Lopez et al v. Setauket Car Wash & Detail Center et al

Filing 163

MEMORANDUM AND ORDER granting 128 Motion to Certify FLSA Collective Action. For the reasons stated herein, plaintiffs' motion for Rule 23 class certification on Plaintiffs claims under New York law is granted. (Ordered by Judge Leonard D. Wexler on 1/5/2016.) (Fagan, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
ANCELMO SIMEON MENDEZ LOPEZ
'
SANTOS NATIVIDAD CALI ZAMBRANO
'
on behalf of themselves and all others similarly
situated,
Plaintiffs,

MEMORANDUM AND ORDER
CV-12-6324
(Wexler, J.)

-againstSETAUKET CAR WASH & DETAIL CENTER
'
TLCW, INC., KARP ENTERPRISES, INC.,
STEVEN SA VIANO, and MARK CHAIT,

"' 'l

Defendants.

,_,1

i

...,.

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APPEARANCES:
FRANK & ASSOCIATES, P.C.
BY: Peter A. Romero, Esq.
500 Bi-Country Boulevard, 112N
Farmingdale, New York 11735
Attorneys for Plaintiffs
ZABELL & ASSOCIATES, P.C.
BY: Saul D. Zabell, Esq.
I Corporate Drive
Bohemia, New York 11716
Attorneys for Defendants
WE)(LER, District Judge:
Plaintiffs Ancelmo Simeon Mendez Lopez ("Lopez") and Santos Natividad Cali
Zambrano ("Zambrano") (collectively "Plaintiffs") bring this action against Setauket Car Wash &
Detail Center, TLCW, Inc., Karp Enterprises, Inc., Steven Saviano and Mark Chait (collectively
"Defendants") claiming violations of the Fair Labor Standards Act ("FLSA") and the New York
Labor Law ("NYLL"). By a previous order of this Court, Plaintiffs' motion for conditional

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certification of their FLSA claims was granted. 1 Now Plaintiffs move for class certification of
their New York claims under Rule 23 of the Federal Rules of Civil Procedure ("Fed.R.Civ.Pro.").
For the reasons stated below, Plaintiffs' motion is granted.
BACKGROUND
Plaintiffs are car wash attendants formerly employed by the Defendants. They claim that
Defendants violated the FLSA and the NYLL by not paying overtime, minimum wage or the
"spread of hours" required under New York law. Amongst other things, Plaintiffs claim that in
calculating their wages, Defendants took a tip credit that failed to meet the requirements of New
York law, NYCRR § 142-2.5(b). In addition, Plaintiffs allege that improper calculation ofthe tip
credit led to an improper calculation of overtime wages. Plaintiffs now seek class certification of
the claims under Rule 23.
DISCUSSION
I.

Legal Principles
A. Rule 23(a) and Rule 23(b)(3)
Rule 23(a) requires that a party seeking certification prove each of the listed elements,

namely, that the proposed class action "(1) be sufficiently numerous, (2) involve questions of law
or fact common to the class, (3) involve class plaintiffs whose claims are typical of those of the
class, and (4) involve a class representative or representatives who adequately represent the
interests ofthe class."

Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) cert. denied 132

S.Ct. 368 (2011); Rule 23(a).

1

A total of twelve Plaintiffs have opted in to this action. In granting certification, the
Court directed that notice be sent to all employees for the six years prior. See ECF No. 49, at 67.
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Furthermore, once the elements of Rule 23(a) have been satisfied, Rule 23(b)(3) requires
that the party seeking certification must show that "questions of law or fact common to class
members predominate over any questions affecting only individual members" and that class
treatment would be superior to individual litigation. See Rule 23(b)(3); Myers, 624 F.3d at 547.
II.

Disposition of the Motion

1.

Rule 23(a)
A. Numerosity
The Second Circuit has stated that "numerosity is presumed at a level of 40 members."

Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Perez v.
Allstate Insurance Co., 2014 WL 4655745, *14 (E.D.N.Y. 2014). There are twelve opt-in
Plaintiffs and a total of approximately 80 putative class members. Defendants concede that
numerosity is satisfied. See Defendants' Memorandum of Law in Opposition ("Def. Mem. "), at
5.

B. Commonality
Rule 23 (a) states that a plaintiff must share "questions of law or fact common to the
class." Rule 23(a)(2). The Supreme Court has explained that "commonality requires that the
class members have suffered the same injury." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (20 11 ). "That claim must depend on a common
contention" that "must be of such a nature that it is capable of classwide resolution-which
means that determination of its truth or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke." Id.
In Dukes, the plaintiffs hoped to certify a class action alleging that the employer, Wal-

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Mart, operated under a policy of sexually discriminating against female employees in violation of
Title VII of the Civil Rights Act of 1964. The Court ruled that certification was not warranted
where there was no "glue" holding the reasons for the alleged discrimination together. "It will be
impossible to say that examination of all the class members' claims for relief will produce a
common answer to the question why was I disfavored." Id., at 2552 (emphasis in original).
This case is distinguishable. Plaintiffs here argue that they were all subject to the same
policy of Defendants that improperly calculated a tip credit and paid the Plaintiffs their hourly
wage and any overtime due accordingly. The Court finds that the question of whether this policy
violates the NYLL is a question that is "common" to all Plaintiffs, and thus satisfies the
commonality test under Rule 23. See Shahriar v. Smith & Wollensky Retaurant Group, Inc., 659
F.3d 234, 252 (2d Cir. 2011) (commonality of Rule 23 satisfied since plaintiffs' NYLL class
claims all derive from the same compensation policies and tipping practices).
Defendants argue that there is no commonality because each of the Plaintiffs testified
differently on how often they worked, and on whether or not the car wash operated in the rain, or
on certain holidays. They also urge that some Plaintiffs testified that they never worked more
than 40 hours in given week and thus were not entitled to overtime. Thus, they argue that the
individual nature of each Plaintiff's testimony destroys commonality. 2
Yet, the Court finds that these differences, relevant to the amount of damages owed, if
any, do not destroy the commonality created by the question of whether Defendants' policy of
taking the tip credit was violative of the law. This commonality warrants certification as a class

2

Defendants urge that these differences also defeat the "typicality" required by Rule 23(a)
and well as the mandate that common claims predominate over individual claims, as required by
Rule 23(b).
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action under Rule 23. As stated by the Supreme Court describing when class certification is
warranted, the claims here do depend on a "common contention," the resolution of which will
determine the validity of each of the claims "in one stroke." Dukes, 131 S.Ct. at 2551. The
legitimate differences cited by the Defendants are not relevant to the common contention of
liability, but rather the amount of damages owed, if any, and can be addressed if and after the
common question ofliability is determined. 3 See Morris v. Aile Processing Corp., 2013 WL
1880919, at *10 (E.D.N.Y. May 6, 2013) (commonality and typicality satisfied since
"[d]ifferences among class members as to the number of hours worked, the type of work
performed, and the amount of pay received 'concern the amount of damages to which any
individual [class member] might be entitled if and when liability is found, not the amenability of
plaintiffs' claims to the class action form."') (citations omitted).
C. Typicality
Rule 23(a)(3) requires that "the claims or defenses of the representative parties are typical
ofthe claims or defenses ofthe class." Typicality "is satisfied when each class member's claim
arises from the same course of events and each class member makes similar legal arguments to
prove the defendant's liability." Robidoux v. Celani, 987 F.2d 931,936 (2d Cir. 1993) (citing In
re Drexel Burnham Lambert Group, Inc., 960 F.2d 285,291 (2d Cir.1992), cert. dismissed, 506
U.S. I 088, 113 S.Ct. I 070, 122 L.Ed.2d 497 (1993). Many courts have recognized that the
commonality and typicality requirements of Rule 23(a) often merge, both serving as "guideposts"

