Cabrera v. Frost Restaurant Inc. et al

Filing 21

ORDER granting 20 Motion to Certify FLSA Collective Action. The Court has modified and signed the parties' proposed order of conditional certification (docket entry ["DE"] #20) (copy attached). The Court has also modified the Cour t Authorized Notice of Lawsuit (DE #20-1) and Consent to Become a Party Plaintiff (DE #20-2) (copies attached). Plaintiff is directed to input the changes into those documents, for mailing to the collective class of potential plaintiffs within 10 days following defendants' disclosure of contact information, which must be made by September 13, 2017. Ordered by Chief Mag. Judge Roanne L. Mann on 8/23/2017. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

CLAUDIO CABRERA,Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,

-against-

17 Civ.2221(MKB)
(RLM)

FROST RESTAURANT INC.,ROCCO
DEPAOLA,GIOVANNI DEPAOLA,and
GIUSEPPE MORENA,Jointly and
Severally,
Defendants.

STIPULATION AND [rROPOOED] ORDER ON CONSENT MOTION TO
CONDITIONALLY CERTIFY A FAIR LABOR STANDARDS ACT COLLECTIVE
ACTION AND AUTHORIZE NOTICE TO BE ISSUED TO ALL PERSONS ALLEGED
TO BE SIMILARLY SITUATED

THIS MATTER came before the Court on the parties' Consent Motion to Conditionally
Certify a Fair Labor Standards Act Cpllective Action and Authorize Notice to be Issued to All
Persons Alleged to be Similarly Situated ("Consent Motion for Collective Action")and related relief,
and the Court, having reviewed the said motion, the responses and replies thereto, if any, and the
case file herein, and now being sufficiently advised in the premises,
HEREBY ORDERS that the parties' Consent Motion is GRANTED upon the terms set
forth herein, and FURTHER ORDERS that:
1. The collective action notice entitled "COURT AUTHORIZED NOTICE OF

LAWSUIT," attached to the Consent Motion for Collective Action as Exhibit "A", is hereby
approved for mailing to potential plaintiffs in English and Spanish; and
2. The collective class of potential plaintiffs in this matter that is conditionally certified
shall consist of all persons who worked as non-management employees at Frost Restaurant at any
time between April 12, 2014 and the present; and
3. Defendants shall provide to Plaintiffs counsel the names, last known addresses, phone
numbers and email addresses, ifavailable, and kept in the regular course of business(the "Contact
Information"), ofall potential plaintiffs who worked at Frost Restaurant as current and former nonmanagement employees at any time between April 12, 2014 and the present (the "Potential
Plaintiffs"). This information shall be supplied to Plaintiffs counsel within twenty-one(21) days

ofthe date of this Order digitally in one ofthe following formats: Microsoft Excel; or Microsoft
Word; and

4. Plaintiffs counsel shall mail the notice of collective action to all Potential Plaintiffs no

later than ten (10) days following Defendants' disclosure of the contact information for the
Potential Plaintiffs, and provide proof of such mailing, including the date of such mailing, to
counsel for the Defendants; and

5. Ifany notice to any Potential Plaintiff is returned as undeliverable. Defendants' counsel
will provide Plaintiffs counsel with such other information available to help facilitate the location
ofa proper address for the potential plaintiff. Any such instance ofsecondary notice by Plaintiffs'
counsel must be sent prior to the end ofthe opt-in period, and does not extend the opt-in period;
and

6. All Potential Plaintiffs must opt-in no later than 60 days after the date ofthe mailing of
the notice, by returning the executed form entitled "Consent to Join." attached to the Consent

Motion for Collective Action as ExlnbitjpE^'' to Plaintiffs counse^Jbefore that date. Plaintiffs
counsel shall thereupon promptly

wit|i the Couriy

Dated: New York, New York
August 22, 2017

/s/Jeffrey Domlas

Is/Brent E. Pelton
Brent Pelton

Jeffrey Douglas

PELTON GRAHAM LLC

FORD HARRISON LLP

111 Broadway, Suite 1503
New York, New York 10006
[phone]
[e-mail]

r

p(

60 East 42nd Street, 51st Floor
New York, New York 10165
[phone]

[e-mail]

SO ORDERED:

/

HONORABLE ROANNE L. MANN
UNITED STATES MAGISTRATE JUDGE

...

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

CLAUDIO CABRERA,Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,

17 Civ. 2221(MKB)
(RLM)

-against-

FROST RESTAURANT INC.,ROCCO
DEPAOLA,GIOVANNI DEPAOLA,and
GIUSEPPE MORENA,Jointly and
Severally,
Defendants.

