Becerra v. IM LLC-I et al
Filing
30
MEMORANDUM OF DECISION & ORDER denying 24 Motion to Set Aside ; denying 25 Motion to Stay; For the foregoing reasons, it is hereby ordered that the Plaintiffs motion to set aside the April 29, 2015 order is denied and the Plaintiffs motion for equitable tolling is also denied without prejudice. However, the Court modifies the April 29, 2015 to make clear that the denial of the Plaintiffs motion for conditional certification is without prejudice and with leave to renew following further discovery. So Ordered by Judge Arthur D. Spatt on 2/20/16. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
JUAN BECERRA, individually and on behalf of
all others similarly situated,
Plaintiff,
MEMORANDUM OF
DECISION & ORDER
-against14-cv-2671 (ADS) (ARL)
IM LLC-I, IL MULINO USA, LLC, IM LONG
ISLAND RESTAURANT GROUP, LLC, IMNY
FLORIDA, LLC, IMNY CHICAGO, LLC,
IMNY ASPEN, LLC, IMNYLV, LLC, IMNY
SOUTH BEACH, LLC, IMNY PUERTO RICO,
LLC, JOHN DOE CORPORATIONS #1-7,
BRIAN GALLIGAN and GALLIGAN
HOSPITALITY GROUP, INC.,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Steven John Moser, P.C.
Attorney for the Plaintiff
3 School Street, Suite 207B
Glen Cove, NY 11542
By: Steven J. Moser, Esq., Of Counsel
Davis & Gilbert LLP
Attorneys for the Defendants
1740 Broadway
New York, NY 10019
By: Gregg Lowell Brochin, Esq., Of Counsel
SPATT, District Judge.
This case arises from allegations by the Plaintiff Juan Becerra (the “Plaintiff”) that the
Defendants IM LLC-I and Il Mulino USA, LLC, who own and operate twelve Italian restaurants
across the United States, instituted common policies at those restaurants which denied the
busboys regular and overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. §
201 et seq. (“FLSA”), and the New York Labor Law § 650 et seq. (“NYLL”).
1
Presently before the Court is the Plaintiff’s motion pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 72(a) to set aside an April 29, 2015 Order denying the Plaintiff’s
motion to conditionally certify a collective action pursuant to FLSA § 216(b). In addition, the
Plaintiff separately moves for leave to renew his motion for conditional certification following
discovery and to toll the statute of limitations as to all putative opt-in members “from September
19, 2014 until such time as the Court reaches a decision on the renewed motion for conditional
certification.”
For the reasons set forth below, the Plaintiff’s motions are denied. However, the Court
grants the Plaintiff the opportunity to renew his motion for conditional certification after further
discovery.
I. BACKGROUND
From March 2011 to March 2013, the Plaintiff Juan Becerra (the “Plaintiff”) was
employed as a busboy at an Il Mulino restaurant located in Roslyn, New York.
On April 29, 2014, the Plaintiff commenced this action, on behalf of himself and others
similarly situated, against the Defendants IM LLC-I, II Mulino USA, LLC, IM Long Island
Restaurant Group, LLC, IM Aspen, LLC, IMNY Florida, LLC, IMNY Chicago, LLC, IMNYLV,
LLC, IMNY South Beach, LLC, IMNY Puerto Rico, LLC, Brian Galligan, Galligan Hospitality
Group, Inc., and John Doe Corporations #1-7 (collectively, the “Defendants”).
On June 4, 2014, the Plaintiff timely filed an amended complaint.
The amended complaint alleges that Il Mulino USA, LLC and IM LLC-I instituted two
policies in its twelve restaurants which violated the FLSA and the NYLL, namely: (i) an
unlawful tip sharing policy which allowed managers to share in the tip pool; and (2) an unlawful
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breakage policy which deducted money from employees’ pay checks if they broke glasses or
kitchen-ware in the course of their employment.
