Ramirez-Marin v. JD Classic Builders Corp et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, and, upon due consideration and review, Defendants' objections to the Report and Recommendation ("R & R") issued by t he Hon. Ramon E. Reyes, U.S.M.J., on June 5, 2017, are overruled and the recommendations contained in the R & R are adopted in their entirety. Accordingly, Defendants' motion to partially dismiss the Complaint is denied. This matter is referred to the magistrate judge for further pretrial proceedings. SO ORDERED by Chief Judge Dora Lizette Irizarry on 09/30/2017. (Irizarry, Dora)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ERNESTO RAMIREZ-MARIN, on behalf of
:
himself, individually, and on behalf of all others
:
similarly-situated,
:
:
Plaintiff,
:
:
MEMORDANUM AND ORDER
-against:
ADOPTING REPORT AND
:
RECOMMENDATION
JD CLASSIC BUILDERS CORP. and
:
16-CV-5584 (DLI)(RER)
GEORGE ROTH,
:
:
Defendants.
:
:
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DORA L. IRIZARRY, Chief United States District Judge:
Plaintiff Ernesto Ramirez-Marin (“Plaintiff”) brought this action on behalf of himself,
individually, and on behalf of all others similarly-situated (collectively, the “FLSA Plaintiffs”)
against JD Classic Builders Corp. and George Roth (“Defendants”). See generally Compl.
(“Complaint”), Dkt. Entry No. 1. Plaintiff asserts three claims: that Defendants: (1) violated the
Federal Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 207(a), by failing to pay him and the
FLSA Plaintiffs overtime wages; (2) violated the New York Labor Law (“NYLL”) § 160 and New
York Comp. Codes Rules & Regs. (“NYCCRR”) tit. 12, § 142-2.2 by failing to pay him and the
FLSA Plaintiffs overtime wages; and (3) violated NYLL § 195(3) by failing to provide him and
the FLSA Plaintiffs with proper wage statements at each payday. Id. Defendants moved to
partially dismiss the Complaint on December 6, 2016. See Defs.’ Mot. to Dismiss, Dkt. Entry No.
15; Defs.’ Mem. of Law in Supp. of Mot. to Dismiss (“Defs.’ Mem.”), Dkt. Entry No. 17. Plaintiff
opposed the motion. See Pl.’s Mem. of Law in Opp’n to Mot. to Dismiss (“Pl.’s Mem.”), Dkt.
Entry No. 22.

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On April 12, 2017, the Court referred Defendants’ motion to partially dismiss the
Complaint to the Honorable Ramon E. Reyes, Jr., U.S. Magistrate Judge, for a Report and
Recommendation (“R&R”). Magistrate Judge Reyes issued his thorough and well-reasoned R &
R on June 5, 2017. See generally R & R, Dkt. Entry No. 27. The magistrate judge recommended
that Defendants’ motion to dismiss the collective action claims be denied. R & R at 4-6.
Defendants did not object to that portion of the R & R. See Defs.’ Objections to R & R (“Defs.’
Objs.”), Dkt. Entry No. 28-1, at 5 n.3. However, Defendants timely objected to the portion of the
R & R that recommended Defendants’ motion to dismiss the state law claim be denied. See R &
R at 6-8; Defs.’ Objs. at 5-10. Plaintiff opposed Defendants’ objections. See Pl.’s Mem. of Law
in Opp’n to Defs.’ Partial Objection to the R & R (“Pl.’s Resp.”), Dkt. Entry No. 32.
For the reasons set forth below, Defendants’ objections are overruled, and the R & R is
adopted in its entirety.
DISCUSSION1
When a party objects to an R&R, a district judge must make a de novo determination as to
those portions of the R & R to which the party objects. See Fed. R. Civ. P. 72(b)(3); United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to the standard often articulated by the
district courts of this Circuit, “[i]f a party . . . simply relitigates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” Antrobus v. N.Y.C. Dep’t of
Sanitation, 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016) (internal citations and quotation
marks omitted); see also Rolle v. Educ. Bus Transp., Inc., 2014 WL 4662267, at *1 (E.D.N.Y.
Sept. 17, 2014) (“[A] rehashing of the same arguments set forth in the original papers . . . would
reduce the magistrate’s work to something akin to a meaningless dress rehearsal.”) (internal

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The Court assumes the parties’ familiarity with the facts as set out in the R & R. See R & R at 1-3.

