Silva v. Calle 8, LLC

Filing 20

ORDER denying without prejudice to renewal 16 Motion to Certify Class. Plaintiff's motion to compel disclosure of the names and addresses of other employees of defendants is granted, but the extent of the discovery to be permitted will be discussed at a conference to be held on December 13, 2013 at 10:00 a.m. Ordered by Magistrate Judge Marilyn D. Go on 12/5/2013. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CESAR BAZAN SILVA,
Plaintiff,
ORDER
- against CV 2012-677 (ERK)(MDG)
CALLE 8, LLC, S&P ROTHDISH d/b/a CALLE
OCHO, et al.,
Defendants.
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GO, United States Magistrate Judge:
Plaintiff Cesar Bazan Silva brings this action against
defendants Calle 8, LLC ("Calle 8"), S&P Rothdish d/b/a Calle Ocho
("S&P") and unidentified individuals asserting various claims under
federal and state law for unpaid overtime wages, minimum wages and
penalties and interest under both federal and state law.

Seeking

to bring a collective action pursuant to section 216(b) of the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., he alleges
that he and other similarly situated employees have been denied
overtime compensation as required by the FLSA.

Framing his motion

as a motion for "conditional certification" under the FLSA,1

1

As the Second Circuit noted in Myers v. Hertz Corp., 624
F.3d 537 (2d Cir. 2010), although "courts speak of 'certifying' a
FLSA collective action, ... the 'certification' ... is only the
district court's exercise of the discretionary power, upheld in
Hoffmann-LaRoche, to facilitate the sending of notice to
potential class members. Section 216(b) does not by its terms
require any such device . . ." Id. at 555, n. 10. The
"certification" sought is simply a "useful 'case management' tool
for district courts to employ in 'appropriate cases'" and not
necessary for the maintenance of a FLSA collective action. Id.
(continued...)

plaintiff moves to compel defendants to provide contact information
of their current and former employees and for permission to notify
these employees of the pendency of this action.
For the reasons set forth below, plaintiff's motion for leave
to send a collective action notice2 is denied without prejudice and
the motion to compel is granted in part.
BACKGROUND
In his Second Amended Complaint ("2d Am. Compl."), plaintiff
alleges that he was employed by defendants in various capacities at
a restaurant called Calle Ocho beginning in 1998 through June 16,
2011.

2d Am. Compl. (ct. doc. 12) ¶¶ 10, 12-13.

His duties

included working as a bus boy and bar back, clearing tables,
cleaning, serving coffee, and checking coats.

Id. ¶ 13.

Plaintiff

further alleges that during his employment, he worked between 40
and 75 hours per week, that defendants failed to pay him overtime
wages for hours worked beyond 40 per week and that defendants
altered his time sheets and disabled the time clock.

Id. ¶¶ 15-16.

Plaintiff further claims that "the basic job duties and assignments
of the members of the FLSA Collective were the same or

1

(...continued)
(citing Hoffmann-LaRoche).
2

Because a motion for a collective action notice is
separate and distinct from a motion for class certification under
Rule 23 of the Federal Rules of Civil Procedure, Myers, 624 F.3d
at 555-66, the motion is a pretrial matter within this Court's
pretrial reference authority. See 28 U.S.C. § 636(b)(1)(A)
(excepting class certification motions as a pretrial matter
within a magistrate judge's authority).
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substantially similar to those of Plaintiff . . . [they] were
employed in the same job category as Plaintiff and were paid in the
same manner and under the same common policies, plans, and
practices as Plaintiff."

Id. ¶ 21.

In support of his motion, plaintiff submitted a two page
affidavit which contains similarly general allegations.

See

Affidavit of Cesar Bazan Silva ("Silva Aff.") (ct. doc. 16-5).

He

again states that he worked between 40 and 75 hours per week but
was not paid overtime compensation for all hours worked over 40 per
week, and that defendants willfully failed to pay him the correct
wage and arbitrarily fabricated the hours that he worked.
¶¶ 6-7.

Id.

He further alleges that based on conversations with "other

employees" and the fact that he was routinely unable to use the
time clock, he believes that other employees, whose names he cannot
recall, were "treated in a similar manner."

Id. ¶¶ 8-10.

He seeks

to send notice of a collective action to "all persons employed by
Defendant as a busboy and/or any other similar positions, including
but not limited to bartenders, servers, waiters, hosts[,] kitchen
staff, and dishwashers."

2d Am. Compl. ¶ 28.

In opposition, defendants argue that plaintiff fails to make a
factual showing to show that putative class members were similarly
situated to him; that the collective action that plaintiff seeks is
too broad; that plaintiff's collective allegations require
individualized inquiry; and that Calle 8, LLC never employed
plaintiff.

See Defs.' Mem. in Opp'n (ct. doc. 17) 1-11.

Defendants further argue that the notice period for a putative

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collective action should be three years from the date the Notice is
mailed and points to a number of deficiencies in the proposed
notice.

