United States District Court, S.D. New York
JUAN SERGIO GALICIA, individually and in behalf of all other persons similarly situated, Plaintiff,
34TH STREET COFFEE SHOP INC. d/b/a LUCKY'S CAFE and NIKIFOROS ANAGNOSTOPOULOS, jointly and severally, Defendants.
Attorneys for Plaintiff LAW OFFICE OF JUSTIN A. ZELLER, P.C.
By: Brandon D. Sherr, Esq. Justin A. Zeller, Esq.
Attorneys for Defendants HOFFMAN & ASSOCIATES, By: Andrew
S. Hoffman, Esq.
OPINION AND ORDER
W. SWEET U.S.D.J.
Juan Sergio Garcia ("Garcia" or the
"Plaintiff") has moved pursuant to 29 U.S.C. §
216(b) to conditionally certify his lawsuit against
Defendants 34th Street Coffee Shop, Inc., doing business as
Lucky's Cafe ("Lucky's) and Nikiforos
Anagnostopoulos ("Anagnostopoulos" and, together
with Lucky's, "Defendants") as a collective
action under the Fair Labor Standards Act ("FLSA")
and to authorize the distribution of a notice regarding
Plaintiff's collective action. Based on the reasons set
forth below, Plaintiff's motion is granted.
filed his complaint on February 16, 2016 (the
"Complaint, " Dkt. No. 1). The Complaint alleged
that Defendants violated FLSA, 29 U.S.C. § 201 et
seq., and New York labor laws by failing to pay
minimum wages, pay overtime compensation, provide notice of
pay rates, and post notices of employees' rights.
March 29, 2017, Plaintiff filed the instant motion. (Dkt. No.
20.) The motion was heard on May 10, 2017. On June 12, 2017,
Defendants wrote the Court to supplement the record, (Dkt.
No. 33), and the motion was marked fully submitted on June
following is based on Plaintiffs Complaint and affidavit
submitted in support of the instant motion. They do not
constitute factual findings of the Court.
was employed as a busboy by Anagnostopoulos at Lucky's, a
full-service restaurant located in Kips Bay, from Spring 2015
through September 2015. During this time, Plaintiff was paid
approximately $240 per week in cash for working approximately
sixty-nine hours per week. Plaintiff states he was not paid
proper minimum wages or overtime and that, while he was
employed, Defendants did not provide information about
employee pay rates or keep notices posted of
employees'" legal wage rights. While employed at
Lucky's, Plaintiff observed several other Lucky's
employees, who were employed as waitresses and delivery
persons and whose names and working hours Plaintiff details,
not being paid proper wages; Plaintiff specifically
identifies a conversation he had with one of these other
employees, Arietta, who described being paid her pay and tips
in cash and which totaled a sum ''a
hundred and something'' dollars per week."
(Affidavit of Plaintiff in Support of Motion to Conditionally
Certify Collective Action dated February 23, 2017
("Pl.'s Aff."} ¶ 4, Dkt. No. 24.)
FLSA provides that an employee whose rights under the FLSA
were violated may file an action in any federal or state
court of competent jurisdiction "for and in behalf of
himself or themselves and other employees similarly
situated." 29 U.S.C. § 216(b). Although not
required, under the FLSA, "district courts have
discretion, in appropriate cases, to implement § 216(b)
by facilitating notice to potential plaintiffs of the
pendency of the action and of their opportunity to opt-in as
represented plaintiffs." Myers v. Hertz Corp.,
624 F.3d 537, 554 (2d Cir. 2010} (alterations and internal
quotation marks omitted).
Second Circuit has endorsed a two-step process for
determining whether an action may proceed collectively under
Section 216(b). See, e.g., Myers, 624 F.3d
at 554. In the first stage of the analysis, a district court
must make an initial determination as to whether the named
plaintiffs are "similarly situated" to the putative
collective members. Id.; see also Gauman v. DL
Rest. Dev. LLC, No. 14 Civ. 2587 (RWS), 2015 WL 6526440,
at *1 (S.D.N.Y. Oct. 28, 2015) ("The Court is not
concerned with weighing the merits of the underlying claims,
but rather with determining whether there are others
similarly suited who could opt into the lawsuit and become
plaintiffs."); Cunningham v. Elec. Data Sys.
Corp., 754 F.Supp.2d 638, 644 (S.D.N.Y. 2010) (quoting
Lynch v. United Servs. Auto. Ass'n, 491
F.Supp.2d 357, 368 (S.D.N.Y. 2007)). If a plaintiff makes a
"modest factual showing" that she and the potential
opt-in plaintiffs "together were victims of a common
policy or plan that violated the law, " conditional
certification and court-facilitated notice is appropriate.
Myers, 624 F.3d at 555 (citation omitted); see
also Cunningham, 754 F.Supp.2d at 644; Lynch,
491 F.Supp.2d at 368. This initial phase is often termed the
"notice stage." Lynch, 491 F.Supp.2d at
second stage, after discovery is completed, is where "if
it appears that some or all members of a conditionally
certified class are not similarly situated, " a
"defendant may-move to challenge certification, at which
point a court will conduct a more searching factual inquiry
as to whether the class members are truly similarly
situated." Viriri v. White Plains Hosp. Med.
Ctr., No. 16 Civ. 2348 (KMK), 2017 WL 2473252, at *2
(S.D.N.Y. June 8, 2017) (internal quotation marks omitted)
(quoting Jenkins v. TJX Cos., 853 F.Supp.2d 317,
320-21 (E.D.N.Y. 2012)}. At that time, u[i]f the
claimants are indeed similarly situated, the collective
action proceeds to trial, and if they are not, the class is
decertified, the claims of the opt-in plaintiffs are
dismissed without prejudice, and the class representative may
proceed on his or her own ...