Opinion
16-CV-3847 (MKB) (RML)
05-02-2017
FLORENCIO ALCANTARA-FLORES, EDIE ARGENTO BARRERA, ISAIAS HERNANDEZ ZAPATA, and BENJAMIN JIMENEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. VLAD RESTORATION LTD. and VLAD TOMCZAK, an individual, Defendants.
MEMORANDUM & ORDER :
Plaintiffs Florencio Alcantara-Flores, Edie Argento Barrera, Isaias Hernandez Zapata and Benjamin Jiminez commenced this action against Defendants Vlad Restoration Ltd. and Vlad Tomczak on July 11, 2016 asserting claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and New York Labor Law ("NYLL") alleging, among other violations, that Plaintiffs were not paid overtime wages. (Compl, Docket Entry No. 1.) On February 2, 2017, Magistrate Judge Robert M. Levy granted Plaintiffs' motion for conditional class certification of the FLSA claims under 28 U.S.C. § 216(b). (Mem. and Order dated Feb. 2, 2017 ("February Order"), Docket Entry No. 24.) On February 7, 2017, Defendants appealed Judge Levy's February Order. (Defs. February Order Appeal ("Defs. Appeal"), Docket Entry No. 25.) For the reasons discussed below, the Court affirms Judge Levy's February Order.
Plaintiff Florencio Alcantara-Flores initially brought the case as the sole identified plaintiff but amended the Complaint on October 10, 2016, and added the additional named Plaintiffs. (Compl., Docket Entry No.1; Am. Compl., Docket Entry No. 14.)
I. Background
Plaintiffs moved for conditional certification of the FLSA claims as a collective action pursuant to 29 U.S.C. § 636(b). (Pls. Mot. to Certify FLSA Collective Action ("Pls. Mot."), Docket Entry No. 15; Mem. of Law in Supp. of Pls. Mot. ("Pl. Mem."), Docket Entry No. 16.) Plaintiffs alleged that the purported class of approximately thirty to thirty-five employees performed similar duties and functions working as foremen, demolition workers, restoration workers and construction workers during the relevant period. (Pls. Mem. 1, 7.) Plaintiffs argued that the potential class members are similarly situated because all of the employees performed similar job duties and were paid pursuant to a "scheme that enacted an improper policy of failing to compensate these employees with proper overtime premium pay." (Pls. Mem. 6-7.) In opposing Plaintiffs' motion, Defendants argued that conditional certification was not proper because twenty-one potential collective action members executed release agreements waiving any claims in this action. (Defs. Mem. in Opp'n to Pls. Mot. ("Defs. Mem."), Docket Entry No. 21.) Defendants concurrently filed a motion to remove the twenty-one potential collective action members from the action, relying on the same arguments they made in opposition to Plaintiffs' motion for conditional certification. (See Defs. Mot. to Remove, Docket Entry No. 18; Defs. Certification Mem., Docket Entry No. 18-5.)
Judge Levy granted Plaintiffs' motion for conditional certification, finding that the affidavits submitted by Alcantara-Flores and Barrera stating that Defendants "failed to pay them overtime premium wages" and asserting that they have "personal knowledge of other employees" subject to the same unlawful practices was an "adequate showing" to merit conditional certification. (February Order at 4.) Judge Levy explicitly declined to consider or rule on Defendants' motion to remove twenty-one potential class members. (See February Order 4 n.2 ("Whether or not those releases will ultimately prevent the twenty-one employees from opting into this lawsuit, should they choose to do so, is an issue that is not presently before the court. Defendants have cited no binding or persuasive authority, and the court's research has uncovered none, for the proposition that such general releases bar conditional certification.").) Judge Levy also ordered Defendants to produce, on or before February 24, 2017, the names, job titles, periods of employment, last-known addresses and last-known telephone numbers for all prospective plaintiffs for the three years prior to the filing date of the Complaint and to post Plaintiffs' proposed notice to potential class members in a "conspicuous non-public location in their place of business." (February Order at 5-6.)
