Cherif v. Sameday Delivery Corp. et al
ORDER: The 44 Motion to Certify FLSA Collective Action is granted as set forth in the attached order. Plaintiffs must modify the proposed notice and consent form, in accordance with this order, and file a proposed revised notice and consent form by 10/6/2015. Ordered by Magistrate Judge Marilyn D. Go on 9/30/2015. (Moo-Young, Jillian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - -X
BAKARY CHERIF and KADJALIOU BARRY,
individually and on behalf of all
other persons similarly situated,
- against SAMEDAY DELIVERY CORP., et al.,
- - - - - - - - - - - - - - - - - - -X
GO, United States Magistrate Judge:
Plaintiffs Bakary Cherif and Kadjaliou Barry assert claims
against Sameday Delivery Corp. ("Sameday") and Benedito Ewarton
(collectively, "defendants") for violating the overtime wage
requirements of the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
§ 201 et seq. New York Labor Law ("NYLL") §§ 190 et seq., as well
as 12 N.Y.C.R.R. §§ 142 et seq.
Bringing this case as a putative
collective action on behalf of other former and current nonmanagerial employees of defendants who were allegedly denied
overtime compensation and "spread of hours pay," plaintiffs have
moved for court approval to send notice of this opt-in FLSA
collective action to potential plaintiffs; to compel disclosure
of the names, addresses, telephone numbers, email addresses, work
locations, and dates of employment of potential plaintiffs; and
for authorization to post the notice and opt-in consent forms in
a conspicuous location at the defendants' all places of business.
Plaintiffs seek to send notice to all eligible employees who
worked for the defendants from three years prior to the date of
this conditional certification order to present.
See ct. doc.
46-1, Ex. 4 ("Proposed Notice").
For the reasons set forth below, plaintiffs' motion is
granted to the extent described herein.1
Defendant Sameday Delivery is a corporation that contracts
with supermarkets, pharmacies, and office supply companies to
provide delivery services throughout New York City, Long Island
and some other locations in the Tri-State area.
See ct. doc.
1(Compl.) at ¶ 27; ct. doc. 46, Ex. 1 ("Cherif Aff."); ct. doc.
46, Ex. 2 ("Barry Aff.") at ¶¶ 7-8.
office in Manhattan, New York.
It maintains a dispatch
Compl. at ¶ 28.
Cherif commenced this action as the sole named plaintiff and
Kadjaliou Barry later filed a consent and joined the action as a
Because a motion for leave to send 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 555-56, 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); Colozzi
v. St. Joseph's Hosp. Health Ctr., 595 F. Supp. 2d 200, 204 n.4
(N.D.N.Y. 2009); Patton v. Thomson Corp., 364 F. Supp. 2d 263,
265-66 (E.D.N.Y. 2005) (magistrate judges had authority to compel
production of information about putative class members and to
permit notice of collective action); Mazur v. Olek Lejbzon & Co.,
2005 WL 3240472, at *2 n.1 (S.D.N.Y. Nov. 30, 2005).
See ct. doc. 12.
Plaintiffs allege that the
individual defendant Benedito Ewarton is the CEO of Sameday
Delivery and has the power to hire and fire employees and
exercised control over the terms and conditions of her
employment, including the ability to determine rates and methods
of payment and work schedules.
See ct. doc. 45 at 2.
Mr. Cherif and Mr. Barry state that they were employed as
delivery drivers for Sameday from December 2011 to September
2013, and from February 2011 to August 2013, respectively.
Compl. at ¶ 30; Cherif Aff. at ¶ 1;
Barry Aff. at ¶¶ 1-3.
drivers, they were required to pick up goods from the
supermarkets or pharmacies that had contracts with Sameday and
deliver the goods to specified addresses in New York.
They state that Sameday paid them and other drivers on an hourly
basis at rates varying from $8.00 to $9.00 per hour during the
courses of their employment.
