Opinion
18-cv-4941 (JHR) (JW)
04-26-2024
XING YE, et al., Plaintiffs, v. 2953 BROADWAY INC., et al., Defendants.
HONORABLE JENNIFER H. REARDEN, United States District Judge:
REPORT & RECOMMENDATION
JENNIFER E. WILLIS, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Xing Ye, et al., on behalf of themselves and all others similarly situated, allege that Defendants 2953 Broadway Inc. d/b/a Vine Sushi, et al. (“Defendants” or “Vine Sushi”), violated the Fair Labor Standards Act (“FLSA”) by failing to properly compensate deliverymen under minimum wage and overtime wage laws, and failing to provide proper time-of-hire notice and paystubs as required under New York Labor Law (“NYLL”). Dkt. No. 146 at 6-8. In June 2023, Plaintiffs filed this Motion for Class Certification pursuant to Fed.R.Civ.P. 23. Dkt. No. 146. The Motion was referred to this Court on March 26, 2024. Dkt. No. 174.
For the reasons stated below, the Court recommends that this motion be DENIED.
I. BACKGROUND
A. Factual History
Defendants owned, operated, or otherwise managed Vine Sushi, a restaurant located at 2955 Broadway, New York, NY 10025. Dkt. No. 5 ¶¶8-14. Plaintiffs are all former employees of Vine Sushi who worked as deliverymen after June 4, 2012. Dkt. No. 146 at 6. Plaintiffs claim that, at all relevant times, they “were paid at a rate less than the minimum wage even though they were ineligible for tip credit exemption” and “did not receive proper overtime pay” while working between 70 and 80 hours per week. Id. at 8. Plaintiffs also state that they sometimes “worked a spread of time greater than 10 hours” and were required to obtain and maintain their own delivery vehicles. Id. at 7-8. Plaintiffs further allege that they did not receive proper time-of-hire notice or paystubs from Defendants. Id. at 5-6.
B. Procedural History
Plaintiff Xing Ye filed this action in 2018, on behalf of himself and others similarly situated, against Defendants for alleged violations of the FLSA and NYLL. Dkt. No. 5.
Plaintiffs moved for Conditional Collective Class Certification in October 2018, Dkt. Nos. 27-29, but that motion was left open as the parties entered mediation. Dkt. Nos. 35-37. After the parties negotiated a settlement agreement, Dkt. No. 42, Plaintiffs sought to add five additional party plaintiffs to the action. Dkt. Nos. Dkt. Nos. 43-46, 48. Defendants objected on the grounds that the motion for conditional collective certification had never been decided, and it was therefore “inappropriate for Plaintiff's counsel to unilaterally add five new parties to this lawsuit.” Dkt. No. 49. Judge Loretta A. Preska granted Plaintiffs' request to amend the Stipulation of Dismissal to reflect additional opt-in plaintiffs. Dkt. No. 47. Defendants objected that the case should be mooted and terminated because Plaintiff Xing Ye had already accepted and executed the settlement agreement. Dkt. No. 55. In an August 2019 order, Judge Preska held that “the settlement was not final, and thus Plaintiff's claims were not moot,” therefore permitting the case to move forward. Dkt. No. 63.
Subsequently in January 2020, Plaintiffs filed a Renewed Motion for Conditional Collective Certification. Dkt. No. 70. Judge Preska granted the conditional certification of “a class encompassing delivery workers employed by Defendants[,]” but denied the conditional certification of “a broader class covering other categories of employees.” Dkt. No. 76 at 7.
This case was reassigned to Judge Jennifer H. Rearden in March 2023. Dkt. Nos. 136-137. In May 2023, Judge Rearden directed the parties to engage in settlement discussions while they simultaneously continued to litigate the case. Dkt. No. 141. Plaintiffs subsequently filed a Motion for Class Certification pursuant to Fed.R.Civ.P. 23, Dkt. No. 146, which Defendants opposed. Dkt. No. 150. Plaintiffs seek to certify a class of delivery workers (the “Proposed Class”) defined as: “All deliverymen who were employed or are currently employed by Defendants during the six years immediately preceding the initiation of this action, or June 4, 2012, up to the date of the decision on this motion.” Dkt. No. 146 at 5.
