Bayas v. Nor-Marathon Service Center, Inc.

Filing 55

MEMORANDUM and ORDER ADOPTING REPORT AND RECOMMENDATION: Having reviewed the matter de novo, the Court adopts Magistrate Judge Pollaks recommendation 47 and accepts Huertas consent to join the collective action. Ordered by Judge Frederic Block on 2/12/2018. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LUIS BAYAS, on behalf of himself and
all others similarly situated,
Plaintiff,
MEMORANDUM AND ORDER
Case No. 16-CV-356 (FB) (CLP)

-againstNOR-MARATHON SERVICE
CENTER, and RATTAN SINGH,
Defendants.
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BLOCK, Senior District Judge:

In this collective action under the Fair Labor Standards Act (“FLSA”),
Magistrate Judge Pollak has recommended that the Court grant permission to Juan
Gomez to withdraw as a plaintiff. Since no party has objected, that recommendation
is adopted without de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a
magistrate's factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”).
Magistrate Judge Pollak has further recommend that the Court accept the
consent to join the collective action filed by Roberto M. Espiritu Huerta some 80 days
after the deadline for doing so.

Since defendants have objected to this

recommendation, the Court reviews it de novo. See 28 U.S.C. § 636(b)(1)(c) (“A

judge . . . shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”).
Defendants’ first objection is that Huerta should not have received notice of the
collective action. Magistrate Judge Pollak authorized plaintiffs’ counsel to send
notice of the collective action only to employees of Nor-Marathon and Nor-Great
Neck, two of several service stations owned by defendant Rattan Singh. She later
determined that plaintiffs’ counsel had disobeyed her directive and contacted
employers of other service stations owned by Singh. As a sanction, she ordered him
to pay “defendants' attorneys' fees incurred in investigating plaintiffs counsel's
conduct . . . , in raising the issue with the Court, and in pursuing their motion for
sanctions.” Order of Apr. 19, 2017, at 19.
Huerta apparently received notice of the collective action as a result of
plaintiffs’ counsel’s misconduct. Moreover, according to defendants’ records, Huerta
worked at Nor-Parsons Service Service Center, not Nor-Marathon or Nor-Great Neck.
Nevertheless, Magistrate Judge Pollak held that “the fact that Mr. Huerta was not
entitled to receive the Notice and Consent forms is not fatal to his application to join
this case.” R&R at 8.
The Court agrees. Huerta has represented that he worked off the books at NorMarathon during the relevant time period. Although he will ultimately have to prove

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that representation to the factfinder, it is sufficient for present purposes to bring him
within the scope of the collective action. And if he learned of the action through
plaintiffs’ counsel’s misconduct, that is a reason to sanction the perpetrator of the
misconduct—as Magistrate Judge Pollak has done—not to punish an innocent party
with potentially valid claims against defendants.
Defendants’ second objection is that Huerta’s consent to join the collective
action was untimely. Courts in this circuit decide whether to accept an untimely
consent “by balancing various combinations of the following factors: (1) whether
‘good cause’ exists for the late submissions; (2) prejudice to the defendant; (3) how
long after the deadline passed the consent forms were filed; (4) judicial economy; and
(5) the remedial purposes of the FLSA.” Ruggles v. Wellpoint, Inc., 687 F. Supp. 2d
30, 37 (N.D.N.Y. 2009).
The Court agrees with Magistrate Judge Pollak’s balancing of the relevant
factors. Although his consent was submitted 80 days late, Huerta’s explanation for
the delay—that he did not immediately learn of the collective action because he had
been working out of state—constitutes good cause. There is no prejudice to the
defendants because discovery is ongoing, so they will have ample time to investigate
Huerta’s claims. Judicial economy favors allowing Huerta to join the collective action
because, as defendants concede, he could simply file a separate action. Finally, the

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remedial purposes of the FLSA are obviously better served by allowing Huerta’s
claims to be decided on their merits.
Having reviewed the matter de novo, the Court adopts Magistrate Judge
Pollak’s recommendation and accepts Huerta’s consent to join the collective action.
SO ORDERED.

/S/ Frederic Block__________
FREDERIC BLOCK
Senior United States District Judge
February 12, 2018
Brooklyn, New York

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