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Rojas v. Kalesmeno Corp.

United States District Court, S.D. New York

July 19, 2017

AMBROSIO ROJAS, DOMINGO ROJAS, and CARLOS ROJAS, on behalf of themselves, FLSA Collective Plaintiffs and the Class, Plaintiffs,



         Plaintiffs Ambrosio Rojas, Domingo Rojas, and Carlos Rojas bring this action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and New York Labor Law ("NYLL"), seeking compensation for wage violations allegedly committed by their employer, Kalesmeno Corp. d/b/a The Flame Diner, as well as various related persons and corporate entities. The plaintiffs now move for an order (1) conditionally certifying a collective action pursuant to 29 U.S.C. § 216(b); (2) authorizing plaintiffs' counsel to send notice of this action to prospective members of the collective; (3) requiring the defendants to produce contact information for all prospective members of the collective; (4) tolling the statute of limitations until counsel is able to send this notice to potential collective members; (5) ordering the defendants to post the plaintiffs' proposed notice in conspicuous locations at the defendants' restaurants; and (6) requiring the proposed notice be translated, posted, and mailed in Spanish. For the reasons set forth below, the plaintiffs' motion is granted in part and denied in part.


         Ambrioso, Domingo, and Carlos Rojas are employees of The Flame Diner, a restaurant located at 893 9th Avenue, New York, NY. (Complaint (“Compl.”), ¶¶ 23-25). They have worked for the diner as delivery persons, dishwashers, and porters. (Compl., ¶¶ 23-25). Ambrosio was hired in June 2009, Domingo and Carlos in February 2013. (Compl., ¶¶ 23-25). The plaintiffs allege that throughout their employment they have been paid fixed, cash salaries below minimum wage. (Compl., ¶¶ 23-27). These salaries did not account for overtime, although the plaintiffs worked over forty hours per week. (Compl., ¶¶ 23-27, 31, 35). They were not provided with pay stubs. (Compl., ¶ 26). Furthermore, the plaintiffs allege that the defendants took an improper tip credit, as the plaintiffs received neither proper notice that the defendants were taking a tip credit, nor statements informing them of the amount of this credit. (Compl., ¶¶ 13, 28). And they allege that the defendants also failed to keep track of the tips the plaintiffs and other employees received. (Compl., ¶ 30). The defendants also allegedly failed to pay the plaintiffs a “spread of hours” premium when their work days exceeded ten hours. (Compl., ¶ 32). They also did not keep proper records of the plaintiffs' employment. (Compl., ¶ 34).

         In addition to The Flame Diner, the plaintiffs have sued several individual defendants. Vasilios Katsanos is part owner and chief executive of The Flame Diner. (Compl., ¶ 9). John Tsinias, Elias Tsinias, and Konstantinos Katsanos are all owners, executives, or principals of Kalesmeno Corporation, doing business as The Flame Diner. (Compl., ¶ 9). The plaintiffs have also sued three other restaurants -- Olympic Flame Diner, The Red Flame, and Murray Hill Diner -- each of which is partially owned by Vasilios Katsanos, who is also their Executive Officer. (Compl., ¶ 9; Declaration of Vasilios Katsanos dated May 31, 2017 (“Katsanos Decl.”), ¶ 4). Each is a separate legal entity. The plaintiffs argue that these other entities are liable under the “single unified enterprise” theory. (Memorandum of Law in Support of Plaintiffs' Motion for Conditional Collective Certification (“Pl. Memo.”), at 2-3).

         The plaintiffs initiated this action on January 10, 2017. They allege that they are entitled to (1) unpaid overtime compensation; (2) unpaid minimum wages; (3) unpaid spread of hours premiums; (4) statutory damages; (4) liquidated damages; (5) attorneys' fees and costs; and (6) declaratory and injunctive relief. (Compl. at 20-21). The plaintiffs have sued on behalf of themselves, a putative collective of all non-exempt employees under 29 U.S.C. § 216(b), and a putative class of employees under Rule 23 of the Federal Rules of Civil Procedure. (Compl., ¶¶ 12-22). The plaintiffs now seek collective action status for “all non-exempt employees, including servers, bussers, delivery persons, porters, food preparers, dishwashers, cooks and cashiers, employed by Defendants at each of their restaurants within the last six (6) years . . . .” (Pl. Memo. at 1). The defendants oppose conditional certification, as well as the plaintiffs' proposed notice, request for equitable tolling, posting of the notice at the restaurants, and the request to produce information.


         A. Conditional Certification

         1. Standard of Review

         The plaintiffs seek conditional certification of a collective action comprising all non-exempt employees at all four restaurants. (Pl. Memo. at 1). Failing that, they request certification of the non-exempt employees at The Flame Diner. (Reply Memorandum of Law in Support of Plaintiff's Motion for Conditional Collective Certification (“Reply”) at 11-12). In addition to disputing the merits of the plaintiffs' claims, the defendants oppose the motion arguing that the plaintiffs have failed to demonstrate that the prospective collective action members are similarly situated to the named plaintiffs. (Memorandum of Law in Opposition to Plaintiffs' Motion for Conditional Certification (“Def. Memo.”) at 6).

         An FLSA plaintiff may elect to seek certification of a collective action, a process that consists of two stages.[1] Jeonq Woo Kim v. 511 E. 5th Street, LLC, 985 F.Supp.2d 439, 445 (S.D.N.Y. 2013). At the first stage -- the current stage of this litigation -- 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.'” Garcia v. Chipotle Mexican Grill, Inc., No. 16 Civ. 601, 2016 WL 6561302, at *3 (S.D.N.Y. Nov. 4, 2016) (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)). “At the second stage, 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.” Agerbrink v. Model Services LLC, No. 14 Civ. 7841, 2016 WL 406385, at *1 (S.D.N.Y. Feb. 2, 2016) (quoting Myers, 624 F.3d at 555)). At that point, the district court typically looks to the “(1) disparate factual and employment settings of the individual plaintiffs; (2) defenses available to defendants which appear to be individual to each plaintiff; and (3) fairness and procedural considerations counseling for or against [collective action treatment].” Zivali v. AT&T Mobility, LLC, 784 F.Supp.2d 456, 460 (S.D.N.Y. 2011) (alteration in original) (quoting Laroque v. Domino's Pizza, LLC, 557 F.Supp.2d 346, 352 (E.D.N.Y. 2008)).

         The standard at the first stage is not stringent. All that is required is a “‘modest factual showing' based on the ‘pleadings and affidavits' that the putative class members were ‘victims of a common policy or plan that violated the law.'” Fernandez v. Sharp Management Corp., No. 16 CV 551, 2016 WL 5940918, at *2 (S.D.N.Y. Oct. 13, 2016) (quoting Cardenas v. AAA Carting, No. 12 Civ. 7178, 2013 WL 4038593, at *1 (S.D.N.Y. Aug. 9, 2013)); accord Bittencourt v. Ferrara Bakery & Cafe Inc., 310 F.R.D. 106, 111 (S.D.N.Y. 2015). But while the burden is low, “certification is not automatic.” Raniere v. Citigroup Inc., 827 F.Supp.2d 294, 320 (S.D.N.Y. 2011), rev'd on other grounds, 553 F. App'x 11 (2d Cir. 2013). “Conclusory allegations are not sufficient to support a motion for conditional collective action certification.” Benavides v. Serenity Spa NY Inc., 166 F.Supp.3d 474, 481 (S.D.N.Y. 2016).

         To meet this burden, the plaintiffs' own declarations or the declarations of other potential class members are sufficient. Trinidad v. Pret a Manger (USA) Ltd., 962 F.Supp.2d 545, 557-58 (S.D.N.Y. 2013). Indeed, courts have granted motions for conditional certification where only one plaintiff submitted a declaration. See Bittencourt, 310 F.R.D. at 115; Mata v. Foodbridge LLC, No. 14 Civ. 8754, 2015 WL 3457293, at *3 (S.D.N.Y. June 1, 2015); Khamsiri v. George & Frank's Japanese Noodle Restaurant Inc., No. 12 Civ. 265, 2012 WL 1981507, at *1 (S.D.N.Y. June 1, 2012). A court “need not evaluate the underlying merits of a plaintiff's claims to determine whether the plaintiff has made the minimal showing necessary for court-authorized notice, ” Damassia v. Duane Reade, Inc., No. 04 Civ. 8819, 2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5, 2006), nor “resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations, ” Cunningham v. Electronic Data Systems Corp., 754 F.Supp.2d 638, 644 (S.D.N.Y. 2010) (quoting Lynch v. United Services Automobile Association, 491 F.Supp.2d 357, 368 (S.D.N.Y. 2007)).

         2. The Flame Diner

         The plaintiffs have established that the non-exempt employees at The Flame Diner are similarly situated. The declarations of the three named plaintiffs demonstrate the required factual nexus between their claims and the claims of the putative collective action members employed at The Flame Diner. See Mentor v. Imperial Parking Systems, Inc., 246 F.R.D. 178, 181 (S.D.N.Y. 2007) (declarations outlining brief description of alleged consistent FLSA violations sufficient to establish common policy or plan). The declarations of all three plaintiffs state that they were not paid overtime premiums, nor provided wage and hour notices, notices of a tip credit, or wage statements. (Declaration of Ambrosio Rojas dated November 1, 2016 (“A. Rojas Decl.”), ¶¶ 5-10, Declaration of Carlos Rojas, dated November 1, 2016 (“D. Rojas Decl.”), ¶¶ 5-10, Declaration of Domingo Rojas, dated November 1, 2016 (“D. Rojas Decl.”), ¶¶ 5-10).

         Furthermore, each plaintiff states that he has learned that other employees are subject to these policies through personal observation and conversations with those employees. (A. Rojas Decl., ¶¶ 4-11, C. Rojas Decl., ¶¶ 4-11, D. Rojas Decl., ¶¶ 4-11). They provide a list of one dozen fellow employees to whom they spoke regarding pay polices. (A. Rojas Decl., ¶ 4, C. Rojas Decl., ¶ 4, D. Rojas Decl., ¶ 4). From these conversations, the plaintiffs learned that these other employees were subject to the same treatment. (A. Rojas Decl., ¶ 4, C. Rojas Decl., ¶ 4, D. Rojas Decl., ¶ 4). At the first stage, these sorts of declarations describing conversations with co-workers “[are] sufficient to establish a factual nexus between Plaintiffs and [putative collective action members].” Sanchez v. El Rancho Sports Bar Corp., No. 13 Civ. 5119, 2014 WL 1998236, at *2 (S.D.N.Y. May 13, 2014). These allegations are specific, non-conclusory, and properly allege the existence ...

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