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Uraga v. Amici 519 LLC

United States District Court, S.D. New York

July 25, 2018

PEDRO URAGA, on behalf of himself, FLSA Collective Plaintiffs and the Class,, Plaintiff,
v.
AMICI 519 LLC D/B/A ESSEN, ET AL.,, Defendants.

          OPINION AND ORDER

          ANDREW L. CARTER, JR., UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Before 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.

         Plaintiff, 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.

         BACKGROUND

         Between 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.

         Plaintiff 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 ¶ 34.

         Defendants 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.

         STANDARD OF REVIEW

         I. Motion to Dismiss

         When 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)).

         The 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.

         Finally, 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 Cir. 2002)).

         II. Motion for Conditional Certification of FLSA Collective Action

         The 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.[1] 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)).

         At the "notice stage," which is the current stage of this litigation, [2] 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).

         A 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 ...


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