Opinion
11 Civ. 7356 (DAB)
01-31-2013
DONY LIMARVIN and DARWIN LIBERTTO, Individually and on behalf of all others similarly situated, Plaintiffs, v. EDO RESTAURANT CORPORATION, SOHODAN INC. and KENJI HIGUCHI, Jointly and Severally, Defendants.
ORDER
On November 28, 2012, Plaintiffs filed a Motion for Conditional Class Certification, seeking Court facilitation of notice under the Fair Labor Standards Act ("FLSA") section 216(b). For the reasons that follow, Plaintiffs' Motion to proceed as a FLSA collective action is GRANTED; Plaintiffs' Motion for court facilitated discovery and notice is GRANTED, subject to further conditions stated herein. I. DISCUSSION
Plaintiffs' motion papers do not seek to obtain Rule 23 certification of their New York state law claims. As such, the Court makes no determinations regarding Rule 23 class certification at this time.
Plaintiffs have asked the Court to certify a conditional class of similarly situated employees, namely current and former hibachi chefs, at Defendants' two restaurants and to facilitate notice to other employees so that they might opt-in to Plaintiffs' suit. Defendants challenge plaintiffs' assertion that the employees are similarly situated and challenge the Proposed Notice's neutrality. Defendants do not challenge, nor does the Court find any fault in, Plaintiffs' request for Defendants' production of employee information.
A. Legal Standards
The FLSA "regulates the minimum and overtime wages paid by employers engaged in interstate commerce." Liu v. Donna Karan Int'l Inc., No. 00 Civ. 4221, 2001 WL 8595, at *1 (S.D.N.Y. Jan. 2, 2001). Section 16(b) of the FLSA states in relevant part,
An action . . . may be maintained against any employer . . . by any one or more employees for and on behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.29 U.S.C. § 216(b). Courts generally determine the appropriateness of class certification at two stages: first, on the initial motion for conditional class certification, and second, after discovery. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010); Cuzco v. Orion Builders, Inc., 477 F. Supp. 2d 628, 632 (S.D.N.Y. 2007).
For a court to determine that conditional class certification is proper, "plaintiffs [must] make a 'modest factual showing' that they and potential opt-in plaintiffs" are similarly situated. Myers, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). Following that determination, the notification of class members proceeds according to a court-ordered plan, which provides the opportunity for those notified to opt-in to the action. Myers, 624 F.3d at 555; Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005). After discovery and after examining the record, a court may decertify the class if it finds the claimants are not similarly situated. Myers, 624 F.3d at 555; Scholtisek, 229 F.R.D. at 387.
B. Similarly Situated
On a motion for conditional class certification, a court first determines whether class members are similarly situated based on pleadings and affidavits. Cuzco, 477 F. Supp. 2d at 632. A named plaintiff bears the burden of showing that others are "similarly situated," by demonstrating "there is a 'factual nexus' between the claims of the named plaintiff and those who have chosen to opt-in to the action." Davis v. Lenox Hill Hosp., No. 03 Civ. 3746, 2004 WL 1926086, at *7 (S.D.N.Y. 2004). Since this burden is minimal, "the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations." Cunningham v. Elec. Data Sys., 754 F. Supp. 2d 638, 644 (S.D.N.Y. 2010) (internal citations and quotations omitted).
Plaintiffs' Motion for Conditional Class Certification is supported by allegations in the Complaint, as well as declarations submitted by six individual employees who were all employed by Defendants as hibachi chefs with similar, if not identical, job responsibilities. (Libertto Decl. ¶ 3; Limarvin Decl. ¶ 3; Purnama Decl. ¶ 3; Surya Decl. ¶ 3; Ryan Decl. ¶ 3; Sugiharto ¶ 3.) The six employees affirm that Defendants did not pay hibachi chefs for all hours worked and required them to work more than forty hours. (Libertto Decl. ¶¶ 3-6; Limarvin Decl. ¶¶ 3-6; Purnama Decl. ¶¶ 3-6; Surya Decl. ¶¶ 3-7; Ryan Decl. ¶¶ 3-7; Sugiharto ¶¶ 3-7.) Instead of paying them the required overtime rate, Plaintiffs assert that Defendants paid hibachi chefs a daily rate that did not fluctuate based on the number of hours they worked. (Libertto Decl. ¶ 4; Limarvin Decl. ¶ 4; Purnama Decl. ¶ 4; Surya Decl. ¶ 5; Ryan Decl. ¶ 5; Sugiharto ¶ 4.) The six employees also attest they were paid bi-weekly, by a combination of checks and cash, which was given to them in an envelope that contained a hand-written calculation of the total wages owed to them. (Libertto Decl. ¶ 5; Limarvin Decl. ¶ 5; Purnama Decl. ¶ 5; Surya Decl. ¶ 6; Ryan Decl. ¶ 6; Sugiharto ¶ 5.)
