Moreira et al v. Sherwood Nursery Inc. et al

Filing 87

ORDER granting #59 Motion to Certify Class. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/31/2015. (Ryan, Mary)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
CESAR MOREIRA, MARTIN CISNEROS,
FREDIS GOMEZ, LUIS M. RAMIREZ AND
ROBERTO CONTRERAS, on behalf of themselves
and others similarly situated,
Plaintiffs,

MEMORANDUM
AND ORDER

-againstCV 13-2640 (AKT)
SHERWOOD LANDSCAPING INC., MAIN
STREET NURSERY, ROBERT MCKEAN,
in his individual capacity, and RICHARD
MCKEAN, in his individual capacity
Defendants.
--------------------------------------------------------------X
A. KATHLEEN TOMLINSON, Magistrate Judge:
I.

PRELIMINARY STATEMENT
Plaintiffs Cesar Moreira, Martin Cisneros, Fredis Gomez, Luis M. Ramirez, and Roberto

Contreras (“Plaintiffs”) bring this action on behalf of themselves and all similarly situated
persons against Defendants Sherwood Landscaping Inc., Main Street Nursery, Robert McKean,
and Richard McKean (collectively, “Defendants”) alleging that Defendants violated the Fair
Labor Standards Act of 1938 (“FLSA”), as amended, 29 U.S.C. §§ 201 et seq., and the New
York Labor Law (“NYLL”) § 190 et seq. by failing to pay overtime wages. See generally
Second Amended Compl. (“SAC”) [DE 70]. On March 31, 2014, this Court conditionally
certified a collective action for Plaintiffs’ federal law claim, pursuant to the FLSA, 29 U.S.C.
§ 216(b). See DE 53. Currently before the Court is Plaintiffs’ motion for class certification,
pursuant to Fed. R. Civ. P. 23, for Plaintiffs’ NYLL claims. See Plaintiffs’ Memorandum of Law
in Support of Their Motion for Class Certification and Notice to the Class (“Pls.’ Mem.”)

[DE 59]. Defendants oppose the motion, arguing that Plaintiffs’ proposed class does not meet
the necessary prerequisites under Rule 23. See Defendants’ Memorandum of Law in Opposition
to Plaintiffs’ Motion for Class Certification and Notice to the Class (“Defs.’ Opp.”) [DE 61].
For the reasons set forth below, Plaintiffs’ motion for class certification is GRANTED.
II.

BACKGROUND
The following alleged facts are taken from the SAC [DE 70];1 the Affidavits of four of

the five named Plaintiffs submitted in support of their Motion for Conditional Certification and
referenced in the submissions on the instant motion, see “Moriera Aff.;” “Cisneros Aff.;”
“Gomez Aff.;” and “Ramirez Aff.,” attached as Ex. A to Plaintiffs’ Mot. in Support of
Circulation of Notice of Pendency [DE 18]; and the parties’ submissions on the instant motion
for class certification, see DE 59, DE 61-62.
Defendants provide exterior landscaping services for commercial and residential
customers. SAC ¶ 35. All of the Plaintiffs worked as laborers for the Defendants, performing
lawn and yard maintenance (i.e., mowing lawns, planting, weeding, and yard clean up). Id.
¶¶ 37-38. Plaintiff Ramirez was employed by Defendants from March 2007 through June 2013.
Am. Compl. ¶ 14 [DE 22]; Ramirez Aff. ¶ 2.2 Plaintiff Cisneros worked for the Defendants from
2008 until March 2013. SAC ¶ 14; Cisneros Aff. ¶ 2. Plaintiff Moreira was employed by the
1

The parties cite the first Amended Complaint [DE 22] in their submissions on this
motion, as that was the operative pleading at the time this motion was filed. However, as
discussed in more detail below, while this motion was pending, Judge Seybert granted Plaintiff’s
motion for leave to file the SAC. See DE 69. Judge Seybert directed the Clerk of the Court to
“docket the Proposed Second Amended Complaint . . . as the operative complaint,” but noted,
however, that the SAC “remains operative only to the extent that it is consistent with the Court’s
rulings herein.” Id. Accordingly, the Court will refer to the SAC in its recitation of the alleged
facts, except in instances where the SAC differs from the Amended Complaint on a point not
consistent with Judge Seybert’s Memorandum and Order.
2

According to the SAC, Ramirez “was and still is” an employee of Defendants. SAC ¶ 13.
2

Defendants from March 2010 until approximately December 2011. SAC ¶ 15; Moreira Aff. ¶ 2.
Plaintiff Gomez was employed by Defendants from March 2006 through June 2013. Am.
Compl. ¶ 17; Aff. ¶ 2.3 Plaintiff Contreras worked for the Defendants from March 2010 until
December 2012. SAC ¶ 17.
Commencing in March of each year, Plaintiffs allege that they and similarly situated
current and former employees of the Defendants regularly worked from 7 a.m. to 7 or 8 p.m., six
days per week. SAC ¶ 38. Thus, according to Plaintiffs, they regularly worked 66 hours per
week for Defendants. See id. They were apparently paid an hourly wage ranging from $11.00 to
12.50 per hour. Id. ¶ 41. The SAC asserts that Defendants regularly paid Plaintiffs and similarly
situated employees “straight time” for the hours worked each week, including hours worked in
excess of 40 hours per week. Id. ¶ 43. However, Plaintiffs maintain they were required to be
paid overtime pay at the statutory rate of time and one-half the regular rate of pay after they had
worked 40 hours in a work-week. Id. ¶¶ 39. Plaintiffs further allege that they “worked more
than forty hours in most workweeks in which they were employed by the defendants but were
not paid overtime at the rate of one and one-half times the regular hourly rate of pay.” Id. ¶ 40.
Defendants’ failure to pay overtime compensation continued throughout each Plaintiff’s entire
term of employment with Defendants. Id. ¶ 42.
Defendants’ refusal and/or failure to pay overtime was knowing and willful, according to
the Plaintiffs. Id. ¶ 45. The SAC goes on to note that Defendants willfully disregarded and
purposefully evaded record-keeping requirements of the FLSA and the NYLL by failing to
maintain accurate time sheets and payroll records. Id. ¶ 44. Plaintiffs were paid partially in

