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Cazares v. AVA Restaurant Corp.

United States District Court, E.D. New York

March 31, 2017

EMMANUEL CAZARES and ERICK PEREZ, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
AVA RESTAURANT CORP d/b/a BUCCANEER DINER and COSTAS ALEXIOU, Jointly And Severally, Defendants.


          KIYO A. MATSUMOTO, United States District Judge.

         Plaintiffs Emmanuel Cazares (“Cazares”) and Erick Perez (“Perez” collectively with Cazares “Named Plaintiffs” or “plaintiffs”) bring this collective and class action on behalf of themselves and others similarly situated, pursuant to the federal Fair Labor Standards Act of 1983 (“FLSA”) and the New York Labor Law (“NYLL”), alleging that defendants AVA Restaurant Court d/b/a Buccaneer Diner and Costas Alexiou (“defendants”), violated the minimum wage and overtime provisions of both statutes, as well as NYLL's spread-of-hours and wage notice provisions. Presently before the court is plaintiffs' motion to certify plaintiffs' NYLL claims as a Federal Rules of Civil Procedure Rule 23(b)(3) class. For the reasons stated herein the Motion is granted.


         Defendants Costas Alexiou (“Alexiou”) and AVA Restaurant Corp are the owners of Buccaneer Diner, which is located on Astoria Boulevard in Queens County, New York. (Complaint (“Compl.”), ECF No. 1, at ¶¶ 1, 10.) Plaintiffs Cazares and Perez are former employees of the Buccaneer Diner who worked there as servers, bussers, dishwashers and delivery employees.[1] (Id. at ¶¶ 1, 35, 43.) Plaintiffs allege that prior to the filing of this lawsuit, defendants never paid overtime premiums to any of their employees, and paid the vast majority of their employees at rates significantly below the minimum wage. (Id. at ¶¶ 57-58, 61.) Further, defendants never paid any of their employees a spread-of-hours premium for working a shift of more than ten hours, nor did defendants provide their employees with accurate wage notices or wage statements as required under New York law. (Id. at ¶¶ 56, 60-61.)

         On January 20, 2015, plaintiff filed this collective and class action on behalf of themselves and those similarly situated. (Compl., ECF No. 1). Plaintiffs bring eight claims under the FLSA, 29 U.S.C. §§ 201 et seq. and NYLL §§ 650 et seq. (Id. at ¶¶ 2, 69-93.). Counts 1 and 2 allege FLSA collective action claims for, respectively, unpaid minimum wage and unpaid overtime. (Id. at ¶¶ 68-75.) Counts 3 to 7 allege NYLL claims for: failure to pay minimum wage for all hours worked; failure to pay overtime premiums for hours worked in excess of forty per week; failure to pay spread-of-hours premiums for days in which the employees' work lasted ten or more hours; failure to provide accurate wage notices on the date of hire and/or prior to February 1 of each applicable year; failure to provide a wage statement with each payment of wages; and failure to reimburse for the purchase of required uniforms, failure to provide uniform maintenance and deduction for uniform expenses from employee pay.[2] (Id. at ¶¶ 76-93.)

         On July 22, 2015, plaintiffs moved for conditional certification of the collective action under the FLSA. (ECF No. 16.) The motion was unopposed and on September 14, 2015, Magistrate Judge Robert M. Levy conditionally certified the FLSA collective action. (See Minute Entry dated September 14, 2015.) On March 24, 2016, plaintiffs moved for spoliation sanctions against defendants after learning that defendant Alexiou discarded a computer containing Buccaneer Diner's employment records, including the payroll records at issue in this litigation. (ECF No. 40 at 1.) On July 14, 2016, Magistrate Judge Levy found that defendants failed to preserve electronically stored information (“ESI”) in violation of Fed.R.Civ.P. 37(e) and that the ESI cannot be restored or replaced through additional discovery. Judge Levy also found that plaintiffs were prejudiced by the loss of the information. (See Minute Entry dated July 14, 2016.) On July 28 and July 29, 2016, the parties filed their fully briefed class certification papers. (ECF Nos. 55-63.)