Although Plaintiffs' reply deadline was August 7, 2023, see Dkt. No. 148, Plaintiffs did not file their reply until over a month later on September 11, 2023. Dkt. No. 153. Defendants asked the Court to strike Plaintiffs' reply for failure to comply with the Court's briefing schedule. Dkt. No. 154.
Judge Rearden convened a conference on September 15, 2023 to discuss her concerns regarding the parties' failure to engage in settlement after being ordered to do so. Dkt. No. 161 at 4. In particular, Judge Rearden was troubled by Plaintiff's counsel's misrepresentations to this Court regarding their off-the-record request to adjourn a settlement conference that had been scheduled for September 14th. Dkt. No. 161 at 5-6. At that conference, Judge Rearden also stated, “plaintiffs filed their significantly late reply without having requested an extension or giving the Court any notice of the changed submission in accordance with the Court's individual rules and practices.” Id. at 7. She further noted that, in defending their untimely reply, Plaintiff's counsel again misrepresented their “active participation” in settlement discussions, when they had in fact not made any efforts to pursue settlement. Id. at 7-8. Judge Rearden again directed the parties to engage in settlement discussions while simultaneously litigating Plaintiff's Motion for Class Certification. Id. at 11-12.
In November 2023, Plaintiffs refiled their motion for class certification without seeking leave from Judge Rearden to do so. Dkt. Nos. 164-166, 169. At a December 2023 conference, Judge Rearden clarified that Plaintiffs' initial Motion for Class Certification had been terminated due to a clerical error, but she also reprimanded Plaintiffs' counsel for filing a substantially different, longer motion under the guise of a “true refiling.” Dkt. No 172 at 6-7. Judge Rearden found that Plaintiff's Counsel had made two significant misrepresentations to the Court by trying to conceal its filing of a significantly modified motion and contending that Plaintiffs had been instructed to wait to file their Rule 23 motion. Id. at 10-11. The Judge cautioned Plaintiffs' counsel:
“And I warn you to be very careful about the way you are proceeding in front of this Court. This is the second time I have had to hold a conference to address your misrepresentations to the Court. Both times they've been prejudicial to your adversary.” Id. at 12.
Judge Rearden then directed the Clerk of the Court to strike Plaintiffs' refiled motion. Id.; Dkt. No. 171 (striking Dkt. Nos. 164, 165, and 166).
For clarification, the Court will consider only Plaintiffs' initial Motion for Class Certification (Dkt. Nos. 144-146), Defendants' reply (Dkt. No. 150), and Plaintiffs' subsequent reply (Dkt. No. 157) when making its recommendation.
The Court notes that Defendants moved to strike Plaintiffs' reply for failure to comply with the Court's briefing schedule. Dkt. No. 154. However, Judge Rearden has not ruled on that motion and Dkt. No. 157 has not been stricken, so the Court will consider it.
II. LEGAL STANDARD
A court may certify a class action only if it concludes, after a “rigorous analysis,” that the proposed class meets the requirements of Rule 23(a) and (b). Comcast Corp. v. Behrend, 569 U.S. 27, 33-34 (2013). “[T]he preponderance of the evidence standard applies to evidence proffered to establish Rule 23's requirements.” Teamsters Loc. 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008).
Pursuant to Rule 23(a), plaintiffs must demonstrate that: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a) (emphasis added). Rule 23 also includes an implied requirement of “ascertainability” under which “a class is ascertainable if it is defined using objective criteria that establish a membership with definite boundaries.” In re Petrobras Sec., 862 F.3d 250, 257 (2d Cir. 2017).
“Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b).” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Under Rule 23(b)(3), plaintiffs must show that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed R. Civ. P. 23(b)(3) (emphasis added).
“[T]he requirements for certifying a class under Rule 23 are unrelated to and more stringent than” the requirements for conditional collective action certification. Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 520 (2d Cir. 2020).
III. DISCUSSION
Plaintiffs seek to certify the Proposed Class pursuant to Fed.R.Civ.P. 23(a) and Fed.R.Civ.P. 23(b)(3). Dkt. No. 146 at 9-10.
