Peters et al v. Fervent Electrical Corp. et al

Filing 47

Minute Order for proceedings held before Magistrate Judge Marilyn D. Go on 1/25/16. Appearances by B. Pelton, T. Graham for plaintiffs; P. Kutil for defendants. Discussion held and rulings made on the record granting 45 plaintiffs' request f or a ruling that the opt-in plaintiffs have asserted claims in this lawsuit to the extent discussed in the attached order. Plaintiffs are granted leave to file an amended or supplemental complaint by 1/28/16. If plaintiffs choose to file an amended complaint, they must send counsel for defendant a "redlined" version of the amended complaint. Fact discovery is extended to 3/31/16. Next conference scheduled for 4/5/16 at 12:00 p.m. (Tape #FTR/C 10:01-10:10) (Proujansky, Josh)

MINUTE ORDER
PETERS V. FERVENT ELECTRICAL
14cv01804 (ARR) (MDG)
This order supplements the rulings made on the record at a
hearing on January 25, 2016 regarding plaintiffs' motion for a
ruling that the opt-in plaintiffs "have asserted claims and can
proceed with their claims in this lawsuit" without a motion for
formal joinder or amended pleading. See ct. doc. 45.
Courts have treated employees who file written consents to
join as parties to an action brought under the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. § 201 et seq. as of the date their written
consents were filed. See 29 U.S.C. §§ 216(b), 256(b); Sanchez v.
El Rancho Sports Bar Corp., 2015 W: 3999161, at *5 (S.D.N.Y. 2015);
Anjum v. J.C. Penny, 2014 WL 5090018, at *12 (E.D.N.Y. 2014).
"Conditional certification" of a collective action is not required
for a similarly situated employee to "opt-in" to a FLSA action.
See Augustyniak v. Lowe's Home Ctr., 2015 WL 9077572, at *1
(W.D.N.Y. 2015); Gonyer v. Vane Line Bunkering, Inc., 32 F. Supp.
2d 514, 516 (S.D.N.Y. 2014); Anjum, 2014 WL 5090018, at *13.
As this Court noted, the issue whether a pleading needs to be
formally amended to name an employee who filed a written consent to
join is not addressed in the statute nor have other courts directly
discussed it. However, including the "opt-in" employees in the
pleadings is useful in the interest of clarity and not onerous
given the small number of plaintiffs involved here. In addition,
the defendants are entitled to fair notice of the facts upon which
the new plaintiffs' claims are based.
Moreover, the consents that are required to be filed operate
to confirm only the employees' interest in pursuing actions under
that provision. See 29 U.S.C. §§ 216(b). Insofar as the new "optin" employees seek to assert related individual claims under state
law that the original plaintiffs have already asserted in this
action, there is no pleading which clearly states that the new
plaintiffs are also asserting claims for relief under pendent state
law claims here, since plaintiffs appear to have abandoned efforts
to broaden the scope of this action beyond the claims of individual
plaintiffs.
Accordingly, while the plaintiffs are correct that they should
all be treated as plaintiffs in this action, this Court grants
plaintiffs' motion in part to note that they are plaintiffs only
for purposes of claims asserted under the FLSA. However, this
Court grants plaintiffs leave to file an amended or supplemental
complaint to add those plaintiffs who have filed consents since the
original complaint filed herein. If the plaintiffs elect to file

an amended complaint rather than a supplemental complaint, they
must provide defendants a "red-lined" version to reflect any
changes made from the original complaint. Such amended or
supplemental complaint must be filed by January 28, 2016.
SO ORDERED.
Dated:

Brooklyn, New York
January 26, 2016
/s/
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE