United States District Court, E.D. New York
JEFFREY MCEARCHEN; DANIEL LAWSON; and THOMAS C. WOLFE, Plaintiffs,
URBAN OUTFITTERS, INC., Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
ROSLYNN R. MAUSKOPF, UNITED STATES DISTRICT JUDGE.
Jeffrey McEarchen. Daniel Lawson, and Thomas C. Wolfe, each
of whom was employed as a Department Manager ("DM")
by defendant Urban Outfitters, Inc. ("Urban"),
accuse Urban of violating federal and state wage laws by
misclassifying them and other DMs as managerial employees who
are exempt from premium wage requirements for overtime hours.
(See generally Compl. (Doc. No. 1); Am Compl. (Doc.
No. 13)); see 29 U.S.C § 201, et seq.
(the Fair Labor Standards Act, or "FLSA"); New York
Labor Law ("NYLL") § 650, et seq.
Early in the case, the Court conditionally certified a
collective action under the FLSA. See McEarchen v. Urban
Outfitters, Inc., 2014 WL 4701164 (E.D.N.Y. Sept. 23,
2014); see also 29 U.S.C. § 216. The plaintiffs
now seek final certification of a collective of "all
persons who are or were formerly employed by [Urban] in the
United States at any time since June 24, 2010 ... as DMs and
individuals holding comparable salaried positions[.]"
(Mem. Supp. Cert. (Doc. No. 244); Am. Compl. at ¶ 20.)
Urban seeks to decertify the collective action. (Mem. Opp.
Cert. (Doc. No. 248).)
Court referred the matter of certification to Magistrate
Judge James Orenstein, who issued a Report and Recommendation
("R&R") concluding that the collective action
should be decertified. (R&R (Doc. No. 268).) Objections
originally were due March 24, 2017. (Id. at 20.)
However, at the plaintiffs' request, the Court extended
the time to file objections to April 21, 2017. (Mot. Ext.
Time (Doc. No. 269).) On March 24, 2017, the plaintiffs filed
a letter with the Court confirming that they would file
objections by the new deadline. (PI. 4/24/17 Letter (Doc. No.
271).) However, on April 21, 2017-the date of the extended
deadline-the plaintiffs filed another letter with the Court,
this time stating that they would not file any objections to
Judge Orenstein's R&R. (PI. 4/21/17 Letter (Doc. No.
272) at 1.) The plaintiffs stated that they agreed not to
file objections in exchange for Urban's agreement to a
60-day loll on the statute of limitations, in order to allow
the plaintiffs' counsel sufficient time to adequately
inform each of the 165 opt-in plaintiffs of their legal
rights and options. (Id.) Because the plaintiffs did
not file objections by the deadline, the Court has reviewed
the R&R for plain error. Finding none, the Court hereby
adopts the R&R in its entirety, and the collective action
is decertified. In addition, the statute of limitations is
tolled until sixty (60) days after the issuance of this
Memorandum and Order.
reviewing an R&R, a district court "may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C.
§ 636(b)(1)(C). When a party raises an objection to an
R&R, "the court is required to conduct a de
novo review of the contested sections." See
Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.
1991). Portions to which no party has objected are reviewed
for clear error. See Morriti v. Sttyker Corp., 973
F.Supp.2d 177, 181 (E.D.N.Y.2013); Price v. City of New
York, 797 F.Supp.2d 219, 223 (E.D.N.Y. 2011). The Court
will find clear error only where, upon a review of the entire
record, it is left with the definite and firm conviction that
a mistake has been committed. See Fed. R. Civ. P.
72(a); Nielsen v. New York City Dep 't of Educ,
No. 04-CV-2182 (NGG) (LB), 2007 WL 1987792, at * 1 (E.D.N.Y.
July 5, 2007) C[T]he district court must affirm the decision
of the magistrate judge unless the district court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.'7)
as here, discovery is complete, a court must determine
whether to decertify a collective action based on
"whether. . . the plaintiffs who have opted in are in
fact 'similarly situated" to the named
plaintiffs." Myers v. Hem Corp., 624 F.3d 537,
555 (2d Cir. 2010). If they are not, the collective action
may be decertified and the opt-in plaintiffs' claims
dismissed without prejudice. Id.
determining whether plaintiffs are similarly situated,
''[i]t is well established that [being] similarly
situated does not require that plaintiffs' positions be
identical." Stevens v. HMSHost Corp.., No.
