Opinion
11-CV-3062 (SJ).
October 24, 2011
ORDER
Plaintiff Michael Cortes brings this action on behalf of himself and all similarly situated employees of defendants, seeking unpaid wages allegedly owed pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and New York State Labor Law. With respect to his FLSA claim, plaintiff alleges that defendants, who jointly operate parking and shuttle services and a rental car business at Kennedy and LaGuardia airports, regularly failed to pay plaintiff overtime wages. Cortes Aff. ¶ 4, Docket Entry 16. Defendants have failed to answer or otherwise respond to the complaint, despite the fact that answers were due in July, 2011.
Plaintiff has not yet moved for entry of default against the defendants. Plaintiff served all the defendants, with the exception of SF-JFK Holdings LLC, on July 8, 2011 by serving copies of the summons and complaint upon a John Smith, an individual who refused to provide his name, at 84-15 Astoria Blvd., East Elmhurst, New York, and by mailing copies to the individuals at the same address. Docket Entries 3-7.
Plaintiff moves for an order (1) conditionally certifying this action as a collective action on behalf of all persons employed by defendants who worked as a counter attendant, parking attendant and/or shuttle driver since February 27, 2008, (2) authorizing an "opt-in" notice of this action to all employees within the class, and approval of a proposed notice, and (3) compelling production by the defendants of relevant information identifying individuals within the proposed class. Docket Entries 14, 22. As defendants have defaulted, no opposition to the motion has been filed.
In his complaint, plaintiff included car washers as other employees also similarly situated but appears to have abandoned an inclusion of them as similarly situated. See, e.g., Compl. ¶ 21; Pl. Mem. 2, Docket Entry 22.
216(b) Certification
Section 216(b) of FLSA provides that "one or more employees" may move to have their case certified as a collective action "for and in behalf of . . . themselves and other employees similarly situated." See also Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 103 (S.D.N.Y. 2003). Upon granting conditional certification, the court may authorize a FLSA plaintiff to provide written notice to potential plaintiffs of their right to join in the action. Id. at 104. After receiving the written notice, employees who seek to join the collective action "must `opt in' and consent in writing." Morales v. Plantworks, Inc., 2006 WL 278154, at *1 (S.D.N.Y. Feb. 2, 2006). See also 29 U.S.C. § 216(b). "[O]nly potential plaintiffs who `opt-in' can be `bound by the judgment' or `benefit from it.'" Gjurovich, 282 F. Supp. 2d at 104.
Courts have broad discretion over whether to grant certification, what discovery to allow, and what form of notice to provide. Mendoza v. Casa de Cambio Delgado, Inc., 2008 WL 938584, at *1 (S.D.N.Y. Apr. 7, 2008). Certification of a collective action "is only a preliminary determination as to which potential plaintiffs may in fact be similarly situated," and "merely provides an opportunity for potential plaintiffs to join." Bowens v. Atlantic Maintenance Corp., 546 F. Supp. 2d 55, 81-82 (E.D.N.Y. 2008); Gjurovich, 282 F. Supp. 2d at 104). "After discovery, . . . the court examines with a greater degree of scrutiny whether the members of the plaintiff class — including those who have opted in — are similarly situated." Laroque v. Domino's Pizza, LLC, 2008 WL 2303493, at *4 (E.D.N.Y. May 30, 2008) ( citing Jacobs v. New York Foundling Hospital, 483 F. Supp. 2d 251, 265 (E.D.N.Y. 2007)).
It is well settled that a magistrate judge has authority to decide a motion for certification of a collective action. See, e.g., Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 383-84 (E.D.N.Y. 2010); Gortat v. Capala Bros., Inc., 2010 WL 1423018, at *8 (E.D.N.Y. Apr. 9, 2010).
To proceed with a collective action, "[t]he named plaintiff must . . . show that he is similarly situated to the prospective plaintiffs who would benefit from notice of the right to join." Bowens, 546 F. Supp. 2d at 81. Although neither FLSA nor its implementing regulations define the term "similarly situated," courts in this Circuit "have held that plaintiffs can meet this burden by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Morales, 2006 WL 278154, at *2; see also Rodolico v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y. 2001) ("Generally, at the notice stage, courts require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan."). To determine whether this minimal burden has been met, courts consider the "`(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 notification to the class.'" Laroque, 2008 WL 2303493, at *5 ( quoting Guzman v. VLM, Inc., 2007 WL 2994278, at *3 (E.D.N.Y. Oct. 11, 2007)). "Courts regularly grant motions for approval of a collective action notice based upon employee affidavits setting forth a defendant's plan or scheme to not pay overtime compensation and identifying by name similarly situated employees." Sobczak v. AWL Industries, Inc., 540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007) (internal quotation marks omitted).