Cherif Aff. at ¶ 2; Barry Aff. at
Plaintiffs allege that even though they regularly worked
over eight hours a day, six days per week, and always worked at
least 60 hours per week throughout their employment, Sameday
allowed them to record only the first 16 hours of overtime
worked, and failed to compensate them properly for all the
overtime hours and to pay spread of hours wages for time worked
in excess of a ten-hour work day.
Compl. at ¶¶ 31-33; Cherif
Aff. at ¶ 4; Barry Aff. at ¶ 4.
Mr. Cherif states that he had complained to Sameday numerous
times about the situation, but the company never changed its
practice, and he never received overtime compensation.
Aff. at ¶ 5.
Likewise, Mr. Barry states that after he complained
to Sameday Delivery on multiple occasions about not being paid
for all the hours that he worked and not being paid for overtime
wages, he was told that this was the way that the company
operates and nothing could be done about it.
Barry Aff. at ¶ 6.
Based on their conversations with other drivers, both plaintiffs
state that other drivers who performed the same job duties as
they did were also denied overtime compensation and spread of
Cherif Aff. at ¶¶ 7-8; Barry Aff. at ¶¶ 7-8.
In their opposition, defendants present the declaration of
Scott Weinstein, an officer of Sameday Delivery,2 who declares
that Mr. Cherif was assigned to Waldbaum's supermarket in Jericho
and Mr. Barry was assigned to Waldbaum's supermarket in Garden
Ct. doc. 51 at ¶¶ 5-8, 10.
He states that the drivers
"report directly to the locations they were assigned to" and do
not report or go to Sameday Delivery's administrative offices.
Id. at ¶7.
He also states that the supervisor who set the
policies regarding the employment of Cherif and Barry supervised
only employees who were assigned to Waldbaum's.
Id. at 9.
Although the corporate defendant refers to itself as
Sameday Delivery Corporation in its answer and subsequent
filings, Mr. Weinstein states in his supporting affidavit that he
is an officer of "Same Day Delivery." See ct. doc. 51.
I. Governing Law
Section 216(b) of the FLSA provides:
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 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).
This procedure permits "similarly situated"
employees, whose claims are often small and not likely to be
brought on an individual basis [to] join together and pool their
resources to prosecute their claims."
Lynch v. United Servs.
Auto. Ass'n, 491 F. Supp. 2d 357, 367 (S.D.N.Y. 2007).
It is well settled that district courts have the discretion
to authorize the sending of notice to potential class members and
direct an employer defendant to disclose the names and addresses
of similarly situated potential plaintiffs in a collective action
brought pursuant to 29 U.S.C. § 216(b).
To determine whether to
authorize a class notice, a court "will look at 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); see Lee v. ABC
Carpet & Home, 2006 WL 1408837, at *2 (S.D.N.Y. May 22, 2006)
(court's initial determination based on "pleadings and
Although neither the FLSA nor its implementing
regulations define the term "similarly situated," in the Second
Circuit, "courts 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."
Sobczak v. AWL Indus.,
Inc., 540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007); Fasanelli v.
Heartland Brewery, Inc., 516 F. Supp. 2d 317 (S.D.N.Y. 2007);
Morales v. Plantworks, Inc., 2006 WL 278154, at *2 (S.D.N.Y. Feb.
Although the plaintiff's burden at this stage is not
onerous, mere allegations in the complaint are not sufficient;
some factual showing by affidavit or otherwise must be made.
Jeong Woo Kim v. 511 E. 5th St., LLC, 985 F. Supp. 2d 439, 445
(S.D.N.Y. 2013); Colon v. Major Perry St. Corp., 2013 WL 3328223,
at *4 (S.D.N.Y. July 02, 2013).
There must be "a factual nexus"
between the named plaintiff's claims and those that he alleges
are similarly situated or an employer may be "unduly burdened by
a frivolous fishing expedition conducted by plaintiff at the
Prizmic v. Armour, Inc., 2006 WL 1662614,
at *2 (E.D.N.Y. June 12, 2006) (quoting D'Anna v. M/A-com, Inc.,
903 F. Supp. 889, 893-94 (D. Md. 1995)).
Courts in the Second Circuit have regularly authorized the
sending of a collective action notice where plaintiffs, based on
their firsthand observations, identify an approximate class of
similarly situated individuals.