         I. Standard of Review

         Rule 23 of the Federal Rules of Civil Procedure governs class certification. In order to proceed as a class action, the proposed class must meet the following Rule 23(a) prerequisites:

(1) [T]he class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a); see also Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 98-99 (2d Cir. 2007). “In addition, while Rule 23(a) does not expressly require that a class be definite in order to be certified, a requirement that there be an identifiable class has been implied by the courts. This implied requirement is often referred to as ‘ascertainability.'” Reyes v. City of Rye, No. 13-CV-9051 (NSR), 2016 WL 4064042, at *2 (S.D.N.Y. Jul. 28, 2016) (quoting In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 209 F.R.D. 323, 336 (S.D.N.Y. 2002)).

         The district court is afforded broad discretion in class certification questions because it is often in the best position to assess the propriety of the class action. Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d Cir.2001). Additionally, the district court has the ability to “alter or modify the class, create subclasses, and decertify the class whenever warranted.” Id. If the Rule 23(a) criteria are satisfied, the proposed class must also qualify under at least one of the categories provided in Rule 23(b) to be certified as a class action. See Cordes, 502 F.3d at 104. Plaintiffs seek certification under Rule 23(b)(3), which allows for class certification if common questions “predominate over any questions affecting only individual members” and if class resolution “is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).

         After certifying a class, the court “‘must define the class and the class claims, issues, or defenses, and must appoint class counsel, ' considering the work counsel applying for appointment has already done in the action, counsel's relevant experience and knowledge of the applicable law, and the resources that counsel plans to dedicate to the action.” Reyes, 2016 WL 4064042, at *3 (citing Fed.R.Civ.P. 23(c)(1)(B) & 23(g)(1)(A)). “Class counsel must fairly and adequately represent the interests of the class.” Fed.R.Civ.P. 23(g)(4). “If a class action is certified under Rule 23(b)(3)-as Plaintiffs' have requested in this action-the court ‘must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.'” Reyes, 2016 WL 4064042, at *3 (citing Fed.R.Civ.P. 23(c)(2)(B)).

         A plaintiff moving for class certification must establish each of the Rule 23 requirements by a preponderance of the evidence. See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008). When deciding whether to certify a class, the court must “resolve[] factual disputes relevant to each Rule 23 requirement” and find that “whatever underlying facts are relevant to a particular Rule 23 requirement have been established.” In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006). Although the Rule 23 analysis may overlap with issues going to the merits, “a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement.” Id. The only question at the class certification stage “is whether [plaintiffs] may pursue those claims on behalf of a class of similarly situated persons, or whether they must do so as individuals.” DeMarco v. Robertson Stephens Inc., 228 F.R.D. 468, 476 (S.D.N.Y. 2005).

         II. Analysis

         For the reasons discussed herein, the court finds that plaintiffs have satisfied the requirements of Rule 23, and therefore, class certification is appropriate.

         A. Rule 23(a)

         i. Numerosity

         Under Rule 23(a)(1), numerosity is presumed where a putative class has forty or more members. Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 252 (2d Cir. 2011). Plaintiffs assert and provide evidence that both the purported Class and the Subclass meet the numerosity standard. Plaintiffs rely on the Payroll Spreadsheets defendants produced for the purpose of distributing the notice to Collective Action members, which is comprised of employees working in the same positions as the alleged Class Members. (Memorandum of Law In Support of Plaintiffs' Motion for Class Certification (“Pls. Mem.”), ECF No. 56 at 15.) The Payroll Spreadsheets show sixty employees. (Payroll Spreadsheets, Exhibit (“Ex.”) 1 to the Declaration of Brent E. Pelton (“Pelton Decl.”), ECF No. 57-1 at 1.) Plaintiffs also argue that there are likely significantly more Class Members, in light of the NYLL's longer limitations period. (Pls. Mem., ECF No. 56 at 15.) Further, defendant Alexiou testified that there was significant turnover at the Buccaneer Diner, and approximately twenty dishwashers and bussers cycled through the business per year. (Declaration of Brent E. Pelton in Further Support of Plaintiffs' Motion for Class Certification (“Pelton Reply Decl.”), Alexiou Dep., Ex. B, ECF No. 59-2 at 97:15-98:16.). Accordingly, the court finds that numerosity is satisfied. See Reyes, 2016 WL 4064042, at *4 (numerosity satisfied where records show that the class had more than forty members).