First, the Court agrees with Plaintiffs that “[m]embership in the proposed class can be ascertained by reference to Defendants' records” because all potential class members were employed by Defendants. Dkt. No. 146. Because this Proposed Class is sufficiently definite to allow the Court to ascertain its members, Plaintiffs have satisfied Rule 23's ascertainability requirement. In re Petrobras Sec., 862 F.3d at 260.
A. Rule 23(a)
Rule 23(a) requires Plaintiffs to establish numerosity, commonality, typicality, and adequacy. Fed.R.Civ.P. 23(a). This Court will analyze each of these requirements in turn.
1. Numerosity
Numerosity is satisfied where, “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a). While numerosity is presumed at a level of 40 members or more, Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995), courts generally “will find that it has not been satisfied when the class comprises 21 or fewer.” Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998). Where the class number falls “between 21 and 40 class members, courts must consider factors other than class size...includ[ing] (1) the judicial economy that will arise from avoiding multiple actions; (2) the geographic dispersion of members of the proposed class; (3) the financial resources of those members; (4) the ability of the members to file individual suits; and (5) requests for prospective relief that may have an effect on future class members.” Id. at 114-15 (citing Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir.1993))(internal citations omitted).
To establish numerosity, “a plaintiff need not present a precise calculation of the number of class members[,]”and the court may “rely on reasonable inferences drawn from available facts”. Flores v. Anjost Corp., 284 F.R.D. 112, 123 (S.D.N.Y. 2012) (quoting Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 338 (S.D.N.Y.2004)) (internal quotations omitted). However, if “a plaintiff's assertions of numerosity are based on pure speculation or bare allegations, the motion for class certification must fail.” Id.
Plaintiffs claim that an estimate of over 40 members of the Proposed Class is reasonable here because there are 9 named Plaintiffs, and Plaintiff Liang Yan Chen recalled 13 additional employees working at Vine Sushi. Dkt. No. 146 at 13 (citing Dkt. No. 71-5). First, the Court notes that a class consisting of the 9 named Plaintiffs alone would not be sufficiently numerous. Less than “ten individuals does not reach the presumption of numerosity, or the ‘gray area' in which additional factors must be considered.” See Grant v. New York Times Co., 329 F.R.D. 27, 32 (S.D.N.Y. 2018). While some courts have noted that numerosity may be recognized for smaller potential classes where members “fear retaliation by their employer”, Spencer v. No Parking Today, Inc., No. 12-CV-6323(ALC)(AJP), 2013 WL 1040052, at *13 (S.D.N.Y. Mar. 15, 2013), report and recommendation adopted, No. 12-CV-6323(ALC)(AJP), 2013 WL 2473039 (S.D.N.Y. June 7, 2013), that consideration is not relevant here because Vine Sushi closed its business in 2017. Dkt. No. 150 at 21. Second, the 13 other employees listed by Plaintiff Liang Yan Chen are not described as Vine Sushi delivery workers and thus would not fall within the proposed class definition. See Dkt. No. 146 at 5. Thus, Plaintiff Liang Yan Chen's affidavit does not establish more than 9 potential plaintiffs in the Proposed Class.
Plaintiffs also point to W-2 forms of Vine Sushi for the years of 2016 and 2017 which list over 40 employees. See Dkt. No. 145-10. But as Defendants point out, Dkt. No. 150 at 9, Plaintiffs do not identify which, if any, of these employees were former delivery workers. Courts in this district have found that a plaintiff failed to demonstrate numerosity when they “provided no information regarding the size of the smaller group of actual class members.” Jones v. Sterling Infosystems, Inc., 317 F.R.D. 404, 413 (S.D.N.Y. 2016). Because Plaintiffs here have similarly failed to present any competent evidence of the number of delivery workers who could actually be members of the Proposed Class, Plaintiffs have failed to demonstrate numerosity by a preponderance of the evidence. See Colozzi v. St. Joseph's Hosp. Health Ctr., 275 F.R.D. 75, 84 (N.D.N.Y. 2011)(“plaintiffs cannot draw any reasonable inference [of sufficient numerosity] from such sparse evidence.”).