Hernandez v. Immortal Rise,
Inc., 2012 WL 4369746, at *4 (E.D.N.Y. Sept. 24, 2012) (holding
that plaintiffs had met the modest showing where they alleged
that based on their conversations with their co-workers, they
believe that other employees suffered the same underpayment);
see, e.g. Ingleias-Mendoza v. La Belle Farm, Inc., 239 F.R.D.
363, 368 (S.D.N.Y. 2007) (granting conditional certification
where plaintiffs alleged that to the best of their knowledge, and
on the basis of their observations, their experience was shared
by members of the proposed class); Wraga v. Marble Lite, Inc.,
2006 WL 2443554, at *2 (E.D.N.Y. Aug. 22, 2006) (approving
collective action notice where plaintiff demonstrated knowledge
of conversations between other employees and conversations
between employees and defendant in which they complained that
they were improperly paid).
For the reasons set forth herein, I find that plaintiffs
have sufficiently demonstrated that other drivers are "similarly
situated," and authorize the sending notice of this action,
subject to the restrictions discussed below.
II. Plaintiffs' Collective Action Claims
Plaintiffs seek leave to send a collective action notice to
"all non-managerial employees" who plaintiffs claim are subject
to the same wage policies and practices.
Ct. doc. 45 at 7;
Cherif Aff. at ¶¶ 7-8; Barry Aff. at ¶¶ 7-8.
They also attach to
the motion a notice they propose sending to the prospective optin plaintiffs (the "Proposed Notice").
See ct. doc. 46-1, Ex. 4
Defendants argue that plaintiffs fail to provide
evidence of similarly situated individuals subject to similar
treatment other than the "conclusory affidavits from
See ct. doc. 50 (Opp'n) at 5-7.
plaintiffs' personal observations are insufficient to meet the
evidentiary requirements, defendants point to decisions of other
courts that have found similar allegations insufficient,
particularly where the plaintiffs did not name other potential
Opp'n at 10-11 (citing Guan Ming Lin v. Benihaha
Nat'l Corp., 2010 U.S. Dist. LEXIS 132871, at *12-*13 (S.D.N.Y.
Nov. 9, 2010); Eng-Hatcher v. Sprint Nextel Corp., 2009 WL
7311383, at *3 (S.D.N.Y. Nov. 13, 2009); Seever v. Carrols Corp.,
528 F. Supp. 2d. 159, 173 (W.D.N.Y. 2007)).
cited by defendants are inapposite.
However, the cases
In Lin, the Court determined
that the plaintiffs failed to allege whether the named plaintiffs
were paid below minimum wage and whether other employees were
denied overtime compensation, the most basic facts needed to
establish their FLSA claims.
Lin, 2010 U.S. Dist. LEXIS 132871,
In Eng-Hatcher and Seever, the court rejected a
large proposed class that included employees who had worked at
many different locations, where only plaintiff's affidavit
alleged a common plan or practice.
Eng-Hatcher, 2009 WL 7311383,
at *3 (finding that plaintiff’s reliance on her own affidavit did
not persuasively show that defendant likely had a common plan or
practice at many of its 1,200 locations); Seever, 528 F. Supp. 2d
at 173 (finding that the "isolated testimony" of the plaintiff
was insufficient to allege a common plan or practice applied to a
proposed class of over 100,000 workers).
Here, even though they have strikingly similar affidavits,
both plaintiffs have made specific allegations about their hours
and described how time records did not accurately reflect the
hours actually worked.
See Compl. at ¶¶ 31-33.
the plaintiffs state that, based on their first-hand
conversations with other drivers who complained of the same
payment practices, they believe that other drivers who performed
similar duties were subjected to the same policies.
at ¶¶ 6-7; Ct. doc. 46; Barry Aff. at ¶¶ 7-8.
Defendants argue that because plaintiffs worked only at
their assigned Waldbaum's locations, they "did not come into
contact with any other employees," and would not know the work
conditions of other drivers.
