Gortat et al v. Capala Brothers, Inc. et al

Filing 250

ORDER granting 232 and 233 . Ordered by Senior Judge I. Leo Glasser on 5/27/2011. (Rothstein, Judd)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MIROSLAW GORTAT, et al.,
Plaintiffs,
MEMORANDUM AND ORDER
07-CV-3629 (ILG)

-againstCAPALA BROTHERS, INC., et al.,
Defendants.
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GLASSER, United States Senior District Judge:

Plaintiffs are laborers and foremen who have brought suit against a construction company
and its principles under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., the
Portal-to-Portal Act, 29 U.S.C. § 254, and New York State Labor Law (“NYLL”). Familiarity
with the facts and procedural history of this matter is presumed, this case having been thus far
extensively litigated. See Gortat v. Capala Brothers, Inc., 585 F.Supp.2d 372 (E.D.N.Y. 2008);
Gortat v. Capala Brothers, Inc., 2008 WL 5273960 (Dec. 18, 2008 E.D.N.Y.); Gortat v. Capala
Brothers, Inc., 2009 WL 3347091 (Oct. 16, 2009 E.D.N.Y.); Gortat v. Capala Brothers, Inc., 257
F.R.D. 353 (E.D.N.Y. 2009); Gortat v. Capala Brothers, Inc., 2010 WL 1423018 (April 9, 2010
E.D.N.Y.); Gortat v. Capala Brothers, Inc., 2010 WL 1879922 (May 10, 2010 E.D.N.Y.); Gortat
v. Capala Brothers, Inc., 2010 WL 3417847 (August 27, 2010 E.D.N.Y.).
Before this Court are two motions: (1) the Defendants’ motion to remove fifty-four members
of the certified class who opted-out of membership pursuant to Federal Rule of Civil Procedure
(“FRCP”) Rule23(c)(2) and N.Y. Gen. Obl. Law. § 15-105 and 108; (2) the Defendants’ motion

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to remove seven class members who failed to timely opt-in to class membership per the
requirements of the FLSA, 29 U.S.C. § 216(b).1
The Defendants’ Motion to Remove Members of the Rule 23 Certified Class

I.

After the court adopted a definition of the certified class, Gortat v. Capala Brothers, Inc.,
2010 WL 1423018 at *15 (April 9, 2010 E.D.N.Y.), Magistrate Judge Gold issued an Order
prohibiting the Defendants’ counsel from communicating with members of the class—an order
which this Court affirmed on appeal.2 Gortat v. Capala Brothers, Inc., 2010 WL 3417847
(August 27, 2010 E.D.N.Y.). The Defendants’ counsel then informed Plaintiffs’ counsel that his
client had independently obtained release forms from fifty-four members of the class. Magistrate
Judge Gold subsequently permitted Plaintiffs’ counsel to contact the fifty-four class members to
determine whether the releases were acquired in contravention of his previous Order or
otherwise inappropriately obtained. (Nov. 30, 2010 Hearing, Dkt No. 217 at pp.19, 25-26.)
Plaintiffs then sent out letters to the relevant class members to which only one, Jan
Mokrzycki, responded. In his affidavit, Mokrzycki outlines the events that preceded the signing
of his release. Mokrzycki claims that he received a phone call from an unknown individual
asking him to meet for the purpose of signing a document related to this case. (Mokrzycki Decl.
at ¶ 4.) Mokrzycki then met the individual at an “agency” where a woman “thrust a piece of
paper before” him which she asked him to sign. (Id. at ¶ 6.) Mokrzycki, who has limited

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Under a class action brought pursuant to FRCP Rule 23, class members are bound to class membership
unless they opt-out. Alleyne v. Time Moving & Storage Inc., 264 F.R.D. 41, 45 (E.D.N.Y. 2010).
However, FLSA claims cannot be brought as part of a Rule 23 class action because the FLSA stipulates
that potential plaintiffs must opt-in to a collective action. Id.
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Magistrate Judge Gold directed defense counsel not to “communicate or cause his clients to
communicate with class members in any matter related to this litigation unless prior consent is obtained
by the Court or by class counsel…. ” Gortat v. Capala Brothers, Inc., 2010 WL 1879922 at *6 (May 10,
2010 E.D.N.Y.)

