United States District Court, S.D. New York
PEDRO URAGA, on behalf of himself, FLSA Collective Plaintiffs and the Class,, Plaintiff,
AMICI 519 LLC D/B/A ESSEN, ET AL.,, Defendants.
OPINION AND ORDER
L. CARTER, JR., UNITED STATES DISTRICT JUDGE
Pedro Uraga brings this action against Defendants Amici 519
LLC d/b/a/ Essen, BNP NY Foods, Inc. d/b/a Essen, Ten
Westside Corp. d/b/a Essen, 100 Broad Street LLC d/b/a Essen,
Essen22 LLC d/b/a Essen, John Doe Corp. d/b/a ESSEN
(collectively, "Corporate Defendants"), John Byun
and Chong Won Byun (collectively, "Individual
Defendants," and together with Corporate Defendants,
"Defendants") under the Fair Labor Standards Act,
New York Labor Law, New York State Human Rights Law, and New
York City Human Rights Law to recover (1) unpaid overtime
compensation; (2) unpaid wages due to time shaving; (3)
liquidated damages; (4) economic damages; (5) compensatory
damages; (6) punitive damages, and (7) attorneys' fees
and costs. 29 U.S.C. § 201 etseq.; N.Y. Lab.
Law § 195; NY. Exec. Law § 296; Admin. Code of the
City of N.Y. § 8-107.
the Court are Defendants' Motion to Dismiss and
Plaintiffs Motion for Conditional Certification. ECF Nos. 37,
40. Though not directly related, they are more efficiently
decided in one order due to considerable overlap in the
arguments forwarded by defense counsel. In Defendants'
Motion, Defendants move to dismiss the Complaint for failure
to state a claim as to all Defendants except Amici 519 LLC
pursuant to Fed.R.Civ.P. 12(b)(6). Defs.' Mot. Dismiss,
ECF No. 37.
on the other hand, moves for (1) conditional certification of
the FLSA claim as a representative collective action pursuant
to 29 U.S.C. § 216(b)l on behalf of Covered Employees;
(2) court-facilitated notice of this FLSA action to Covered
Employees, including a consent form (or opt-in form) as
authorized by the FLSA; (3) approval of a proposed FLSA
notice (including Spanish translation) of this action and the
consent form; (4) production in Excel format of names, social
security numbers, titles, compensation rates, dates of
employment, last known mailing addresses, email addresses and
all known telephone numbers of all Covered Employees within
10 days of Court approval of conditional certification; (5)
posting of the notice, along with the consent forms, at any
time during regular business hours in Defendants'
restaurants where Covered Employees are employed; and (6)
equitable tolling of the FLSA statute of limitations until
such time that Plaintiff is able to send notice to potential
opt-in plaintiffs. Pl's Mem. Supp. Mot. Conditional
Collective Certification 1, ECF No. 41. For the reasons set
forth below, Defendants' motion to dismiss is
DENIED and Plaintiffs motion for conditional
certification is GRANTED in part and
DENIED in part.
January 2017 and March 2017, Plaintiff "was employed by
Defendants to work as a porter for Defendants' 'Essen
Midtown West Location.'" Compl. ¶ 29, ECF No.
1. Plaintiff claims that he regularly worked over forty hours
a week; specifically, he was scheduled to work six days a
week for a total of fifty-two and half hours, for which he
was paid at a straight-time hourlyrate. Id. at
¶¶ 30-31. Plaintiff also alleges that
Defendants' maintained "a policy of time-shaving
with respect to meal breaks" and "indiscriminately
and automatically deducted" thirty minutes each workday
from Plaintiffs payroll as meal breaks rather than tracking
actual meal breaks. Id. at ¶ 32. Moreover,
Plaintiff alleges that Defendants did not provide Plaintiff
with proper wage and hour notices or wage statements.