2. Commonality
Commonality requires Plaintiffs to establish the existence of a common question of law or fact. Elisa W. v. City of New York, 82 F.4th 115, 122 (2d Cir. 2023). “This requirement has been characterized as a low hurdle.” McIntire v. China MediaExpress Holdings, Inc., 38 F.Supp.3d 415, 424 (S.D.N.Y. 2014) (internal quotation marks and citation omitted). In the FLSA context, the Second Circuit has found “class claims all derive[d] from the same compensation policies and tipping practices” to satisfy commonality. Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 252 (2d Cir. 2011). “[C]laims by workers that their employers have unlawfully denied them wages to which they were legally entitled have repeatedly been held to meet the commonality prerequisite for class certification.” Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 127 (S.D.N.Y. 2011).
Plaintiffs here have identified 6 common factual issues: (1) whether Vine Sushi failed to pay Proposed Class members the statutory minimum wage, (2) whether Vine Sushi failed to pay Proposed Class members overtime wages when they worked over 70 hours per week, (3) whether Vine Sushi failed to reimburse Proposed Class members for “tools of the trade” such as delivery vehicles, (4) whether Vine Sushi violated the “spread of hours” provision under NYLL, (5) whether Vine Sushi failed to provide Proposed Class members with proper time of hire notice, and (6) whether Vine Sushi failed to provide Proposed Class members with accurate pay stubs. Dkt. No. 146 at 14-17 (citing Dkt. No. 145, Ex. 1-9). These “common contention[s]” on issues of fact are “capable of classwide resolution” because “determination of [their] truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
Defendants' contention that Plaintiffs failed to submit proof of a “general policy” under which Proposed Class members “suffered the same injury” is inapposite. See Dkt. No. 150 at 10. The affidavits of named Plaintiffs are evidence of the common factual issues relevant here. See Dkt. No. 145, Ex. 1-9. Plaintiffs allegations against Vine Sushi point to the “‘same conduct or practice by the same defendant'” against all Proposed Class members, which properly establishes a common question. Johnson v. Nextel Commc'ns Inc., 780 F.3d 128, 137 (2d Cir. 2015)(citing Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir.2014)). Thus, Plaintiffs have demonstrated commonality by a preponderance of the evidence under Rule 23(a).
3. Typicality
“Typicality requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 245 (2d Cir. 2007); see also Schear v. Food Scope Am., Inc., 297 F.R.D. 114, 124 (S.D.N.Y. 2014); Whitehorn v. Wolfgang's Steakhouse, Inc., 275 F.R.D. 193, 199 (S.D.N.Y.2011).
In Shahriar v. Smith & Wollensky Rest. Grp., Inc., the Second Circuit affirmed the district court's finding that typicality was satisfied where “tipping practices affected every plaintiff” and plaintiffs submitted evidence of “a common policy and practice of not paying the spread of hours premium.” Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 252 (2d Cir. 2011). Similarly here, Plaintiffs allege that their claims arise from Defendants' common practices of wage theft which affected all members of the Proposed Class. Dkt. No. 146 at 19. Thus, “the alleged harms suffered by Plaintiffs are typical of those of the class they seek to represent.” Fonseca v. Dircksen & Talleyrand Inc., No. 13-CV-5124 AT, 2015 WL 5813382, at *4 (S.D.N.Y. Sept. 28, 2015).
Defendants contend that typicality is not satisfied because of “[t]he inconsistencies of the named Plaintiffs' factual allegations.” Dkt. No. 150 at 13. However, as the Second Circuit has noted, “[w]hen it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff[s] and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir.1993). Here, the factual distinctions identified by Defendants are insignificant compared to the similar alleged violations of the FLSA and NYLL that affected all Proposed Class members. Additionally, Courts in this District have found typicality satisfied where “the putative subclass members purportedly did not receive the requisite wage statements under the NYLL and, thus, were entitled to be paid the full minimum wage.” Fonseca v. Dircksen & Talleyrand Inc., 2015 WL 5813382, at *4.