On the basis of these two alleged policies, the complaint sought to certify a collective
action pursuant to FLSA § 216(b) consisting of “current and former employees of Il Mulino who
have been employed as waiters and busboys at all of the Il Mulino restaurants at any time during
the three year[s] prior to the filing of this Complaint[.]”
On July 11, 2014, the Defendants filed an answer to the amended complaint.
On September 19, 2014, the Plaintiff filed a letter motion to conditionally certify a
collective action pursuant to 29 U.S.C. § 216(b).
On September 23, 2014, the Court issued an order referring the Plaintiff’s motion to
United States Magistrate Judge Arlene R. Lindsay for a decision and directed the Plaintiff to refile his letter motion as a formal motion in compliance with the Local Rules and this Court’s
Individual Rules.
On October 10, 2014, the Plaintiff refiled his motion to conditionally certify a collective
action. The Plaintiff argued that conditional certification of a nationwide collective action was
appropriate because “all of the [twelve] Il Mulino Restaurants share common control, ownership,
and administration, and there is sufficient evidence to support an inference of a company-wide
policy.” (See the Pl.’s Mem. of Law, Dkt. No. 17, at 13–14.)
In support, the Plaintiff provided his own declaration which stated that during the two
years he was employed at Il Mulino’s Roslyn location, Alis Omeragic, the manager at that
location, and Adis Omeragic, the bartender, shared in the “tip pool.” He also stated that Il
Mulino “posted notices in a bread cutting area between the kitchen and dining area as well as in
the kitchen that said that all employees would be charged $10 per broken glass and $10 per
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plate.” He further stated that Brian Galligan (“Galligan”), who owns and operates Galligan
Hospitality Group, Inc., a company that implements the pay practices at the Il Mulino
restaurants, came to the Roslyn location while the sign was in place and did not make any
comments about it. In addition, the Plaintiff referenced to “conversations” with unidentified “coworkers” who had also worked at an Il Mulino restaurant in New York City. According to the
amended complaint, the co-workers told the Plaintiff that the Defendants had implemented
similar tipping policies, and they had initiated other lawsuits against the Defendants.
Finally, the Plaintiff offered unverified complaints filed in two lawsuits initiated in the
Southern District of New York and the District of New Jersey by busboys at other Il Mulino
locations alleging similar wage and hour violations. According to the Plaintiff, these lawsuits
provided further evidence of the existence of an illegal policy regarding tipping and breakage
deductions across all twelve Il Mulino locations.
The Defendants opposed conditional certification and in support, offered the declarations
of Galligan and other employees denying the existence of a common policy in the twelve Il
Mulino restaurants with regard to tip pools and deductions for breaking kitchenware.
On April 29, 2015, Judge Lindsay issued an Order denying the Plaintiff’s motion for
conditional certification of a collective action (the “April 29, 2015 Order”). Judge Lindsay
found that the Plaintiff’s declaration was “not probative of a nationwide common policy of
unlawful tip pooling or breakage deductions” because the “Plaintiff has no actual knowledge of
any of the policies or practices at any location other than Roslyn, and he has not submitted any
declarations from any other employees at any location.” (Id. at 8.) She further found that “[t]o
the extent Plaintiff’s declaration and the first amended complaint allege common ownership and
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administration of all Il Mulino restaurants, as [the] Plaintiff himself concedes, that fact alone is
insufficient to support nationwide certification.” (Id. at 9.)
Judge Lindsay also found that that unverified complaints filed by Il Mulino employees of
other restaurant locations were not probative of a nationwide policy because the “Plaintiff has
not cited, and the Court is unaware, of any case law basing certification of an FLSA collective
action on unverified complaints filed in other lawsuits.” (Id. at 10.
Ultimately, Judge Lindsay “could not justify certifying a class of plaintiffs, likely
numbering in the hundreds, on the basis of such thin factual support” and therefore, denied the
Plaintiff’s motion for conditional certification.
