Cohan et al v. Columbia Sussex Management, LLC
MEMORANDUM & ORDER granting 73 Motion to Certify FLSA Collective Action; For the foregoing reasons, Defendant's Objections (Docket Entry 42) are OVERRULED and Judge Tomlinson's Certification Order is AFFIRMED. In addition, Plaintiffs 39; motion to equitably toll the statute of limitations while Plaintiffs' Objections were pending (Docket Entry 73) is GRANTED. The statute of limitation for both Plaintiffs' FLSA and NYLL claims is tolled from the date Defendant filed Objections to Judge Tomlinson's Certification Order until the date of this Memorandum & Order. So Ordered by Judge Joanna Seybert on 3/15/2016. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOHN MICHAEL COHAN, WACKSON
BARTHELEMY, individually and for and
on behalf of all similarly situated
persons, and MARIE C. VICTOR,
MEMORANDUM & ORDER
COLUMBIA SUSSEX MANAGEMENT, LLC,
along with any other related
corporate entities doing business
as Melville Marriott,
James Emmet Murphy, Esq.
Lloyd Robert Ambinder, Esq.
Isabel Ann Gardocki, esq.
Alison Lee Genova, Esq.
Kara Sue Miller, Esq.
Suzanne B. Leeds, Esq.
Virginia & Ambinder LLP
40 Broad Street, 7th floor
New York, NY 10004
Michael Alexander Tompkins, Esq.
Daniel Harris Markowitz, Esq.
Jeffrey Kevin Brown, Esq.
Leeds Brown Law, P.C.
1 Old Country Road
Carles Place, NY 11514
George Vinci, Esq.
David B. Picker, Esq.
Spector Gadon & Rosen
1635 Market Street, 7th Floor
Philadelphia, PA 19103
SEYBERT, District Judge:
Pending before the Court are Defendant’s Objections to
Docket Entry 42) and Plaintiffs’ motion to equitably toll the
statute of limitations (Docket Entry 73).
For the reasons that
motion is GRANTED.
Plaintiffs John Michael Cohan and Wackson Barthelemy1
(“Plaintiffs”) brought this case on behalf of themselves and
similarly situated persons seeking unpaid overtime and unlawfully
retained gratuities from Defendant Columbia Sussex Management,
LLC, d/b/a Melville Marriott, and other related corporate entities
(“Defendant”), pursuant to the Fair Labor Standards Act of 1938
(“FLSA”), as amended, 29 U.S.C. § 201 et seq. and the New York
Labor Law (“NYLL”).
(See, Compl. ¶ 1.)
bartender, restaurant server, room-service delivery person, member
approximately May 2009 until August 2010. (Sept. 19, 2013 Order
(the “Certification Order”), Docket Entry 41, at 2.)
Barthelemy worked for Defendant as a server from April 2007 through
(Cert. Order at 2.)
The Complaint asserts that
Marie C. Victor was added as a named Plaintiff in this action
on December 17, 2012. (See Docket Entry 25.)
receive overtime compensation for hours worked in excess of forty
hours per week, and did not receive the majority share of a service
charge that Defendant imposed on patrons.
(Cert. Order at 2.)
conditional certification and made certain rulings regarding the
scope of the Plaintiffs’ proposed class.
(See Cert. Order at 24.)
Among other determinations, Judge Tomlinson: (1) conditionally
certified a class consisting of Defendant’s “banquet servers,
waiters, bussers, bartenders, clean-up crew, housemen, bellmen,
runners, maintenance workers and/or hosts/hostesses” (Cert. Order
at 6-12); (2) found that workers from both Defendant’s Melville
and Islandia facilities should be included in the class (Cert.
Order at 13); (3) directed that the FLSA claims be conditionally
certified as to all employees or former employees who worked for
Defendant from June 27, 2009 through the present (Cert. Order at
information about potential state law claims dating back to June
27, 2006 in the FLSA opt-in notice” (Cert. Order at 18-19).
Certification Order on the grounds that (1) too many types of
employees are included in Plaintiffs’ proposed class and (2) the
opt-in notice should not be sent to employees who were employed by
Defendant within six years of the filing of the Complaint. (Def.’s
Objections, at 7, 15.)
In addition, Plaintiffs seek to toll the
statute of limitations for their FLSA claims while Defendant’s
Objections to Judge Tomlinson’s Certification Order were pending.
(Docket Entry 73.)
I. Legal Standard
District courts review nondispositive orders issued by
a magistrate judge for clear error.
