United States District Court, S.D. New York
LISA YANG, individually and on behalf of all others similarly situated, Plaintiff,
ASIA MARKET CORP., JIE MING LIANG, WEN “DOE” LAST NAME UNKNOWN, NAOMI KWONG, “JOHN” FIRST NAME UNKNOWN KWONG, Defendants.
ORDER AND OPINION
VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE
is a former cashier at Defendants' store and alleges a
series of labor violations under federal and state law.
Plaintiff seeks conditional certification of a Fair Labor
Standards Act (“FLSA”) collective, which
Defendants oppose. For the reasons stated below,
Plaintiff's motion for collective certification is
MOTION FOR CONDITIONAL CERTIFICATION OF A COLLECTIVE
moves for conditional certification of a collective action
and to send notice to the putative members of the collective,
supported by a brief Declaration from Plaintiff. See
Memorandum of Law in Support of Plaintiff's Motion for
Conditional Collective Certification (“Collective
Mem.”) [Dkt. 24]; Declaration of Lian Yang (“Yang
Decl.” or “Plaintiff's Declaration”)
[Dkt. 25]; Proposed Collective Notice and Consent Forms
(“Proposed Notice and Consent”) [Dkts. 26-1,
26-2]. Plaintiff alleges, inter alia, that she
worked at Defendants' store as a cashier for less than
two months and that she and other employees were not paid
overtime compensation for time worked beyond 40 hours per
week. Collective Mem. at 3. She alleges that she was paid a
flat monthly salary of $1500 in cash. Id.
oppose conditional certification of a collective.
See Defendants' Affirmation in Opposition
(“Defs.' Aff.”) [Dkt. 29]; Defendants'
Memorandum of Law in Opposition to Plaintiff's Motion for
Conditional Certification (“Collective Opp.”)
[Dkt. 30]. Defendants also propose a number of revisions to
Plaintiffs' Proposed Notice and Consent. See Ex.
A to Defs.' Aff. [Dkt. 29-1].
FLSA permits employees to maintain an action “for and
in behalf of . . . themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). In determining
whether to certify a collective action, courts in the Second
Circuit use a two-step process. Myers v. Hertz
Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). At the
“notice stage, ” plaintiffs must establish that
other employees “may be ‘similarly
situated'” to them. Id. at 555 (citations
omitted). To meet this burden, plaintiffs need only
“make a modest factual showing that they and potential
opt-in plaintiffs together were victims of a common policy or
plan that violated the law.” Id. (citation and
internal quotation marks omitted). While a plaintiff's
burden is modest, “it is not nonexistent, ”
Fraticelli v. MSG Holdings, L.P., No.
13-CV-6518(JMF), 2014 WL 1807105, at *1 (S.D.N.Y. May 7,
2014) (citations omitted), and generally cannot be satisfied
by “unsupported assertions.” Myers, 624
F.3d at 555 (citation and internal quotation marks omitted).
Nonetheless, courts employ 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. (emphasis in
original) (citation omitted). At this first stage, therefore,
courts do not examine “whether there has been an actual
violation of law . . . .” Young v. Cooper Cameron
Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (citing
Krueger v. N.Y. Tel. Co., 1993 WL 276058, at *2
(S.D.N.Y. July 21, 1993) (“[T]he Court need not
evaluate the merits of plaintiffs' claims in order to
determine whether a ‘similarly situated' group
second stage, “when the Court has a more developed
record, the named plaintiff must prove that the plaintiffs
who have opted in are in fact similarly situated to
the named plaintiffs.” She Jian Guo v. Tommy's
Sushi Inc., No. 14-CV-3964(PAE), 2014 WL 5314822, at *2
(S.D.N.Y. Oct. 16, 2014) (quoting Myers, 624 F.3d at
555) (emphasis from She Jian Guo) (internal
quotation marks omitted). The action may be
“‘de-certified' if the record reveals that
[the opt-in plaintiffs] are not [similarly situated], and the
opt-in plaintiffs' claims may be dismissed without
prejudice.” Myers, 624 F.3d at 555 (citations
Court finds that Plaintiff has not met her burden of showing
that she and others suffered from the same improper
compensation practices. Her affidavit is extraordinarily
general and vague and does not mention a single specific
conversation that she had with any of her coworkers about
Defendants' compensation practices. See Yang
Decl. In particular, she alleges that she “got to know
[her] colleague[s] about work and pay, ” including two
drivers, three other cashiers, and a stocker, and that she
“met with [them] from time to time when [they] arrived
at or left  work . . . .” Id. ¶ 3.
Plaintiff alleges that she and these coworkers were
“always paid at the same time.” Id. But
while she specifically discusses her own work schedule and
compensation scheme, every reference to her coworkers'
experiences and potential claims is-repeatedly- merely
“[b]ased on [her] personal observation and
conversations with other co-workers.” Id.
¶¶ 4-11. And while the Memorandum of Law asserts
that Plaintiff's Declaration provides “detailed
allegations, ” Collective Mem. at 10, this is
demonstrably false; the Memorandum and Declaration offer no
specifics and rely entirely on boilerplate materials that
Plaintiff's counsel recycles from one FLSA case to the
next. See generally Collective Mem.;
Yang Decl. Accordingly, while Plaintiff's burden is low,
the facts set forth in her materials are insufficient to
support conditional certification of a collective.
reasons stated above, Plaintiff's motion to conditionally
certify a collective is denied. The parties are ordered to
appear for a conference on April 13, 2018 at 10:00 A.M., and
must confer and submit a proposed Case Management Plan and
Scheduling Order no later than April 10, 2018. The Civil Case
Management Plan may be found on the Court's website:
http://nysd.uscourts.gov/judges/Caproni. The Clerk
of Court is instructed to terminate Docket Entry 23.
 For example, the Memorandum of Law
refers to employees who “all worked as delivery
workers” as well as “restaurant workers employed
by Defendants, ” illustrating that Plaintiffs counsel
reused materials from prior cases but failed to make the
necessary changes to conform ...