In support of his motion, plaintiff Cortes has submitted an affidavit stating that he was employed at both Kennedy and LaGuardia airports as a parking attendant, counter attendant and shuttle driver, and in each position was compensated for his overtime hours at his regular rate of pay. Cortes Aff. ¶¶ 5-8, Docket Entry 16. He further states that he is "aware of various other similarly situated employees who were subjected to the same companywide unfair wage practice, specifically, these employees were not paid an overtime premium for work performed in excess of 40 hours. . . ." Id. ¶ 12. In addition, four individuals have submitted affidavits opting into the action and stating, like Cortes, that they and other employees held various positions and were not compensated for their overtime work in any of them. See Casimir Aff. ¶¶ 2, 6-8; Sonnee-Myricks Aff. ¶¶ 2, 5-7, 9; Martinez Aff. ¶¶ 2, 5-7; Crespo Aff. ¶¶ 2, 5-7, Docket Entries 17-20. Plaintiff has thus presented evidence, in the form of his own affidavit and affidavits of other employees, indicating that they and others, working as counter and parking attendants and shuttle drivers, did not receive the wages to which they were entitled by law.
As stated above, plaintiff's burden is minimal, and courts have authorized collective actions under circumstances comparable to those presented here. Compare Bowens, 546 F. Supp. 2d at 82 (certifying a collective action where plaintiff submitted a declaration confirming that other workers were not paid) and Sobczak, 540 F. Supp. 2d at 362-63, with Morales, 2006 WL 278154, at *3 (denying certification because "plaintiffs have offered only a conclusory allegation in their complaint; they have offered nothing of evidentiary value").
The only question arguably raised by plaintiff's motion is whether employees holding positions as counter attendants, parking attendants and shuttle drivers are similarly situated to a sufficient extent to warrant joining them all in a single collective action. The affidavits submitted in support of the motion indicate that any given employee is likely to have worked in two or more of these three positions, and to have been denied overtime wages in violation of FLSA in each of them. Under these circumstances, a single collective action including each of the enumerated positions is appropriate. See Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 322 (S.D.N.Y. 2007) (approving a collective action that included waiters, bartenders, runners and bussers and holding that "certification is appropriate . . . where all putative class members are employees of the same . . . enterprise and allege the same types of FLSA violations"). I therefore conclude that plaintiff's allegations are sufficient to warrant certification of this matter as a collective action.
Although the majority of the allegations concern the U-Save Car and Truck Rental at Kennedy airport, see Casimir Aff. ¶ 5, Martinez Aff. ¶ 5, Crespo Aff. ¶ 5, I accept plaintiff's allegations in the complaint as true for certification purposes that defendants together are an enterprise under FLSA, Compl. ¶¶ 7-8, 13-16. See Fasanelli, 516 F. Supp. 2d at 322. Moreover, in his affidavit, plaintiff Cortez states that he worked initially at the LaGuardia location and then at the Kennedy location. Cortes Aff. ¶ 3. This is sufficient at this stage to certify a collective action involving both locations. See Guan Ming Lin v. Benihana Nat'l Corp., 275 F.R.D. 165, 176 (S.D.N.Y. 2011) (noting that plaintiff's submissions established only that delivery persons at three of defendants' restaurants had "off-the-clock" claims but approving notice of the claim to all employees of defendants' various restaurants).
In his proposed notice, plaintiff describes the collective action as including "[a]ll current and former employees of U-Save Car Truck Rental LGA and U-Save Car Truck Rental JFK at any time since February 27, 2008 . . . employed as a counter attendant, parking attendant and/or shuttle driver." Docket Entry 21. Plaintiff provides no basis for the date he chose. The FLSA provides for a two-year statute of limitations generally, with an additional one-year extension for willful violations. 29 U.S.C. § 255(a). In a FLSA collective action, the statute of limitations runs for each plaintiff until he files written consent with the court to join the lawsuit. Id. § 256(b). Thus, I find that the date should be October 17, 2008, three years from the date plaintiff filed his motion for certification, unless plaintiff can articulate a persuasive basis for the earlier date.
Notice
Discovery
2:00 p.m. on November 9, 2011 See e.g. Moore v. Eagle Sanitation, Inc.___ F.R.D. ___2011 WL 2784239Rodriguez v. Almighty Cleaning, Inc. 784 F. Supp. 2d 114 132 Delaney v. Geisha NYC, LLC261 F.R.D. 55 60
After the time for opting in has expired, plaintiff shall amend his complaint to include all individuals who have consented to joining the FLSA action and the amended complaint shall be served upon the defendants. See Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 133 (E.D.N.Y. 2011).
Plaintiff shall promptly serve a copy of this Order on all defendants at their last known addresses, and to file proof of service with the Court.
SO ORDERED. Mejia et al. v. East Manor USA Inc. et al. NOTICE OF LAWSUIT
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Docket No.: 10-cv-4313 To: All individuals who performed restaurant related jobs at East Manor Buffet in Flushing, New York and/or East Manor Buffet in Elmhurst, New York from 2004 through the present. This does not include supervisors, officers, executive, managerial, or administrative personnel.
• This is a court-authorized notice that a collective action lawsuit may affect your legal rights. This is not a solicitation from a lawyer.
• Plaintiffs Juan Mejia and Emanuel Peralta ("Plaintiffs") are former employees of East Manor who have brought this lawsuit on behalf of themselves and all other current and former employees to seek payment of allegedly unpaid minimum wages and overtime wages. You may be owed minimum wages and/or overtime wages if you worked for East Manor Buffet in Flushing, New York and/or East Manor Buffet in Elmhurst, New York at any time from 2004 through the present.