Ct. doc. 51 at ¶¶ 6-7.
emphasize that each driver is compensated differently based on
the contract, number of deliveries made and contract for services
between Sameday Delivery and its customers, and that the drivers
are also subject to the policies and procedures set by the
particular client to whom they are assigned.
Opp'n at 10.
However, plaintiffs submit delivery logs showing that they
delivered not only to Waldbaum's, but also to other retailers,
such as Duane Reade and CVS.
See ct. doc. 48, Ex. 1 at 21-29.
In fact, plaintiffs made deliveries to other stores besides
Waldbaum's on most days worked.
At this juncture, the Court
declines to reject plaintiffs' statements that they talked to
other drivers in the course of their work.
See Winfield v.
Citibank, 843 F. Supp. 2d 397, 402 (S.D.N.Y. 2012) ("the court
does not resolve factual disputes, decide substantive issues
going to the ultimate merits, or make credibility determinations"
when exercising discretion to send a collective action notice);
Alonso v. Uncle Jack's Steakhouse, Inc., 648 F. Supp. 2d 484, 488
Since Sameday is a relatively small business that provides
services to approximately twenty customers in the New York
Metropolitan area, Weinstein Decl. at ¶¶ 2-3, I find that
plaintiffs have made the modest factual showing required under
the FLSA to support an inference that other drivers were also
subject to a common policy that deprived them of spread of hours
wages and payment for some hours worked.
However, I find that
the class of potential FLSA claimants proposed by plaintiffs,
which includes all non-managerial employees, is overly broad.
Although plaintiffs state the same wage practice was applied to
all "non-managerial employees," they specifically discuss only
the policy that applied to "other delivery drivers" who they
claim performed similar delivery duties as they did.
at ¶¶ 6-8; Barry Aff. at ¶¶ 6-8.
Plaintiffs have neither
described what sort of work other "non-managerial employees"
performed nor explained how they would know about the policies
regarding these other employees.
Thus, I find that the
collective action notice should be limited to delivery drivers
for defendants, which, interestingly, is what plaintiffs have
written in the Proposed Notice.
See Proposed Notice.
Accordingly, the Proposed Notice is limited to "potential opt-in
plaintiffs who were employed as drivers for Sameday Delivery."
The parties also dispute the scope of the notice period.
Defendants assert that the notice period should only be two
years, while plaintiffs seek a three-year period.
"The FLSA has
a two-year statute of limitations except in the case of willful
violations, for which the statute of limitations is three years."
Garcia v. Pancho Villa's of Huntington Village, Inc., 678 F.
Supp. 2d 89, 94 (E.D.N.Y. 2010); Guzman v. VLM, Inc., 2007 WL
2994278, at *5 (E.D.N.Y. Oct. 11, 2007) ("The FLSA has a threeyear statute of limitations for willful violations, and a twoyear statute of limitations for non-willful violations").
plaintiffs' allegations that defendants ignored their requests
for overtime pay for hours worked are sufficient at this juncture
to show willfulness.
In any event, "where willfulness is
disputed, the courts ordinarily apply the three-year statute of
limitations for purposes of certifying a representative action."
Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 369
(S.D.N.Y. 2007) (citing Roebuck v. Hudson Valley Farms, Inc., 239
F. Supp. 2d 234, 240 (N.D.N.Y. 2002)).
Thus, I find that a
notice should be sent only to employees who worked as delivery
drivers in the three years prior to this order.
III. Content of Notice and Procedures
In requesting authorization to send the Proposed Notice,
plaintiffs make two requests to facilitate the sending of the
First, plaintiffs request that the Court order access to
defendants' place of business to post the notice and consent
Defendants oppose this request, arguing that it will
disrupt the course of business and would serve to notify a larger
group than is defined in the notice, since other employees could
see the notice.