As noted, presently before the Court is a motion by the Plaintiff to set aside the April 29,
2015 Order. In addition, the Plaintiff moves separately under principles of equity to request that
the Court retroactively toll the statute of limitations on the claims of potential class members
from September 19, 2014, the date when the Plaintiff first moved for conditional certification,
until the Plaintiff’s motion is decided or after the parties engage in further discovery. He also
requests that the Court grant him leave to renew his motion for conditional certification
following the close of discovery.
The Court will now address both of the Plaintiff’s motions.
II. DISCUSSION
A. As the Plaintiff’s Rule 72 Motion
As noted, the Plaintiff seeks to set aside the April 29, 2015 Order by Judge Lindsay
denying his motion for conditional certification.
Fed. R. Civ. P. 72(a) provides a district court with the authority to refer non-dispositive
matters, such as motions for conditional certification, to magistrate judges for a decision. See
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Haas v. Verizon New York, Inc., No. 13-CV-8130 (RA), 2015 WL 5785023, at *2 (S.D.N.Y.
Sept. 30, 2015) (“Unlike class certification motions brought under Rule 23, motions for
conditional certification of FLSA collective actions qualify as ‘pretrial matter’ subject to clear
error review.”); see also Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 383 (E.D.N.Y. 2010)
(“[A] magistrate judge has jurisdiction over a motion seeking conditional class certification
because it is only a preliminary determination and is not dispositive.”) (internal quotation marks,
citations, and alterations omitted).
A party may file timely objections to a magistrate judge’s order regarding a nondispositive matter. See Fed. R. Civ. P. 72(a). However, the district court may only “modify or
set aside a[] part of the order that is clearly erroneous or is contrary to law.” Id.
This is a difficult standard to meet:
Under the clearly erroneous standard, a magistrate judge’s findings ‘should not be
rejected merely because the court would have decided the matter differently.
Rather, the district court must affirm the decision of the magistrate judge unless
the district court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’
Ahmed v. T.J. Maxx Corp., 103 F. Supp. 3d 343, 350 (E.D.N.Y. 2015) (Spatt, J) (quoting Pall
Corp. v. Entegris, Inc., 655 F.Supp.2d 169, 172 (E.D.N.Y. 2008)); see also F.D.I.C. v.
Providence Coll., 115 F.3d 136, 140 (2d Cir. 1997) (noting that a finding of fact is “clearly
erroneous” only when a court is “left with the definite and firm conviction that a mistake has
been committed.”).
Similarly, ‘“[a]n order is contrary to law when it fails to apply or misapplies relevant
statutes, case law or rules of procedure.”’ Stevens v. HMSHost Corp., No. 10 CIV. 3571 (ILG)
(VVP), 2012 WL 4801784, at *1 (E.D.N.Y. Oct. 10, 2012) (quoting MacNamara v. City of New
York, 249 F.R.D. 70, 77 (S.D.N.Y. 2008)); see also Garcia v. Benjamin Grp. Enter. Inc., 800 F.
6
Supp. 2d 399, 403 (E.D.N.Y. 2011) (“[U]nder the ‘contrary to law’ standard of review, a district
court may reverse a finding only if it finds that the magistrate ‘fail[ed] to apply or misapplie[d]
relevant statutes, case law or rules of procedure.’”) (quoting Catskill Dev., LLC v. Park Place
Entm’t, 206 F.R.D. 78, 86 (S.D.N.Y. 2002)).
The Court finds each of the Plaintiff’s six objections to the April 29, 2015 Order to be
without merit.
First, the Plaintiff contends that Judge Lindsay “fail[ed] to apply the ‘minimal burden of
proof with regard to the motion.” (The Pl.’s Mem. of Law at 4–5.) The Court disagrees.