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citations and quotation marks omitted). On the other hand, the Second Circuit Court of Appeals
has suggested that a clear error review may not be appropriate “where arguably ‘the only way for
[a party] to raise . . . arguments [is] to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 519 n.2 (2d
Cir. 2017) (quoting Watson v. Geithner, 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013)).
Nonetheless, a court will not “ordinarily . . . consider arguments, case law and/or evidentiary
material which could have been, but [were] not, presented to the magistrate judge in the first
instance.” Santiago v. City of New York, 2016 WL 5395837, at *1 (E.D.N.Y. Sept. 27, 2016)
(internal citation and quotation marks omitted). After its review, the district court may then
“accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1). Where a party does not object to a portion of the R & R, the court “‘need only satisfy
itself that there is no clear error on the face of the record.’” Galvez v. Aspen Corp., 967 F. Supp.2d
615, 617 (E.D.N.Y. 2013) (quoting Reyes v. Mantello, 2003 WL 76997, at *1 (S.D.N.Y. Jan. 9,
2003)).
A.

Plaintiff’s Collective Action Claims
As noted above, Defendants do not object to the magistrate judge’s recommendation that

the motion to dismiss the collective action claims be denied. See Defs.’ Objs. at 5 n.3. Upon due
consideration and review, and finding no clear error, that portion of the R & R is adopted in its
entirety.
B.

Plaintiff’s NYLL Claim
Defendants’ principle objection is that the magistrate judge made a “fundamental mistake”

in holding that Plaintiff can assert state law claims on behalf of plaintiffs who opt-in to the FLSA
collective action. Defs.’ Objs. at 5-8. According to Defendants, Plaintiff has engaged in “creative
pleading” “to bypass [Federal Rule of Civil Procedure (“FRCP”)] 23” and has attempted to
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“obfuscate the important differences between a collective action under the FLSA and class actions
under the NYLL.” Id. at 8. Defendants argue that Plaintiff must amend his Complaint under
FRCP 15 if a “party who opts-in wishes to become a party to the state law claims in this case . . . .”
See Id. at 8-9. Defendants further argue that Plaintiff’s state law claim should be dismissed or
stricken for failure to meet the requirements of FRCP 23. Id. at 8. For the reasons set forth below,
Defendants’ objections are overruled and the R & R is adopted in its entirety.
As an initial matter, the Court disagrees with Defendants’ contention that it must conduct
a de novo review of Defendants’ motion to partially dismiss the Complaint with respect to the
portions of the R & R to which they object. See Defs.’ Objs. at 5. As Plaintiff points out,
Defendants largely restated their arguments from their original motion papers before the magistrate
judge. See generally Defs.’ Mem. Defendants are not entitled to two bites at the apple. See
Antrobus v. N.Y. City Dep’t of Sanitation, 2016 WL 5390120, at *2 (E.D.N.Y. Sept. 26, 2016)
(quoting Pinkey v. Progressive Home Health Servs., 2008 WL 2811816, at *1 (S.D.N.Y. July 21,
2008) (“[O]bjections to a Report and Recommendation must be specific and clearly aimed at
particular findings in the magistrate’s proposal, such that no party can be allowed a second bite at
the apple by simply relitigating a prior argument.”)). However, even under the stricter de novo
review, Defendants’ arguments fail.
1.