3

According to the SAC, Gomez “was and still is” an employee of Defendants. SAC ¶ 16.
3

cash, with no accurate indication as to their rate of pay or their total hours worked each
day/week. Id. ¶ 46.
Specifically, Plaintiffs allege that while they punched timecards, up until the year 2013,
their paychecks never showed any hours worked in excess of 40 hours per week, notwithstanding
the number of hours they had actually worked. See Ramirez Aff. ¶ 7; Cisneros Aff. ¶ 3.
Defendants would then pay the overtime hours in cash at the straight time rate. Cisneros Aff. ¶
3; Gomez Aff. ¶ 3; Ramirez Aff. ¶ 6.4 Further, Plaintiffs Gomez, Cisneros, and Ramirez
purportedly complained about Defendants’ wage and hour policies, but nothing was done to
remedy the situation. See Gomez Aff. ¶ 7; Cisneros Aff. ¶ 3; Ramirez Aff. ¶ 11. Plaintiff
Cisneros states that his employment was terminated based on his complaints. Cisneros Aff. ¶ 3.
Finally, Plaintiffs allege that other landscapers working for Defendants also routinely
worked a six-day work week and in excess of 40 hours per week. Cisneros Aff. ¶ 3; Gomez Aff.
¶ 3; Ramirez Aff. ¶ 4; Moriera Aff. ¶ 4. According to the Plaintiffs, approximately 100 other
employees worked for Defendants at the location where Plaintiffs worked. Gomez Aff. ¶ 3;
Ramirez Aff. ¶ 3; Moriera Aff. ¶ 3. Plaintiff Ramirez states that there are many other workers
who were denied overtime during the time he worked for Defendants. Ramirez Aff. ¶ 12.
Plaintiff Moriera believes that other workers were not paid overtime because “we sometimes
discussed our earnings with one another.” Moriera Aff. ¶ 7. Moreiera states that he knows of
“many other workers” who suffered the same injury he did. Id. ¶ 10. Plaintiff Cisneros affirms
that he has personally spoken to other similarly situated workers who informed him that
Defendants engaged in the same payment practices, i.e., paying by check for 40 hours of time

Plaintiffs allege that, in March 2013, Defendants modified their “double book system” by
including 5 hours of overtime in Plaintiffs’ paychecks, with the rest of the overtime hours paid in
cash. Ramirez Aff. ¶ 8; Cisneros Aff. ¶ 3; Gomez Aff. ¶ 6.
4

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worked, with the remainder of overtime pay distributed as straight hourly pay in cash. Cisneros
Aff. ¶ 9. Plaintiff Moreira also notes that many similarly situated workers are “foreign born,”
have little formal education, and “may have been undocumented immigrants who were fearful
that they would be retaliated against if they tried to enforce their rights.” Moreira Aff. ¶¶ 9-10.
Moreira believes many of his former co-workers “still do not know that they have a claim for
overtime wages” and “would want to participate in this action so long as they know are
proceeding with many others.” Id.
III.

RELEVANT PROCEDURAL HISTORY
Plaintiffs commenced this action on May 1, 2013. DE 1. On August 13, 2013, Plaintiffs

filed a motion asking the Court (i) to conditionally certify a collective action pursuant to the
FLSA, 29 U.S.C. § 216(b); and (ii) to issue an order directing Defendants to produce the names
and addresses of all potential class members employed by them for the relevant time period. See
DE 18. Judge Seybert referred Plaintiffs’ motion to this Court for a decision. See DE 19.
While Plaintiff’s conditional certification motion was pending, Defendants moved to
dismiss the Amended Complaint, arguing that the Court lacked subject matter jurisdiction
because Defendants made offers of judgment to Plaintiffs, pursuant to Fed. R. Civ. P. 68. DE 24.
According to Defendants, these offers of judgment, although not accepted by Plaintiffs, had
rendered the action moot. See id. Plaintiffs thereafter identified three additional plaintiffs who
filed opt-in notices to the collective action. DE 29, 48 & 52. On February 12, 2014, Plaintiffs
also moved for leave to amend the Amended Complaint. DE 51.
By Order dated March 31, 2014, this Court granted Plaintiffs’ motion for conditional
certification and certified the following group:
“All past and present non-exempt employees of Sherwood
Landscaping, Inc., et al., employed any time on or after six years
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prior to the filing of the Complaint, or any time on or after May 1,
2007.”
Id. at 26. The Court further (i) directed Defendants to provide Plaintiffs within 14 days of entry
of the Order with a list of the names and addresses of non-exempt employees employed by them
after May 7, 2007; and (ii) authorized Plaintiffs’ proposed Notice of Pendency and Consent to
Join form, subject to modifications discussed in the Order, and directed Plaintiffs or their
designated representative to mail a copy of the Notice in English and Spanish to all of the
potential opt-in plaintiffs within 30 days of entry of the Order. Id. Since the Court conditionally
certified the collective action, Plaintiffs have identified three additional opt-in plaintiffs. See DE
54, 55, 56. On June 6, 2014, Plaintiff’s filed the instant motion for class certification.
On September 16, 2014, Judge Seybert issued a Memorandum and Order (i) denying
Defendants’ motion to dismiss the Amended Complaint for lack of subject matter jurisdiction;
and (ii) granting Plaintiffs’ motion for leave to amend the Amended Complaint to add (a)
Richard McKean as a defendant and (b) a new cause of action for improper payroll deductions
under the NYLL. DE 69. In denying Defendants’ motion to dismiss, Judge Seybert found that
Defendants’ Rule 68 offers of judgment “did not moot this case.” Id. at 12. At the outset, Judge
Seybert noted that “the Second Circuit has suggested that an unaccepted offer of judgment for
complete relief does not divest a court of subject matter jurisdiction until the court enters
judgment against the defendant.” Id. at 12 (citing Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir.
2013)). Based on the circumstances present in this case, Judge Seybert further determined that
the Rule 68 offers of judgment to the named Plaintiffs did not divest this Court of subject matter
jurisdiction “because Plaintiffs have sufficiently disputed the amount owed to them.” Id. In
particular, Plaintiffs correctly identified “some inconsistencies between the hourly rates and/or
the durations of employment detailed in the time records and the actual numbers Defendants
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used to calculate the offers of judgment.” Id. at 13. A large portion of the time records were
also “illegible” and Plaintiffs disputed their accuracy. Id. Accordingly, Judge Seybert held that
it was “not possible for the Court to determine if each offer of judgment provides more than what
Plaintiffs could recover at trial.” Id.
In light of Judge Seybert’s Memorandum and Order, Plaintiffs’ SAC was filed on
September 16, 2014. DE 70. Defendants filed their Answer on September 30, 2014, DE 71, and
the parties subsequently entered into a stipulation in which Defendants conceded liability and
damages for making impermissible payroll deductions pursuant to NYLL § 193 for uniform
cleaning. DE 73.
On December 23, 2014, counsel for Defendants filed a letter motion seeking a 30-day
extension of the deadline to complete discovery in light of settlement discussions between the
parties. DE 80. That same day, the parties consented to the jurisdiction of a United States
Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). DE 81. The Court granted the
requested extension, see Elec. Order Dec. 29, 2014, and Judge Seybert thereafter signed the
consent order resulting in the case being re-assigned to this Court for all purposes. DE 82.
Plaintiff later informed the Court that the parties had been unable to reach a settlement and
requested that the Court rule on the instant motion for class certification. DE 84.
IV.