Although some courts have authorized plaintiffs
to access the employment site to post notices at the place of
employment of potential opt-in plaintiffs, see Hernandez v. NGM
Mgmt. Grp. LLC, 2013 WL 5303766, at *5 (S.D.N.Y. Sept. 20, 2013),
the majority of courts that authorize posting of the notice
direct defendants to do so.
See, e.g., Haas v. Verizon New York,
Inc., 2015 WL 4884858, at *8 (S.D.N.Y. August 13, 2015); Chen v.
Oceanica Chinese Restaurant, Inc., 2014 WL 1338315, at *1
(E.D.N.Y. April 02, 2014); Rubery v. Buth-Na-Bodhaige, Inc.,
569 F. Supp. 2d 334, 338 (W.D.N.Y. 2008); Sherrill v. Sutherland
Global Servs., Inc., 487 F. Supp. 2d 344, 351 (W.D.N.Y. 2007).
To be sure, the posting of notices may be appropriate where
the employees of defendants work at specified employment sites.
However, in this case, the plaintiffs and other potential
collective action members apparently report to work at different
locations operated by non-parties and do not indicate that they
have a "home base" where drivers regularly report.
plaintiffs have resorted to using pro forma language from other
cases to demand access to post a collective action notice.
Plaintiffs have not identified any work locations controlled by
the defendants that prospective members of a collective action
Nor have plaintiffs contested defendants'
statement that the drivers do not report to the administrative
offices of the defendants.
See Weinstein Decl. at ¶ 8.
since the posting of a collective action notice may be an
effective means of reaching prospective members of a collective
action, this Court will give plaintiffs an opportunity to propose
within two weeks of this order locations where a notice could be
posted by defendants.
Defendants are directed to cooperate in
conferring with plaintiffs to identify such a location or
Second, plaintiffs request that defendants be required,
within 21 days of the entry of this order, to provide plaintiffs
with the names, last known addresses, email addresses, work
locations, dates of employment and telephone numbers of all
potential opt-in plaintiffs who worked in the above-described
capacities for the period beginning September 30, 2012 to the
Defendants object to the production of any information
other than the names and last known addresses of the similarly
situated employees, arguing that names and addresses are
sufficient to disseminate the notice and that additional
information might provide those potential plaintiffs with
However, courts routinely order discovery of
names, addresses, telephone numbers, and other information in
See, e.g., Ack v. Manhattan Beer Distribs., Inc.,
2012 WL 1710985, at *6 (E.D.N.Y. May 15, 2012) (names, addresses,
and telephone numbers); Gorey v. Manheim Servs. Corp., 2010 WL
5866258, at *6 (S.D.N.Y. Nov. 10, 2010)(names, dates of
employment, last known mailing address, email address, and
Given the transient nature of some
workforces, email addresses and telephone numbers may be an
effective way of locating employees.
Defendants raise a number of objections to the Proposed
Defendants contend that the notice should more clearly
specify the discovery obligations for potential plaintiffs.3
Opp'n at 18.
However, the Court finds that "a neutral and non-
technical reference to discovery obligations best advises
potential plaintiffs of the obligations of participation."
Hernandez, 2012 WL 4369746, at *7 (citing Lujan v. Cabana Mgmt.,
2011 WL 317984, at *13 (E.D.N.Y. Feb. 1, 2011)) (internal
quotation marks omitted).
Consequently, the plaintiffs should
modify the first sentence on page three of the Proposed Notice as
follows: "you may be asked to testify and provide documents or
information relating to your employment at Sameday, which may
include responding to written questions."
Additionally, defendants request that the notice include a
paragraph stating that defendants believe that a collective
action is not warranted and that "the issue of who is right and
Plaintiffs' Proposed Notice states that class participants
"will be asked to provide documents or information relating to
your employment at Sameday Delivery, which may include responding
to written questions." Ct. doc. 46-1. Defendants want the
notice to state that the class member "may be required to
(1) appear for depositions; (2) respond to written discovery;
(3) testify at trial; and (4) pay costs to defendants if they do
who is wrong has not yet been addressed by the Judge and the
Judge has no opinion who is right or wrong."