Plaintiff May Assert Claims on Behalf of the FLSA Opt-In Plaintiffs

Plaintiff asserts his second and third claim for relief under §§ 160 and 195(3) of the NYLL
on behalf of “Plaintiff and any FLSA Plaintiff who opts-in to this action.” Compl. at ¶¶ 33-44.
Defendants argue that the statutory language of FLSA § 216(b) along with Knepper v. Rite Aid
Corp, 675 F.3d 249 (3d Cir. 2009) and Garcia v. Olamar Food Corp., 2015 WL 273672 (E.D.N.Y.
Jan. 14, 2005) do not grant a “party who opts-in [to a FLSA collection action] the right to become

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a party to state law claims.” Defs.’ Objs. at 5-7. In sum, Defendants argue that the FLSA Plaintiffs
who “opt-in” to the action are parties only to the FLSA collective action claim.
FLSA § 216(b) permits collective actions by employees for violations of FLSA provisions
and states that “[n]o 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). Defendants argue that this language only states how a
party becomes part of a collective action under the FLSA, and does not state how a party becomes
a party to state law claims. Defs.’ Objs. at 6.
Defendants are correct in that § 216(b) does not address state law claims. Courts analyzing
§ 216(b) have concluded that it does not govern the resolution of state law claims, and state law
claims may coexist with FLSA collective action claims. See R & R at 7 (noting the “overwhelming
number of district court cases from within this Circuit that have allowed parallel FLSA and NYLL
claims to survive beyond the pleading stage”). In Shahriar, the Second Circuit reviewed the
legislative history of § 216(b) and concluded that “[the Court does] not view Congress’s creation
of the opt-in provision for FLSA collective actions as a choice against, or a rejection of Rule 23’s
opt-out process for state law class actions.” Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659
F.3d 234, 248 (2d Cir. 2011) (citing Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 977 (7th Cir.
2011) (“There is ample evidence that a combined action is consistent with the regime Congress
has established in the FLSA.”)). In Knepper, the Third Circuit joined the Second, Seventh, Ninth,
and D.C. Circuits in holding that “[n]othing in the plain text of § 216(b) addresses the procedure
for state-law claims, nor, in our view, does the provision’s legislative history establish a clear
congressional intent to bar opt-out actions based on state law.” Knepper v. Rite Aid Corp., 675
F.3d 249, 261-62 (3d Cir. 2012) (“We join the Second, Seventh, Ninth, and D.C. Circuits in ruling

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that this purported ‘inherent incompatibility’ does not defeat otherwise available federal
jurisdiction.”). In so holding, these courts addressed the issue of whether federal courts should
exercise supplemental jurisdiction over parallel state law claims. Supplemental jurisdiction,
though clearly appropriate here under Shahriar, which is binding on this Court, is a separate
question from whether an opt-in plaintiff is automatically a party to a parallel state law claim. The
magistrate judge correctly concluded that jurisdiction over the NYLL claim is appropriate. See R
& R at 7.
The R &R does not explicitly address whether opt-in plaintiffs are parties to Plaintiff’s
NYLL claim. Therefore, the Court reviews de novo that portion of Defendants’ objections
contending that opt-in Plaintiffs are not parties to the state law claim. Defendants argue that
Knepper and Shahriar support their position that opt-in plaintiffs cannot be parties to the NYLL
claim. Defs.’ Objs. at 7-9. However, neither Knepper or Shahriar reached that issue, since, as
discussed above, the issue before those courts was whether supplemental jurisdiction was
appropriate.
In opposing Defendants’ objections, Plaintiff relies on Gonzalez v. Nicholas Zito Racing
Stable Inc. 2008 WL 941643 (E.D.N.Y. Mar. 31, 2008) (citing Prickett v. DeKalb County, 349
F.3d 1294, 1297 (11th Cir. 2003) (per curiam)). See Pl.’s Resp. at 3, 9. In Gonzalez, plaintiffs
alleged violations of the NYLL and moved to certify a class pursuant to FRCP 23. Id. at *1. The
Gonzalez plaintiffs also sought to amend their complaint to add a claim under the New York Code
of Rules and Regulations (“NYCRR”). Id. In determining that an amendment was proper, the
court noted that an FLSA collective action class already had been certified in the action, and, thus,
the opt-in plaintiffs had “status as parties to the instant action.” Id. at *3 (citing Prickett, 349 F.3d
at 1297 (“[B]y referring to them as ‘party plaintiff[s]’ [in 29 U.S.C. § 216(b)] Congress indicated