LEGAL STANDARD
Class actions are “an exception to the usual rule that litigation is conducted by and on

behalf of the individual named parties only.” Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432
(2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)) (internal quotation marks
omitted). “To establish that the exception is applicable to a given case, ‘a party seeking to
maintain a class action must affirmatively demonstrate his compliance with Rule 23.’” Perez v.

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Allstate Ins. Co., No. 11-CV-1812, 2014 WL 4635745, at *11 (E.D.N.Y. Sept. 16, 2014)
(quoting Comcast, 133 S.Ct. at 1432) (internal quotation marks omitted). “The party seeking
class certification bears the burden of establishing by a preponderance of the evidence that each
of Rule 23's requirements has been met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir.
2010).
Class certification pursuant to Rule 23 requires a two-step analysis. First, “the court must
be persuaded, ‘after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’”
In re Vivendi Universal, S.A., 242 F.R.D. 76, 82 (S.D.N Y. 2007) (quoting Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 161 (1982)). These prerequisites are as follows:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a); see, e.g., Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010); Teamsters
Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202 (2d Cir. 2008).
“Once a court has concluded that Rule 23(a)’s four requirements have been satisfied, it must then
proceed to the second step, i.e., determine ‘whether the class is maintainable pursuant to one of
the subsections of Rule 23(b).’” Perez, 2014 WL 4635745 at *13 (quoting Vivendi, 242 F.R.D.
at 83); see also Comcast, 133 S.Ct. at 1432 (noting that, in addition to satisfying Rule 23(a)'s
requirements, a party “must also satisfy through evidentiary proof at least one of the provisions
of Rule 23(b)”). “Generally speaking, Rule 23(b) addresses the types of relief available, as well

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as the rights of absent class members.” Perez, 2014 WL 4635745 at *13 (citing Fed. R. Civ. P.
23(b)).
In this case, Plaintiffs seek certification under Rule 23(b)(3). See Pls.’ Mem. at 9. This
provision requires that “questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
When considering whether Rule 23’s requirements have been met, the United States
Supreme Court has instructed courts that it “may be necessary for [them] to probe behind the
pleadings before coming to rest on the certification question,” and further, “that certification is
proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule
23(a) have been satisfied.” Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, ––––, 131 S.Ct.
2541, 2551, 180 L.Ed.2d 374 (2011) (quoting Falcon, 457 U.S. at 160–61 (internal quotation
marks omitted)). This analysis often will “overlap with the merits of the plaintiff's underlying
claim,” as questions concerning class certification may be “enmeshed in the factual and legal
issues comprising the plaintiff's cause of action.” Id. (quoting Falcon, 457 U.S. at 160) (internal
quotation marks omitted). However, “Rule 23 grants courts no license to engage in free-ranging
merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133
S.Ct. 1184, 1194–95 (2013) (citation and internal quotation marks omitted). That is, “[m]erits
questions may be considered to the extent—but only to the extent—that they are relevant to
determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195
(emphasis added). Ultimately, “[t]he dispositive question is not whether the plaintiff has stated a
cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are
met.” Spread Enters., Inc. v. First Data Merchant Services Corp., 298 F.R.D. 54, 66 (E.D.N.Y.

9

2014) (quoting Kowalski v. YellowPages.com, LLC, 10 Civ. 7318, 2012 WL 1097350, at *12
(S.D.N.Y. Mar. 31, 2012)).
Although the Court’s analysis in the class certification context must be “rigorous,” courts
generally “take a liberal rather than a restrictive approach in determining whether the plaintiff
satisfies Rule 23’s requirements and may exercise broad discretion when determining whether to
certify a class.” Spread Enters., 298 F.R.D. at 66 (citing Flores v. Anjost Corp., 284 F.R.D. 112,
122 (S.D.N.Y. 2012); Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69
(E.D.N.Y. 2000)). Indeed, “[c]ourts in this Circuit have displayed ‘a preference for granting
rather than denying class certification.’” Morris v. Alle Processing Corp. (“Morris I”), 2013 WL
1880919, at *5 (E.D.N.Y. 2013) (quoting Gortat v. Capala Bros. (“Gortat I”), 257 F.R.D. 353,
361 (E.D.N.Y. 2009)); see Marisol A. v. Giuliani, 126 F.3d 372, 277 (2d Cir. 1997). “Moreover,
‘where a collective action under the FLSA that is based on the same set of facts has been
approved there is an inclination to grant class certification of state labor law claims.’” Morris I,
2013 WL 1880919, at *5 (quoting Garcia v. Pancho Villa's of Huntington Village, Inc., 281
F.R.D. 100, 104–05 (E.D.N.Y. 2011)); cf. Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 163
(S.D.N.Y. 2008) (“[C]ourts in the Second Circuit routinely certify class action[s] in FLSA
matters so that New York State and federal wage and hour claims are considered together.”)
(collecting cases)).
V.

DISCUSSION
A.

Availability of Class Action for Plaintiffs’ NYLL Claims

As an initial matter, Defendants contend that Rule 23 class certification should be denied
because the NYLL does not permit class actions seeking liquidated damages. See Defs.’ Opp. at
2-3. Section 901(b) of New York’s Civil Practice Law and Rules (“NYCPLR”) precludes the

10

use of the class action mechanism where the underlying statute provides for a penalty of
liquidated damages. Here, Plaintiffs’ NYLL claims provide for liquidated damages. See N.Y.
Lab. L. §§ 198, 663; see also SAC ¶¶ (ii) & (iii) (prayer for relief). Defendants assert that,
although Plaintiffs could potentially pursue a class action if they waived their right to liquidated
damages, Plaintiffs have not done so and they therefore cannot proceed as a class action on their
NYLL claims. Defs.’ Opp. at 3.
Defendants’ argument fails in light of the Supreme Court’s decision in Shady Grove
Orthopedics Assocs. P.A., v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431 (2010)—a case of
which Defendants are apparently unaware. In Shady Grove, the Supreme Court concluded that
Rule 23 preempts section 901(b) of the NYCPLR, which bars class action plaintiffs from seeking
“penalties” such as liquidated damages. 559 U.S. at 398-410, 130 S.Ct. at 1436-42 (plurality
opinion); 559 U.S. at 428-36, 130 S.Ct. at 1455-60 (Stevens, J., concurring in part and
concurring in judgment). “In other words, the Supreme Court held that section 901(b) does not
apply to state law class actions filed in federal court.” Morris v. Alle Processing Corp. (“Morris
II”), No. 08-CV-4874, 2013 WL 3282948, at *1 (E.D.N.Y. June 27, 2013) (citing Shady Grove,
559 U.S. at 398-410). Post-Shady Grove, courts in this Circuit “have consistently allowed
plaintiffs to amend their pleadings to include claims for liquidated damages under sections 198
and 663 of NYLL that were previously barred by section 901(b),” even though “jurisdiction over
the NYLL claims was supplemental to federal question jurisdiction over FLSA claims.” Id.
(collecting cases); see Chenensky v. New York Life Ins. Co., Nos. 07–CV–11504, 09–CV–3210,
2012 WL 234374, at *2 (S.D.N.Y. Jan.10, 2012) (“The Erie analysis driving Shady Grove
applies to courts exercising supplemental jurisdiction as well as those exercising diversity
jurisdiction.”). Thus, contrary to Defendants’ contentions, Plaintiffs “do not need to waive their

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claims to liquidated damages” in order to proceed as a class action. Morris I, 2013 WL 1880919,
at *6.
Accordingly, the Court finds that class certification of Plaintiffs’ NYLL claims, including
those for liquidated damages, is appropriate.
B.