They argue this is
necessary so that class members "[are] made aware of their
position that it has not been established that any employee who
worked for Sameday Delivery was paid incorrectly."
Opp'n at 19.
Defendants also object to the language in the notice that the
"notice and its contents" have been authorized by the Court.
This Court generally finds that the proposed
modifications are unnecessary because the general denial of
liability and statement of the Court's neutrality included in
plaintiffs' Proposed Notice are sufficient to address defendants'
However, to emphasize the Court's neutrality, this
Court directs that Section 10 be amended as follows:
The Honorable Marilyn D. Go, United States Magistrate Judge
for the U.S. District Court, Eastern District of New York
has reviewed the contents of this Notice and approved the
sending of this Notice. The Court expresses no opinion on
the merits of the Lawsuit and has not yet ruled on whether
the Plaintiffs' claims or Defendants' defenses have any
PLEASE DO NOT WRITE OR CALL THE COURT ABOUT THIS NOTICE.
Defendants further request that the provision in the notice
directing potential opt-in plaintiffs to send the signed consent
forms to plaintiffs' counsel be modified to require that the optin plaintiffs file the consent forms with the Clerk of the Court.
This Court disagrees that such a measure is necessary to avoid
undue pressure on the opt-ins to use plaintiffs' counsel; a
provision in the notice and attached consent that clearly
indicates that opt-in plaintiffs have the right to select their
own counsel will suffice.
The Court also agrees that the
potential opt-in plaintiffs may find having to send forms to the
Clerk of Court intimidating and from joining the action.
Although "courts are split as to whether opt-in plaintiffs should
file their consent forms individually or through plaintiffs'
counsel," when the notice instructs that opt-in plaintiffs can
select their own counsel, "there is only a minimal risk that optin plaintiffs will be discouraged from seeking their own
See Limarvin v. Edo Rest. Corp., 2013 WL 371571, at *3
(S.D.N.Y. Jan. 31, 2013) (internal quotations omitted).
this Court directs that the notice be modified to contain
language advising that prospective FLSA class members may select
their own attorney in this action.
Such language should be
included in Section 4 after the final paragraph as follows:
You have a right to be represented by an your own
lawyer, but you will be responsible for making
arrangements for payment of the fees of the attorney
you select. The lawyer you hire must file with the
court a Consent to Join this lawsuit by the deadline
set and must enter a formal appearance as attorney on
In addition, the section 5 must similarly be modified as follows,
beginning with the second sentence of the first paragraph:
If you join this Lawsuit and send your Consent to Join
to Borelli & Associates, P.L.L.C., you are designating
the Plaintiffs and Borelli & Associates to make
decisions on your behalf concerning the case, including
the method and manner of conducting the case, and all
other matters pertaining to this Lawsuit. Decisions
made and agreements entered into by Plaintiff relating
to the Lawsuit will be binding on you if you join the
Lawsuit. If you hire your own attorney, you will be
bound by decisions and agreements that your attorney
makes on your behalf in this Lawsuit.
While this lawsuit is pending, you may be asked to
testify and provide documents or information relating
to your employment at Sameday, which may include
responding to written questions. For this reason, if
you join the lawsuit, you should preserve all documents
relating to your employment at Sameday currently in
your possession. Plaintiff’ attorneys or your own
attorney, if you hire one, will assist you.
Next, defendants argue that because there is no allegation
of retaliation in the instant case, the anti-retaliation language
must be excluded from the notice.
no support for this assertion.
Opp'n at 19.
To the contrary, "courts
regularly include anti-retaliation provisions in these notices
even where plaintiffs raise no specific allegations of
Hernandez, 2012 WL 4369746, at *9; see also
Rosario v. Valentine Avenue Discount Store, Co., 828 F. Supp. 2d
508, 525 (E.D.N.Y. 2011); Lynch, 491 F. Supp. 2d at 373.
Court thus approves plaintiffs' anti-retaliation language in
Section 8 of the Proposed Notice.
Plaintiffs agree to a few changes requested by defendants.