The April 29, 2015 Order stated that “[t]o . . . achieve ‘conditional certification,’
plaintiff[] must make only a ‘modest factual showing that [he] and potential opt-in plaintiffs
together were victims of a common policy or plan that violated the law.”’ (Id. at 5) (emphasis
added) (quoting Amador v. Morgan Stanley & Co. LLC, No. 11-CV-4326, 2013 WL 494020, at
*2-3 (S.D.N.Y. Feb. 7, 2013)). This language is taken directly from the Second Circuit’s
decision in Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010), which stated that a court may
conditionally certify a collective action pursuant to FLSA § 216(b) where the plaintiff makes a
‘“modest factual showing’ that they and potential opt-in plaintiffs ‘together were victims of a
common policy or plan that violated the law.’” Id. at 555 (emphasis added). Thus, there is no
question that Judge Lindsay applied the correct legal standard in deciding the Plaintiff’s motion
for conditional certification.
Second, the Plaintiff challenges the April 29, 2015 Order because he asserts that Judge
Lindsay “disregarded the evidence of unified operation and common control of the Il Mulino
Restaurants.” (The Pl.’s Mem. of Law at 12.) According to the Plaintiff, the fact of unified
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common ownership “alone is sufficient to raise an inference of common pay practices.” (Id.)
Again, the Court disagrees.
Judge Lindsay did not disregard the Plaintiff’s evidence of “unified operation and
common control of the Il Mulino Restaurants.” To the contrary, the April 29, 2015 Order stated,
“To the extent Plaintiff’s declaration and the first amended complaint allege common ownership
and administration of all Il Mulino restaurants, as Plaintiff himself concedes, that fact alone is
insufficient to support nationwide certification.” (The Apr. 29, 2015 Order at 9.)
This conclusion is well-supported by law in this Circuit. While evidence of common
ownership is certainly relevant to the question of whether a plaintiff is similarly situated to
employees at other locations, courts also require a “modest factual” showing from which it is
reasonable to infer that the defendants implemented a common illegal wage policy. See, e.g.,
Santana v. Fishlegs, LLC, No. 13 CIV. 01628 LGS, 2013 WL 5951438, at *5 (S.D.N.Y. Nov. 7,
2013) (“Although the proffered exhibits tend to show common ownership among and integrated
functions across all seven restaurants, they do not by themselves suggest any misconduct.”)
(emphasis added); Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545, 558 (S.D.N.Y.
2013) (“Although all Pret stores in New York City are owned by the same parent company,
plaintiffs have not demonstrated across all locations a uniform policy of failure to pay overtime
compensation.”); Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 662 (S.D.N.Y. 2013) (“With
respect to both statewide certification and certification across a smaller territory, courts consider
whether the plaintiffs have made an adequate factual showing to support an inference that such a
uniform policy or practice exists, and whether the locations share common ownership or
management.”) (emphasis added).
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Thus, far from being “clearly erroneous” or “contrary to the law,” the Court finds that
Judge Lindsay correctly concluded that, without more, the Plaintiff’s allegations that the twelve
Il Mulino restaurants were under common ownership is not sufficient to support conditional
certification of a collective action.
Third, the Plaintiff takes issue with Judge Lindsay’s conclusion that the “Plaintiff’s
declaration — which does not contain any supported claims about what may or may not have
happened at other Il Mulino restaurants — is not probative of a nationwide common policy of
unlawful tip pooling or breakage deductions.”
In support, the Plaintiff cites the following statements in his declaration: (i) he stated that
Galligan, who allegedly implemented payroll policies at all of the Il Mulino restaurants, on one
occasion stopped by the kitchen in the Roslyn location where the Plaintiff worked, saw a sign
indicating that all employees “would be charged $10 per broken class and $10 per plate,” and
“never made a comment about the sign”; and (ii) he stated, “Is [sic] my understanding from
conversations with co-workers that the New York City lawsuit against Il Mulino started because
of Il Mulino’s policy of deducting breakage from wages.” In addition, the Plaintiff points to the
unverified complaints filed in two other lawsuits initiated by busboys at other Il Mulino locations
in the Southern District of New York and the District of New Jersey alleging similar wage and
hour violations.
