collective
suit provisions' and ensure that putative plaintiffs
receive ‘accurate and timely notice concerning the
pendency of the collective action, so that they can make
informed decisions about whether to participate.'”
Bittencourt v. Ferrara Bakery & Cafe Inc., 310
F.R.D. 106, 116 (S.D.N.Y. 2015) (quoting Fasanelli v.
Heartland Brewery, Inc., 516 F.Supp.2d 317, 323
(S.D.N.Y. 2007)). Notice prevents the “erosion of
claims due to the running statute of limitations” and
promotes “judicial economy.” Hernandez v.
Bare Burger Dio Inc., No. 12 CV 7794, 2013 WL 3199292,
at *5 (S.D.N.Y. June 25, 2013) (citing Khamsiri,
2012 WL 1981507, at *1).
here have provided a proposed notice as well as a consent
form. (See Notice of Pending Collective Action
Lawsuit with the Opportunity to Join (“Notice”),
Consent to Sue (To Have Federal Claims Heard in this Case),
Dkt. No. 16-2.) Notice to potential opt-in plaintiffs is
appropriate here. Defendants are directed to produce the
names, job titles, periods of employment, last known
addresses, and last known telephone numbers of prospective
plaintiffs for the three years prior to the date the
complaint was filed. Defendants shall also post the notice in
a conspicuous non-public location in their place of business.
See, e.g., Sanchez v. Salsa Con Fuego,
Inc., No.16 CV 473, 2016 WL 4533574, at *7 (S.D.N.Y.
Aug. 24, 2016).
plaintiffs ask the court to toll the statute of limitations
for all potential opt-in plaintiffs until each plaintiff
files written consent to join the lawsuit. (Pls.' Mem. at
13-14.) Equitable tolling is appropriate “only in rare
and exceptional circumstances, where a plaintiff has been
prevented in some extraordinary way from exercising his
rights.” Vasto v. Credico (USA) LLC, No. 15 CV
9298, 2016 WL 2658172, at *16 (S.D.N.Y. May 5, 2016)
(citations and internal quotation marks omitted). Plaintiffs
have not presented any such “rare and exceptional
circumstances” here. Accordingly, plaintiffs'
request is denied at this time.
foregoing reasons, plaintiffs' motion for conditional
certification is granted. Defendants are directed to produce,
by February 24, 2017, the names, job titles, periods of
employment, last known addresses, and last known telephone
numbers of all ...