Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Balderramo v. Taxi Tours Inc.

United States District Court, S.D. New York

June 9, 2017

VICTOR H. ALVARADO BALDERRAMO, individually and on behalf of all other persons similarly situated, Plaintiff,
v.
TAXI TOURS INC. d/b/a BIG TAXI TOURS, MICHAEL ALTMAN, and HERNANDO CASTRO, jointly and severally, Defendants.

          OPINION AND ORDER

          Edgardo Rarnps, U.S.D.J. United States District Judge

         Victor H. Alvarado Balderramo (“Plaintiff”) brings this action under the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”), alleging that he and all other similarly situated employees are entitled to unpaid or underpaid (1) minimum wages, (2) overtime compensation, and (3) other wages not timely paid from his former employer, Taxi Tours Inc. (“ Ta x i To u r s ”). Plaintiff brings this suit against Taxi Tours and two individual defendants-Michael Altman (“Altman”) and Hernando Castro (“Castro”).[1]

         Before the Court is Plaintiff's motion for conditional certification of a FLSA collective action constituting all tour bus operators employed by Taxi Tours within the three years prior to the filing of Plaintiff's March 23, 2015 complaint. Doc. 39. Also pending before the Court is Defendant's cross motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Doc. 42), and Plaintiff's cross motion to amend pursuant to Rule 15(a) of the Rules of Civil Procedure (Doc. 47). For the following reasons, Plaintiff's motion for conditional certification is GRANTED, Defendant's cross motion for judgment on the pleadings is DENIED without prejudice, and Plaintiff's cross motion to amend is DENIED as moot.

         I. Factual Background[2]

         Taxi Tours is a tour operator in New York City. Amended Complaint (Am. Compl.) ¶ 13. Altman and Castro, who Plaintiff alleges are owners, shareholders, officers, or managers of Taxi Tours' business, exercised substantial control over employees' functions, hours, and wages. See Am. Compl. ¶¶ 14-19. Plaintiff worked as a tour bus operator for Defendants from approximately July 2010 to April 2014. Id. ¶¶ 21-22. Plaintiff did not work for Defendants from approximately August 2013 to February 2014. Affidavit of Plaintiff in Support of Motion to Conditionally Certify Collective Action (“Plaintiff's Aff.”) ¶ 3.

         Plaintiff alleges that from the time he first started working for Defendants and until approximately the beginning of 2013, he was denied minimum wage and overtime compensation for the hours he worked in excess of 40 hours per week. According to Plaintiff, he worked approximately between 72 and 84 hours per week during the relevant time period. Id. ¶ 5. During that time, Plaintiff worked between 10 and 14 hours per day, and between six and seven days per week. Id. According to Plaintiff, Defendants paid him approximately $10 for the first 40 hours he worked per week, and no wages for the hours he worked in excess of 40 hours per week. Id. ¶ 6. Defendants paid Plaintiff by check and did not provide him a statement with each payment of wages. Am. Compl. ¶¶ 25, 28. Plaintiff continued to work over 40 hours per week after the beginning of 2013 and until he stopped working for Defendants. Id. ¶ 23. However, Plaintiff has not alleged that Defendants failed to adequately compensate him for overtime after the beginning of 2013.

         According to Plaintiff, Defendants employed between 8 and 10 other tour bus drivers who worked similar hours and were similarly unpaid and underpaid for overtime. See Plaintiff's Aff. ¶ 8. Plaintiff claims that he knows this information because he and the other drivers used to complain about their hours and wages with each other.

         Plaintiff claims that during the time he worked for Defendants, Defendants did not post notices explaining the minimum wage rights of employees under the FLSA and the NYLL. Am. Compl. ¶ 29. Plaintiff alleges that he and the other tour bus drivers were uninformed of their rights during this time. Id.