The named Plaintiffs' claims arise from similar operative facts as the claims of all Proposed Class members, and thus, all members of the Proposed Class would likely rely on the same arguments to litigate their claims. Therefore, this Court is satisfied that the typicality requirement is met.
4. Adequacy
Finally, the adequacy requirement is satisfied where “1) plaintiff's interests are [not] antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000) (citing In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992)). Fed.R.Civ.P. 23(g) guides the court's assessment of proposed class counsel. See Fed.R.Civ.P. 23, Advisory Committee Notes, 2003 Amendment, Subdivision (g). Pursuant to Rule 23(g), the court “must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class” and “may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class”.
The Second Circuit has noted that “skilled and zealous representation [is] expected of class counsel under Rule 23(g)”. Jin v. Shanghai Original, Inc., 990 F.3d 251, 263 (2d Cir. 2021). “A lawyer who is qualified by experience and education to represent an FLSA class may nonetheless prove herself to be inadequate based on her commitment, preparation, and work in the instant case.” Huer Huang v. Shanghai City Corp., 459 F.Supp.3d 580, 597 (S.D.N.Y. 2020).
a. Adequacy of Class Representatives
Regarding the adequacy of Plaintiffs as class representatives, Plaintiffs state that named Plaintiffs are prepared to represent the Proposed Class and have no conflicts of interest. Dkt. No. 146 at 19. Defendants do not dispute that named Plaintiffs could be adequate class representatives. Dkt. No. 150 at 13-14. Moreover, “[t]he fact that plaintiffs' claims are typical of the class is strong evidence that their interests are not antagonistic to those of the class.” Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 158 (S.D.N.Y. 2008). Thus, the court is satisfied that this element of the adequacy requirement has been fulfilled.
b. Adequacy of Class Counsel
With respect to the adequacy of Plaintiffs' attorneys, Plaintiffs request that John Troy and his firm Troy Law be appointed to serve as class counsel. Dkt. No. 146 at 20. Plaintiffs contend that John Troy and his firm have experience litigating FLSA and NYLL collective actions and have diligently prosecuted the claims at issue in this lawsuit. Id. Defendants contend that Troy Law cannot adequately serve as class counsel based on “serious derelictions of its responsibility” in the present case and Troy Law's storied history of inadequate representation. Dkt. No. 150 at 13-18.
First, the Court notes that the adequacy of John Troy and Troy Law to serve as class counsel has been denied by other Judges in this District under similar circumstances. See e.g., Jin v. Shanghai Original, Inc., 990 F.3d 251, 255 (2d Cir. 2021)(decertifying class on the grounds that “Troy Law's representation of the class faltered”); Wang v. Shun Lee Palace Rest., Inc., No. 17-CV-840 (VSB), 2023 WL 2734328, at *6 (S.D.N.Y. Mar. 31, 2023)(finding that Troy Law could not adequately serve as class counsel where the case had been “significantly delayed due to Troy Law's conduct and dilatory litigation tactics.”); Huang v. Shanghai City Corp., No. 19-CV-7702 (LJL), 2022 WL 1468450 (S.D.N.Y. May 10, 2022); Shi Ming Chen v. A Taste of Mao, Inc., No. 17-CV-802(GBD)(GWG), 2021 WL 3727093, at *1 (S.D.N.Y. Aug. 20, 2021); Rodpracha v. Pongsri Thai Rest. Corp., No. 14CV02451 (DF), 2021 WL 1733515, at *2 (S.D.N.Y. Mar. 22, 2021)(“the Court shares the broader concern that has been expressed by other judges, in this district and elsewhere, that, regardless of its professed level of experience in wage-and-hour cases, Troy Law has shown a tendency towards prejudicial neglect of its clients' interests.”).
Troy Law's “derelictions” in these other cases “might by themselves have justified denial of the class certification motion here.” Shi Ming Chen v. Hunan Manor Enter., Inc., No. 17-CV-802(GBD)(GWG), 2021 WL 2282642, at *4 (S.D.N.Y. June 4, 2021), report and recommendation adopted sub nom. Shi Ming Chen v. A Taste of Mao, Inc., No. 17-CV-802(GBD)(GWG), 2021 WL 3727093 (S.D.N.Y. Aug. 20, 2021).