The Court finds that the statements in the Plaintiff’s declaration are conclusory and
wholly speculative. Therefore, Judge Lindsay was correct in concluding that they were not
probative of a common illegal wage policy in all twelve Il Mulino restaurants. See Myers, 624
F.3d at 555 (noting that the “modest factual showing” required for conditional certification
“cannot be satisfied simply by ‘unsupported assertions’”).
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Further, the Plaintiff has offered no legal authority supporting his proposition that a court
can rely on allegations contained in unverified complaints in other lawsuits. Accordingly, the
Court also finds no clear error in Judge Lindsay’s finding that the complaints filed by employees
in other actions were not probative for purposes of a motion for conditional certification in this
action.
Fourth, the cases cited by the Plaintiff are not binding on this Court and are clearly
distinguishable. For example, in Juarez v. 449 Rest., Inc., 29 F. Supp. 3d 363, 366 (S.D.N.Y.
2014), the court granted a motion for conditional certification of a collective action consisting of
waiters at three different restaurants based on evidence of common ownership and a declaration
from the plaintiff indicating that he had worked at all three diners. Thus, the plaintiff’s
assertions in Juarez about the policies at all three restaurants were supported by his own personal
experience working at all three restaurants. Here, by contrast, the Plaintiff worked only at the
Roslyn Il Mulino restaurant and provided no basis to believe he had knowledge of the wage
policies at the eleven other Il Mulino restaurants.
Similarly, the plaintiffs in the other cases relied on by the Plaintiff submitted far more
extensive evidence in support of their motions for conditional certification than he presented in
this case. See, e.g., Karic v. Major Auto. Companies, Inc., 799 F. Supp. 2d 219, 224 (E.D.N.Y.
2011) (“In support of their motion, plaintiffs have submitted the declarations of eight of the
named plaintiffs and opt-ins, Karic, Garcia, Jones, Stanic, Zivanovic, Colon, Dowers, and
Morgan, each declaring that they worked for Major World during the Class Period, that they
were paid a flat rate of $20.00 per shift plus commissions, and that all sales representatives were
similarly paid for similar hours.”); Capsolas v. Pasta Res., Inc., No. 10 CIV. 5595 (RJH), 2011
WL 1770827, at *3 (S.D.N.Y. May 9, 2011) (“Furthermore, many employees provided pre10
printed tip worksheets with a space for the deduction, indicating the policy was entrenched and
not the actions of particular managers. All of these facts support a reasonable inference that there
was a uniform policy across the eight restaurants, all of which share common ownership, are
supervised by the same individuals, and are administered by the same company.”)
Accordingly, the Court also rejects the Plaintiff’s contention that the April 29, 2015
Order “fail[ed] to appropriately analyze and apply case law regarding the common control,
ownership, and administration of the Il Mulino Restaurant.”
Finally, the Plaintiff contends that Judge Lindsay erred by not granting “conditional
certification of the tipped employees at the Roslyn location and she could have here.” (The Pl.’s
Mem. of Law at 14.) Again, the Court disagrees.
The Plaintiff never moved in the alternative to conditionally certify a collective action
consisting of only employees at the Roslyn Il Mulino. Rather, he focused his moving papers
solely on a potential collective action consisting of “all current and former tipped employees of
IM Long Island Restaurant Group, LLC, IMNY Florida, LLC, IMNY Chicago, LLC, IMNY
Aspen, LLC, IMNYLV, LLC, IMNY South Beach, LLC, IMNY Puerto Rico, LLC and John
Doe Corporations #1-7 (‘Il Mulino’) who have been employed at any time since April 29, 2011.”
(See the Pl.’s Cert. Mem. of Law, Dkt. No. 17, at 6.)
