United States District Court, S.D. New York
VICTOR H. ALVARADO BALDERRAMO, individually and on behalf of all other persons similarly situated, Plaintiff,
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
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
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.
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.
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.
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.
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.
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.
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. 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.
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.
Motion to Conditionally Certify Collective Action
Pursuant to the FLSA
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)).
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.”
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
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.
Rule 12(b)(c) Motion for Judgment ...