Rule 23(a) Prerequisites
1.

Numerosity

Rule 23(a)(1) permits a class action only when the “class is so numerous that joinder of
all members is impracticable.” “Impracticable does not mean impossible,” Robidoux v. Celani,
987 F.2d 931, 935 (2d Cir.1993); rather, “Rule 23(a)(1) only requires that, in the absence of a
class action, joinder would be ‘simply difficult or inconvenient.’” Spread Enters., Inc. v. First
Data Merch. Servs. Corp., 298 F.R.D. 54, 67 (E.D.N.Y. 2014) (quoting Russo v. CVS Pharm.,
Inc., 201 F.R.D. 291, 294 (D. Conn. 2001); see also Casale v. Kelly, 257 F.R.D. 396, 405
(S.D.N.Y. 2009).
The Second Circuit has held that “numerosity is presumed at a level of 40 members.”
Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995); see, e.g., Perez, 2014
WL 4635745 at *14; Garcia, 281 F.R.D. at 104. “‘As plaintiff bears the burden of
demonstrating numerosity, he must show some evidence of or reasonably estimate the number of
class members.’” Spread Enters., 298 F.R.D. at 67 (quoting Russo, 201 F.R.D. at 295).
However, courts also “are empowered to make common sense assumptions to support a finding
of numerosity.’” Morris I, 2013 WL 1880919, at *7 (quoting Nicholson v. Williams, 205 F.R.D.
92, 98 (E.D.N.Y. 2001) (citing Hamelin v. Faxton–St. Luke’s Healthcare, 274 F.R.D. 385, 394
(N.D.N.Y. 2011) (“[P]laintiffs may rely on reasonable inferences drawn from the available facts
to estimate the size of the class.”)). “In wage and hours cases, courts ‘assess the numerosity

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requirement based on the size of the proposed class rather than the number of opt-in plaintiffs.’”
Rosario v. Valentine Ave. Disc. Store, Co., No. 10 CV 5255, 2013 WL 2395288, at *4 (E.D.N.Y.
May 31, 2013), adopted by 2013 WL 4647494 (E.D.N.Y. Aug. 29, 2013) (quoting Guan Ming
Lin v. Benihana New York Corp., 10 CIV. 1335, 2012 WL 7620734, at *4 (S.D.N.Y. Oct. 23,
2012), adopted by 12013 WL 829098 (S.D.N.Y. Feb. 27, 2013)).
Plaintiffs assert that they have satisfied the numerosity requirement by identifying a
potential class of over 70 members. Pls.’ Mem. at 5. Subsequent to this Court’s Order certifying
the collective action, Defendants furnished payroll records containing the names and addresses
of 86 individuals employed by Defendants in 2007. See Declaration of Delvis Melendez in
Support of the Motion for Class Certification (“Melendez Decl.”) ¶ 6; see Employee List,
attached as Ex. A to Melendez Decl. Plaintiffs note that, of the 86 employees listed on the
payroll records provided by Defendants, 71 employees were “landscapers.” See Melendez
Delc.¶ 6; see id., Ex. A. As a result, Plaintiffs contend that, based on these and other records
obtained during discovery, as well as “[c]ounsel’s discussions with the named plaintiffs,” they
believe the potential class consists of “approximately 70+ members.” Id. ¶ 16; see Pls.’ Mem. at
5. Plaintiffs also note that “[d]ue to the transient nature of the employees; their limited reading
and writing skills; and current employee’s fear of reprisal only a handful of potential class
members elected to affirmatively opt-in to the collective action.” Melendez Decl. ¶ 4.
Defendants argue that Plaintiffs have not established numerosity because their potential
class is limited to 27 current and former employees who, like Plaintiffs, served on Defendants’
“Maintenance Crew.” Defs.’ Opp. at 13. According to Defendants, Plaintiffs overestimated and
miscalculated their potential class by erroneously including (i) 13 “exempt” office and
administrative employees; (ii) 20 employees who are “not similarly situated” as Plaintiffs

13

because they received overtime compensation once they commenced employment with
Defendants in 2013 or 2014; and (iii) 12 employees from Defendants’ landscaping department –
i.e., six Planting Laborers; five Seasonal Planting Crew; and one Lawn Care Member – who,
according to Defendants, performed different services from the Maintenance Crew, worked on
different projects, and had different managers. Id. at 7-10.
In their Reply, Plaintiffs dispute that they incorrectly estimated the class size at around 70
prospective members. See Reply Memorandum of Law in Further Support of Plaintiffs’ Motion
for Class Certification (“Pls.’ Reply”) at 3-5. Primarily, Plaintiffs note that their estimated
potential class does not include the 13 exempt office employees listed on Defendants’ payroll
records. Id. at 4.5 Plaintiffs also point out that Defendants have not provided evidence, such as
payroll records or affidavits, to support their claim that 20 employees should be excluded from
the potential class because they received overtime compensation during their employment in
2013 or 2014. Id. Plaintiffs have provided a second Affidavit from Plaintiff Ramirez. Ramirez

5

Plaintiffs contend in their Reply that Defendants originally produced a list of 40
employees in response to the Court’s March 31, 2014 collective action certification Order. See
Declaration of Delvis Melendez In Reply to Opposition for Class Certification (“Melendez Reply
Decl.”) ¶ 4. The named Plaintiffs reviewed the list and concluded that it was missing many
names of landscapers who worked with them during the applicable period. Id. ¶ 5.
Consequently, Plaintiffs asked Defendants to supplement their response “by producing any and
all payroll records, including records for employees paid in cash.” Pls.’ Reply at 3-4 (citing
Melendez Reply Decl. ¶ 6) (emphasis omitted). Defendants supplemented their response by
producing Paychex records and Quickbooks records. Melendez Reply Decl. ¶ 7. The Paychex
records include the names of 86 employees, id. ¶ 8, and according to Plaintiffs, “the Quickbooks
records reflect an additional six employees whose names were not included on the Paychex
payroll records: Jose Granados, Jose Chavez, Pedro Fuentes, Martin Lazaro, Omar Denis, and
Mario Parada,” id. ¶ 9 (citing Quickbook Recs., attached as Ex. C to Melendez Reply Decl.). In
his supplemental Affidavit, Plaintiff Ramirez avers that each of these six employees performed
similar duties as he did between 2007 and 2013. Ramirez Reply Aff. ¶ 4, attached as Ex. C to
Melendez Reply Decl. Ramirez further asserts that he knows these employees were not paid
overtime compensation because they discussed these facts with him. Id. Based on the foregoing,
Plaintiffs assert that the Defendants’ submissions show that they employed at least 92
employees. Id. ¶ 9.
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believes Defendants’ claim that these employees were hired in 2013 and 2014, and were
therefore paid overtime, is “untrue” because Ramirez “worked with several of the twenty
employees identified by the defendants prior to 2013, including William Aquilar, Jose Castro,
Rene Crespo and Esmelin Rvias.” Ramirez Reply Aff. ¶ 3 (emphasis in original). Finally,
Plaintiffs note that Defendants have not provided evidentiary support for their argument that 12
landscapers who allegedly performed duties different from Plaintiffs must be excluded from the
potential class. According to Plaintiffs, whether these employees performed different duties is
“immaterial, since Defendants cannot, and do not claim that these employees are exempt, or that
they were paid overtime.” Pls.’ Mem. at 5 (emphasis in original).
After reviewing the evidence and the parties’ submissions, the Court concludes that
Plaintiffs have satisfied Rule 23(a)(1)’s numerosity requirement. Plaintiffs assert that their
potential class includes over 70 employees listed on Defendants’ payroll records who worked as
“landscapers.” The Court finds this is a “reasonabl[e] estimate” of the number of potential class
members which is not purely speculative and derives from evidence in the record. Spread
Enters., 298 F.R.D. at 67. In other words, Plaintiffs have “rel[ied] on reasonable inferences
drawn from the available facts to estimate the size of the class.” Hamelin, 274 F.R.D. at 394
(citing Gortat I, 257 F.R.D. at 362; Noble v. 93 Univ. Pl. Corp., 224 F.R.D. 330, 338 (S.D.N.Y.
2004); Cortigiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194, 204 (E.D.N.Y. 2005)).
Although the parties dispute whether Plaintiffs have improperly included 13 exempt employees
in its proposed class, the Court notes that, even if it resolved this dispute in favor of Defendants,
Plaintiffs’ proposed class would still exceed 40 potential members and would therefore satisfy
Rule 23’s numerosity requirement. See generally Consol. Rail Corp., 47 F.3d at 483. Moreover,
as Plaintiffs point out, Defendants have not provided support for their conclusory assertion that

15

20 proposed class members should be excluded from the class for having received overtime in
2013 and 2014 and, in any event, Plaintiffs have sufficiently rebutted this claim through Plaintiff
Ramirez’s supplemental Affidavit, in which he states under penalty of perjury that he worked
with several of the named workers prior to 2013. Finally, Defendants have not cited evidentiary
or legal support for their argument that the Court should not count 12 current and former
employees in the proposed class because, according to Defendants, they performed different
services from the Maintenance Crew, worked on different projects, and were supervised by
different managers. See Defs.’ Opp. at 10. As discussed in more detail below, differences
among class members such as “the type of work performed[,] . . . ‘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.’” Morris I, 2013 WL 1880919,
at *10 (quoting Flores, 284 F.R.D. at 127) (alteration omitted). Accordingly, the Court finds
these 12 employees need not be precluded as proposed members of the class due their alleged job
responsibilities.
Defendants further assert that Plaintiffs cannot show that joinder is “impracticable,” and
numerosity therefore has not been established, because (i) “[t]he opt-in procedures under the
FLSA will allow any putative class members to join this action with relevant ease;” and (ii) all
the proposed class members reside in Nassau or Suffolk County. Defs.’ Opp. at 10-13.
Defendants’ arguments are misplaced. First, while the FLSA authorizes similarly situated
persons to opt-into the federal action, it does not provide a procedure for adjudicating the opt-in
plaintiffs’ state law claims. See Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1529
(2013) (“Rule 23 actions are fundamentally different from collective actions under the FLSA.”).
Thus, to the extent Defendants suggest that class certification “will not lead to judicial economy

16

considering that the FLSA collective action already provides for easy participation in this
litigation,” the Court rejects that claim. Guzman, 2008 WL 597186, at *6. Moreover, courts
have found the numerosity requirement satisfied where, as here, the plaintiffs assert that
“potential class members may have failed to join the FLSA collective action because they feared
reprisal, particularly given their citizenship status.” Jankowski v. Castaldi, No. 01-CV-0164,
2006 WL 118973, at *2 (E.D.N.Y. Jan. 13, 2006) (citing, e.g., Noble, 224 F.R.D. at 342).
Second, Rule 23 does not require that the proposed class be dispersed over a wide geographic
area in order for joinder to be deemed impracticable. “Impracticable does not mean impossible,”
Robidoux, 987 F.2d at 935, and geographic dispersion is only one of many factors a court might
consider in assessing whether joinder is impracticable. Here, the Court finds that, although the
proposed class members reside in the same general area, the factors on balance suggest that
joinder would be impracticable, particularly in light of Plaintiffs’ indications that some of the
purported class members are the present employees of Defendants “and thus would presumably
be hesitant to bring their own actions for fear of reprisal by the company.” Gortat I, 257 F.R.D.
at 363. Moreover, “the Court infers, as it may, that many if not most of the purported class
members are persons with inadequate resources to exercise their rights by prosecuting their own
claims” – another factor which tips toward the implacable status of joinder in this case. Id.
Accordingly, Plaintiffs have satisfied Rule 23(a)(1)’s numerosity requirement.
2.

Commonality and Typicality

The commonality and typicality requirements “both serve as guideposts for determining
whether under the particular circumstances maintenance of a class action is economical and
whether the named plaintiff's claim and the class claims are so interrelated that the interests of
the class members will be fairly and adequately represented in their absence.” Falcon, 457 U.S.

