United States District Court, S.D. New York
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
Order dated December 30, 2019 (Dkt. No. 82), the Court gave
defendants until January 10, 2020 to serve an "updated
list containing the names (including nicknames used for work
purposes), current or last known mailing addresses, current
or last known email addresses, and (for former employees
only) current or last known telephone numbers of all hair
designers and hair salon assistants employed at
defendants' salons on or after December 21, 2015,
together with their dates of employment," and directed
the parties to attach that list to the joint status letter
they were required to file by the same date. See
Dec. 30 Order ¶¶ 3, 4(a).
January 10, 2020, the parties submitted their joint status
letter. (Dkt. No. 85.) Defendants report that their updated
contact list is "complete," but acknowledge that
they did not "maintain the contact information" for
certain "freelancers" included within the
collective that this Court has conditionally certified. Jan.
10 Letter at 1. Plaintiffs, for their part, complain that the
updated list contains only 21 names, which in their view
means it cannot possibly be complete, and renew their request
for an order authorizing publication notice at
defendants' expense. Id. at 2. The parties
failed to attach the updated contact list to their letter as
addition, plaintiffs renew their request - first made orally
on December 30, 2019, and repeated in their letter dated
January 4, 2020 (Dkt. No. 84) - for leave to "amend
their First Amended Complaint" to include a third
corporate defendant, known as Hair Lounge III, Inc., which
according to plaintiffs operates a third hair salon under the
control of individual defendant Chen Lung Lu a/k/a Edison Lu,
and "expand the FLSA collective certification" to
include the employees at that location. Jan. 10 Letter at 2.
to further amend the pleadings or expand the conditionally
certified collective is DENIED. The deadline to amend the
pleadings was April 4, 2019 (Dkt. No. 22, ¶ 3), which is
when plaintiffs filed their operative First Amended
Complaint. (Dkt. No. 31.) Thereafter, the fact discovery
cutoff came and went (see Dkt. No. 22, ¶ 5) and
plaintiffs moved for conditional certification of a
collective including hair designers and hair salon assistants
at two hair salons, operated by two
corporate defendants under the control of Edison Lu or his
wife, defendant Min Fei Chen a/k/a Wendy Chen. (Dkt. No. 33.)
The Court granted that motion on November 7, 2019 (Dkt. No.
70), but notice to the members of the collective has not yet
been distributed, due in part to difficulties with the form
of the notice itself and in part to the alleged inadequacy of
defendants' contact list. Any further delay in providing
notice will prejudice the members of the collective, because
"the statute of limitations period continues to run with
respect to each potential plaintiff's collective action
claim until that plaintiff files the written consent form
opting into the suit." Whitehorn v. Wolfgang's
Steakhouse, Inc., 767 F.Supp.2d 445, 449 (S.D.N.Y.
2011); accord Lee v. ABC Carpet & Home, 236
F.R.D. 193, 198-99 (S.D.N.Y.2006) (citing 29 U.S.C.
§§ 255, 256); Hoffmann v. Sbarro, Inc.,
982 F.Supp. 249, 260 (S.D.N.Y. 1997); see also 29
U.S.C. § 256(b) (FLSA action "shall be considered
to be commenced," in the case of any individual claimant
not named in the complaint, "on the subsequent date on
which [that claimant's] written consent is filed in the
court in which the action was commenced.").
plaintiffs have failed adequately to explain their delay in
seeking to include a new defendant and a new location.
Plaintiffs' counsel, John Troy, Esq., acknowledges that
(i) the New York State Division of Corporations lists Hair
Lounge III, Inc. in its publicly-accessible entity
information database as a domestic corporation associated
with Chen Lung Lu; (ii) when counsel performed a "simple
Google search," "three salons" associated with
that defendant "pop up on the top of the list,"
including the two locations already included in this action
and the address of Hair Lounge III, Inc.; and (iii)
individual plaintiff Dong Yuan "used to work at all
three locations during the relevant period of his
employment." Jan 4 Letter at 1-2 & Exs. 1, 3.
Counsel offers no excuse for failing to notice (or act on)
any of these facts until long after the amendment deadline
passed and the Court conditionally certified a two-location
collective. Plaintiffs have therefore has failed to establish
"good cause," as required by Fed.R.Civ.P. 16(b)(4),
for a late amendment, See Grochowski v. Phoenix
Const., 318 F.3d 80, 86 (2d Cir. 2003) ("A finding
of good cause depends on the diligence of the moving
party."); Sokol Holdings, Inc. v. BMB Munai,
Inc., 2009 WL 3467756, at *2 (S.D.N.Y. Oct. 28, 2009)
(“The party must show that, despite its having
exercised diligence, the applicable deadline [set in the
court's scheduling order] could not reasonably have been
met.”), and the Court need not reach the merits of the
proposed amended pleading or expanded collective.
See, e.g., Port Auth. Police Benevolent
Ass'n, Inc. v. Port Auth. of New York & New
Jersey, 2016 WL 6083956, at *5 (S.D.N.Y. Oct. 17, 2016)
(having determined that plaintiffs "fail to show the
requisite 'good cause' under Rule 16(b) to amend the
complaint," the Court "need not consider the
proposed amendment under the Rule 15(a) factors").
that defendants' updated contact list contains the names
of only 21 individuals, and apparently does not include any
information for individuals that defendants considered
"freelancers" (but that plaintiffs believe to be
employees entitled to the protection of the FLSA), it is
hereby ORDERED that:
later than January 21, 2020, defendants
shall post a copy of the Notice and Consent Form approved by
the Court (Notice) (Dkt. No. 79), in English and Chinese, in
a conspicuous location, easily accessible to employees,
within each of the two hair salons (& Hair Lounge Inc.,
335 East 9th Street, and & Hair Lounge II, Inc., 131-33
Thompson Street, Space #3) at issue in this action.
later than January 21, 2020, plaintiffs'
counsel shall transmit the Notice, in English and Chinese, to
all known hair designers and hair salon assistants employed
by defendants on or after December 21, 2015, by:
a. First class mail to those potential opt-in plaintiffs
whose mailing address is known; and
b. Email to those potential opt-in plaintiffs whose email
address is known.
parties shall publish an abbreviated version of the Notice,
in English and Chinese, as a quarter page ad in the A Section
in the Northeast Region-NYC Metropolitan edition of the
World Journal on one weekday and one weekend day on
or before February 11, 2020, with defendants
bearing the cost of such publication.
Beginning on January 21, 2020,
plaintiffs' counsel may publish the Court-approved Notice
on counsel's website(s), in English and Chinese, and may
publish the abbreviated version of the Notice on
counsel's social media pages.