COURT AUTHORIZED NOTICE OF LAWSUIT

Jmvortant: You are NOT being sued. This Notice is NOT a solicitation from a lawyer.

FROM:

PELTON GRAHAM LLC

111 Broadway, Suite 1503
New York, New York 10006
Telephone:[phone]

Email: [e-mail]
TO:

All current and former non-management employees who worked at Frost
Restaurant at any time between April 12,2014 and the present.

RE:

Notice of lawsuit asserting violations of the Fair Labor Standards Act and New
York Labor Law against Frost Restaurant Inc., Rocco DePaola, Giovanni

DePaol^ and Giuseppe Morena (collectively, "Defendants") for their alleged
failure to pay minimum wages for all hours worked, overtime premiums for hours
worked over forty (40) in a given work week, as well as spread-of-hours, wage
notice and wage statement violations under New York State Law.

Defendants deny any wrongdoing and/or liability and deny that any employee was
underpaid for his or her work.

While the Court has authorized the parties to send out this Notice, the Court has
not decided who is right or who is wrong.

w

I.

INTRODUCTION

The purpose ofthis notice is to inform you of the existence of a collective action lawsuit
in which you potentially are "similarly situated" to the named plaintiff, to advise you of how
your rights may be affected by this lawsuit and to instruct you on the procedure for participating
in this lawsuit if you elect to do so. The lawsuit at issue was filed on April 12, 2017 against
Defendants in the United States District Court for the Eastern District of New York. The plaintiff
alleges that the Defendants violated the federal Fair Labor Standards Act and the New York
Labor Law by improperly failing to pay minimum wage for all hours worked and overtime
premiums for hours worked in excess of forty (40) per week. The lawsuit also asserts spread-ofhours, wage notice and wage statement violations pursuant to the New York Labor Law, and
seeks back pay and liquidated damages, as well as costs and attorneys' fees. Defendants deny the
plaintiffs allegations and deny that they are liable to the plaintiff for any of the back pay,
liquidated damages,costs or attorneys' fees sought.
n.

COMPOSITION OF THE COLLECTIVE ACTION CLASS

Plaintiff seeks to bring this Fair Labor Standards Act claim on behalf of himself and on
behalf of all other employees with whom he is similarly situated. Specifically, plaintiff seeks to
bring a Fair Labor Standards Act claim on behalf of himself and all current and former nonmanagement employees who worked at Frost Restaurant at any time between April 12,2014 and
the present.
m.

YOUR RIGHT TO PARTICIPATE IN THE LITIGATION

If you fit within the definition above and worked for Defendants at any time between
April 12, 2014 and the present, you may join this case. In order to join this case (that is, to "optin"), you must sign the attached "Consent to Become a Party Plaintiff' form and return it to

either the lawyers who are representing the plaintiffs, oounool of vour ufiooctiim, or the Court^in
time for it to be filed by _ [Insert date 60 days after mailing].
If you sign and return the attached form to plaintiffs' counsel, you will be represented by
plaintiffs' counsel at the following address:
PBLTON GRAHAM LLC

111 Broadway, Suite 1503
New York, New York 10006

Telephone:[phone]
Facsimile:[phone]

I

Email: [e-mail]
you-

can ak©.sign and return the attached form itrxouiiscl uf >uui UiUUi.iRg ui you can
represent jfOTiryelf/iro soj in which ovon^you muot oign and rclurn tlio uLLuelicd fuiiii to the Court

at the following addres^

If pK© £€ oy 4o toe■file a

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L. ho^r\y\
Clorlcof-Court

United States District Court, Eastern District of New York
225 Cadman Plaza East

Brooklyn, New York 11201

If you choose not to return the Consent to Become a Party Plaintiff form to plaintiffs'
counsel, cuuiisd uf your own ohoociag, or the Court in time for it to be filed on or before the
above deadline, you will not be able to participate in this lawsuit, but can proceed separately with
your own claims. Claims under the Fair Labor Standards Act typically must be brought within 2
years of the date the claim accrues, unless the employer's violation of the law was "willful," in
which case the claim must be brought within 3 years. In addition, claims under the New York
Labor Laws typically must be brought within 6 years ofthe date the claim accrues.
IV.

EFFECT OF JOINING TfflS ACTION

If you choose to join in this case, you will be bound by any decision or Judgment of the
Court, or any settlement, whether it is favorable or unfavorable. In addition, if you join this
lawsuit, you may be asked to give testimony and information about your work for Defendants, to
help the Court decide whether you are owed any money. If you sign and return the Consent to
Become a Party Plaintiff form attached to this Notice, you are agreeing to designate the named
plaintiff as your agent to make decisions on your behalf concerning the litigation. This Notice
does not mean that you are entitled to monetary recovery. Any such determination must still be
made by the Court.
V.