         II. Procedural Background

         On March 23, 2015, Plaintiff filed a complaint against Taxi Tours and Christopher Preston, who Plaintiff alleged was an owner, shareholder, officer, or manager of Taxi Tours. Doc. 1 ¶ 13. Plaintiff failed to serve Taxi Tours and Preston with that complaint, and subsequently filed an Amended Complaint against Taxi Tours, Altman, and Castro on December 28, 2015. Doc. 3. Plaintiff alleges that Defendants violated the FLSA and the NYLL, and are liable for unpaid or underpaid minimum wages and overtime compensation. Am. Compl. ¶¶ 1-2. Plaintiff brought his FLSA claims on behalf of himself and all similarly situated current and former employees of the Defendants during the three years prior to the filing of the complaint.

         On October 14, 2016, Plaintiff filed a motion for conditional certification of a FLSA collective action constituting all tour bus operators employed by Defendants during the three years prior to the filing of the March 23, 2015 complaint.[3] Plaintiff has not yet moved for certification of the NYLL claims. On November 4, 2016, Taxi Tours filed its response to the motion, as well as a cross motion for judgment on the pleadings pursuant to Rule 12(c) of the Rules of Civil Procedure. Doc. 43. On November 21, 2016, Plaintiff filed his reply in support of his motion to conditionally certify, his response to Taxi Tours' motion for judgment on the pleadings, and a cross motion to amend his complaint. Doc. 48. On December 2, 2016, Taxi Tours filed its reply in support of its motion for judgment on the pleadings and its response to Plaintiff's cross motion to amend. Doc. 49.

         Plaintiff submitted written consent to become a party plaintiff under the FLSA on November 18, 2016. Doc. 44. As of the date of this Order, no one else has opted into the collective action.

         III. Legal Standards

         A. Motion to Conditionally Certify Collective Action Pursuant to the FLSA

         Pursuant to 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). “District courts have discretion to facilitate this collective action mechanism by authorizing that notice be sent to potential plaintiffs informing them of ‘the pendency of the action and of their opportunity to opt-in as represented plaintiffs.'” Mark v. Gawker Media LLC, No. 13 Civ. 4347 (AJN), 2014 WL 4058417, at *2 (S.D.N.Y. Aug. 15, 2014) (quoting Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010)).

         The Second Circuit has endorsed a two-step framework for determining whether a court should certify a case as a collective action under Section 216(b). See Myers, 624 F.3d at 554-55; see also Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016). This process entails an analysis of whether prospective plaintiffs are “similarly situated” at two different stages: an early “notice stage, ” and again after discovery is largely complete. McGlone v. Contract Callers, Inc., 867 F.Supp.2d 438, 442 (S.D.N.Y. 2012) (citing Bifulco v. Mortgage Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009)). At stage one, 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.” Myers, 624 F.3d at 555. At stage two, after additional plaintiffs have opted in, “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.” Id. If the court concludes that they are not similarly situated, the action may be “de-certified, ” and the opt-in plaintiffs' claims “may be dismissed without prejudice.” Id.

         Here, Plaintiff seeks an initial determination of the propriety of notice to potential opt-in plaintiffs. “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.” McGlone, 867 F.Supp.2d at 442 (quoting Mentor v. Imperial Parking Sys., Inc., 246 F.R.D. 178, 181 (S.D.N.Y. 2007)). He must only make “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, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.)). “The ‘modest factual showing' cannot be satisfied simply by ‘unsupported assertions, ' but it should remain a low standard of proof because the purpose of this first stage is merely to determine whether ‘similarly situated' plaintiffs do in fact exist.” Id. (citation omitted). “Accordingly, in deciding whether to grant [Plaintiff's] motion, the Court must merely find some identifiable factual nexus which binds [Plaintiff] and potential class members together as victims of a particular practice.” Guzelgurgenli v. Prime Time Specials Inc., 883 F.Supp.2d 340, 346 (E.D.N.Y. 2012) (quoting Sbarro, 982 F.Supp. at 261) (internal quotation marks omitted).

         In considering Plaintiff's motion, “the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 368 (S.D.N.Y. 2007). It merely “examines the pleadings and affidavits to determine whether the named plaintiff[] and putative class members are similarly situated.” McGlone, 867 F.Supp.2d at 442. If the Court finds that they are, it will conditionally certify the class and order that notice be sent to potential class members. Id.

         B. Rule 12(b)(c) Motion for Judgment ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.