17

at 157 n. 13. “As a result, the commonality and typicality requirements tend to merge into one
another, and similar considerations ‘animate’ the analysis of both Rule 23(a)(2) and Rule
23(a)(3).” Morris I, 2013 WL 1880919, at *8 (quoting Marisol A., 126 F.3d at 376); see Falcon,
457 U.S. at 157 n. 13).
The commonality requirement under Rule 23(a)(2) is met when there are “questions of
law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). With respect to this requirement, the
Supreme Court has recently observed that “[a]ny competently crafted class complaint literally
raises common questions.” Dukes, 131 S.Ct. at 2551 (internal quotation marks omitted). “What
matters to class certification . . . .is not the raising of common questions—even in droves—but,
rather the capacity of a classwide proceeding to generate common answers apt to drive the
resolution of the litigation. Dissimilarities within the proposed class are what have the potential
to impede the generation of common answers.’” Id. (internal quotation marks omitted)
(emphasis in original). “That said, a single common issue of law or fact suffices to satisfy Rule
23(a)(2).” Perez, 2014 WL 4635745, at *15 (citing Dukes, 131 S.Ct. at 2556); see Garcia, 281
F.R.D. at 105 (“Courts have liberally construed the commonality requirement to mandate a
minimum of one issue common to all class members.”). “Commonality does not mean that all
issues must be identical as to each member, but it does require that plaintiffs identify some
unifying thread among the members’ claims that warrants class treatment.” Garcia, 281 F.R.D.
at 105 (quoting Damassia, 250 F.R.D. at 156) (internal quotation marks omitted); see also Jacob
v. Duane Reade, Inc., 289 F.R.D. 408, 415 (S.D.N.Y.) on reconsideration in part, 293 F.R.D.
578 (S.D.N.Y. 2013) aff'd, No. 13-3873-CV, 2015 WL 525697 (2d Cir. Feb. 10, 2015)
(“[C]ommonality does not require plaintiffs to show that class members perform identical
duties—an ‘impossible task.’”) (quoting White v. Western Beef Properties, No. 07 Civ. 2345,

18

2011 WL 6140512, at *3 (E.D.N.Y. Dec. 9, 2011)). “‘A court may find a common issue of law
even though there exists some factual variation among class members’ specific grievances.’”
Perez, 2014 WL 4635745, at *15 (quoting Han v. Sterling Nat'l Mortg. Co., No. 09–CV–5589,
2011 WL 4344235, at *3 (E.D.N.Y. Sept. 14, 2011) (internal quotation marks and alterations
omitted). “The commonality requirement may thus be met when individual circumstances of
class members differ, but their injuries derive from a unitary course of conduct.” Id. (internal
quotation marks and alterations omitted); see Guzman v. VLM, Inc., No. 07–CV–1126, 2008 WL
597186, at *6 (E.D.N.Y. Mar. 2, 2008).
Similarly, typicality under Rule 23(a)(3) requires that the claims or defenses of the class
representatives be typical of those of the class. Fed. R. Civ. P. 23(a)(3). “This requirement ‘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 defendant's liability.’” Morris I, 2013 WL
1880919, at *6 (quoting Marisol A., 126 F.3d at 376) (citing Garcia, 281 F.R.D. at 106); see
Perez, 2014 WL 4635745, at *17. “‘Minor variations in the fact patterns underlying individual
claims’ does not defeat typicality.” Perez, 2014 WL 4635745, at *17 (quoting Robidoux, 987
F.2d at 937).
Courts in this Circuit have observed that, in light of the Supreme Court’s decision in
Dukes, “the analysis of commonality and typicality has recently become stricter.” Morris I, 2013
WL 1880919, at *9 (citing Dukes, 131 S.Ct. at 2551, and noting that “the Supreme Court
explained that in order for claims to be ‘productively litigated at once’ they must depend on a
‘common contention . . . of such a nature that it is capable of class wide 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.’”); see Flores, 284 F.R.D. at 125. However, “the weight

19

of authority rejects the argument that Dukes bars certification in wage and hour cases.” Morris v.
Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 616 (S.D.N.Y. 2012) (collecting cases). “In
wage and hour cases, courts in this Circuit have ‘focused on whether the employer had companywide wage policies that injured the proposed class.’” Morris I, 2013 WL 1880919, at *9
(quoting Flores, 284 F.R.D. at 275) (citing Youngblood v. Family Dollar Stores, Inc., No. 09–
CV–3176, 2011 WL 4597555, at *4 (S.D.N.Y. Oct. 4, 2011)); see e .g., Poplawski v. Metroplex
on the Atl., LLC, No. 11–CV–3765, 2012 WL 1107711 at *7 (E.D.N.Y. Apr. 2, 2011).
“Moreover, ‘claims by workers that their employers have unlawfully denied them wages
to which they were legally entitled have repeatedly been held to meet the commonality
prerequisite for class certification.’” Morris I, 2013 WL 1880919, at *9 (quoting Flores, 284
F.R.D. at 275); see Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 127 (S.D.N.Y.2011)
(collecting cases); see also Jackson v. Bloomberg, L.P., 298 F.R.D. 152, 164 (S.D.N.Y. 2014)
(finding that the employer's “overtime policy is the glue that the Supreme Court found lacking in
Dukes” (internal quotation marks omitted)).
Plaintiffs argue that their claims raise questions of law and fact common to all members
of the proposed class, including, inter alia, questions regarding whether Defendants failed to (1)
pay overtime compensation at the statutory rate for all hours worked over forty hours each week,
and (2) maintain complete records of the hours worked by members of the proposed class. Pls.’
Mem. at 6. Further, Plaintiffs assert that the claims of both the named plaintiffs and the proposed
class members “arise from the same course of conduct of Defendants and are based on the same
legal claim – that Defendants breached their statutory obligations to pay the wages required
under NYLL.” Id. at 8. Defendants, on the other hand, argue that Plaintiffs have not satisfied
the commonality and typicality requirements because their proposed class includes employees

20

“who were paid different rates of pay,” Defs.’ Opp. at 13-14, and “perform[ed] different job
functions in different department[s] under different managers,” id. at 17.6
The Court finds that plaintiffs have satisfied the commonality and typicality
requirements. In particular, the named plaintiffs’ claims and the proposed class members’ claims
arise from the same course of conduct (i.e., Defendants’ alleged practice and policy of failing to
pay overtime at the statutory rate), raise common issues of law and fact (inter alia, Defendants’
failure to pay time and half for all hours worked over forty), and are based on the same legal
theories (violations of the NYLL). See Morris I, 2013 WL 1880919, at *9.
“More importantly, the factual variations cited by [D]efendants are not sufficient to
preclude class certification.” Id. at *10 (citing Iglesias–Mendoza v. La Belle Farm Inc., 239
F.R.D. 363, 371 (S.D.N.Y. 2007) (“[C]ourts have found the requirement of commonality and
typicality satisfied despite the existence of ... factual variations.”) (collecting cases); Robidoux,
987 F.2d at 936–37 (“When it is alleged that the same unlawful conduct was directed at or
affected both the named plaintiff and the class sought to be represented, the typicality
requirement is usually met irrespective of minor variations in the fact patterns underlying
individual claims.”); see, e.g., Perez, 2014 WL 4635745, at *15. “Differences 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

6

Defendants also assert, as they did in opposition to the numerosity factor, that
commonality and typicality have not been met here because Plaintiffs’ proposed class includes
(i) 13 exempt employees and (ii) 20 individuals who have been paid overtime at a rate of time
and one-half for all hours worked in excess of 40 hours when they commenced employment with
Defendants in 2013 and 2014. Defs.’ Opp. at 15-16. For the reasons previously discussed, the
Court rejects these arguments.
21

form.’” Morris I, 2013 WL 1880919, at *10 (quoting Flores, 284 F.R.D. at 127) (citing
Ansoumana, 201 F.R.D. at 86 (finding differences among plaintiffs as to number of hours
worked, type of work, and amount of pay related to amount of damages); Noble, 224 F.R.D. at
343 (same)).7
Accordingly, Plaintiffs have satisfied the commonality and typicality requirements.
3.