Id. 11-17.
DISCUSSION

Section 216(b) of the FLSA provides that employees may proceed
collectively against an employer:
An action . . . may be maintained against any employer .
. . by any one or more employees for and in 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).

In determining whether to authorize the

sending of notice to potential plaintiffs of the pendency of a
collective action brought pursuant to section 216(b) of the FLSA,
courts should engage in a two-step inquiry.

Myers, 624 F.3d at

554-55; Morales v. Plantworks, Inc., 2006 WL 278154, at *2
(S.D.N.Y. 2006).

First, courts should make an initial

determination whether there are "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 554

(citations omitted); Ahmed v. T.J. Maxx Corp., 2012 WL 5507329, at
*3 (E.D.N.Y. 2012).

After discovery has been completed, courts

should engage in a second and more heightened stage of scrutiny to
determine whether the case should proceed to trial as a collective
action or the class should be decertified.

See Myers, 624 F.3d at

555; Greene v. C.B. Holding Corp., 2010 WL 3516566, at *2-*3

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(E.D.N.Y. 2010); Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 385
(E.D.N.Y. 2010).
At this initial stage, "the court examines the pleadings and
affidavits" to analyze whether plaintiff and putative class members
are similarly situated.

Iglesias-Mendoza v. La Belle Farm, Inc.,

239 F.R.D. 363, 368 (S.D.N.Y. 2007); Flores v. Osaka Health Spa,
Inc., 2006 WL 695675, at *2 (S.D.N.Y. 2006); Morales, 2006 WL
278154, at *1.

If "the plaintiffs make a 'modest factual showing'

that they and potential opt-in plaintiffs 'together were victims of
a common plan or policy that violated the law,'" the court may
authorize that notice be sent.
omitted).

Myers, 624 F.3d at 555 (citation

However, the "modest factual showing" that plaintiff

must make at the conditional certification stage "cannot be
satisfied simply by 'unsupported allegations,' 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. (internal citations omitted).

Although

plaintiff's burden is not onerous, he must provide actual evidence
of a factual nexus between his situation and those that he claims
are similarly situated rather than mere conclusory allegations.
See Flores, 2006 WL 695675, at *3; Morales, 2006 WL 278154, at *3;
Levinson v. Primedia Inc., 2003 WL 22533428, at *1 (S.D.N.Y. 2003).
Plaintiff makes only general allegations that he and other
employees of Calle Ocho were denied overtime compensation.

As a

preliminary matter, plaintiff does not clearly state whether he had
certain duties and job titles at certain times or whether he

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performed all the duties he described throughout his entire
employment.

Plaintiff also fails to provide any factual detail

about the other employees, such as names of fellow employees whom
he observed working the same hours as he, who were unable to use
the time clock or with whom he had conversations about not
receiving overtime compensation.

Silva Aff. (ct. doc. 16-5).

Nor

does he identify the job duties performed by his fellow employees
whom he observed or with whom he conversed.

This absence is

especially striking because plaintiff also attached to his motion a
shift list of several Calle Ocho employees; plaintiff states that
the names on the list "appear to be accurate to the best of [his]
recollection" but that he cannot recall the names of anyone with
whom he had pertinent conversations.

Id. ¶ 9.

Courts in this Circuit have commonly authorized the sending of
collective action notices where plaintiff includes some probative
information regarding similarly situated employees such as their
names, their duties and their hours worked or where plaintiff
provides affidavits from such employees setting forth the pertinent
facts.

See, e.g., Hanchard-James v. Brookdale Family Care Ctrs.,

2012 WL 328810, at *3 (E.D.N.Y. 2012); Salomon v. Adderly Indus.,
Inc., 847 F. Supp. 2d 561, 565 (S.D.N.Y. 2012) (plaintiffs
identified co-workers who told them that they were not paid
overtime); Wraga v. Marble Lite, Inc., 2006 WL 2443553, at *2
(E.D.N.Y. 2006) (plaintiff demonstrated knowledge of conversations
with other employees and conversations between employees and
defendant in which they complained that they were not paid

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properly); Patton v. Thomson Corp., 363 F. Supp. 2d 263, 267
(E.D.N.Y. 2005) (plaintiff stated that the potential plaintiffs had
her same job duties and were paid in the same manner as plaintiff).
However, where plaintiffs fail to provide either evidentiary
support, such as affidavits or supporting documents, or specific
factual allegations, courts routinely deny conditional
certification.

See, e.g., Khan v. Airport Mgt. Servs., LLC, 2011

WL 5597371, at *4 (S.D.N.Y. 2011) (plaintiff "claims to have
personal knowledge that 'defendants hired at least 40 . . . similar
[employees],' but he does not identify these 40 workers by name or
specify the source for this claim"); Prizmic v. Armour, Inc., 2006
WL 1662614, at *3 (E.D.N.Y. 2006) (plaintiff did not submit any
evidence or "identif[y] a single potential plaintiff"); Morales,
2006 WL 278154, at *3 ("plaintiffs have only offered a conclusory
allegation in their complaint; they have offered nothing of
evidentiary value"); Levinson, 2003 WL 22533428, at *1-*2.
Affidavits containing class allegations "that [are] not made on
personal knowledge, but instead based on information or belief" are
not sufficient to make the required factual showing of a common
plan or policy.