One initially was employed as a server but later became a hibachi chef. (Ryan Decl. ¶ 1.) Nonetheless, Defendants seem to admit that hibachi chefs are similarly situated. (Defs.' Opp'n 9; Higuchi Aff. ¶ 5 ("Hibachi chefs receive specialized training for the cooking performances, operate on their own separate work schedule, perform work tasks wholly unrelated to any other employee at either restaurant and receive wages that differ from any other employee group.")) --------
Although Defendants claim Plaintiffs' proposed class is ambiguous, arguing it includes all restaurant employees, (Defs.' Opp'n 1-2, 3-4), that is not the case. Plaintiffs' motion papers make clear that the collective action is limited to hibachi chefs who are or were employed by Defendants. (Pls.' Mot. 1; Pls.' Reply 1.) Having reviewed the Declarations provided by Plaintiffs, this Court concludes that Plaintiffs have satisfied their burden of setting forth specific facts demonstrating that they are sufficiently similarly situated to the hibachi chefs they propose to include in this collective action to warrant conditional certification of the collective action, and for notice to be sent to those potential plaintiffs.
C. Court Authorization of Notice
"Court authorization of notice serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the action." Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 172 (1989). Neither the statute, nor other courts, have outlined specifically what form court-authorized notice should take or what provisions the notice should contain. The Supreme Court has abstained from reviewing the contents of a proposed notice under FLSA section 216(b), noting that such "details" should be left to the broad discretion of the trial court. Id. at 170. When exercising its broad discretion to craft appropriate notices in individual cases, a court considers the overarching policies and benefits of the collective suit provisions. See id. Yet, these benefits "depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate." Id.
Defendants assert Plaintiffs' Proposed Notice is not neutral and should be modified. (Defs.' Opp'n 11-12.) Defendants challenge its neutrality on two grounds: (1) Defendants' counsel is not identified and (2) potential opt-in plaintiffs are instructed to mail the Proposed Consent Form forms to Plaintiffs' counsel and not the Clerk of the Court. (Defs.' Opp'n 11-12.)
Plaintiffs concede that defense counsel may be added to one area of the Proposed Notice. The Court agrees. See Harhash v. Infinity West Shoes, Inc., No. 10 Civ. 8285, 2011 WL 4001072, at *4 (S.D.N.Y. Aug. 25, 2011). The Court, however, does not agree with Plaintiffs' assertion that providing defense counsel's contact information would cause confusion. See, e.g., id. at *4; Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 91, 99 (S.D.N.Y. 2003). Accordingly, after Section VI of the Proposed Notice, Plaintiffs shall add a section that states Defendants are represented by Moses & Singer LLP and shall provide the firm's contact information in that section. See Harhash, 2011 WL 4001072, at *4.
District courts have split as to whether opt-in plaintiffs should file their consent forms individually or through Plaintiffs' counsel. Compare Hallissey v. Am. Online, Inc., No. 99 Civ. 3785, 2008 WL 465112, at *4 (S.D.N.Y. Feb. 19, 2008) with Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 59 (S.D.N.Y. 2009). When "the notice states that opt-in plaintiffs can select their own counsel," as Plaintiffs' Proposed Notice does, "there is only a minimal risk that opt-in plaintiffs will be discouraged from seeking their own counsel." Delaney, 261 F.R.D. at 59; Morris v. Lettire Const., Corp., - F. Supp. 2d - , 2012 WL4320462, at *7 (S.D.N.Y. Sept. 18, 2012) (allowing similar consent forms to be submitted to plaintiffs' counsel). Therefore, Plaintiffs' Consent Form and Deadline Reminder Notice should instruct potential opt-in plaintiffs to send their completed forms to Plaintiffs' counsel but shall be modified to "clearly indicate that opt-in [P]laintiffs' have the right to select their own counsel." Morris, 2012 WL 4320462, at * 7.
Finally, Defendants claim the Proposed Notice creates confusion regarding the definition of the proposed class because the class is defined as "all other Hibachi Chefs and other persons in similar positions." (Defs.' Opp'n 1; Pelton Decl. Ex. K, at 2.) In their Reply, Plaintiffs note their willingness to omit "and other persons in similar positions." (Pls.' Reply 9.) The Court agrees that the language may create confusion and is inaccurate; thereby the language "and other persons in similar positions" shall be removed.
Accordingly, the Court adopts Plaintiffs' Proposed Notice, Consent Form, and Deadline Reminder Notice, subject to the modifications described herein. (Pelton Decl. Ex. K, L, M.) Because no objections were made to Plaintiffs' request that Defendants post the Proposed Notice and Consent Form at their two restaurants and because posting them would inform effectively potential opt-in plaintiffs of the suit, this Court grants Plaintiffs' request. See Harhash, 2011 WL 4001072, at *5. II. CONCLUSION
Plaintiffs' Motion for Conditional Class Certification is GRANTED with respect to hibachi chefs employed at Defendants' two restaurants from October 18, 2008 to the date of this Order.
Plaintiffs shall submit an amended Notice of Lawsuit, Consent Form, and Deadline Reminder Notice to the Court within 10 days of the date of this Order. Defendants shall, within 30 days of this Order, post the Notice of Lawsuit and consent Form at their two restaurants in a manner visible to all hibachi chefs.
The Court finds that Plaintiffs are entitled to discovery of the names, last known email addresses, telephone numbers, dates of employment, and current or last known addresses of all hibachi chefs employed by the Defendants' restaurants over three years from the date of the Complaint. Defendants shall provide Plaintiffs with this information within 30 days of the date of this Order. Opt-in Plaintiffs shall have 60 days from the date the Defendant produces those names and addresses to file Consent to Sue letters with this Court.
SO ORDERED.
Dated: New York, New York
January 31, 2013
/s/_________
Deborah A. Batts
United States District Judge