United States District Court, S.D. New York
JOSE BALVERDE, individually and on behalf of all others similarly situated, Plaintiffs,
LUNELLA RISTORANTE, INC. d/b/a LUNELLA RISTORANTE, and GAETANA RUSSO, jointly and severally, Defendants.
AMENDED OPINION AND ORDER
Plaintiff Jose Balverde (“Balverde”) and the
opt-in Plaintiffs (collectively, with the putative class
members, the “Plaintiffs”) bring this action
under the Fair Labor Standards Act (“FLSA”) and
New York Labor Law (“NYLL”). Complaint
(“Compl.”) (Doc. 1). Plaintiffs allege that they
and all other similarly situated employees are entitled to
wrongly withheld gratuities, as well as minimum wage,
overtime, and spread-of-hours pay from a Manhattan restaurant
operating under the name Lunella Ristorante. Id.
Before the Court are two motions: (1) Plaintiffs' Motion
to Amend/Correct the Complaint, Doc. 57; and (2)
Plaintiffs' Motion for Class Certification, Doc. 60. For
the reasons stated below, the motion to amend or correct the
complaint is GRANTED, and the motion to certify the class is
GRANTED in part and DENIED in part.
bring this suit against corporate Defendant Lunella
Ristorante, Inc. d/b/a Lunella Ristorante
(“Lunella”), and individual Defendant Gaetana
Russo (“G. Russo, ” and together with Lunella,
“Defendants”). Lunella is a restaurant located on
Mulberry Street in Little Italy, New York City. Defendant G.
Russo and her daughter, Rossana Russo, (“R.
Russo”) jointly own Lunella. Deposition of Gaetana
Russo (“G. Russo Dep.”) (Doc. 62-9) at 9:12-9:14.
Goran Segota has been the manager of Lunella since 2006,
where he supervises employees, records the hours worked by
hourly employees, and sends the hours worked to
Defendants' accountant to process payroll. Deposition of
Goran Segota (“Segota Dep.”) (Doc. 62-8) at 8:6-
8:9; 11:2-11:5, 15:11-15:22.
July 15, 2009 until 2015, Defendants employed at least
forty-nine hourly employees as waiters, bussers, runners,
bartenders, kitchen employees, and dishwashers. Declaration
of Brent E. Pelton (“Pelton Declr.”) (Doc. 62-6)
(List of Employees). Defendants have not provided any records
showing employees who worked for Defendants in 2016 and 2017.
See Pelton Decl. ¶ 15. Additionally, Plaintiffs
aver that “[i]t is likely that additional employees,
not included on Defendants' lists, worked at
Lunella” because Segota mentioned two employees who did
not have tax ID numbers and confirmed that one of them was
not paid on the books. See Segota Dep. at
worked for Defendants as a waiter and bartender from
approximately December 2013 through May 2015. Deposition of
Jose Balverde (“Balverde Dep.”) (Doc. 62-1) at
15:25- 16:4, 17:7-17:9. Opt-in plaintiff Carlos Garcia
(“Garcia”) worked for Defendants as a waiter from
approximately February 2013 until around the end of summer
2014. Deposition of Carlos Garcia (“Garcia Dep.”)
(Doc. 62-2) at 15:17-15:22, 39:21-39:23. Opt-in Plaintiff
Jorge Molina (“Molina”) worked for Defendants as
a waiter from approximately 2012 through October 2012, and
again from approximately February 2014 through November 2014.
Deposition of Jorge Molina (“Molina Dep.”) (Doc.
62-4) at 18:4-18:6; 19:8-19:11; 21:21-21:24. Opt-in Plaintiff
Angel Sevilla (“Sevilla”) worked for Defendants
as a runner from approximately December 2013 through March
2014. Deposition of Angel Sevilla (“Sevilla
Dep.”) (Doc. 62-3) at 12:23-13:2; 27:15-27:18). Opt-in
Plaintiff Sadik Djecbitric (“Djecbitric”) worked
for Defendants as a waiter for a couple of weeks in June
2015. Deposition of Sadik Djecbitric (“Djecbitric
Dep.”) (Doc. 62-5) at 14:4-14:9.
commenced the instant action on July 15, 2015. Compl.
Defendants Lunella and G. Russo filed an Answer on August 10,
2015. Docs. 12, 13.
Complaint, Balverde alleges seven (7) causes of action.