Thus, the Plaintiff cannot now object on the basis of a legal theory which he did not raise
in the first instance before Judge Lindsay. See Ebo v. New York Methodist Hosp., No. 12-CV4432 (MKB) (RER), 2015 WL 4078550, at *5 (E.D.N.Y. July 6, 2015) (“However, although a
party may object, it is ‘[a] fundamental principle of law . . . that arguments not raised below are
forfeited on appeal.”’) (quoting Smith v. Unger, No. 13–CV–5485, 2014 WL 7008949, at *3
(S.D.N.Y. Dec.12, 2014)); Arnold v. Storz, No. 00 CV 4485 (CBA), 2006 WL 2792749, at *2
11
(E.D.N.Y. Sept. 27, 2006) (“Since this argument was not before Magistrate Judge Lindsay, the
Court need not consider it.”); Robinson v. Keane, No. 92 CIV. 6090 (CSH), 1999 WL 459811, at
*4 (S.D.N.Y.1999) (“An objecting party may not raise new arguments that were not made
before the Magistrate Judge.”).
Furthermore, the Court has not been able to locate — nor does the Plaintiff offer — any
authority which holds that a court must sua sponte grant conditional certification of a smaller
sub-class. Accordingly, the Court sees no error in the fact Judge Lindsay did not sua sponte
consider conditionally certifying a sub-class of workers only at the Roslyn Il Mulino.
In sum, the Court finds that the Plaintiff’s objections to the April 29, 2015 Order are
without merit and therefore denies the Plaintiff’s motion to set aside that decision.
B. As to the Plaintiff’s Motion For Equitable Tolling
Separately, the Plaintiff requests that “[i]f the Court finds that the Magistrate’s Order is
not erroneous, the Plaintiff[’s] motion be denied without prejudice and thus with the possibility
of renewing the motion after further discovery as to whether members of the collective [action],
as defined, are similarly situated to the Plaintiff.” (Id. at 7.) In addition, the Plaintiff requests
that the Court toll the statute of limitations “until further discovery is conducted regarding
whether employees at other Il Mulino restaurants are similarly situated.” (Id. at 6.) The Court
will address each request, in turn.
First, based on the remedial purpose of the FLSA and a court’s broad power to authorize
discovery in an FLSA action, courts have often denied motions for conditional certification
without prejudice and granted plaintiffs leave to re-file their motions after they have had a
chance to obtain discovery from other potential opt-in plaintiffs. See Mata v. Foodbridge LLC,
No. 14 CIV. 8754 (ER), 2015 WL 3457293, at *4 (S.D.N.Y. June 1, 2015) (denying a plaintiff’s
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motion for conditional certification “without prejudice to its renewal upon a more developed
factual record” in light of the “‘remedial purpose of the FLSA’ and the Court’s broad power to
authorize discovery in an FLSA action”) (quoting Flores v. Osaka Health SPA, Inc., No. 05 CIV.
962 (VMK) (NF), 2006 WL 695675, at *6 (S.D.N.Y. Mar. 16, 2006)); Guan Ming Lin v.
Benihana Nat’L Corp., 755 F. Supp. 2d 504, 513 (S.D.N.Y. 2010) (“Even where a plaintiff’s
motion to certify an FLSA collective action fails to assert facts sufficient to meet the § 216(b)
threshold, courts in this district have often ordered the disclosure of contact information for
potential opt-in plaintiffs so that discovery into the collective allegations could continue and the
plaintiffs could renew their motion for certification at a later date.”); Castro v. Spice Place, Inc.,
No. 07 CIV. 4657, 2009 WL 229952, at *4 (S.D.N.Y. Jan. 30, 2009) (“Based on the foregoing,
plaintiffs’ motions for certification of a collective action under the FLSA, leave to file a notice,
and discovery of potential class members are denied with leave to renew.”); D’Anna v. M/ACOM, Inc., 903 F. Supp. 889, 894 (D. Md. 1995) (“The denial of plaintiff's motion is without
prejudice. The Court will allow broad discovery. Plaintiff is free to file a new motion to proceed
with collective action following such discovery if plaintiff can establish that class treatment is
warranted at that time.”); 7B Fed. Prac. & Proc. Civ. § 1807 (3d ed.) (“If conditional certification
is denied, the court may allow discovery to provide plaintiffs a second opportunity to obtain
sufficient evidence of a collective to warrant conditional certification and the notice to opt in.”).
