United States District Court, S.D. New York
SALVADOR SANTIAGO, individually and on behalf of all other similarly situated persons, Plaintiff,
THE TEQUILA GASTROPUB LLC et al., Defendants.
MEMORANDUM OPINION AND ORDER
M. FURMAN, United States District Judge:
Salvador Santiago brings this action pursuant to the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
201 et seq., and the New York State Labor Law
(“NYLL”), N.Y. Lab. Law § 650 et
seq., against the Tequila Gastropub LLC, doing business
as the Daisy; Four Green Fields LLC, doing business as Agave;
Five Green Fields LLC, doing business as Mojave
(collectively, the “Corporate Defendants”), as
well as James O'Hanlon, Susan O'Hanlon and James
McCartin (collectively, with the Corporate Defendants,
“Defendants”), to recover unpaid minimum wage and
overtime pay. Plaintiff now moves for conditional
certification of a FLSA collective action. (Docket No. 33).
Upon review of the parties' submissions, Plaintiffs
motion for conditional certification is GRANTED in part and
DENIED in part.
who worked as a “runner” at the Daisy from
approximately October 2015 to July 2016, moves to certify a
class of “all non-exempt employees” employed by
the Corporate Defendants during the six years prior to the
filing of the Complaint. (Docket No. 35 (“Santiago
Decl.”) ¶ 1). With respect to employees at the
Daisy, Plaintiff carries his “low” burden at this
stage of making a “modest factual showing” that
he and “potential opt-in plaintiffs together were
victims of a common policy or plan that violated the
law.” Myers v. Hertz Corp., 624 F.3d 537, 555
(2d Cir. 2010) (internal quotation marks omitted); see
also, e.g., Amador v. Morgan Stanley & Co.
LLC, No. 11-CV-4326 (RJS), 2013 WL 494020, at *2
(S.D.N.Y. Feb. 7, 2013) (noting that a plaintiff may rely
“‘on [his] own pleadings, affidavits, [and]
declarations'” to support a motion for collective
action certification (quoting Hallissey v. Am. Online,
Inc., No. 99-CV3785 (KTD), 2008 WL 465112, at *1
(S.D.N.Y. Feb. 19, 2008)). (See Docket Nos. 1, 35).
Many, if not most, of Defendants' arguments to the
contrary go to the merits (see, e.g., Docket No. 37,
at 6 (arguing that Plaintiff was, in fact, paid more than the
minimum wage and asserting that most of Plaintiff's
allegations are “simply false”)), and thus do not
present a basis to deny certification. See, e.g.,
Lynch v. United Servs. Auto. Ass'n, 491
F.Supp.2d 357, 367-68 (S.D.N.Y. 2007).
contrast, Plaintiff falls short of satisfying his burden, low
as it may be, to certify a collective action that includes
employees of Agave and Mojave. Plaintiff never worked at
Mojave, and says only that “[d]uring his
employment” at the Daisy, he was “also required
to work” at Agave - without providing any information
concerning the timing, duration, terms, or conditions of such
work. (Santiago Decl. ¶ 1). He does state that
“[t]o the best of [his] knowledge” Defendants
“control and operate” the three restaurants and
that “[e]mployees at Defendants' Restaurants were
interchangeable and shifted as needed.” (Id.
¶ 2). He also states that “[b]ased on [his]
personal observations and conversations with other employees,
all other non-managerial employees . . . were subject to the
same wage and hour policies, ” and includes a list of
eleven such alleged employees. (Id. ¶ 3). But
the employees on the list - who are identified only by first
name - all worked at the Daisy; only one is identified as
having also worked at Mojave and only one is
identified as having also worked at Agave, and there
is no information concerning the timing, duration, terms, or
conditions of that work either. (Id.).
simply, Plaintiff's allegations are too general and
conclusory to support a finding that the employees of Agave
and Mojave are similarly situated to the employees at the
Daisy. A plaintiff's burden at the preliminary
certification stage may be low, but it is a burden
nonetheless, and where, as here, a plaintiff did not work in
a particular location, more is needed than conclusory
assertions of a uniform policy or practice. See,
e.g., Guaman v. 5 “M” Corp., No.
13-CV-03820 (LGS), 2013 WL 5745905, at *3 (S.D.N.Y. Oct. 22,
2013) (granting the plaintiff's motion for conditional
certification for the one physical location he worked at, but
refusing to include the three other locations that the
plaintiff did not work at); see also, e.g., Ji
v. Jling Inc., No. 15-CV-4194 (JMA) (SIL), 2016 WL
2939154, at *4-5 (E.D.N.Y. May 19, 2016) (denying the
plaintiff's motion for conditional certification of all
non-managerial employees of the defendants' three
restaurant locations based on the unsupported assertions and
conclusory allegations contained in the plaintiff's
declaration); Sanchez v. JMP Ventures, LLC, No.