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that opt-in plaintiffs should have the same status in relation to the claims of the lawsuit as do the
named plaintiffs.”); Coan v. Nightingale Home Healthcare, Inc., 2006 WL 1994772, at *2 (S.D.IN.
July 14, 2006) (“Under the opt-in procedures of 29 U.S.C. § 216(b), all . . . plaintiffs . . . are full
parties for all purposes.”)). Since the opt-in plaintiffs in Gonzalez were parties to the entire action,
not just the FLSA claims, the court held that they had standing to amend the complaint to add the
NYCRR claim. Id. In Prickett, the principal case relied on by the Gonzalez court, the Eleventh
Circuit held that the express language regarding “party plaintiff[s] to any such action” meant that
opt-in plaintiffs should have the “same status” in relation to the claims of the entire “lawsuit” as
the named defendants.” Prickett, 349 F.3d at 1297 (emphasis added).
Plaintiff also points to Fengler v. Crouse Health System, Inc., 634 F. Supp.2d 257, 263
(N.D.N.Y. 2009), which, citing Prickett, held that opt-in plaintiffs were parties to “all claims
asserted in the action.” In Fengler, the court held that it was error for the magistrate judge to
conclude that an FLSA plaintiff opted in only as to a claim rather than the entire action since such
a conclusion was “‘not supported by the language of the statute, nor . . . by any holding of this
circuit or any other federal appeals court.’” Id. (quoting Prickett, 349 F.3d at 1297).
While the Gonzalez plaintiffs brought both FLSA and NYLL claims, Prickett, Coan, and
Fengler only dealt with FLSA claims. Additionally, unlike Gonzalez, the present case has not yet
been certified as a collective action. However, the reasoning in these cases still is applicable here.
The language of § 216(b) discusses opt-in plaintiffs as being “party plaintiff[s] to any such action,”
29 U.S.C. § 216(b). The plain reading of this text indicates that opt-in plaintiffs become parties to
the entire lawsuit and all its claims. The Court sees no basis to hold that opt-in plaintiffs are
plaintiffs only to the FLSA claims and not the entire action. Fengler, 634 F. Supp.2d at 262 (“This

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statutory language [in FLSA § 216(b)] indicates that once a potential plaintiff opts in, that person
is a party to the action, not just to a claim.” (emphasis original) (citing Prickett, 349 F.3d at 1297)).
Moreover, the opt-in Plaintiffs’ Consent to Join Forms, by their plain language, remove
any doubt that the opt-in Plaintiffs wish both to (1) join the entire action, and (2) have their state
law claims adjudicated in the FLSA action. The forms state: “I hereby consent to join the
lawsuit . . . brought pursuant to the Fair Labor Standards Act, the New York Labor Law, and the
New York Code of Rules and Regulations” and indicate that the claims are brought based on “state
and federal law.” Pl.’s Resp. at 9 (citing Dkt. Entry Nos. 2, 3, 9). Such a broad consent by an optin plaintiff in a FLSA action has been held to “encompass the state law claims” brought parallel to
the FLSA claims. See Hicks v. T.L. Cannon Corp., 35 F. Supp.3d 329, 339 (W.D.N.Y. 2014).
Defendants’ objections in this regard are overruled.
2.

Plaintiff Need Not Satisfy Rule 23 at This Juncture

Defendants also take great issue with the fact that Plaintiff has not satisfied the
requirements of Rule 23. See Defs.’ Objs. at 8-9 (arguing Plaintiff has engaged in “creative
pleading” to “bypass FRCP 23”). The parties do not dispute that NYLL claims are governed by
the requirements of FRCP 23, and the magistrate judge noted as much. See R &R at 3 (citing Fed.
R. Civ. P. 23; Wang v. Hearst Corp., 2012 WL 2864524, at *3 (S.D.N.Y. July 12, 2012)) (“But
unlike the FLSA, which only authorizes opt-in collective actions, NYLL class allegations are
governed by [FRCP] 23.”). But Defendants miss the point: The issue of class certification is not
presently before the Court. Until a motion for class certification is made, attacks on the sufficiency
of Plaintiff’s class allegations are premature. See Hamadou v. Hess Corp., 915 F. Supp.2d 651,
669 (S.D.N.Y. 2013) (“Plaintiffs have not yet moved for certification of the NYLL claims.
Defendants’ motion to strike the NYLL class claims is premature and is denied.”); Wang, 2012