Counts I and II allege a FLSA collective action claim for
unpaid minimum wage and unpaid overtime, respectively, on
behalf of all hourly employees. Compl. ¶¶ 3, 17,
55-62. Four NYLL claims (Counts III-VI) are also brought on
behalf of all hourly employees, and allege:
Count III: Failure to pay minimum wage for all hours worked
in violation of §§ 650, et
Count IV: Failure to pay overtime for hours worked in excess
of forty per week, in violation of §§ 650, et
Count V: Failure to pay “spread of hours”
premiums for days in which the hourly employees' work day
lasted ten or more hours, in violation of N.Y. Comp. Code R.
& Regs. tit. 12, §§ 137-1.7 (2010), 146-1.6
(2012); and Count VI: Failure to provide wage notices on the
date of hire or by February 1 of each year in violation of
NYLL, Article 6, § 191.
Id. ¶¶ 63-74. These four NYLL claims on
behalf of the Unpaid Wage Class are referred to herein as the
“Unpaid Wage Claims.”
seventh NYLL claim is brought on behalf of an “Unpaid
Tips Subclass” consisting of all tip-eligible employees
(wait staff, bussers, runners and bartenders). This claim
alleges that Defendants unlawfully withheld gratuities from
their tip-eligible employees, in violation of § 196-d
(the “Unpaid Tips Claim”). Id.
November 19, 2015, Plaintiffs filed a motion to conditionally
certify a FLSA collective action. Pursuant to Plaintiffs'
motion, the Court conditionally certified the FLSA minimum
wage and overtime claims as a collective action and
authorized notice to be issued to all current and former
servers, bartenders, and runners who worked at Lunella at any
time from July 15, 2012 through May 11, 2016. Doc. 37 at
Four individuals have exercised their rights to join the
action by filing consent to become a party plaintiff forms
with the Court. See Docs. 19 (Garcia), 40 (Molina),
45 (Sevilla), 46 (Djecbitric).
parties have now exchanged discovery. See Memorandum
of Law in Support of Plaintiffs Motion for Class Certificaton
(“Pls.' Mem. L.”) (Doc. 61) at 4. Defendants
have deposed all Plaintiffs and Plaintiffs have deposed
Defendant G. Russo, Lunella's manager- Segota, R. Russo,
and accountant Stuart Kosoff (“Kosoff”).
respect to their class certification motion, Plaintiffs seek
1) certifying Plaintiffs' New York Labor Law
(“NYLL”) claims for unpaid minimum wages,
overtime wages, unpaid spread-of-hours and failure to provide
wage notice, (Counts III, IV, V, VI) as a Rule 23(b)(3) class
action on behalf of a class defined as: “all hourly
employees who worked for Lunella Ristorante, Inc. at any time
from July 15, 2009 through the present” (the
“Unpaid Wage Class”);
(2) certifying Plaintiffs' NYLL claims for unlawfully
withheld gratuities (Count VII) as a Rule 23(b)(3) class
action on behalf of a tipped subclass defined as: “all
waiters, bussers, runners and bartenders who worked for
Lunella Ristorante, Inc. at any time from July 15, 2009
through the present” (the “Unpaid Tips
(3) appointing Named Plaintiff Jose Balverde as class
representative and counsel for Plaintiffs as class counsel;
(4) approving the class notice attached to the declaration of
Brent E. Pelton, Pelton Decl. at Ex. 11; and
(5) directing Defendants to furnish in electronically
readable form the names and last known addresses of all
members of the Class so that Plaintiffs can issue class
Pls.' Mem. L. at 1-2.
more members of a class are permitted to sue on behalf of the
(1) the 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). “Rule 23(a) ensures that the
named plaintiffs are appropriate representatives of the class
whose claims they wish to litigate.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). The
four requirements “effectively limit the class claims
to those fairly encompassed by the named plaintiff's
claims.” Id. (internal quotation marks
omitted). “The party seeking class certification bears
the burden of establishing by a preponderance of the evidence
that each of Rule 23's requirements has been met.”
Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir.
putative class must also satisfy at least one of the three
requirements listed in Rule 23(b). Here, Plaintiffs seek
class certification under Rule 23(b)(3), see
Pls.' Mem. L. at 10, which requires them to demonstrate,
in addition to the prerequisites of Rule 23(a), that
“the questions of law or fact common to class members
predominate over any questions affecting only individual
members, ” and that a class action would be
“superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed.R.Civ.P.
seeking class certification must affirmatively demonstrate
his compliance with Rule 23. Wal-Mart, 564 U.S. at
350. In order words, the Rule “does not set forth a
mere pleading standard.” Id. A district court
must undertake a “rigorous analysis” in order to
determine whether the requirements have been met. Comcast
Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013). In making
such determinations, the court “should not assess any
aspect of the merits unrelated to a Rule 23
requirement.” Shahriar v. Smith & Wollensky
Rest. Grp., Inc., 659 F.3d 234, 251 (2d Cir. 2011)
(quoting In re Initial Pub. Offering Sec. Litig.,
471 F.3d 24, 41 (2d Cir. 2006)). However, the court's
analysis will inevitably “entail some overlap with the
merits of the plaintiff's underlying claim.”
Wal-Mart, 564 U.S. at 351. On a Rule 23 motion,
“the ultimate question is not whether the plaintiffs .
. . will prevail on the merits but rather whether they have
met the requirements of Rule 23.” Gortat v. Capala
Bros., 257 F.R.D. 353, 362 (E.D.N.Y. 2009). Although the
Court must resolve factual disputes relevant to satisfying
each Rule 23 requirement, “any factual determinations
made at the certification stage are not binding on a
subsequent fact-finder, even the certifying court.”
Flores v. Anjost Corp., 284 F.R.D. 112, 122
(S.D.N.Y. 2012) (citing In re Initial Pub. Offering Sec.
Litig., 471 F.3d at 41). When considering a motion for
class certification, the court must accept the allegations in
the complaint as true. Meyer v. United States Tennis
Ass'n, 297 F.R.D. 75, 82 (S.D.N.Y. 2013).
seek to certify their Unpaid Wage Class on behalf of all
hourly employees of Defendants who are or were employed at
any time during the six year NYLL statutory period. This
includes both front of house employees (such as bussers and
servers) and back of house employees (such as kitchen staff).
Plaintiffs further seek to certify their Unpaid Tips Class on
behalf of all tip-eligible employees of Defendants who are or
were employed at any time during the six year statutory
period. Defendants argue that Plaintiffs have failed to
adequately allege: (1) numerosity, Defs.' Mem. L at
21-22; (2) commonality, id. at 7-20; (3) typicality,
id.; and (4) adequacy of representation,
id. at 2-6. Defendants also argue that the class
should not be certified with respect to back of the house
kitchen employees. Id. at 23.
threshold matter, the Court considers whether the Unpaid Wage
Class should be certified with respect to back of the house
kitchen employees. Plaintiffs previously made an application
for conditional class certification pursuant to the FLSA.
Doc. 23. In that application they sought-as they do again in
the instant motion-to certify a class involving both front of
the house (servers, runners, bussers, and bartenders) and
back of the house employees. Doc. 24 at 11-12. The Court
[T]he Court finds that Plaintiffs have failed to muster a
showing of a common policy or practice that applied to back
of the house employees. The only allegations suggesting that
Defendants' failure to pay overtime premiums extended to
back of the house employees are Plaintiffs' statements
that this was “a corporate policy that applied to all
non-management employees, ” and that they
“overheard conversations” amongst kitchen workers
and dishwashers. These unsupported assertions and conclusory
allegations are insufficient to conditionally certify a class
. . . Ultimately, Plaintiffs' complaint and affidavits do
not contain factual allegations specific to other types of
employees besides servers, bartenders, and runners, such as
“the specific hours worked by, or the amounts paid to,
other employees. Therefore, Plaintiffs' motion for
conditional certification is granted, but given the
information presently before the Court, the class shall only
include servers, bartenders, and runners.
Doc. 37 at 8. Defendants contend that Plaintiffs have
submitted no additional substantive information that should
alter the Court's determination with regards to back of
the house employees for purposes of the instant motion.
Defs.' Mem. L at 22. Plaintiffs argue that the pay
policies are consistent as to all hourly
employees-including both tipped and kitchen employees.
Plaintiffs aver that the deposition testimony of the
Plaintiffs, the payroll records of Defendants, and
Defendants' testimony confirm Defendants' corporate
policy of paying all hourly employees (including tipped and
kitchen employees) ...