Castillo v. Taco Bell of America, LLC. et al

Filing 20

MEMORANDUM AND ORDER granting 15 Motion to Dismiss; For the reasons set forth herein, Defendants' motion to dismiss the class/collective action claims is granted. Plaintiff is directed to advise this court, within three weeks of the date of t his order, as to whether he will be pursuing his individual claims here, or will opt-in as a member of the Whittington class. Discovery in this matter shall be suspended pending receipt of Plaintiffs decision as to how he wishes to pursue his individual claim. (Ordered by Judge Leonard D. Wexler on 3/18/2013.) (Fagan, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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AGUSTIN CASTILLO,

MEMORANDUM AND ORDER

cv 12-3786

Plaintiff,

(Wexler, J.)

-againstTACO BELL OF AMERICA, LLC, and
TACO BELL CORP.,
Defendants.

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APPEARANCES:
K.LAFTER OLSEN &LESSER LLP
BY: SETH R. LESSER, ESQ.
FRAN L. RUDICH, ESQ.
JEFFREY A. KLAFTER, ESQ.
Attorneys for Plaintiff
2 International Drive, Suite 350
Rye Brook, New York 10573
KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL
BY: SILVIA STRIK.IS, ESQ.
Attorneys for Plaintiff
1615 M Street, N. W., Suite 400
Washington, DC 20036-3209
FEDER LAW FIRM
BY: STEVEN M. FEDER, ESQ.
Attorneys for Plaintiff
Equitable Building
730 17'h Street, Suite 550
Denver, Colorado 80202-3539
Attorneys for Plaintiff
GREENBERG TRAURIG, LLP
BY: WENDY JOHNSON LARIO, ESQ.

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Attorneys for Defendant
200 Park Avenue
Florham Park, New Jersey 07932
GREENBERG TRAURIG, LLP
BY: BRIAN L. DUFFY, ESQ.
NAOMI G. BEER, ESQ.
JEANETTE M. BROOK, ESQ.
Attorneys for Defendant
1200 Seventeenth Street, Suite 2400
Denver, Colorado 80202
WEXLER, District Judge
Plaintiff Agustine Castillo ("Plaintiff' or "Castillo") commenced this case individually,
and on behalf of a similarly situated class of individuals. The complaint seeks overtime
compensation pursuant to the Fair Labor Standards Act, 29 U.S.C. § 207 (the "FLSA"), and a
parallel provision of New York State law. Defendants are Taco Bell of America, LLC and Taco
Bell Corp. (collectively "Defendants" or "Taco Bell"). Presently before the court is Defendants'
motion, pursuant to Rule 12(b)(6), to dismiss the class/collective claims without prejudice to
Plaintiff pursuing an individual action or, in the alternative to stay the putative class claims
pending the final outcome of a collective action being pursued in the United States District Court
for the District of Colorado.
BACKGROUND

I.

The Parties and the Allegations of the Complaint
Plaintiff is a citizen of the State ofNew York. Defendant Taco Bell of America, LLC is a

limited liability corporation existing under the laws of the State of Delaware with its principle
place of business in the state of Kentucky. Defendant Taco Bell Corp. is a California corporation
with its principle place of business in that state. Defendants are alleged to operate a chain of
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approximately 1,240 restaurants throughout the United States.
Plaintiff was employed as an assistant general manger at a company-owned Taco Bell
restaurant located in Bay Shore, New York. The complaint defines a "company-owned"
restaurant as a restaurant that is owned and operated by Defendants, as opposed to Taco Bell
restaurants that are operated by independent franchisees. Plaintiff was employed by Taco Bell
from September 9, 2009 through March 23, 2011. His claim in this matter is for the period of
time from approximately May 4, 2010 until approximately March 23,2011.
Plaintiff describes the duties of an assistant general manager ("AGM") as including
bussing tables, cooking, checking inventory, cleaning, cashiering and helping customers. He
states specifically that his AGM duties did not include hiring, firing, scheduling and/or
disciplining of other employees. Plaintiff alleges that his AGM duties were substantially similar
to those of Taco Bell employees who are not exempt from the overtime provisions oflaw.
Accordingly, Plaintiff alleges that he and similarly situated AGM's were wrongfully denied
payment of overtime compensation when they worked in excess of forty hours per week. The
failure to pay such compensation is alleged to violate both the FLSA and a parallel provisions of
the New York State Labor Law.
II.