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WL 2864524, at *3 (holding that motion to strike class allegations is premature in light of the early
stage of the litigation and the “scant discovery” that had occurred); see also Belsito Commc’ns,
Inc. v. Dell, Inc., 2013 WL 4860585, at *10 (S.D.N.Y. Sept. 12, 2013) (quoting Mazzola v.
Roomster Corp., 849 F. Supp.2d 395, 410 (S.D.N.Y. 2012) (collecting cases)) (“[D]istrict courts
in this Circuit frequently have found that a determination [as to] whether the Rule 23 requirements
are met is more properly deferred to the class certification stage, when a more complete factual
record can aid the Court in making this determination.”); Id. at *11 (declining to grant a motion to
strike class allegations where “a motion for class certification has yet to be made”).
As the magistrate judge correctly noted, courts are reluctant to strike class allegations at
the pleading stage before discovery has occurred that would permit the plaintiff to develop his
class allegations. R & R at 6 (“Put simply, courts are reluctant to deny plaintiffs their entitlement
to discovery by striking potential class allegations in the initial stages of litigation.” (citing Wang,
2012 WL 2864524, at *3 (internal citations and quotation marks omitted) (“Motions to strike are
generally looked upon with disfavor [and a] motion to strike class allegations . . . is even more
disfavored because it requires a reviewing court to preemptively terminate the class aspects of
litigation . . . before plaintiffs are permitted to complete the discovery to which they would
otherwise be entitled on questions relevant to class certification.”) (internal quotation marks and
citation omitted)). Here, no discovery has occurred, so it is entirely unremarkable that Plaintiffs
have not satisfied the requirements of Rule 23. Accordingly, the Court agrees with the magistrate
judge that striking Plaintiff’s state law claim at this juncture would be inappropriate in light of the
lack of discovery and the fact that no motion for class certification has been made yet.
Defendants’ citation to Garcia does not require a different result. In Garcia, in deciding a
motion to dismiss, the court noted that, while an opt-in FLSA plaintiff “has the right to have her

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related state law claims adjudicated in the same action,” and a court may exercise supplemental
jurisdiction over the state law claims, “the state law claims on behalf of other potential plaintiffs
[could] not be asserted at [that] juncture.” Garcia v. Olamar Food Corp., 2015 WL 273672, at *2
(S.D.N.Y. Jan. 14, 2014). The Garcia court permitted plaintiff leave to replead should individuals
later opt-in to the collective action. Id. This Court reaches the same result with a different
approach.
Gonzalez is instructive here. The Gonzalez court recognized both that (1) opt-in plaintiffs
are parties to all claims, including NYLL claims; and (2) NYLL claims must meet the requirements
of FRCP 23 at the class certification stage. Gonzalez, 2008 WL 941643, at *3-9 (E.D.N.Y. Mar.
31, 2008). Here, as discussed above, the opt-in plaintiffs are parties to the entire action, and,
therefore, are parties to the state law claims. See supra section I.B.1. Undoubtedly, at the class
certification stage, Plaintiff will have to meet the requirements of FRCP 23. See Wang, 2012 WL
286524, at *3. At this point in the litigation, the Court sees no reason to dismiss the state law
claims on the basis that they fail to meet the requirements of FRCP 23 only to permit repleading
later. The opt-in Plaintiffs will have to meet the requirements of FRCP 23 at the class certification
stage, and Plaintiff can move to amend his Complaint to supplement his class allegations when he
moves for class certification. Accordingly, Defendants’ objections are overruled.

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CONCLUSION
Upon due consideration and review, for the reasons discussed above, Defendants’
objections to the R & R are overruled and the recommendations contained in the R & R are adopted
in their entirety. Accordingly, Defendants’ motion to partially dismiss the Complaint is denied.

SO ORDERED.
Dated: Brooklyn, New York
September 30, 2017

/s/
DORA L. IRIZARRY
Chief Judge

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