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Galicia v. 34th Street Coffee Shop Inc.

United States District Court, S.D. New York

August 30, 2017

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.


          ROBERT W. SWEET U.S.D.J.

         Plaintiff 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.

         Prior Proceedings

         Plaintiff 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.

         On 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 13, 2017.


         The following is based on Plaintiffs Complaint and affidavit submitted in support of the instant motion. They do not constitute factual findings of the Court.

         Plaintiff 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[1]; 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.)

         Applicable Standards

         The 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).

         The 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 368.

         The 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 ...

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