Accordingly, in its discretion, the Court modifies the April 29, 2015 Order to make clear
that the denial of the Plaintiff’s motion for conditional certification is without prejudice and
grants the Plaintiff leave to renew his motion for conditional certification following further
discovery.
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Second, the Plaintiff requests that the statute of limitations be tolled from September 19,
2014, when the Plaintiff first sought court-authorized notice, “until further discovery is
conducted regarding whether collective action members are similarly situated.” (The Pl.’s Mem.
of Law, Dkt. No. 26, at p. 7–8.)
The FLSA provides for a two-year statute of limitations for general violations of the
statute and a three-year statute of limitation for willful violations. See 29 U.S.C.A. § 255(a). “In
a collective action suit such as this, the statute of limitations period continues to run with respect
to each potential plaintiff’s collective action claim until that plaintiff files the written consent
form opting into the suit.” Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 449
(S.D.N.Y. 2011) (citing Lee v. ABC Carpet & Home, 236 F.R.D. 193, 198–99 (S.D.N.Y. 2006));
see also 29 U.S.C.A. § 256(b) (“[I]n the case of a collective or class action instituted under the
Fair Labor Standards Act of 1938 . . . it shall be considered to be commenced in the case of any
individual claimant — (a) on the date when the complaint is filed, if he is specifically named as a
party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such
date in the court in which the action is brought; or (b) if such written consent was not so filed or
if his name did not so appear--on the subsequent date on which such written consent is filed in
the court in which the action was commenced.”); Yahraes v. Rest. Associates Events Corp., No.
10-CV-935 SLT, 2011 WL 844963, at *1 (E.D.N.Y. Mar. 8, 2011) (“[T]he limitations periods in
a FLSA action continues to run until an individual affirmatively opts into the action. Moreover,
‘[s]igned consents do not relate back to the original filing date of the complaint.’”) (quoting Lee
v. ABC Carpet & Home, 236 F.R.D. 193, 199 (S.D.N.Y. 2006)).
Nevertheless, courts have discretion to equitably toll the application of the statute of
limitations “in rare and exceptional circumstances . . . in which a party is prevented in some
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extraordinary way from exercising his rights.” Zerilli-Edelglass v. New York City Transit Auth.,
333 F.3d 74, 80 (2d Cir. 2003) (internal quotation marks, alterations, and citations omitted). In
that regard, “[w]hen determining whether equitable tolling is applicable, a district court must
consider whether the person seeking application of the equitable tolling doctrine (1) has ‘acted
with reasonable diligence during the time period she seeks to have tolled,’ and (2) has proved
that the circumstances are so extraordinary that the doctrine should apply.” Id. (quoting
Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002)).
Here, the Plaintiff asserts that the Court should toll the application of the statute of
limitations because “[n]o scheduling order providing for discovery has been issued pursuant to
Fed. R. Civ. P. 16(b)” and as a result, he “has been frustrated in his attempts to send notice any
sooner to potential 216(b) opt-in Plaintiffs.” (The Pls.’ Mem. of Law, Dkt. No. 26, at 7–8.)
For their part, the Defendants assert that (i) the doctrine of equitable tolling is not
applicable to this case because delays resulting from the normal litigation process do not
constitute the kind of “extraordinary circumstances” which justify staying the statute of
limitations; (ii) the “Plaintiff’s motion . . . is premature”; and (iii) “[the] Plaintiff’s counsel lacks
standing to bring a motion on behalf of individuals not party to this action.” (The Defs.’ Opp’n
Mem. of Law, Dkt. No. 28, at 5–6.)