13-CV-7264 (KBF), 2014 WL 465542, at *2 (S.D.N.Y. Jan. 27,
2014) (holding that the plaintiff's affidavit was too
“unsupported” and “generalized” to
support certification of a collective including “all
tipped employees, at three restaurants”); Trinidad
v. Pret A Manger (USA) Ltd., 962 F.Supp.2d 545, 557-58
(S.D.N.Y. 2013) (rejecting conditional certification for
twenty-seven of the defendants' thirty-three New York
City stores based on the plaintiffs' inability to
“demonstrate across all locations a uniform policy of
failure to pay overtime compensation”).
Plaintiff's motion for conditional certification is
GRANTED with respect to employees at the Daisy and DENIED
with respect to employees at Agave and Mojave. With respect
to the parties' subsidiary disputes and Plaintiff's
proposed notice and opt-in form, the Court further rules as
• As Plaintiff has made a showing that Defendants'
policies extended to other non-exempt employees at the Daisy,
including waiters, bartenders, dishwashers, and line cooks
(Santiago Decl. ¶¶ 3-13), Defendants' objection
to the scope of the collective of employees at the Daisy is
• Given that the statute of limitations for claims under
the FLSA is, at most, three years, there is no basis or need
to send notice to those who worked at the Daisy more than
three years prior to Plaintiff's filing of his Complaint.
See, e.g., Hamadou v. Hess Corp., 915
F.Supp.2d 651, 668 (S.D.N.Y. 2013) (“Notice would
normally be provided to those employed within three years of
the date of the notice. However, because equitable tolling
issues often arise for prospective plaintiffs, courts
frequently permit notice to be keyed to the three-year period
prior to the filing of the complaint, with the understanding
that challenges to the timeliness of individual
plaintiffs' actions will be entertained at a later
date.” (internal quotation marks and citations
• Plaintiff's categorical request for equitable
tolling of the statute of limitation is denied - without
prejudice to an application from any opt-in plaintiff based
on an individualized showing that tolling is warranted.
See, e.g., Whitehorn v. Wolfgang's
Steakhouse, Inc., 767 F.Supp.2d 445, 451 (S.D.N.Y. 2011)
(holding that, where “equitable tolling may extend the
statute of limitations for certain prospective plaintiffs . .
. . it is appropriate for notice to be sent to the larger
class of prospective members, with the understanding that
challenges to the timeliness of individual plaintiffs'
actions will be entertained at a later date”).
• Within two week of this Memorandum Opinion and
Order, Defendants shall produce not only the names
and last-known addresses of potential collective members, but
also last-known telephone numbers and e-mail addresses.
Defendants shall not, in the first instance, produce any
Social Security numbers. If a notice is returned as
undeliverable, Defendants shall provide the Social Security
number of that individual to Plaintiff's counsel. Any
Social Security numbers so produced will be maintained by
Plaintiff's counsel alone and used for the sole purpose
of performing a skip-trace to identify a new mailing address
for notices returned as undeliverable. All copies of Social
Security numbers, including any electronic file or other
document containing the numbers, will be destroyed once the
skip-trace analysis is completed. Within fourteen days
following the close of the opt-in period, Plaintiff's
counsel will certify in writing to the Court that the terms
of this Order have been adhered to and that the destruction
of the data is complete. These procedures are sufficient to
safeguard the privacy information of potential plaintiffs.
See, e.g., Shajan v. Barolo, Ltd., No.
10-CV-1385 (CM), 2010 WL 2218095, at *1 (S.D.N.Y. June 2,
• To avoid disputes over timeliness, potential opt-in
plaintiffs shall be required to send their consent forms
directly to the Clerk of Court rather than to Plaintiff's
• The consent form shall be modified to make clear that
potential plaintiffs may retain other counsel (or represent
• Finally, the Notice should be modified to advise
recipients that their immigration status does not affect
their entitlement to recover back wages or to participate in
the lawsuit and that they have a right to participate in the
action even if they are undocumented immigrants.
parties shall meet and confer and, no later than April 19,
2017, submit revised versions of a proposed order, notice,
and consent form in accordance with this Memorandum Opinion
and Order. (Counsel should refer to the notices and consent
forms in Tamay et al. v. Mr. Kabob Restaurant, Inc.,
15-CV-5935 (JMF) (Docket No. 26), Sanz et al. v. Johny
Utah 51 LLC et al., 14-CV-4380 (JMF) (Docket No. 61),
and Saleem v. Corporate Transportation ...