Adequacy of Representation

Finally, Rule 23(a)(4) permits class certification only if “the representative parties will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To ensure that
all members of the class are adequately represented, district courts must make sure that the
members of the class possess the same interests, and that no fundamental conflicts exist among
the members.” Charron v. Wiener, 731 F.3d 241, 249 (2d Cir. 2013); see, e.g., Morris I, 2013
WL 1880919, at *11 (to satisfy Rule 23(a)(4), “‘plaintiffs must show that . . . the class
representatives’ interests are not antagonistic to the interest of other members of the class’”)
(quoting Garcia, 281 F.R.D. at 107).8
In arguing that “[i]ndividual inquiries will be required” to determine whether Plaintiffs
and the proposed class were properly paid overtime in this case, Defendants rely solely on Judge
Block’s decision in Enriquez v. Cherry Hill Mkt. Corp., 993 F. Supp. 2d 229, 234-35 (E.D.N.Y.
2013), reconsideration denied (June 25, 2014). The Court finds Defendants’ exclusive reliance
on Enriquez misplaced in light of the weight of authority in this Circuit, acknowledged in Judge
Block’s decision denying reconsideration, which held that claims “that an employer has
systematically failed to pay employees the legally mandated wage” still satisfy the commonality
factor after Dukes. Enriquez, 993 F. Supp. 2d at 237 (citing, e.g., Jackson, 298 F.R.D. at 164;
Morris, 859 F. Supp. 2d at 616); see also Morris I, 2013 WL 1880919, at *9. Accordingly, the
Court does not feel constrained to follow the holding in Enriquez in this case.
7

8

Before the adoption of the 2003 amendments to Rule 23, Rule 23(a)(4) also required
courts to consider whether class counsel was qualified, experienced, and able to conduct the
litigation. Perez, 2014 WL 4635745, at *18 (citing In re Joint E. & S. Dist. Asbestos Litig., 78
F.3d 764, 778 (2d Cir.1996)). “After the 2003 amendment to Rule 23(g), however, ‘the issue of
appropriate class counsel is guided by Rule 23(g) rather than Rule 23(a)(4).’” Id. (quoting
Spencer v. No Parking Today, Inc., No. 12–CV–6323, 2013 WL 1040052, at *20 (S.D.N.Y. Mar.
15, 2013) (citing cases), report & recommendation adopted, 2013 WL 2473039 (S.D.N.Y. June
22

Defendants posit two arguments why Plaintiffs are inadequate class representatives,
neither of which are persuasive. First, Defendants assert that the named and opt-in Plaintiffs
who were “terminated” from employment by Defendants cannot adequately represent a class
made up of both current and former employees because terminated employees “do not have an
interest in the welfare of Defendants’ business.” Defs.’ Opp. at 18. However, courts in this
Circuit have roundly rejected the notion that termination from employment alone impacts a
representative plaintiff’s adequacy as a class representative. See Perez, 2014 WL 4635745, at
*18 (“[T]he Court cannot see how the reason for Perez’s and Brown’s termination would be
relevant to a determination of whether they had substantially the same job duties as all other
members of the NYLL Class and were misclassified as exempt employees.”); Iglesias–Mendoza,
239 F.R.D. at 372 (rejecting argument that representative plaintiff was inadequate class
representative because she had been fired for misconduct); Garcia, 281 F.R.D. at 107 (same);
Guzman, 2008 WL 597186, at *7 (same). As Defendants have offered no evidence to show that
the ability of any of the Plaintiffs “to represent the interests of the NYLL Class fairly and
adequately” has been impaired by their prior termination by Defendants, the Court finds this
issue is not relevant for purposes of establishing their adequacy as a class representatives under
Rule 23. Perez, 2014 WL 4635745, at *18. Second, Defendant maintains that Plaintiffs cannot
represent class members if the Court determines that Plaintiffs’ claims have been “mooted” by
Defendants’ Rule 68 offers of judgment. Defs.’ Opp. at 18. Needless to say, this argument has
itself been mooted by Judge Seybert’s September 16, 2014 Memorandum and Order which, inter
alia, denied Defendants’ motion to dismiss for lack of subject matter jurisdiction upon finding
that Defendants’ Rule 68 offers of judgment “did not moot this case.” DE 69 at 12.
7, 2013)) (citing Jones v. Ford Motor Credit Co., No. 00–CV–8330, 2005 WL 743213, at *18
(S.D.N.Y. Mar. 31, 2005) (discussing 2003 amendment)).
23

Accordingly, plaintiffs have demonstrated adequacy sufficient to satisfy the requirements
of Rule 23(a)(4).
C.

Rule 23(b)(3) Prerequisites

Having determined that the prerequisites of Rule 23(a) have been met, the Court must
decide whether the proposed class fits within one of the three categories of cases set forth in
Rule 23(b). Plaintiffs contend that the class should be certified under Rule 23(b) (3), which
applies when “the court finds that the questions of law or fact common to the members
predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.
R. Civ. P. 23(b)(3).
1.