         As for the Subclass, which includes all servers, bussers, dishwashers, delivery employees and food preparers but excludes cooks, defendant Alexiou testified that he typically employed five cooks at any given, some of whom also doubled as food preparers. (Alexiou Dep., Ex. 6 to Pelton Decl., ECF No. 57-6 at 8:7-16.) Thus, it is highly likely that at least forty servers, bussers, dishwashers, delivery employees and food preparers were employed during the significantly shorter Collective Action Period alone, thus satisfying numerosity for the Subclass. Defendants argue that plaintiffs have not carried their burden because plaintiffs rely on the Payroll Spreadsheets produced by defendants. The court respectfully finds defendants' arguments meritless and frivolous. Defendants produced the spreadsheet in response to plaintiffs' document requests for relevant documents, and plaintiff should be entitled to rely on them. Moreover, there is evidence that defendants discarded the Buccaneer Diner computer which contained the payroll records at issue in this litigation. Accordingly, the court finds that plaintiffs have established that numerosity is satisfied for the Class and Subclass by a preponderance of the evidence. See Shahriar, Inc., 659 F.3d at 252; Ramirez v. Riverbay Corp., 39 F.Supp.3d 354, 362 (S.D.N.Y. 2014) (numerosity satisfied on the basis of documents reflecting that the class had more than forty members).

         ii. Commonality

         To establish commonality, the plaintiffs must show that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). Rule 23(a)(2) requires that the plaintiffs' claims “depend upon a common contention . . . of such a nature that it is capable of classwide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “Commonality may be met even though class members' individual circumstances differ, so long as their injuries derive from a unitary course of conduct.” Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 124 (S.D.N.Y. 2011) (quoting Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 338 (S.D.N.Y. 2004)) (internal quotation marks omitted). “In wage cases, the commonality requirement is usually satisfied where the plaintiffs allege that defendants had a common policy or practice of unlawful labor practices.” Poplawski v. Metroplex on the Atl., LLC, 11 Civ. 3765, 2012 WL 1107711, at *7 (E.D.N.Y. Apr. 2, 2012).

         Here, the declaration of opt-in plaintiff Vega and the Payroll Spreadsheets collectively provide evidence that a common pattern and policy of defendants paying wages below the minimum wage for members of the Subclass, and failing to pay overtime premiums and spread-of-hours premiums for all Class Members. (Declaration of Matias Vega, Ex. 10 to Pelton Decl., ECF No. 57-10 at ¶ 4-8; Payroll Spreadsheets, Ex. 1 to Pelton Decl., ECF No. 57-1.) Plaintiffs and the Class Members also share in common the question of whether they received wage statements and whether any wage notices received were accurate. Further, the question of whether defendants' practices and policies violated the law is a common question to both the plaintiffs and the Class Members. “Thus, answers to the common policy and legal questions undoubtedly will ‘drive the resolution of the litigation' with respect to all parties.” Reyes, 2016 WL 4064042, at *5 (quoting Wal-Mart, 564 U.S. at 349-50); see Shahriar, 659 F.3d at 252 (commonality requirement satisfied where plaintiffs' “NYLL class claims all derive from the same compensation policies and tipping practices”). Accordingly, the commonality requirement is satisfied.

         Defendants argue that because plaintiffs were paid in cash, the commonality requirement is not met because different records were kept for employees paid in check as compared to employees paid in cash. (Memorandum of Law in Opposition to Plaintiff's Motion for Class Certification, (“Defs. Opp.”), ECF No. 60 at 16.) Defendants' argument is misguided, however. The issues here are not about how the employees received their salaries but, rather, the policies that determined the amount of their salaries, such as whether employees received at least the minimum wage or whether they received overtime wages or a spread-of-hours premium. The court finds that defendants' arguments in opposition fail, and that plaintiffs have met the commonality requirement.

         iii. ...

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