3

The Court distinguishes this case, where the common issue is whether Defendants'
policy violated the law, from this Court's ruling in Velasquez v. Digital Page, 303 F.R.D. 435
(E.D.N.Y. 2014) which addressed the factually-intensive question of whether the employees were
exempt from overtime.
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for whether the class action is "economical" and will adequately protect the interests of the
absent class members. Dukes, 131 S.Ct. at 2551, n.5. Typicality involves the inquiry into "the
fairness of allowing an entire class's claim to rise or fall with the fate of the named
representative's claims." Indergit v. Rite Aid Corp., 293 F.R.D. 632, 652 (S.D.N.Y. 2013)
(citations omitted).
As discussed above, since the claims at issue here stem from the common question of
whether Defendants' policy violated the law, the claims and defenses of the representative
Plaintiffs are typical of those of the class. Therefore, and for the same reasons discussed above
concerning commonality, typicality is also satisfied.
D. Adequacy of Representation
"Adequacy of representation is evaluated in two ways: (1) by looking to the qualifications
of plaintiffs' counsel; and (2) by examining the interests ofthe named plaintiffs." Jackson v.
Bloomberg, L.P., 298 F.R.D. 152, (S.D.N.Y. 2014) (quoting Flores v. Anjost Corp., 284 F.R.D.
112, 128-29 (S.D.N.Y. 2012)). The Court has reviewed the parties' submissions and finds that
Plaintiffs and Plaintiffs' counsel are adequate to permit certification.
2.

Rule 23(b)(3)
Rule 23(b )(3) states that certification is warranted when "questions of law or fact

common to class members predominate over any questions affecting only individual members ... "
See Rule 23(b )(3). To satisfy the "predominance" requirement, Plaintiff must show that the
"more 'substantial' aspects of this litigation will be susceptible to generalized proof for all class
members than any individualized issues." Myers, 624 F.3d at 551. A class action is intended to
promote efficiency of time and effort, which can only be achieved if "generalized" proof applies

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to the whole class. Myers, 624 F.3d at 549. If the claims mandate an individualized inquiry and
determination, there is no point in proceeding as a class action. Thus, if the common questions
and proof do not "predominate" over the individual questions, class certification is not
warranted.
The Court finds that the common questions concerning the policies employed by
Defendants "predominates" over the individual questions concerning the specific numbers of
hours worked by each Plaintiff, as argued by Defendants. The common question here is whether
the Defendants improperly permitted a tip credit in calculating wages owed. This question
predominates over the individualized question of the damages due each Plaintiff, if liability is
established. Perez v. Allstate Insurance Co., No. 11-CV-1812 (JFB)(AKT), 2014 WL 4635745,
at *22 (E.D.N.Y. Sept. 16, 2014) (granting class certification in an exemption case where "given
the common issues concerning defendant's liability to all NYLL Class members, the
individualized nature of damages, without more, does not defeat the predominance element"); cf.
Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1433 (2013) (requiring that the putative class's theory
of damages must be correspond to that class's theory of liability to justify class certification under
Rule 23); see Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 253 (2d Cir. 2011)
(affirming class certification where, "[i]f Plaintiffs succeed in showing that the expediters, silver
polishers, coffee makers, and/or managers were not eligible to receive tips under New York law,
then each of the class plaintiffs will likely prevail on his or her section 196--d claims, although
class plaintiffs' individualized damages will vary"); Fonseca v. Dircksen & Talleyrand Inc., 2015
WL 5813382, at *6 (S.D.N.Y. September 28, 2015) (in a tipping policy case, "that each class
member's damages may vary is not relevant to the predominance inquiry, because damages

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calculations merely entail the application of simple mathematical computations that are
consistent with the theories of liability.")
The Court finds that Rule 23 (a) and (b) is satisfied and grants Plaintiffs' motion for class
certification.
CONCLUSION
Plaintiffs' motion for Rule 23 class certification on Plaintiffs claims under New York law
is granted.
SO ORDERED.

LEONARD D. WEXLER
UNITED STATES DISTRICT JUD E
Dated: Central Islip, New York
January),2016

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