Predominance

The predominance element of Rule 23(b)(3) requires a showing that common questions
“predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3).
“A court’s inquiry into this element ‘tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation’ and is similar to the analysis of the commonality and
typicality requirements.” Morris I, 2013 WL 1880919, at *12 (quoting Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 623 (1997); see Perez, 2014 WL 4635745, at *19. “‘To meet the
predominance requirement, a plaintiff must establish that the issues that are subject to
generalized proof, and thus applicable to the class as a whole, predominate over those issues that
are subject only to individualized proof.’” Morris I, 2013 WL 1880919, at *10 (quoting In re
Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132–33 (2d Cir. 2001); see Moore v.
PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002). “Further, predominance is satisfied
where . . . the ‘central issue’ is whether defendants had a ‘uniform policy or practice’ of denying

24

wages for all hours worked, overtime wages, and spread of hours compensation. Morris I, 2013
WL 1880919, at *12 (quoting Garcia, 281 F.R.D. at 108); see Guzman, 2008 WL 597186, at *8.
Plaintiffs do not address predominance as a separate factor and instead incorporate it into
their arguments as to commonality. See Pls.’ Mem. at 5. To that end, while Plaintiffs represent
that the “proof” required to prove liability “will be the same” across the class, see Melendez
Decl. ¶ 18, they do not specify such evidence. However, “[d]espite plaintiffs’ lack of detail, the
Court finds that a determination on the legality or illegality of defendants’ practices is
susceptible to common proof, thus satisfying the predominance requirement.” Morris I, 2013
WL 1880919, at *12 (citing Morangelli v. Chemed Corp., No. 10-CV-876, 2013 WL 4321571, at
*23 (E.D.N.Y. Feb. 4, 2013) (“[T]he key is whether liability issues are susceptible to common
proof. Differences between plaintiffs may often interfere with common proof but where, as here,
documentary evidence allows for class-wide determinations of these issues, certification remains
appropriate.”)). Mainly, documentary evidence, such as the employee punch cards and payroll
records, could be used to help resolve issues of Defendants’ liability on Plaintiff’s overtime
claims. Id.
Defendants argue that Plaintiffs cannot establish the predominance requirement “for the
same reasons plaintiffs cannot meet the commonality and typicality requirements,” i.e., because
“[d]istinct issues of fact and law exist.” Defs.’ Opp. at 20. In particular, Defendants reiterate
that the proposed class members “worked for different departments under different managers”
and “received different rates of pay.” Id. Additionally, Defendants assert “individual inquiries
will be required to resolve issues such as whether an employee was or was not paid time and a
half for overtime hours worked, and the degree of any alleged underpayment.” Id.

25

In essence, Defendants’ arguments concern the potential for individualized damages,
which the Court must also consider as part of its predominance analysis. See Comcast Corp.,
133 S.Ct. at 1433. Having considered the nature of damages in this case, the Court concludes
that, “[a]lthough determinations as to damages will require individualized inquiries here, such
inquiries will not bar certification because common liability issues otherwise predominate.”
Morris I, 2013 WL 1880919, at *13 (citing Noble, 224 F.R.D. at 345; Niemiec, 2007 WL
5157027, at *12 (finding issues raised by plaintiffs' failure to pay overtime claim subject to
generalized proof and “predominate over individual issues such as the alleged exempt status of
the superintendent class members or the swapping of weekend schedules by class members”).
Perez, 2014 WL 4635745, at *22 (holding that “the common issues of law and fact . . .
predominate despite the presence of individualized damages,” and noting that “[o]ther district
courts within this Circuit, whose decisions this Court finds persuasive, have recognized that
common issues of liability predominate over individual damages issues in wage-and-hour cases
like this one”) (collecting cases). Moreover, “[e]ven if each class member had to present some
evidence of his or her individual damages, there is no suggestion that this would be a complex
process, and the Court, in its discretion, does not find that any challenge presented by the
calculation of damages undercuts the predominance of common issues concerning liability.”
Perez, 2014 WL 4635745, at *22.
In sum, common questions of liability predominate over individual inquiries as to
damages here. See, e.g., Perez, 2014 WL 4635745, at *24; Morris I, 2013 WL 1880919, at *14.
Accordingly, plaintiffs have satisfied the predominance requirement under Rule 23(b)(3).

26

2.

Superiority

Rule 23(b)(3) also requires a class action “be superior to other available methods for fair
and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). “District courts in this
Circuit ‘routinely hold that a class action is superior where, as here, potential class members are
aggrieved by the same policy, the damages suffered are small in relation to the expense and
burden of individual litigation and many potential class members are currently employed by
Defendant.’” Morris I, 2013 WL 1880919, at *14 (quoting Garcia, 281 F.R.D. at 108); see
Whitehorn v. Wolfgang's Steakhouse, Inc., 275 F.R.D. 193, 200 (S.D.N.Y. 2011) (collecting
cases)); Tiro v. Public House Investments, LLC, Nos. 11–CV–7679, 11–CV–8249, 2012 WL
6053961, at *8 (S.D.N.Y. Dec. 4, 2012).
In the instant case, Plaintiffs’ proposed class “is significantly numerous and possess[es]
relatively small individual claims.” Morris I, 2013 WL 1880919, at *14. Moreover, Plaintiffs’
submissions indicate that many potential class members are foreign-born, have limited reading
and writing skills, and may fear reprisal from Defendants. See Melendez Decl. ¶ 4; Moreira Aff.
¶¶ 9-10; see also Morris I, 2013 WL 1880919, at *14 (considering that “many class members are
currently employed by [Defendant] and/or of foreign descent, they may fear reprisal and lack
familiarity with the American legal system” as factors indicating that a class action is superior to
other methods of litigation). Accordingly, “not only would a class action in the instant case
allow for a ‘more cost-efficient and fair litigation of common disputes’ than individual actions,
but it is likely the only device by which many of the proposed class members would obtain relief.
Morris I, 2013 WL 1880919, at *14 (quoting Garcia, 281 F.R.D. at 108); see Iglesias–Mendoza,
239 F.R.D. at 373 (finding it “extremely unlikely” that proposed class members would pursue
separate actions where they were “almost exclusively low-wage workers with limited resources

27

and virtually no command of the English language or familiarity with the legal system”).
“Furthermore, ‘a class action is superior to other available methods, given that the NYLL claims
are nearly identical to the FLSA claims, which will be tried collectively in this Court.” Morris I,
2013 WL 1880919, at *14 (quoting Garcia, 281 F.R.D. at 108).9
Given these considerations, the Court concludes that a class action is superior to other
available methods for fair and efficient adjudication. The interest of the class as a whole to
litigate the predominant common questions outweighs any interest of individual members to
bring and prosecute separate actions. Accordingly, the Court finds that plaintiffs have satisfied
the superiority element of Rule 23(b)(3) and class certification is warranted.
VI.

CONCLUSION
For the foregoing reasons, Plaintiffs motion for class certification is GRANTED. The

parties are directed to submit, within fourteen days of this Order, a jointly proposed notice for
Court approval.

SO ORDERED
Dated: Central Islip, New York
March 31, 2015
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge

9

Defendants’ only argument against a finding of superiority is the availability and alleged
“ease” for potential class members to opt-in to Plaintiffs’ FLSA collective action. See Defs’
Opp. at 19. However, this argument is no more persuasive with regard to superiority than it was
when Defendants raised it with regard to the practicability of joinder. Thus, for the reasons
discussed, the Court finds that, notwithstanding the existence of Plaintiffs’ FLSA collective
action, a class action would still “be superior to other available methods for fair and efficient
adjudication of” Plaintiffs’ NYLL claims. Fed. R. Civ. P. 23(b)(3).
28