TO STAY OUT OF THE LAWSUIT

If you do not wish to be part ofthe lawsuit, you do not need to do anything. If you do not
join the lawsuit, you will not be part ofthe federal claims portion ofthis case in any way and will
not be bound by or affected by the result (whether favorable or unfavorable). Your decision not
to join this case will not affect your right to bring a similar case on your own at a future time.
However, claims under the Fair Labor Standards Act typically must be brought within 2 years of
the date the claim accrues, unless the employer's violation of the law was "willful," in which
case the claim must be brought within 3 years. In addition, claims under the New York Labor
Laws typically must be brought within 6 years ofthe date the claim accrues.
VI.

NO RETALIATION PERMITTED

Federal law prohibits Defendants from discharging or in any other manner retaliating
against you because you join this case.

VII.

YOUR LEGAL REPRESENTATION IN THIS MATTER

If you choose to join this suit and agree to be represented by the named plaintiff through
their attorneys, your counsel in this action will be Pelton Graham LLC. The attomeys for the
collective action plaintiffs are being paid on a contingency fee basis, which means that ifthere is
no recovery, there will be no attorneys' fees. In the event that the Plaintiff and collective action
plaintiffs are successful, Pelton Graham LLC may petition the Court for an award of fees and
costs to be paid by Defendants. In the event ofa settlement, Plaintiffs' attomeys may petition the
Court for costs and an award of attomeys' fees of approximately one-third (1/3) ofthe settlement
to be deducted from your settlement or judgment amount, or such other amount as approved by
the Court.

However, you can have your own counsel represent your interest in the lawsuit or
represent yourselfpro se if you so desire.
VIII. COUNSEL FOR DEFENDANTS

The Defendants in this case are represented by:
FORD HARRISON LLP
One Grand Central Place

60 East 42"^* Street, 51®^ Floor
New York, NY 10165
Telephone:[phone]
IX.

IMMIGRATION STATUS

You have the right to participate in this action even if you are an undocumented
immigrant or if you were paid in cash. You do not need to have a record ofthe hours you worked
in order to participate in this lawsuit.

THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED

STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, THE
HONORABLE ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE. THE
COURT HAS TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF THE
PLAINTIFF'S CLAIMS OR OF THE DEFENDANTS'DEFENSES.
DO NOT TELEPHONE THE COURT REGARDING THIS NOTICE.

Date:

,2017

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

CLAUDIO CABRERA,Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,

16 Civ. 5824(LDH)
(CLP)
-against-

FROST RESTAURANT INC.,ROCCO
DEPAOLA,GIOVANNI DEPAOLA,and
GIUSEPPE MORENA,Jointly and
Severally,
Defendants.

CONSENT TO BECOME A PARTY PLAINTIFF

By my signature below,I hereby authorize the filing and prosecution ofthe above styled Fair Labor
Standards Act action in my name and on my behalf by the representative plaintiff Claudio Cabrera as my
agent to make decisions on my behalf conceming the litigation, the method and manner of conducting this
litigation and all other matters pertaining to this lawsuit. I understand that if I return this form to Pelton
Graham LLC I will be represented by them without prepayment of costs or attorneys' fees. I understand
that if plaintiffs are successful, costs expended by attorneys on my behalf will be deducted from my
settlement orjudgment first. I understand that my attorneys may petition the court for an award offees and
costs which may be deducted from my settlement proceeds. I understand that the amount ofthe fees will

be approximately 1/3 of my total settlement orjudgment, or such other amount as approved by the Court.
Printed Name

Signature

Date

Street Address

Email Address

Telephone

City, State, Zip code

Approximate Dates ofEmployment

IF YOU WISH TO BE REPRESENTED BY PLAINTIFFS' ATTORNEYS, PLEASE RETURN THIS
FORM FOR FILING WITH THE COURT BY Ilnsert Date 60 davs after Mailing of Noticel TO:

PELTON GRAHAM LLC

111 Broadway, Suite 1503
New York, New York 10006

Phone[phone]; Fax [phone]

Email: [e-mail]

HOpofl.^A'r-t Qf^ PoA yg"-^/^ pfttof^
IF YOU WISH TO BE REPRESENTED BY COUNSEL OF YOUR CHOOSING OR REPRESENT

YOURSELF PRO SE, PLEASiJrETURN THIS FORM FOR FILING WITH THE COURT BY [Insert
Date 60 davs after Mailing of Notice] TO:

.
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United States District Court, Eastern District of New York
225 Cadman Pla2a East

Brooklyn, New York 11201

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