Plaintiffs filed a letter on March 3, 2017 explaining that Defendants failed to produce employee information to them by the February 24, 2017 deadline and arguing that "Defendants' are using the appeals process simply as a tool to reargue their opposition to Plaintiffs' motion and challenge the Court's interpretation of the law." (Pls. Letter dated Mar. 3, 2017 at 1-2, Docket Entry No. 26.) Plaintiffs also argue that Defendants are "unilaterally delaying discovery in this matter by an appeal that borders on frivolity." (Id. at 2.)
II. Discussion
a. Standard of review
Under the Federal Magistrates Act, 28 U.S.C. § 636, and Rule 72 of the Federal Rules of Civil Procedure, "[a] magistrate judge is authorized 'to make findings as to non-dispositive pretrial matters, such as discovery matters, which may not be disturbed by a district judge absent a determination that such findings were clearly erroneous or contrary to law.'" Ingenito v. Riri U.S.A., No. 11-CV-2569, 2015 WL 9412541, at *5 (E.D.N.Y. Dec. 22, 2015) (alteration in original) (citing Ebo v. N.Y. Methodist Hosp., No. 12-CV-4432, 2015 WL 4078550, at *4 (E.D.N.Y. July 6, 2015)); see also Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007) ("[T]he district court to whom the case is assigned shall consider . . . objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." (quoting Fed. R. Civ. P. 72(a))). An order is clearly erroneous if, based on all the evidence, a reviewing court "is left with the definite and firm conviction that a mistake has been committed." In re Gordon, 780 F.3d 156, 158 (2d Cir. 2015) (internal quotation marks omitted) (quoting United States v. Murphy, 703 F.3d 182, 188 (2d Cir. 2012)); Ingenito, 2015 WL 9412541, at *5. "An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure." Ingenito, 2015 WL 9412541, at *5 (citation and internal quotation marks omitted). Under this highly deferential standard, magistrate judges are "afforded broad discretion in resolving discovery disputes, and reversal is appropriate only if that discretion is abused." McNamee v. Clemens, No. 09-CV-1647, 2014 WL 1338720, at *2 (E.D.N.Y. Apr. 2, 2014) (first citing Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 524 (2d Cir. 1990); and then citing United States v. Dist. Council, 782 F. Supp. 920, 922 (S.D.N.Y. 1992)). Therefore, "a party seeking to overturn a discovery order [by a magistrate judge] bears a heavy burden." Bachayeva v. Americare Certified Special Servs., No. 12-CV-1466, 2013 WL 4495672, at *1 (E.D.N.Y. Aug. 20, 2013) (quoting Garcia v. Benjamin Grp. Enter. Inc., 800 F. Supp. 2d 399, 403 (E.D.N.Y. 2011)).
A motion for conditional certification of a class under the FLSA is a non-dispositive pretrial matter. See Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 383-84 (E.D.N.Y. 2010) (collecting cases) (adopting report and recommendation in part); see also Warman v. Am. Nat'l Standards Institute, 193 F. Supp. 3d 318, 321 n.1 (S.D.N.Y. 2016) (noting that FLSA motions for conditional certification of a collective action are non-dispositive (citing Bijoux v. Amerigroup New York, LLC, No. 14-CV-3891, 2015 WL 5444944, at *1 (E.D.N.Y. Sept. 15, 2015) (adopting report and recommendation))); Ruggles v. WellPoint, Inc., 591 F. Supp. 2d 150, 156 n.6 (N.D.N.Y. 2008) ("The issue of whether a United States Magistrate Judge has jurisdiction to hear [a motion for conditional class certification under the FLSA] and render a decision accordingly has been firmly resolved within this Circuit." (citing cases)).
b. FLSA class certification
"A collective action under the FLSA is different from the typical class action under the Federal Rules of Civil Procedure, the strict requirements of which — numerosity, commonality, typicality, and adequate representation — do not apply to a collective action." Puglisi v. TD Bank, N.A., 998 F. Supp. 2d 95, 99 (E.D.N.Y. 2014); see also Warman, 193 F. Supp. 3d at 322 ("[T]here need not be a showing of numerosity, commonality, typicality, or adequacy of representation." (citation omitted)). The FLSA does not require certification, however, certification is "a recognized case management tool for district courts to employ in appropriate cases to facilitate the sending of notice to potential class members." Heitzenrater v. Officemax, Inc., No. 12-CV-900S, 2014 WL 448502, at *1 (W.D.N.Y. Feb. 4, 2014) (citing Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010)).