However, Troy Law's shortcomings in the instant matter also seriously trouble this Court. This case has been pending for nearly six years. See Dkt. No. 5 (Complaint filed June 4, 2018). At many stages, Troy Law has failed to litigate this case expeditiously. For example in 2019, Troy Law added five new parties to this lawsuit at the eleventh hour, Dkt. Nos. 43-50, thereby detonating a settlement agreement it had previously negotiated. Dkt. No. 42, 63. In June 2020, Troy Law requested a conference in front of Judge Preska and then failed to appear at the conference which was held at a date and time suggested by Troy Law. Dkt. Nos. 77-79. Additionally, Defendants represent that Judge Preska instructed Troy Law to file its Rule 23 motion in November 2022, Dkt. No. 150 at 17-18, but Troy Law did not file this motion until June 2023, nearly seven months later. Dkt. No. 144. Troy Law also made several misrepresentations to Judge Rearden regarding their efforts to participate in settlement in good faith. Dkt. No. 161 at 5-6.
With respect to the instant motion, Troy Law missed its deadline to file a reply, see Dkt. Nos. 153-154, and tried to deceive the Court by filing a substantially different version of this Rule 23 motion without seeking the Court's leave to do so. See Dkt. No. 172 (discussing Dkt. Nos. 164, 165, 166). These missteps demonstrate Troy Law's lack of commitment to the instant matter and inability to zealously advocate on behalf of Plaintiffs herein. The Court finds that Troy Law's “pattern of serious dereliction of responsibility to clients” has remained evident in the instant case. Wang v. Shun Lee Palace Rest., Inc., No. 17-CV-840 (VSB), 2023 WL 2734328, at *7 (S.D.N.Y. Mar. 31, 2023); see also Jianshe Guo v. A Canaan Sushi Inc., No. 18-CV-4147 (JMF), 2019 WL 1507900, at *1 (S.D.N.Y. Apr. 5, 2019)(Furman, J.)(dismissing FLSA case based on Troy Law's “repeated[ ] fail[ure] to comply with Court-ordered deadlines”); Shi Ming Chen v. A Taste of Mao, Inc., 2021 WL 3727093, at *1 (“[c]ounsel's conduct in the present case further demonstrates its inadequacy due to, inter alia, its failure to comply with court rules and deadlines.”).
For these reasons, this Court finds that John Troy and Troy Law are not qualified to serve as class counsel, and thus the adequacy requirement has not been met.
Because Plaintiffs have failed to satisfy the numerosity and adequacy requirements of Rule 23(a), the Court recommends Plaintiffs' Motion be denied.
B. Rule 23(b)
Plaintiffs here seek class certification under Rule 23(b)(3), Dkt. No. 146 at 10, which requires Plaintiffs to establish both that (1) commonalities among class members predominate and (2) class action is the superior method for adjudication. Fed R. Civ. P. 23(b)(3). This Court will analyze each of these requirements in turn.
1. Predominance
Rule 23(b)(3)'s predominance requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 594 (1997). To satisfy this requirement, plaintiffs must establish that the relevant “legal or factual questions that qualify each class member's case.can be achieved through generalized proof' and “these particular issues are more substantial than the issues subject only to individualized proof.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010)(quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.2002))(internal quotations omitted). “Some factual variation among the circumstances of the various class members is inevitable and does not defeat the predominance requirement.” Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 373 (S.D.N.Y. 2007).
Claims “based on the alleged across-the-board deprivation of overtime wages” have been found to satisfy this predominance requirement. Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 158 (S.D.N.Y. 2002). In Iglesias-Mendoza v. La Belle Farm, Inc., the Court noted that questions regarding whether class members were supposed to be paid the minimum wage and overtime were “the most perfect questions for class treatment.” Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. at 373. Similarly here, the common issues of fact identified by Plaintiffs include whether Proposed Class members were paid minimum wage, were paid their promised wage rates, were paid overtime, or were paid extra when their spread-of-time exceeded 10 hours. Dkt. No. 146 at 20-21. Because Plaintiffs contend that Vine Sushi uniformly failed to properly compensate members of the Proposed Class under the FLSA and NYLL, Plaintiffs have met their burden of showing that common issues predominate in this case.