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knowledge of English, claims that no Polish translation of the release was provided to him at the
meeting. (Id. at ¶¶ 8-9.) Mokrzycki asserts that he met the individual and signed the release
under the misconception that he was choosing to opt-in, not opt-out, of the class. (Id. at ¶¶ 5, 7.)
Had he been aware of the contents of the release, Mokrzycki claims, he would have never signed
the release. (Id. at ¶ 7.) The Plaintiffs, over the Defendants’ objection, contend that the facts
surrounding Mokrzycki release suggest that this “experience is unlikely to prove unique” and
should be imputed to all fifty-four members of the class. (Pl. Mem., Dkt No. 237 at p.6.)
However, the Plaintiffs’ contention is without basis. Of the fifty-four class members that signed
the release only a single affidavit has been provided in support of the allegation that the releases
were inappropriately obtained. In his affidavit, Mokrzycki claims that he was not wearing his
glasses nor was he sure of the nature of the document when he signed the release. (Mokrzycki
Decl. at ¶ 6.) Plaintiffs’ request that the Court impute these tenuous facts to the other fifty-three
individuals who signed the releases is rejected. Although the Court will permit Mokrzycki to
retract his release, the inference the Court is invited to draw that the experience of the other fiftythree was the same is unwarranted. Though authorized to contact the others, the Plaintiffs’
counsel elected to do so only by a hoped for response to his letters.
The release provided to the fifty-four class members is unambiguous and otherwise valid
because it contains an explicit, unequivocal statement of a present promise to release the
Defendants from liability. See Gortat v. Capala Brothers, Inc., 2009 WL 3347091 at *7 (Oct. 16,
2009 E.D.N.Y.); Bank of America National Trust and Savings Assn. v. Gillaizeau, 766 F.2d 709,
713 (2d Cir. 1985). Despite ample time allocated to Plaintiffs’ counsel to show to the contrary,
no evidence has been provided that the Defendants or their counsel inappropriately obtained the
releases. Likewise, none of these individuals chose to opt-in to the FLSA action in further
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indication that they did not desire to pursue their claims. Accordingly, the Defendants’ motion
to remove the fifty-four members of the class, with the exceptions of Mr. Mokrzycki and three
other individuals for whom no releases were provided—Mr. Rzeszutek, Mr. Turowski and Mr.
Kosycarz—is granted and the Plaintiffs’ objections are overruled.
II.

FLSA & the Statute of Limitations
This Court previously certified Plaintiffs’ FLSA collective action. Gortat v. Capala Brothers,

Inc., 2010 WL 1423018 (April 9, 2010 E.D.N.Y.). The record shows that notice to potential
plaintiffs of their right to opt-in to the class was published for five-consecutive weeks in a local
newspaper. (Id. at ¶ 2.) At the time of the August 2, 2010 exclusions deadline, (May 5, 2010
Hearing, Dkt. No. 199 at p.5.), only one individual had submitted a written statement opting into
class membership. The Defendants now move to exclude seven other individuals who would
have qualified for FLSA claims but failed to timely opt-in to the collective action. (Orner Decl.,
Dkt No. 238 at ¶ 15.)
Employees claiming that their employer violated provisions of the FLSA may bring a
collective action on behalf of themselves or other employees similarly situated. 29 U.S.C.
§ 216(b). Unlike a class action brought pursuant to FRCP Rule 23, under an FLSA action,
potential plaintiffs are required to opt-in to be bound to or benefit from a judgment. Cano v.
Four M Food Corp., 2009 WL 5710143, at *4 (E.D.N.Y. Feb. 3, 2009). To opt-in, “[e]ach
potential plaintiff must file his or her written consent in the court in which the suit is brought.”
Id. Only by choosing to opt-in to a class will the statute of limitations of potential plaintiffs'
claims be tolled. Hoffman v. Sbarro, 982 F.Supp. 249, 260 (S.D.N.Y. 1997); Lee v. ABC Carpet
& Home, 236 F.R.D. 193, 198-99 (S.D.N.Y. 2006). The FLSA provides a two-year statute of
limitations unless the violations are alleged to be “willful,” in which case a three-year statute of
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limitations applies. 29 U.S.C. § 255(a). In these types of cases, “[i]t will then be up to those
individuals to decide whether they wish to opt-in to th[e] [FLSA] action”). Kumar Realite v. Ark
Restaurants Corp., 7 F.Supp.2d 303, 308 (S.D.N.Y. 1998). Here, the seven individuals failed to
opt-in to the collective action by the Court appointed deadline and the three-year window
provided by the FLSA and are therefore excluded from the FLSA claim.

CONCLUSION
For the aforementioned reasons, Defendants’ Motion is GRANTED.
SO ORDERED

Dated:

Brooklyn, New York
May 27, 2011

/s
I. Leo Glasser
United States Senior District Judge

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