Plaintiffs do not object to revising the opt-in period from 60
days to 45 days from the date of the notice as proposed by
See Lujan v. Cabana Mgmt., 2011 WL 317984, at *13.
Accordingly, the notice should be modified to direct opt-in
plaintiffs, within 45 days of the date of the Notice, to file
their consent forms with the Court.
In addition, plaintiffs do not object to adding defense
counsel's contact information to the Proposed Notice but they
to add that, "Defendants' counsel does not represent
your interests and any communications with them may be used
against you in this litigation" under such information.
Since contact information of defendants' counsel is routinely
included in notices, this Court grants defendants' request.
Harhash v. Infinity West Shoes, Inc., 2011 WL 4001072, at *4
(S.D.N.Y. Aug. 25, 2011).
Nevertheless, the notice shall direct
the potential plaintiffs that "if you decide to join this case,
you should not contact the defendants' lawyer directly yourself."
See Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d
101, Ex. B (Notice) (S.D.N.Y. 2003); Iriarte v. Redwood Deli &
Catering, Inc., 2008 WL 2622929, at App'x (Notice of Lawsuit with
Opportunity to Join) (E.D.N.Y. June 30, 2008).
Finally, this Court directs that following additional
changes also be made to the notice in the interest of accuracy
First, the caption of the notice and attached consent
should be amended to include Kadjaliou Barry as a plaintiff.
Although plaintiffs' counsel states in the notice of motion for
the instant motion that it is filed on behalf of both Bakary
Cherif, the original plaintiff, and Kadjaliou Barry, as an opt-in
plaintiff, the caption does not include Mr. Barry.
notes that when counsel filed a consent form for Mr. Barry,
counsel did not name Mr. Barry on the docket entry and apparently
failed to use correct filing procedures so as to amend the docket
sheet to add Mr. Barry as a plaintiff.
See ct. doc. 12.
Court will arrange to correct plaintiff's docket entry and the
All mention of "plaintiff" in the Proposed Notice should be
modified to refer to "plaintiffs" in the plural.
The first paragraph preceded by a bullet point on the
first page of the Proposed Notice should be amended as follows:
(1) to include a reference to Mr. Barry, (2) to limit the use of
the term "Sameday" to the corporate defendant, since the
individual liability of defendant of defendant Ewarton has not
yet been determined; and (3) to eliminate the reference to unpaid
minimum wages since there are no allegations in the complaint and
the affidavits of the plaintiffs regarding the failure to pay
Accordingly, the paragraph should read as
Plaintiffs Bakary Cherif and Kadjaliou Barry were previously
employed as delivery drivers by Sameday Delivery
Corporation ("Sameday") and Benedito Ewarton, the Chief
Executive Officer of Sameday. Mr. Cherif brought this
lawsuit against these two defendants on behalf of himself
and all other current and former similarly situated delivery
drivers, employed since September 30, 2012. Mr. Barry later
joined the lawsuit as a plaintiff. Each plaintiff claims
that Sameday did not pay him for all hours worked, including
overtime wages due.
The first Section 3 of the Notice must be amended to
refer to "Plaintiffs" in the plural and to include the following
sentence at the end as clarification:
This notice concerns the claims brought under the
federal law known as the Fair Labor Standards Act.
The caption of the consent form should include Mr. Barry
as a plaintiff and bear the title "CONSENT TO JOIN COLLECTIVE
The following sentence should be added to end of the
final paragraph of the Consent to Join form:
I agree to notify Borrelli and Associates, P.L.L.C. of
any changes in my contact information listed below.
For the forgoing reasons, the Court grants plaintiffs'
motion (1) for leave to send a collection action notice to the
extent discussed above; (2) to compel defendants to disclose the
names, last known addresses, work locations, dates of employment
and telephone numbers of potential plaintiffs who were employed
as drivers; and (3) for access to post a notice at defendants'
place of business.
Plaintiffs must modify the Proposed Notice
and consent form in accordance with the foregoing and file a
proposed revised notice and consent form by October 6, 2015.
Brooklyn, New York
September 30, 2015
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE
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