The Colorado Action
In 2010, prior to commencement of this 2011 action, the same attorney representing

Plaintiff Castillo commenced a collective/class action in the United States District Court for the
District of Colorado. That action was commenced individually, and on behalf of a all Taco Bell
AGM' s seeking the payment of overtime compensation pursuant to the FLSA and Colorado state
law. See Whittington v. YUM! Brands. Inc .. Taco Bell of America. Inc. And Taco Bell Com.,
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No. 10-1884 (REB-MEH) ("Whittington" or the "Whittington Action"). Like this action, the
Whittington Action seeks the payment of overtime compensation for AGM's employed at Taco
Bell restaurants. The class period in Whittington is defined to include AGM's employed from
August 4, 2007, through entry of judgment in that case. Plaintiff in Whittington describes her
AGM duties to include and exclude the same duties set forth by Plaintiff, as described above, in
this matter. Thus, the duties of an AGM are defined in Whittington to include bussing tables,
cooking, checking inventory, cleaning, cashiering and helping customers, and to exclude hiring
and firing of other employees.
On January 10, 2012, Whittington was conditionally certified as an FLSA collective
action by the Colorado court. Shortly thereafter, on February 22, 2012, notice of the action was
sent to 4,000 potential class members. The Whittington court set May 12, 2012, as the date by
which potential plaintiffs could opt-in to that action. As of that date, there were approximately
400 individuals who opted to be a part of the Whittington plaintiff class. Pursuant to discussions
and an agreement among counsel, Taco Bell agreed to accept additional opt-in plaintiffs in the
Whittington Action after the May 21, 2012 cut-off date, until June 8, 2012. The parties in the
Whittington Action are engaged in discovery, which is set to be concluded by May 21,2013.
III.

Plaintiffs Attempt to Opt-in to Whittington and This Action
Plaintiff states that Taco Bell refused to allow him to opt-in to the Whittington Action

after the extended agreed upon cut-off date of June 8, 2012. Taco Bell characterizes Plaintiff as
"electing" not to opt-in to Whittington. The court accepts Plaintiffs version of the facts for the
purpose of this motion, but notes that Taco Bell has now made clear that Plaintiff, and the two
individuals who have opted into this lawsuit may join as a part of the plaintiff class in
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Whittington. In any event, on July 30, 2012, after Plaintiff either elected, or was refused entry
into the Plaintiff class in Whittington, he commenced this action.
IV.

The Motion
Taco Bell moves to dismiss Plaintiff's collective /class action complaint without

prejudice to pursuing an individual action, or in the alternative to stay the putative class claims
pending the outcome of Whittington. In support of the motion, Taco Bell argues that because this
matter is substantially duplicative of the Whittington Action, dismissal is appropriate pursuant to
the first-filed action rule. Plaintiff opposes the motion on the ground that the first filed rule has
no application because the plaintiffs in this action differ from those in Whittington. After
outlining applicable law, and upon consideration of the facts set forth above in light of that law,
the court will decide the merits of the motion.
DISCUSSION
I.

General Principles: First Filed Rule
The "first-filed" rule stands for the general proposition "where there are two competing

lawsuits, the first suit should have priority ...."Wyler-Wittenberg v. MetLife Home Loans. Inc.,
2012 WL 5077482 *5 (E.D.N.Y. 2012), quoting, First CitvNat. Bank and Trust Co. v. Simmons,
878 F.2d 76, 79 (2d Cir.1989) (citations omitted). Pursuant to this rule, a district court has broad
discretion to dismiss a lawsuit that is duplicative of a prior action. Bvron v. Genovese Drug
Stores. Inc., 2011 WL 4962499 * 2 (E.D.N.Y. 2011). This discretion arises from the court's
power to administer its docket to conserve judicial resources, and to promote the efficient and
comprehensive disposition of cases. Id., see Curtis v. DiMaio, 46 F. Supp.2d 206, 214
(E.D.N.Y.1999), aff'd., 205 F.3d 1322 (2d Cir. 2000); Wyler-Wittenberg, 2012 WL 5077482 *5.