When determining whether a matter should proceed as a collective action under the FLSA, courts employ a two-step process. Myers, 624 F.3d at 554-55 ("In determining whether to exercise this discretion in an 'appropriate case[],' the district courts of this Circuit appear to have coalesced around a two-step method, a method which, while . . . not required by the terms of FLSA or the Supreme Court's cases, we think is sensible." (alteration in original) (footnote omitted)); see also Valerio v. RNC Indus., LLC, 314 F.R.D. 61, 65 (E.D.N.Y. 2016) ("Courts within the Second Circuit apply a two-step analysis to determine whether an action should be certified as an FLSA collective action." (collecting cases)). First, 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." Myers, 624 F.3d at 555. At this stage, the plaintiffs are required to 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. (quoting Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). "The modest factual showing cannot be satisfied simply by unsupported assertions, but it should remain 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. (citations and internal quotation marks omitted). If the plaintiffs can satisfy this "minimal burden . . . the court certifies the class and provides for notice to be sent to the potential class members who are then given the chance to opt in to the action." Jin Yun Zheng v. Good Fortune Supermarket Grp. (USA), Inc., No. 13-CV-60, 2013 WL 5132023, at *4 (E.D.N.Y. Sept. 12, 2013); see also Chime v. Peak Sec. Plus, Inc., 137 F. Supp. 3d 183, 199 (E.D.N.Y. 2015) ("Once additional plaintiffs have opted in and a fuller record has been developed, the court may proceed to the second step . . . ."). At the second stage, after the completion of discovery, the court will review the record to "determine whether a so-called 'collective action' may go forward by determining whether the plaintiffs who have opted in are in fact 'similarly situated' to the named plaintiffs. The action may be 'de-certified' if the record reveals that they are not, and the opt-in plaintiffs may be dismissed without prejudice." Myers, 624 F.3d at 555.
Because of the nature of the two-step process, a court will not consider a defendant's objection that individual defenses exist against certain potential class members as a basis to deny certification at the first step. See Cruz v. Lyn-Rog Inc., 754 F. Supp. 2d 521, 525-26 (E.D.N.Y. 2010) ("[I]t is well settled that the existence of certain individual claims or defenses does not preclude the conditional certification of an FLSA collective action." (quoting Sexton v. Franklin First Financial, Ltd., No. 08-CV-04950, 2009 WL 1706535, at *8-9 (E.D.N.Y. June 16, 2009))); see also Bijoux v. Amerigroup N.Y., LLC, No. 14-CV-3891, 2015 WL 4505835, at *13 (E.D.N.Y. July 23, 2015) ("[T]he presence of individual defenses does not undermine the court's determination that conditional certification is warranted here."), report and recommendation adopted, 2015 WL 5444944 (Sept. 15, 2015). Rather, the purpose of the first step of conditional certification is to provide notice to potential plaintiffs, and it is not until the second step, sometimes referred to as the "decertification stage," that a court will scrutinize membership in the class. Indergit v. Rite Aid Corp., 293 F.R.D. 632, 638-39 (S.D.N.Y. 2013) ("In determining whether to decertify, courts look to the following factors: '(1) disparate factual and employment settings of the individual plaintiffs; (2) defenses available to defendants which appear to be individual to each plaintiff; and (3) fairness and procedural considerations counseling for or against [collective action treatment].'" (alteration in original) (citations omitted)); Searson v. Concord Mortg. Corp., No. 07-CV-3909, 2009 WL 3063316, at *6 (E.D.N.Y. Sept. 24, 2009) ("When conducting an initial determination for class certification, the court does not look to [Plaintiff's] individual defenses because that inquiry is properly addressed in the second stage of certification, after discovery.") (adopting report and recommendation).
c. The February Order was not clearly erroneous nor contrary to law
Defendants argue that Judge Levy erred in granting conditional certification because he "overlooked" Defendants' motion to remove the twenty-one potential plaintiffs, which, Defendants appear to argue, undermines the requirement that the purported class of plaintiffs is similarly situated and sufficiently numerous. (See generally Defs. Appeal.)