10-CV-3571 (1LG) (VVP), 2014 WL 4261410, at *5 (E.D.N.Y. Aug.
27, 2014) (internal quotation marks and citation omitted).
Courts in this circuit generally consider three factors in
comparing the respective situations of named and opt-in
plaintiffs: ''(1) the disparate factual and
employment settings of the individual plaintiffs; (2) the
defenses available to defendants which appear to be
individual to each plaintiff; and (3) fairness and procedural
considerations that counsel for or against maintaining a
collective action, " Id.: Gardner v. W. Beef Prop.,
Inc., No. 07-CV-2345 (NGG) (JMA), 2013 WL 1629299, at *3
(E.D.N.Y. Mar. 25, 2013) (report and recommendation)
adopted, 2013 WL 1632657 (E.D.N.Y. Apr. 16, 2013);
Ayers v. SGS Control Sens., Inc., No. 03-CV-9077
(RMB), 2007 WL 646326, at *5 (S.D.N.Y. Feb. 27, 2007). The
determination to decertify a collective action is
"extremely fact-dependent and appears to be largely in
the Court's discretion." Gardner, 2013 WL
1629299, at *4 (internal quotation marks and citations
on balance, the requisite factors listed above support Judge
Orenstein's recommendation. First, the record reflects
significant variations among the named and opt-in plaintiffs,
as to both the amount of exempt work they performed and the
level of managerial authority they exercised. (R&R at
10-16.) Second, those variations make it unduly difficult for
Urban to counter the claims against it using
"representative" proof. (Id. at 16-17);
see Stevens, 2014 WL 4261410, at *7
(''Defendants cannot be expected to come up with
'representative proof when the plaintiffs cannot
reasonably be said to be representative of each other"
(internal citation omitted)). Third, the differences in the
various plaintiffs' duties and levels of authority would
require inefficient mini-trials for over a hundred claimants,
such that a collective action would not enhance fairness or
procedural economy. (Id. at 17-18.) Thus, pursuant
to 28 U.S.C. § 636(b) and Federal Rule of Civil
Procedure 72, the Court has reviewed the R&R for clear
error and, finding none, concurs with the R&R in its
entirety. See Covey v. Simonion, 481 F.Supp.2d 224,
226 (E.D.N.Y. 2007).
collective actions, the statute of limitations resumes after
a court's determination to decertify a class.
See Collective Actions Under the Fair Labor
Standards Act, 7B Fed. Prac. & Proc. Civ. § 1807 (3d
ed.). In order to avoid prejudice to opt-in plaintiffs,
courts may toll the statute of limitations in FLSA collective
actions that have been decertified, and they often do so in
cases involving many opt-in plaintiffs. See, e.g., Scott
v. Chipotle Mexican Grill, Inc., No. 12-CV-8333 (ALC)
(SN), 2017 Dist LEXIS 59753, *29 (S.D.N.Y. April 1 8, 2017)
(tolling claims of several hundred opt-in plaintiffs for 90
days); Reyes v. Texas Ezpawn, L.P., 2007 WL 101808
(S.D. Tex. 2007) (tolling claims of 82 opt-in plaintiffs for
30 days). In this case, the parties have agreed to a 60-day
toll of the statute of limitations to allow the
plaintiffs' counsel sufficient time to adequately inform
each of the 165 opt-in plaintiffs of their legal rights and
options. (PL 4/21/17 Letter at 1.) In light of the complexity
of the case, and in order to avoid prejudice to the opt-in
plaintiffs, the toll is granted.
reasons set forth above, the Court adopts Judge
Orenstein's thorough and well-reasoned R&R. (R&R
(Doc. No. 268).) It is hereby ordered that the
plaintiffs' motion for final certification is denied,
and, accordingly, that Urban's motion to decertify the
collective action is granted. (Doc. No. 242.) In addition,
the statute of limitations is hereby tolled for sixty (60)
days following the issuance of this Memorandum and Order.
case is re-committed to Magistrate Judge Orenstein for all