The Court agrees that the Plaintiff’s motion is premature and therefore, need not reach
the questions of whether equitable tolling is applicable to this case or whether the Plaintiff’s
counsel has standing to raise such a claim.
The Plaintiff is correct that “[s]ome courts have held that the period of pendency of a
motion for collective action certification can serve as an ‘extraordinary circumstance’ justifying
application of the equitable tolling doctrine.” Mendoza v. Ashiya Sushi 5, Inc., No. 12 CIV.
15
8629 KPF, 2013 WL 5211839, at *10 (S.D.N.Y. Sept. 16, 2013) (quoting Yahraes v. Rest.
Assoc. Events Corp., No. 10 Civ. 935(SLT)(SMG), 2011 WL 844963, at *2 (E.D.N.Y. Mar. 8,
2011)); see also Israel Antonio-Morales v. Bimbo’s Best Produce, Inc., No. CIV.A.8:5105, 2009
WL 1591172, at *1 (E.D. La. Apr. 20, 2009) (“Courts routinely grant equitable tolling in the
FLSA collective action context to avoid prejudice to actual or potential opt-in plaintiffs that can
arise from the unique procedural posture of collective actions under 29 U.S.C. § 216(b).”).
However, in such cases, the courts ultimately granted the plaintiffs’ motions for
conditional certification and thus, according to those courts, it would have been unfair to run the
statute of limitations on the claims of potential class members because they had not yet received
notice of the suit. See Abadeer v. Tyson Foods, Inc., No. 3:09-0125, 2010 WL 5158873, at *3
(M.D. Tenn. Dec. 14, 2010) (“Here, given that the members of this collective action are low
wage workers, members of this group who opted in had the assistance of counsel, and the
necessity of time for the Court’s rulings, the Court deems tolling appropriate.”).
Here, by contrast, the Court has affirmed the April 29, 2015 Order denying the Plaintiff’s
conditional certification motion. While the Court has given the Plaintiff the opportunity to
renew his motion, it is not clear that he will actually renew his motion, nor whether the Court
will ultimately grant his renewed motion. Because the status of any collective action is not clear,
the Court finds that it is premature to rule on whether principles of equity warrant staying the
statute of limitation as to potential class members. See Mendoza v. Ashiya Sushi 5, Inc., No. 12
CIV. 8629 (KPF), 2013 WL 5211839, at *10 (S.D.N.Y. Sept. 16, 2013) (“The Court will permit
notice to be distributed to all potential plaintiffs employed within three years of the date of the
filing of the Complaint, and defer consideration of the statute of limitations until after the opt-in
period. At that time, any individual would-be plaintiffs whose claims have expired may seek
16
equitable tolling as it may apply to them.”); Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F.
Supp. 2d 445, 449-50 (S.D.N.Y. 2011) (“Plaintiffs seek to toll the statute of limitations for
potential collective members on the ground that Defendants’ delay in providing contact
information for some potential opt-ins prevented Plaintiffs from communicating with them.
Plaintiffs' request is premature at this stage. Assuming Defendants’ delay was so extraordinary as
to merit equitable tolling, is not yet clear whether or not any potential plaintiffs will be barred
from this action due to a delay in notice.”).
Accordingly, the Court denies the Plaintiff’s motion for equitable tolling without
prejudice and with leave renew if and when he renews his motion for conditional certification.
III. CONCLUSION
For the foregoing reasons, it is hereby ordered that the Plaintiff’s motion to set aside the
April 29, 2015 order is denied and the Plaintiff’s motion for equitable tolling is also denied
without prejudice. However, the Court modifies the April 29, 2015 to make clear that the denial
of the Plaintiff’s motion for conditional certification is without prejudice and with leave to renew
following further discovery.
SO ORDERED.
Dated: Central Islip, New York
February 20, 2016
_/s/ Arthur D. Spatt__
ARTHUR D. SPATT
United States District Judge
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