Defendants respond that many of these questions regarding how many hours individuals worked or what wages individuals agreed to are subject to individualized proof. Dkt. No. 150 at 19-20. Defendants also contend that there will be individualized factual questions among Potential Class members, noting that Plaintiffs Jia Wang Lin and Xue Xin Zou acknowledged that they were aware of their hourly rate and tip credit at their depositions. Id. at 20. However, as the Supreme Court has recognized, actions where class members have central issues in common can meet the predominance requirement even if “other important matters [particular to some individual class members] will have to be tried separately.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016). Moreover, “[t]he existence of some factual variations in hours worked or hourly rates goes to the measure of damages, if any, and does make the action ill-disposed to class treatment.” Cuzco v. Orion Builders, Inc., 262 F.R.D. 325, 334-35 (S.D.N.Y. 2009). The factual distinctions between class members raised by Defendants here do not predominate over the common questions, and therefore, the Court finds the predominance requirement under Rule 23(b)(3) has been met.
2. Superior Method
Under the superiority prong of 23(b)(3), the Court must consider “(A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” In re Scotts EZ Seed Litig., 304 F.R.D. 397, 415 (S.D.N.Y. 2015) (citation omitted).
“Courts routinely hold that a class action is superior where, as here, potential class members are aggrieved by the same policy, [and] the damages suffered are small in relation to the expense and burden of individual litigation[.]” Schear v. Food Scope Am., Inc., 297 F.R.D. 114, 126 (S.D.N.Y. 2014). In Hart v. Rick's Cabaret Int'l Inc., the court found that a class action was the superior method of litigating employees' FLSA claims where individual lawsuits would not be cost effective and purported class members were presumed to be low-income. Hart v. Rick's Cabaret Int'l Inc., No. 09-CV-3043 (JGK), 2010 WL 5297221, at *7 (S.D.N.Y. Dec. 20, 2010). Similarly here, all Proposed Class members have analogous wage claims against Vine Sushi, see supra Section D.1, and many of the individual plaintiffs are immigrants who may have “smaller wage claims, which would not be worth the time, effort or money to litigate individually.” Dkt. No. 146 at 22. As the Second Circuit has noted, “Rule 23(b)(3) class actions can be superior precisely because they facilitate the redress of claims where the costs of bringing individual actions outweigh the expected recovery.” In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 130 (2d Cir. 2013) (citing Amchem Prods., Inc., 521 U.S. at 617). Thus, the interests of Proposed Class members weighs in favor of superiority here.
Other factors here also weigh in favor of the superiority of class action. While Defendants point to one individual action commenced by a potential class member, Dkt. No. 150 at 22, Courts in this District have found class actions to still be superior even where one related action was brought to the attention of the court. See Toure v. Cent. Parking Sys. of New York, No. 05-CV-5237(WHP), 2007 WL 2872455, at *8 (S.D.N.Y. Sept. 28, 2007). Other individual class members have not expressed any “need to control their claims separately[,]” and thus, “a class action is superior to piecemeal adjudications to achieve a fair and efficient resolution of the claims at issue.” Mentor v. Imperial Parking Sys., Inc., 246 F.R.D. 178, 184 (S.D.N.Y. 2007). Furthermore, this is a desirable forum for concentrating this litigation because all of the parties are located in New York. See Dkt. No. 145 (Ex. 1-9); Toure v. Cent. Parking Sys. of New York, 2007 WL 2872455, at *8; Mentor v. Imperial Parking Sys., Inc., 246 F.R.D. at 184. Finally, Courts in this District have routinely certified classes in similar cases where FLSA and NYLL claims are being considered together. Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 163 (S.D.N.Y. 2008)(collecting cases).
Thus, this Court is satisfied that the requirements of Rule 23(b)(3) have been met. However, because Plaintiffs have failed to establish the elements of Rule 23(a), the Court recommends Plaintiffs' Motion be DENIED.
IV. CONCLUSION
For the reasons stated above, this Court recommends that the Motion for Class Certification be DENIED.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure, the Parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Rearden. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
SO ORDERED.