Defendants incorrectly label their appeal "objections to nondispositive and dispositive matters" citing Fed. R. Civ. P. 72(a) and 72(b). (Defs. Appeal 1.) However, as discussed above, a motion for conditional FLSA certification is a non-dispositive motion and therefore reviewed pursuant to Fed. R. Civ. P. 72(a). See, e.g., Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 383-84 (E.D.N.Y. 2010) (reviewing an order for FLSA conditional certification under Rule 72(a)) (adopting report and recommendation in part). --------
Judge Levy's February Order was not clearly erroneous or contrary to law. Defendants argue that Judge Levy should have considered the releases. (Defs. Appeal. 2.) However, the law is clear that such an inquiry is premature at the first step of FLSA conditional certification. See, e.g., Lujan v. Cabana Mgmt., Inc., No. 10-CV-755, 2011 WL 317984, at *11 (E.D.N.Y. Feb. 1, 2011) (finding it "premature to give preclusive effect" to releases of FLSA claims authorized by the Department of Labor "at this preliminary stage of the litigation, as the [c]ourt cannot yet determine whether and how the waivers affect the rights of each plaintiff and potential plaintiff"); Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp. 2d 234, 240 (N.D.N.Y. 2002) (dismissing the defendants' argument that notice to potential class members should not include potential employees who had released their FLSA claims as a result of a settlement with the Department of Labor, because "[a]t this stage of the action the [c]ourt cannot determine whether and how the waivers affect the rights of each plaintiff and potential plaintiff"). The appropriate time to consider the purported releases is after discovery, at which time Defendants may move to decertify the class. See Sexton, 2009 WL 1706535, at *9 (finding that although certain opt-in plaintiffs signed a release, the release did not prevent conditional certification because "even if these defenses are later determined to require an examination of individualized circumstances, the [c]ourt may nonetheless continue with the collective action if manageable, or decertify the class at a later stage, or bifurcate the trial, as necessary, to deal with such defenses").
In support of their argument that Judge Levy erred in failing to consider the releases filed by twenty-one potential plaintiffs, Defendants rely on Gortat v. Capala Bros., Inc., No. 7-CV- 3629, 2011 WL 2133769 (E.D.N.Y. May 27, 2011) to argue that these potential plaintiffs should be "judicially exclude[ed]" at this stage of the litigation. (Defs. Appeal 5.) Defendants' reliance is misplaced. In Gortat, after the court granted conditional certification, the defendants moved to remove fifty-four class members who signed releases opting out of membership from the Federal Rule of Civil Procedure 23 ("Rule 23") certified class and to remove seven class members who failed to timely opt in to the FLSA class. Gortat, 2011 WL 2133769, at *1. The court removed the plaintiffs who signed releases from the Rule 23 certified class of New York Labor Law claims and also excluded the seven potential plaintiffs who failed to opt in to the FLSA class. Id. (citing Gortat v. Capala Bros., Inc., 07-CV-3629, 2010 WL 1423018, at *15 (E.D.N.Y. Apr. 9, 2010)). Unlike in the instant case, the decision in Gortat does not address a release of the right to proceed as a class under the FLSA but only a release to opt out of a Rule 23 certified class, and the potential FLSA plaintiffs were removed because they failed to opt in to the already-certified FLSA class.