McGlone v. Contract Callers, Inc., 867 F. Supp. 2d

438, 444 (S.D.N.Y. 2012); see also Romero v. H.B. Automotive Group,
Inc., 2012 WL 1514810, at *10 (plaintiff's class showing was based
on "knowledge and belief" and lacked "any admissible affidavits");
Flores, 2006 WL 695675, at *3 (memorandum of law stating that "it
is plaintiff's understanding" that co-workers worked the same 12
hour shift as she did "do not provide any factual information

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concerning the basis for [plaintiff]'s 'understanding' of the
quantum of work performed" by other employees).

The absence of

factual support regarding similarly situated potential plaintiffs
is particularly relevant when plaintiff has had the benefit of some
discovery.

See, e.g., Romero, 2012 WL 1514810, at *10 (S.D.N.Y.

2012); Khan, 2011 WL 55597371, at *4; Prizmic, 2006 WL 1662614, at
*3.
The single two-page affidavit and shift list submitted by
plaintiff lack any factual support to carry plaintiff's modest
burden to show that he and other potential plaintiffs were victims
of a common policy or plan that violated the law.

Plaintiff's

allegation that "others similarly situated to myself . . . were
treated in a similar manner" is made upon information and belief.
In fact, not only does plaintiff fail to specifically identify the
similarly situated employees, he does not describe how such
employees were treated "in a similar manner."
Plaintiff's motion is also deficient in that it does not
clearly define the universe of similarly situated individuals other
than to state that the collective includes, but is not limited to,
individuals such as bartenders, servers, waiters, hosts, kitchen
staff and dishwashers.

Without any further explanation or

information from plaintiff, some of these employees do not appear
to be similarly situated to plaintiff.
¶ 28.

2d Am. Compl. (ct. doc. 12)

Furthermore, plaintiff's proposed notice does not include

any description of the job duties of the relevant class.

Courts

ordinarily will allow notice of a fairly broad class of employees

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at this stage.

See, e.g., Hanchard-James, 2012 WL 3288810, at *3-

*4 (all current and former employees of defendant who worked in the
same position as plaintiff included); Iglesias-Mendoza, 239 F.R.D.
at 368 (declining to limit class to employees with the same
specific job duties as plaintiff).

However, "[w]here the named

plaintiff is unable to state clearly and specifically to whom it is
that she contends she is similarly situated, it is not possible for
the Court to conclude that a collective action certification is
warranted."

Flores, 2006 WL 695675, at *3; see also Prizmic, 2006

WL 1662614, at *3.
For the foregoing reasons, plaintiff's motion for leave to
send a collective action notice is denied without prejudice to
renewal in the future.

See Myers, 624 F.3d at 557-58 (noting that

motions to facilitate opt-in notices may be renewed after a denial
and that "a district court may continually evaluate, as the case
progresses, whether such notice should be provided, whether an
existing class should be modified, or whether the action should be
'de-certified'”).
In the interest of efficiency, the Court encourages plaintiff,
if he files a future motion, to confer with defendants in a good
faith attempt to resolve disputes over a revised proposed Notice.
Also, the parties are encouraged to engage in discovery to clarify
the record as to issues that defendants argue require
individualized inquiry, including the concern that plaintiff was
never employed by defendant Calle 8 LLC, and their challenge to
plaintiff's charge that defendants altered time records.

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See

Zaniewski v. PRRC Inc., 848 F. Supp. 2d 213, 229-230 (D. Conn.
2012) (noting that consideration of such factors may be "the sort
of issue that is more properly considered on a more complete
record").

Also, the parties should confer as to whether some of

the issues are best addressed after a collective action notice is
sent -- in the second phase" of the collective action.

See Salomon

v. Adderley Indus., Inc., 847 F. Supp. 2d 561, 565 (S.D.N.Y. 2012);
Sobczak v. AWL Indus., Inc., 540 F. Supp. 2d 354, 363-64 (E.D.N.Y.
2007) (describing defendants' argument that the need for
individualized inquiry should defeat conditional certification as
"putting the cart before the horse").
CONCLUSION
For the foregoing reasons, plaintiff's motion for
authorization to send notice of the pendency of a collective action
is denied without prejudice to renewal.

Plaintiff's motion to

compel disclosure of the names and addresses of other employees of
defendants is granted, but the extent of the discovery to be
permitted will be discussed at a conference to be held on December
13, 2013 at 10:00 a.m.
SO ORDERED.
Dated:

Brooklyn, New York
December 5, 2013
/s/___________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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