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

Filing 77

MEMORANDUM AND ORDER; Having reviewed the parties' submissions in connection with the motion to amend and Plaintiffs' objections, the R&R of Magistrate Judge Lindsay of October 2, 2014 is hereby adopted in part, and modified in part. The Co urt adopts the R&R to the extent it grants Plaintiffs' motionto amend the complaint to join Alvarado, Garcia, Zepeda and Canas as named Plaintiffs. The Court modifies the R&R to grant Plaintiffs' motion to amend the complaint to join Plaint iffs Denis Omar and Dennis Osvaldo; and further modifies the R&R to grant Plaintiffs' motion that the NYLL claims for the new Plaintiffs relate back to the original filing. All counsel are directed to appear for a conference in Courtroom 940 on January 21,2015 at 10:30a.m. (Ordered by Judge Leonard D. Wexler on 1/7/2015.) (Fagan, Linda)

FILED
IN CLERK'S OFFICE
U S DISTRICT COURTED NY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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J?.N 0 7 2015

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LONG ISLAND OFFICE

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ANCELMO SIMEON MENDEZ LOPEZ,
SANTOS NATIVIDAD CALI ZAMBRANO,
on behalf of themselves and all others similarly
situated,

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

Plaintiffs,
-againstSETAUKET CAR WASH & DETAIL CENTER,
TLCW, INC., KARP ENTERPRISES, INC.,
STEVEN SAVIANO, and MARK CHAIT,
Defendants.

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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. Zabel!, Esq.
I Corporate Drive
Bohemia, New York 11716
Attorneys for Defendants
WE)(LER, District Judge:
Presently before the Court are plaintiffs' limited objections to a report and
recommendation of Magistrate Judge Arlene Rosario Lindsay of October 2, 2014 (the "R&R"),
which granted plaintiffs motion to amend the complaint to add certain opt-in plaintiffs as named
plaintiffs. Plaintiffs object to certain portions of the R&R pursuant to Federal Rules of Civil
Procedure, Rule 72(b) and 28 U.S.C. § 636(b)(l), as discussed below. The Court herein adopts
Judge Lindsay's R&R in part, and modifies it in part, as outlined here.
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BACKGROUND
Plaintiffs Ancelmo Simeon Mendez Lopez ("Lopez") and Santos Natividad Cali
Zambrano ("Zambrano") (collectively "Plaintiffs") brought this action Setauket Car Wash &
Detail Center, TLCW, Inc., Karp Enterprises, Inc., Steven Saviano, and Mark Chait
("Defendants") claiming violations of the Fair Labor Standards Act ("FLSA") and the New York
Labor Law ("NYLL"). Plaintiffs moved to amend their complaint to add certain opt-in plaintiffs,
namely Bias Alvarado ("Alvarado"), Nelson Garci (Garcia"), Santos Dagoberto Zepeda
("Zepeda"), Noe Aquilar Canas ("Canas") and Denis Omar ("Omar"), as named plaintiffs to the
complaint, and moved that the amendment relate back to the original complaint filed on
December 21,2012. See R&R, at 1-2. The motion was referred to Magistrate Judge Lindsay.'
By R&R dated October 2, 2014, Judge Lindsay granted Plaintiffs' motion to amend the
complaint to add Alvarado, Garcia, Zepeda and Canas as named plaintiffs. Judge Lindsay did not
recommend joinder of the fifth proposed plaintiff, Omar, because insufficient documentation was
submitted regarding the dates and nature of his employment to confirm a sufficient nexus to the
claims in the complaint. See R&R, at 5-6. Furthermore, Judge Lindsay recommended that
Plaintiffs' request that the amendment relate back to the original filing date be denied, out of
concern that a relation back would be "an end-around the FLSA statute of limitations" which
states that an opt-in plaintiff's claim commences upon the filing of his or her written consent to
sue. !d., at 6-7.
Plaintiffs' objections are limited to the following: that, upon submission of his

'Plaintiffs' motion to conditionally certifY the case as a collective action was granted on
June 17, 2014. See docket entry ("DE") 49.
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declaration outlining the dates and nature of his employment,' Omar be permitted to join as a
named plaintiff; that an additional opt-in plaintiff, Dennis Osvaldo (a!k/a Dennis Pineda) be
permitted to join as a named plaintiff, having been included in the proposed amended complaint,
but inadvertently excluded from the motion to amend; and a clarification that Plaintiffs' request
for a relation back to the original filing date applies only to the New York labor law ("NYLL")
claims, not the FLSA claims. Defendants have not submitted an objection to the R&R or a
response to Plaintiffs' objections.
DISCUSSION
A magistrate judge's report and recommendation is reviewed by the referring district
court de novo. See Rule 72(b)(3); 28 U.S.C. § 636(b)(l); Morpurgo v. Incorporated Village of
Sag Harbor, 417 Fed.Appx. 96,97-98 (2d Cir. 2011). Rule 15(a)(2) states that a court should
"freely give leave" to amend a complaint "when justice requires." Kroshnyi v. U.S. Pack Courier
Services. Inc., 771 F.3d 93, 109 (2d Cir. 2014). Here, Plaintiffs seek to amend the complaint by
adding new named plaintiffs. Rule 20 states that a plaintiff may be joined if a) he asserts a right
"with respect to or arising out of the same transaction, occurrence or series of transactions or
occurrences;" and b) "any question oflaw or fact common to all plaintiffs will arise in the
action." See Rule 20(a)(1)(A) and (B); Arroyo v. PHH Mortg. Com., 2014 WL 2048384, *2
(E.D.N.Y. 2014).
I. Joinder of Additional Plaintiffs