FED. R. CIV. P. 72(a).
finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
Travel Sentry, Inc. v. Tropp, 669 F. Supp. 2d 279,
283 (E.D.N.Y. 2009) (quoting Concrete Pipe & Prods. of Cal., Inc.
v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622,
113 S. Ct. 2264, 2279, 124 L. Ed. 2d 539 (1993)).
judge’s findings should not be rejected merely because the court
Americare Certified Special Serv., Inc., No. 12-CV-1466, 2013 WL
4495672, at *1 (E.D.N.Y. Aug. 20, 2013); Ross Univ. Sch. of Med.,
Ltd. v. Brooklyn-Queens Health Care, Inc., No. 09-CV-1410, 2013 WL
1334271, at *5 (E.D.N.Y. Aug. 8, 2013); Pall Corp. v. Entegris,
Inc., 655 F. Supp. 2d 169, 172 (E.D.N.Y. 2008).
The Scope of Plaintiffs’ Class
Defendant first argues that only banquet servers should
Plaintiffs have not shown that other classes of employees were
subject to labor law violations.
(Objections at 7-14.)
At the conditional certification stage, “the threshold
question for the court is whether the plaintiffs have demonstrated
that the potential class members are ‘similarly situated’ to
them . . . with
Benitez v. Demco of Riverdale, LLC, No. 14-CV-7074,
Certification Order, Judge Tomlinson found that Plaintiffs met
their modest factual burden of showing that Defendant subjected
multiple classes of employees to labor law violations by submitting
several sworn affidavits from Defendant’s employees.
compensated, Judge Tomlinson found that the competing affidavits
merely created a factual dispute, which could not be resolved at
the conditional certification stage.
(See Certification Order at
Defendant relies upon a smattering of cases in support of
establish that workers, other than banquet servers, should be
included in Plaintiff’s collective action.
cases are all procedurally distinguishable because they addressed
motions to dismiss the Complaint, not motions for conditional
See, e.g., Dejesus v. HF Mgmt. Servs., LLC, 726
F.3d 85, 87 (2d Cir. 2013).
In fact, Defendant does not even take
aim at the primary thrust of Judge Tomlinson’s decision--that
members are similarly situated.
Therefore, Defendant’s objection
regarding the scope of the class is OVERRULED.
III. Notice to Members
Defendant next argues that Judge Tomlinson erred by
deciding that the opt-in notice should sent to personnel who were
employed by Defendant at any time within six years of the filing
of the Complaint.
(Objections at 15.)
Judge Tomlinson chose a
six-year period, not the FLSA’s three-year limitations period,
because Plaintiffs’ state law claims are subject to a six-year
statute of limitations. (Certification Order at 16.) In addition,
Judge Tomlinson noted that prospective FLSA Plaintiffs could have
equitable tolling defenses.
(Certification Order at 15.)
have come to different conclusions when addressing the correct
opt-in notice period when Plaintiffs assert both FLSA and NYLL
claims in the same action.
Compare Winfield v. Citibank, N.A.,
843 F. Supp. 2d 397, 410 (S.D.N.Y. 2012) (extending the notice
period for six years) with Hamadou v. Hess Corp., 915 F. Supp. 2d
651, 668 (S.D.N.Y. 2013) (finding a three-year notice period
ineligible for the FLSA opt-in class to receive the opt-in notice,
which does not relate to any state law claims”).
however, decisions regarding the scope of the proposed notice are
Guzman v. VLM, Inc., No. 07-CV-1126, 2007 WL
2994278, at *2 (E.D.N.Y. Oct. 11, 2007), order clarified, No. 07CV-1126, 2008 WL 597186 (E.D.N.Y. Mar. 2, 2008).
Tomlinson’s decision concerning the scope of the notice period was
well reasoned and supported by precedent, the Court will not alter
Equitable Tolling is Appropriate
Courts have discretion to equitably toll the limitations
Yahraes v. Rest. Assocs. Events Corp., No. 10-
CV-935, 2011 WL 844963, at *1 (E.D.N.Y. Mar. 8, 2011) (internal
quotation marks and citation omitted); McGlone v. Cont. Callers,
Inc., 867 F. Supp. 2d 438, 445 (S.D.N.Y. 2012).
In the interest
of justice, the Court finds that the statute of limitations for
Plaintiffs’ FLSA and NYLL claims must be tolled from the date
Defendant’s filed Objections to Judge Tomlinson’s Certification
Order until the date of this Memorandum and Order.
Defendant’s final objection addresses the trivial issue of
whether potential plaintiffs should be notified about the
possibility that they will need to pay costs if this case is not
successful. (Objections at 22.) Judge Tomlinson’s decision on
this point was well-reasoned, therefore, the point need not be
addressed further. (See Cert. Order at 22.)
Certification Order is AFFIRMED.
In addition, Plaintiffs’ motion
to equitably toll the statute of limitations while Plaintiffs’
Objections were pending (Docket Entry 73) is GRANTED.
of limitation for both Plaintiffs’ FLSA and NYLL claims is tolled
from the date Defendant filed Objections to Judge Tomlinson’s
Certification Order until the date of this Memorandum & Order.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
15 , 2016
Central Islip, New York
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