• Defendants vigorously deny any wrongdoing and/or liability and deny that any employee was underpaid for his or her work at any time.
• No determination has been made that you are owed any minimum wages or overtime wages, and the Court is not endorsing the merits of this lawsuit or advising you to participate in this lawsuit. You are under no obligation to respond to this notice.
• You have a right to participate in this action even if you are an undocumented alien or if you were paid in cash
1. Why did I get this notice?
You are getting this notice because East Manor's records show that you worked at East Manor during the relevant time period.
2. What is this lawsuit about?
This lawsuit is about:
(1) Whether restaurant employees were paid the minimum wage for every hour that they worked; and
(2) Whether restaurant employees were paid overtime wages at time and one-half their regular hourly wage for every hour they worked over 40 hours in any week.
These claims were brought under the Federal Fair Labor Standards Act ("FLSA"), as well as under New York State law.
FEDERAL LAW CLAIMS: If you worked for East Manor between April __, 2008 to the present, you may be entitled to certain protection under the FLSA if you were not paid the minimum wage for every hour that you worked. You may also be entitled to certain protection for all work in excess of 40 hours each week if you received less than one and one-half times (1.5x) your regular hourly wage rate.
NEW YORK LAW CLAIMS: A class has not yet been certified for claims arising under New York law. Under New York law, you may have claims for improperly withheld minimum wages and overtime compensation (work performed over 40 hours) that date back to 2005. You will be advised of any additional rights that you may have to recover under New York law in the event that a class is certified.
To join this lawsuit at this time, you must have worked at East Manor between April ___, 2008 to the present.
3. How do I join this lawsuit?
If you would like to join this lawsuit, you must sign and promptly return the enclosed "Consent to Join Lawsuit" Form by [90 days from mailing date].
LLOYD AMBINDER, ESQ.
VIRGINIA AMBINDER, LLP
111 BROADWAY, SUITE 1403
NEW YORK, N.Y. 10006
RE: EAST MANOR
You can also fax the Consent to Join Lawsuit form to 212-943-9082, or email it to eastmanor@vandallp.com
If you do not sign and return the Consent to Join Form by [90 days from mailing date] you may not be able to participate in this lawsuit.
4. What happens if I join the lawsuit?
5. What happens if I do nothing?
If you choose not to join this lawsuit, you will not be entitled to share in any amounts recovered by the Plaintiffs if they are successful in obtaining an award from a trial or settlement of this lawsuit. You will also not be affected by any ruling, judgment or settlement rendered in this lawsuit. You have the right to retain your own counsel to represent you and to file an independent lawsuit. However, if you hire your own attorney, you may be responsible for paying that attorney. You should also be aware that your federal wage and hour claims are limited by either a two or three year statute of limitations. Delay in joining this action or proceeding separately may result in some or all of your potential claims expiring as a matter of law.
6. What are the Plaintiffs seeking?
Plaintiffs are seeking to recover unpaid minimum wages and overtime wages. Plaintiffs are also seeking liquidated damages, attorneys fees and costs.
7. Will I have a lawyer in this case?
If you choose to join this lawsuit, and you do not appoint your own attorney, you will be represented by Lloyd Ambinder and other lawyers at Virginia Ambinder, LLP located at 111 Broadway, Suite 1403, New York, New York, 10006; telephone (212) 943-9080, facsimile number (212) 943-9082; www.vandallp.com.
If you are represented by Virginia Ambinder, LLP, any attorney fees will either be paid out of any recovery that is obtained. If there is a recovery, the fees may be part of a settlement obtained or money judgment entered in favor of Plaintiffs, or may be ordered by the court to be paid by the Defendants, or may be a combination of both. If you are represented by Virginia Ambinder, LLP and Plaintiffs do not recover anything in this lawsuit, you will not have to pay any attorneys' fees.
You may also hire your own attorney to represent you in this lawsuit, however, you may be responsible for paying that attorney.
8. What if East Manor retaliates against me for joining this lawsuit?
It is a violation of state and federal law for East Manor or any of its related entities to fire, discipline, or in any manner discriminate or retaliate against you for taking part in this lawsuit. If you believe that you have been penalized, discriminated against, or disciplined in any way as a result of your receiving this notification, considering whether to join this lawsuit, or actually joining this lawsuit, you may contact Plaintiffs' lawyers or any other lawyers of your choosing.
9. What if I got paid in cash?
You have a right to participate in this action even if you are an undocumented alien or if you were paid in cash.
10. What if I still have questions?
If you have any questions about this lawsuit, or would like further information, you can contact the Plaintiffs' attorney Lloyd Ambinder of Virginia Ambinder, LLP at (212) 943-9080. If you require Spanish translation, please ask for Yeskenia Polanco. If you require Chinese translation, please ask for Judy Wong.
PLEASE DO NOT CONTACT THE CLERK OF THE COURT WITH QUESTIONS INVOLVING THIS LAWSUIT
Dated: March __, 2008