Velasquez et al v. Digital Page, Inc. et al
Filing
85
MEMORANDUM AND ORDER denying #79 Motion to Set Aside. For the reasons set forth herein, the court overrules Defendants' objections to the March 20,2013 Order of Magistrate Judge Tomlinson. Defendants shall comply with the Order as follows. The sales associate information is to be provided to Plaintiffs counsel within two weeks of the date of this Memorandum and Order. Plaintiffs motion for conditional class certification is to beserved by June 27, 2013. Defendants shall respond by July 15, 2013, and Plaintiff shall reply by July 22,2013. Once fully briefed, the motion shall be deemed referred to Magistrate Judge Tomlinson. The Clerk of the Court is directed to terminate the motion appearing at docket entrynumber #79 in this matter. (Ordered by Judge Leonard D. Wexler on 6/11/2013.) (Fagan, Linda)
FILE 0
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
UNITED STATES DIS1RICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
NOEL VELASQUEZ and CARLOS
RIVERA, individually and on behalf of all
others similarly situated,
*
JUN 112013
*
LONG ISLAND OFFICE
MEMORANDUM AND ORDER
cv 11-3892
Plaintiffs,
(Wexler, J.)
-againstDIGITAL PAGE, INC. dlb/a/, FUSION
WIRELESS; CELLULAR CONSULTANTS,
INC., dlb/a/, FUSION WIRELESS;
CELLULAR CONSULTANTS OF NASSAU,
INC., dlb/a/, FUSION WIRELESS; CELLULAR
CONSULTANTS OF NASSAU ST/1, dlb/a/,
FUSION WIRELESS; CELLULAR
CONSULTANTS OF FARMINGDALE,
dlb/a/, FUSION WIRELESS; BRANDON
HAENEL and ROBERT PACHTMAN,
Defendants.
-----------------------------------------------------------)(
APPEARANCES:
VALL! KANE & V AGNINI LLP
BY: JAMES ALDO VAGNINI, ESQ.,
SUMANTRA T. SUNHA, ESQ.
Attorneys for Plaintiffs
600 Old Couotry Road Suite 519
Garden City, New York 11530
MILMAN LABUDA LAW GROUP PLLC
BY: JOSEPH M. LABUDA, ESQ.,
JAMIE SCOTT FELSEN, ESQ.
Attorneys for Defendants
3000 Marcus Avenue, Suite 3W3
Lake Success, New York 11042
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WEXLER, District Judge
This is a case brought pursuant to the Fair Labor Standards Act, 29 U.S.C. ยง 207 (the
"FLSA"), and parallel provisions of New York State law, seeking overtime compensation against
the Defendant employers. Plaintiffs Noel Velasquez ("Velasquez") and Carlos Rivera ("Rivera"),
commenced the action representing themselves, and seeking to represent a class of persons
similarly situated.
Presently before the court is Defendants' motion, pursuant to Rule 72 of the Federal
Rules of Civil Procedure, to set aside an order of Magistrate Judge A. Kathleen Tomlinson, dated
May 20,2013. (the "Order"). The Order directs Defendants to provide information regarding
sales associates employed at all locations affiliated with Defendants. The Order further grants
Plaintiffs leave to file a motion for conditional class certification. 1
Discussion
I.
Standard of Review
The Order is a non-dispositive order. Pursuant to Rule 72 of the Federal Rules of Civil
Procedure this court shall modify or set aside any part of the Order that is ''clearly erroneous or
contrary to law." FRCP 72(a).
II.
Disposition of the Motion
This court has reviewed Defendants' objections, and concludes, as set forth below, that
the Order should be affirmed.
The Order also denies Plaintiffs' motion to strike parts of depositions transcripts
and their motion to amend, correct or supplement the complaint. These rulings are
not the subject of the objections that are presently before the court.
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A.
Sales Associate Information
Defendants' objection to the disclosure of sales associate information argues that the
request for such information was untimely and improper. As to the propriety of the request,
Defendants assert that the entities from which information is sought are not named specifically in
the Complaint. As noted by Magistrate Judge Tomlinson, discovery as to the mmamed entities is
appropriate because they have long been referred to in Plaintiffs' complaint, and associates in
those locations could be potential witnesses or part ofthe putative class. As such, discovery as to
these individuals is proper under the Federal Rules. As to timeliness, the request for sales
associate information was timely made, prior to the close of discovery during the deposition of
one of the named individual Defendants. It was well-within the discretion of Magistrate Judge
Tomlinson to hold the request timely made. In view of the court's holding that the sales
association information is both within the bounds of discovery and timely made, the court holds
that the ruling of Magistrate Judge Tomlinson regarding this information was neither clearly
erroneous nor contrary to law. The court therefore denies Defendants' objection to the
requirement that they disclose sales associate information.
B.
Motion for Conditional Class Certification
Defendants also object on timeliness grounds to Magistrate Judge Tomlinson's grant of
Plaintiffs' request to file a motion for conditional class certification. The court has reviewed the
docket in this matter, as outlined in the Order, and agrees with the Magistrate Judge as to the
timeliness of the Plaintiffs' request. Accordingly, the court finds no error in the Order with
respect to the grant of the request to move for conditional class certification.
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CONCLUSION
For the foregoing reasons, the court overrules Defendants' objections to the March 20,
2013 Order of Magistrate Judge Tomlinson. Defendants shall comply with the Order as follows.
The sales associate information is to be provided to Plaintiffs counsel within two weeks of the
date of this Memorandum and Order. Plaintiffs motion for conditional class certification is to be
served by June 27, 2013. Defendants shall respond by July 15, 2013, and Plaintiff shall reply by
July 22,2013. Once fully briefed, the motion shall be deemed referred to Magistrate Judge
Tomlinson. The Clerk of the Court is directed to terminate the motion appearing at docket entry
number 79 in this matter.
SO ORDERED
Central Islip, New York
June /(.2013
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