Defendants also appear to argue that the potential class members here are not sufficiently numerous to proceed as a class action without the twenty-one potential plaintiffs who purportedly released their right to proceed collectively. (Defs. Appeal 3-6.) Because it is not proper for the Court to consider whether to remove the twenty-one defendants as potential plaintiffs at this stage of the litigation, the Court accepts Plaintiffs' allegation that the potential class size is between thirty and thirty-five members. Moreover, unlike certification under Federal Rule of Civil Procedure 23, numerosity is not a prerequisite to conditional certification for FLSA claims, see Warman, 193 F. Supp. 3d at 322, and Defendants do not cite any binding authority stating that a court is precluded from granting conditional certification where there is a potential for between thirty and thirty-five or fewer class members. To the contrary, similarly- sized FLSA classes have been conditional certified by several courts in this Circuit. See, e.g., Fracasse v. People's United Bank, No. 3:12-CV-670, 2013 WL 3049333, at *3 (D. Conn. June 17, 2013) (allowing FLSA conditional certification for a group of between thirty-one to thirty-five members); Davis v. Lenox Hill Hosp., No. 03-CV-3746, 2004 WL 1926086, at *7 (S.D.N.Y. Aug. 31, 2004) (finding that a group of twenty potential class members was not too small to allow conditional certification and notice).
Finally, Defendants also argue that the potential class is not similarly situated or sufficiently numerous because four of the potential thirty to thirty-five class members are "clerical and not in construction." (Defs. Appeal 3.) Judge Levy did not err in declining to consider whether some of the thirty-to-thirty-five potential class members are clerical workers. Defendants' argument is premature because the class certification and notice are limited to employees who worked as foremen, restoration workers, demolition workers and construction workers for Vlad Restoration, Ltd. (See Proposed Notice Form at 1 (describing the class as "foremen, restoration workers, demolition workers and construction workers for Vlad Restoration, Ltd."), Docket Entry No. 16-2.) Accordingly, if any clerical workers opt in to the class, Defendants may move to decertify the class after discovery is complete. See Spencer v. No Parking Today, Inc., No. 12-CV-6323, 2013 WL 1040052, at *8 (S.D.N.Y. Mar. 15, 2013) (dismissing a defendant's argument that a class was not similarly situated based on an assertion that some of the potential class members held supervisory positions rather than parking assistant positions because it was "premature" and instead explaining that "[s]hould it turn out that anyone who opts in to the collective action is not sufficiently similarly situated, [the defendant] can move to decertify the action at the close of discovery"), report and recommendation adopted, 2013 WL 2473039 (June 7, 2013).
Moreover, Plaintiffs' allegations contradict Defendants' assertion. Plaintiffs allege that the thirty-to-thirty-five potential class members are employed as "foremen, restoration workers, demolition workers and construction workers." (See Affidavit of Argento Barrera ("Barrera Aff.") ¶ 8 (noting that between thirty and thirty-five foremen, restoration workers, demolition workers and construction workers were employed by Vlad Restoration, Ltd.), Docket Entry No. 16-1; Florencio Alcantara-Flores Affidavit ("Alcantara-Flores Aff.") ¶ 10 (same), Docket Entry No. 16-1.) Therefore, even if the factual challenge was not premature, the Court draws all inferences in Plaintiffs' favor at this stage of the proceeding and would accept Plaintiffs' allegation that Defendants employ thirty-to-thirty-five foremen, restoration workers, demolition workers and construction workers. See Warman, 193 F. Supp. 3d at 323 ("When there are ambiguities in the papers seeking collective action status, the court must draw all inferences in favor of the [p]laintiff at the preliminary certification stage." (citation and internal quotation marks omitted)); Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561, 565 (S.D.N.Y. Mar. 6, 2012) ("Given that [the defendants] will have an opportunity to move for decertification at the second stage if the plaintiffs are not 'similarly situated', and the prediscovery posture of the case, the [c]ourt will consider the [plaintiffs'] hearsay statements [regarding the employees' lack of overtime pay] here.").
Accordingly, because the Court finds that Judge Levy's February Order is not clearly erroneous nor contrary to law, the Court denies Defendants' appeal.
III. Conclusion
For the foregoing reasons, the Court affirms Judge Levy's February Order. As indicated in the February Order, Defendants are directed to produce the names, job titles, periods of employment, last-known addresses and last-known telephone numbers of all prospective plaintiffs for the three years prior to the filing date of the Complaint by May 9, 2017.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge Dated: May 2, 2017
Brooklyn, New York