Id. at ¶ 36. Plaintiff asserts that other
non-managerial employees at Essen Restaurants experienced
similar issues based on his personal observations and
conversations with these employees. Id. at
¶¶ 31-32; 34-35; see also Deck of Pedro
Uraga ("Uraga Decl") ¶¶ 3-11, ECF No. 42.
further alleges that he experienced "disparate
treatment... based on his national origin," noting that
the general manager of Essen Midtown West "verbally
abused Plaintiff, disparaging his Mexican nationality and
referring to him as a 'fucking Mexican.'"
Id. at ¶ 33. After months of allegedly
"enduing anguish and distress under Defendants'
hostile work environment, Plaintiff was forced to leave his
job on or about March 9, 2017." Id. at ¶
seek to partially dismiss the Complaint for failure to state
a claim as to all Defendants except Amici 519 LLC for three
reasons. First, Plaintiffs Complaint does not sufficiently
allege that the Defendants are a "single integrated
enterprise," and the allegations against the Individual
Defendants lack factual specificity. Second, Plaintiff only
worked for one corporate entity, and thus, lacks standing to
represent class members against Defendants. Third, Plaintiff
has received his wage statements, thereby warranting
dismissal of his claims based on violations of Wage Notice
and Wage Statement laws. Defendants forward the same
arguments, with the exception of the argument regarding
Individual Defendants, in their opposition to Plaintiffs
Motion for Conditional Certification.
Motion to Dismiss
considering a motion to dismiss under Federal Rules of Civil
Procedure 12(b)(6), a court should "draw all reasonable
inferences in [the plaintiffs] favor, assume all well-pleaded
factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief."
Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d
Cir. 2011) (internal quotation marks omitted). Thus,
"[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
Court's function on a motion to dismiss is "not to
weigh the evidence that might be presented at a trial but
merely to determine whether the complaint itself is legally
sufficient." Goldman v. Belden, 754 F.2d 1059,
1067 (2d Cir. 1985). The Court should not dismiss the
complaint if the plaintiff has stated "enough facts to
state a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twombly, 550 U.S. at 570. "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678. Moreover,
"the tenet that a court must accept a complaint's
allegations as true is inapplicable to threadbare recitals of
a cause of action's elements, supported by mere
conclusory statements." Id. at 663.
when presented with a Rule 12(b)(6) motion to dismiss, the
Court may consider "documents that are referenced in the
complaint, documents that the plaintiff relied on in bringing
suit and that are either in the plaintiffs possession or that
the plaintiff knew of when bringing suit, or matters of which
judicial notice may be taken." Kaplan, Inc. v.
Yun, 16 F.Supp.3d 341, 345 (S.D.N.Y. 2014) (citing
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Motion for Conditional Certification of FLSA Collective
Second Circuit has held FLSA plaintiffs seeking certification
of a collective action pursuant to 29 U.S.C. § 216(b)
must survive a two-stage process. See Myers v. Hertz
Corp., 624 F.3d 537, 554-555 (2d Cir. 2010). "This
process entails an analysis of whether prospective plaintiffs
are 'similarly situated' at... an early 'notice
stage,' and again after discovery is largely
complete." Garcia v. Chipotle Mexican Grill,
Inc., No. 16 CIV. 601 (ER), 2016 WL 6561302, at *3
(S.D.N.Y. Nov. 4, 2016) (citing McGlone v. Contract
Callers, Inc., 867 F.Supp.2d 438, 442 (S.D.N.Y. 2012)).
"notice stage," which is 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.'" Id. (quoting Myers,
624 F.3d at 555). "The standard at the first stage is
not stringent." Rojas v. Kalesmeno Corp., No.
17 CIV. 0164 (JCF), 2017 WL 3085340, at *3 (S.D.N.Y. July 19,
2017). Plaintiff need only make 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).
plaintiff can make a "modest factual showing" with
her own declarations or the declarations of other potential
class members. 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."
Rojas, 2017 WL 3085340, at *3 (collecting cases).
Although the burden is low, certification is not
automatic-conclusory allegations are not sufficient.
Id. (citing Raniere v. Citigroup Inc., S21
F.Supp.2d 294, 320 (S.D.N.Y. 2011), rev'd on other