A. Denis Omar
The R&R recommended that Plaintiffs be permitted to amend the complaint to add
2

The declaration is attached as exhibit A to Plaintiffs' Limited Objections to the R&R
("Pl. Obj. ").
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Alvarado, Garcia, Zepeda and Canas as named Plaintiffs. Defendants do not object to this, nor
do Plaintiffs. See Pl. Obj., at 3. Plaintiffs' object to the extent that the R&R did not permit
joinder ofOmar. In support ofOmar's joinder, Plaintiffs' submit a declaration stating that he
worked for Defendants from 2005 through 2010, from either 7am to 6pm, or 8am to 5pm, as a car
wash attendant. Omar states that he often worked in excess of ten hours per day, and regularly
worked more than forty hours a week without being paid overtime. He further states that he
performed the same duties as Plaintiffs Lopez, Carra, and Zambrano, who also worked more than
forty hours per week. See Pl. Obj ., Ex. A, at l-2.
The Court finds that Omar's claims arise out of the "same transaction, occurrence or
series of transactions or occurrences" as those outlined in the complaint, and that this action
involves questions oflaw or fact that are common to all Plaintiffs, including Omar. Therefore,
Plaintiffs' motion to amend the complaint to join Omar as a named plaintiff is granted. See
Mclean v. CVS Pharmacy, Inc., 2010 WL 3827940, (D.Conn. 2010) (motion to amend to join
additional plaintiffs granted where proposed plaintiffs claim deprivation of overtime under the
same defendant's policies as those in complaint); Niemiec v. Ann Bendick Realty, 2007 WL
5157027, *14 (E.D.N.Y. 2008) (granting motion to amend to add opt-in plaintifTs seeking to
assert claims arising from the same "conduct, transaction or occurrence" as those in the
complaint).
B. Dennis Osvaldo
Similarly, Plaintiffs seek to join Dennis Osvaldo as a named plaintiff, claiming he was
inadvertently excluded from the motion. The Court notes that the proposed amended complaint
submitted with the motion includes the claims of proposed plaintiff Osvaldo. Those allegations
state that he worked for defendants "cleaning and drying cars" but does not detail when he was
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employed, the hours that worked or compensation received. See Declaration of Peter A. Romero
In Support of Motion to Amend, ("Romero Dec."), Ex. A: Proposed Amended Complaint, '\1'\11922. Plaintiffs assert that declarations outlining the dates, hours of employment and manner of
compensation for the proposed plaintiffs were submitted in support of Plaintiffs' motion to
conditionally certifY a collective action. See Plaintiffs' Memorandum in Support of the Motion to
Amend ("Pl. Mem."), at 2. Osvaldo's declaration submitted in reply to that motion states that he
worked for Setauket Car Wash & Detailing Center for approximately one year in 2011 as a car
wash attendant, and regularly worked over forty hours per week, from Sam to 6pm seven days per
week, and did not receive overtime compensation. See Declaration of Denis Osvaldo Pineda
Canas, at '\1'\12-7 (DE 35-4). For the same reasons stated above concerning Omar, Plaintiffs'
motion to include Osvaldo as a named plaintiff is granted.
2. Relation Back ofNYLL Claims
The R&R recommended that Plaintiffs' motion that the amended complaint relate back to
the filing date of the original complaint be denied, viewing it as an "end-around the FLSA statute
oflimitations." In their objections, Plaintiffs agree that the FLSA claims do not relate back and
that those claims are tolled only upon the filing of each Plaintiff's written consent. Pl. Obj., at 4.
Yet, Plaintiffs argue that the FLSA scheme does not apply to the NYLL claims, which should be
deemed to relate back to the original filing. !d.
An amended claim relates back to the original filing when there is a "common core of
operative facts linking the amendments and the original complaint." Sokolski v. Trans Union
~.

178 F.R.D. 393, 397 (E.D.N.Y. 1998) (quoting Oliner v. McBride's Industries. Inc., 106

F.R.D. 9, 12 (S.D.N.Y.l985)); Andujar v. Rogowski, 113 F.R.D. 151, 154 (S.D.N.Y. 1986); Rule
15(c)(! )(B). Here, the original complaint alleges that Defendants failed to pay overtime in
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violation ofNYLL. The additional Plaintiffs assert these same claims, which, furthermore, were
originally alleged to be brought individually as well as on behalf of those similarly situated.
Defendants have thus been fully apprised of the nature of these claims and are not prejudiced by
the inclusion of additional Plaintiffs. Sokolski, 178 F.R.D. at 398; Andujar, at !59. Accordingly,
Plaintiffs' request that the amendments to the NYLL claims relate back to the original filing date
is granted.
CONCLUSION
Having reviewed the parties' submissions in connection with the motion to amend and
Plaintiffs' objections, the R&R of Magistrate Judge Lindsay of October 2, 2014 is hereby adopted
in part, and modified in part. The Court adopts the R&R to the extent it grants Plaintiffs' motion
to amend the complaint to join Alvarado, Garcia, Zepeda and Canas as named Plaintiffs. The
Court modifies the R&R to grant Plaintiffs' motion to amend the complaint to join Plaintiffs
Denis Omar and Dennis Osvaldo; and further modifies the R&R to grant Plaintiffs' motion that
the NYLL claims for the new Plaintiffs relate back to the original filing.
All counsel are directed to appear for a conference in Courtroom 940 on January 21,2015
at !0:30am.
SO ORDERED.

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s/ Leonard D. Wexler
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Central Islip, New York
January 2015

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