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When considering whether to dismiss the second action, the court considers whether the lawsuits
at issue assert the same rights, and seek relief based upon the same facts. The lawsuits need not
be identical, but the claims and rights raised in the two actions must not differ substantially.
Wyler-Wittenberg, 2012 WL 5077482 *6; Bvron, 2011 WL 4962499 *3; Oleg Cassini. Inc. v.
Serta. Inc., 2012 WL 844284 *3 (S.D.N.Y. 2012) (for first-filed rule to apply "issues need not be
identical, and the named parties need not be entirely the same provided that they represent the
same interests"). Dismissal is appropriate not only to promote docket efficiency and interests of
comity, but also to avoid burdening a party with litigating the same matter in separate lawsuits.
See Curtis v. Citibank. N.A., 226 F.3d 133, 138 (2d Cir. 2000).
II.

Disposition of the Motion
Comparison of this action to the Whittington Action reveals that the class/collective

claims raised are so substantially similar as to require dismissal of this matter. First, the classes
sought to be represented in the two cases, i.e. Taco Bell A OM's, are identical. Plaintiff's
assertion that this case will accept as plaintiffs only those who have not opted in to Whittington
makes this litigation no less piecemeal. The class description is the same, as are the potential
plaintiffs- whether or not they have decided to opt-in to Whittington. Also identical is the relief
sought -the payment of overtime compensation.
The progress of the Whittington Action also militates in favor of dismissal. While this
case was only recently filed, Whittington has made significant progress. Thus, in Whittington, a
collective action has been conditionally certified, class notice has been sent, the opt-in period is
over, and the end of discovery is near. Here, the action has made little progress. In light of these
factors, there is no doubt that interests of comity require dismissal of this action in favor of the
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previously filed Whittington Action.
Dismissal is also appropriate because it would be patently unfair to require Defendants to
litigate the class issues here at the same time as those matters are being litigated in the first-filed
action. Additionally, Defendants should not be required to send a second class notice to
individuals who have already received such notice but have elected not to participate in
Whittington. Indeed, it is precisely such concerns that have led courts here and in other
jurisdictions to dismiss or transfer second filed FLSA actions in favor of an earlier filed similar
action.

See,~.,

Wyler-Wittenberg, 2012 WL 5077482 *7-9 (applying first-filed rule to FLSA

action found to be duplicative of earlier FLSA actions filed in different district); Ortiz v. Panera
Bread Co., 2011 WL 3353432 *2 (E.D.Va. 2011) (noting that dismissing second matter is
"particularly appropriate in the context of competing FLSA collective actions, which threaten to
present overlapping classes, multiple attempts at certification in two different courts, and
complicated settlement negotiations"); Greene v. H & R Block Eastern Enterorises. Inc., 727 F.
Supp.2d 1363, 1368 (S.D. Fl. 2010); Fuller v. Abercrombie & Fitch Stores. Inc., 370 F. Supp.2d
686, 689-90 (E.D. Tenn. 2005).
For the foregoing reasons, the court dismisses the class/collective claims raised in this
matter. Plaintiff is free to pursue his individual claim in the context of this lawsuit, or opt-in to
become a member of the plaintiff class in Whittington. Defendants have made clear that they
have no opposition to this course of action.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss the class/collective action
claims is granted. Plaintiff is directed to advise this court, within three weeks of the date of this
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order, as to whether he will be pursuing his individual claims here, or will opt-in as a member of
the Whittington class. Discovery in this matter shall be suspended pending receipt of Plaintiffs
decision as to how he wishes to pursue his individual claim.
SO ORDERED

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LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE

Central Islip, New York
March/8, 2013

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