Mercado Mendoza et al v. Little Luke, Inc. et al

Filing 66

ORDER granting in part and denying in part 51 Motion to Certify FLSA Collective Action. For the reasons set forth in the attached Order, Plaintiffs' motion for conditional certification as an FLSA collective action pursuant to Section 216(b) is granted, subject to the limitations discussed in the Order. The collective shall be limited to employees who worked as florists for the Defendants after May 30, 2011 until May 30, 2014. The motion to conditionally certify a collective encompassing other employees is denied without prejudice to a renewal thereof upon submission of additional support of their motion. Parties are directed to confer regarding the use of the attached notice, and any changes to this form are to be submitted for court review along with an explanation as to why the proposed change is necessary. So Ordered by Magistrate Judge Anne Y. Shields on 10/9/2015. (Attachments: # 1 Supplement Notice form) (Casalini, Rosalinde)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X

[Case Caption]

Case No. [Docket number]

-------------------------------------X

COURT AUTHORIZED NOTICE OF LAWSUIT
If you worked at [DEFENDANTS’ BUSINESS] between [NUMBER1 YEARS FROM DATE OF
THE COMPLAINT] and the present, a collective action lawsuit may affect your legal rights.
Important: You are NOT being sued. This Notice is NOT a solicitation from a lawyer.
The Court authorized this Notice.


Plaintiff, [Plaintiff’s name] is a former employee of [Defendants’ business], where he worked
as a [job description]2. Plaintiff, [Plaintiff’s name] brought this lawsuit against Defendants on
behalf of himself and all other potential, current, and former [similarly situated persons/JOB
DESCRIPTIONS] employed by the Defendants as of [NUMBER YEARS FROM DATE OF
THE COMPLAINT]. Plaintiff claims that Defendants did not pay its hourly employees [all
minimum wages and overtime due to them]3.

Defendants deny any wrongdoing and/or liability and maintain that all of their employees are paid
in compliance with [TYPE OF]4 law.


THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED
STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK. THE COURT HAS
TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF THE PLAINTIFF'S
CLAIMS OR OF THE DEFENDANTS' DEFENSES. UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT

ASK TO BE
INCLUDED

DO NOTHING

If you choose to be included in this collective action, you will be bound by
any ruling, settlement or judgment in this case. You may also share in any
proceeds from a settlement or judgment if those bringing the claims are
successful. If you choose to be included you will give up any rights to separately
sue the Defendants about the same legal claims in this lawsuit
By doing nothing, you will not be included in this lawsuit for the purpose of
asserting a [minimum wage or overtime claim under federal]5 law. This means
that you give up the possibility of getting money or benefits that may come
from a trial or settlement of the [minimum wage or overtime claims under
federal]6 law asserted in this lawsuit, if those bringing the lawsuit are
successful.

1. Why did I get this notice?
You are getting this notice because Defendants’ records show that you may have worked as a [JOB
DESCRIPTION] in [DEFENDANTS’ BUSINESS] from [NUMBER OF YEARS FROM DATE OF
THE COMPLAINT] to the present. Plaintiff sued the Defendants claiming they violated various
provisions of [TYPE OF] laws.
2. What is a collective action and who is involved?
In a collective action lawsuit, one or more persons can bring a lawsuit on behalf of others who have
similar claims. The individual who brought this lawsuit is called the Plaintiff. The corporate entities
and individuals that they have sued are called the Defendants. One Court resolves the issues for everyone
who decides to join the case.
3. What is this collective action lawsuit about?
This collective action lawsuit is about whether Defendants’ compensation practices violate [TYPE OF]
law. The lawsuit alleges that Defendants violated [TYPE OF] law by not paying Plaintiff and other
employees similarly situated [minimum wages and overtime owed to them]7. Plaintiff is seeking to
recover unpaid wages, in addition to liquidated damages, attorneys’ fees, and costs.
Defendants deny any wrongdoing and/or liability and maintain that all of their employees were and
continue to be paid in accordance with [TYPE OF] law.
4. How do I join this collective action lawsuit?
To participate in this lawsuit through the Plaintiff’s attorney, you must fill out the enclosed form called
“Consent to Join” and mail it in the enclosed, postage-paid envelope to Plaintiff’s lawyers. Should the
enclosed envelope be lost or misplaced, the “Consent to Join” Form must be sent to:
[Plaintiff’s Attorney’s
Information]
You can also fax the “Consent to Join” form to [ FAX # ] or scan and email it to
[EMAIL ADDRESS]

The signed “Consent to Join” form must be postmarked, faxed, or e-mailed by [60 days from mailing of
notice]. If your signed “Consent to Join” form is not postmarked, faxed, or e-mailed by [60 days from
mailing of notice], you may not be allowed to participate in the federal law portion of this lawsuit.
You have a right to be represented by your own attorney, but you will be responsible for making
arrangements for payment of the fees of the attorney you select. The attorney you hire must file with the
court a “Consent to Join” form by [60 days from mailing of notice] and must enter a formal appearance
as attorney on your behalf.

2

5. What happens if I join the collective action lawsuit?
You will be bound by any ruling, settlement, or judgment, whether favorable or unfavorable. If there
is a favorable resolution, either by settlement or judgment, and you qualify under the law, you will be
entitled to some portion of the recovery.
If you join this lawsuit and send your “Consent to Join” form to [Plaintiff’s Attorney], you agree to
have the Plaintiff and his counsel act as your representative and make decisions on your behalf
concerning the case, including approving any settlement. Decisions made and agreements entered into
by the Plaintiff and his counsel will be binding on you if you join this lawsuit, subject only to the Court’s
discretion. If you hire your own attorney, you will be bound by decisions and agreements that your
attorney makes on behalf of this lawsuit.
If you join this lawsuit, you may be asked to give testimony and information about your work for
[DEFENDANTS] to help the Court decide whether you are owed any money. Plaintiff’s counsel will
assist you with this process. For this reason, if you join this lawsuit, you should preserve all documents
relating to your employment currently in your possession.
6. What happens if I do nothing at all?
You will not be included in this lawsuit for the purpose of asserting a [ minimum wage or overtime
claim under federal]8 law. Therefore, you will not be entitled to any recovery in this case should there
be any for those claims. The limitations period on your claims continues to run.

7. If I join, will there be any impact on my employment?
The law prohibits Defendants from discharging or retaliating against you because you join this
case or have in any other way exercised your rights under the law.
8. Do I have a lawyer in this case?
Plaintiff is represented by [Plaintiff’s Attorney’s name]. If you join by sending your opt-in to the
Plaintiff’s attorney, [Plaintiff’s Attorney’s name] will represent you on a contingency fee basis, meaning
you will not owe any attorneys’ fees unless you are successful and win the case, or obtain a settlement.
9. Do the Defendants have a lawyer in this case?
The Defendants in this case are represented by [Defendants’ Attorney’s name and information].

3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X

[Case Caption]

Case No. [Docket number]

-------------------------------------X
IF YOU RECEIVED THIS FORM AND WANT TO JOIN THIS LAWSUIT, PLEASE COMPLETE
THESE TWO STEPS:
1. COMPLETE AND SIGN THIS CONSENT TO JOIN LAWSUIT FORM; AND
2. USE THE ENCLOSED ENVELOPE TO RETURN THIS FORM TO THE ADDRESS
BELOW NOT LATER THAN [60 days from mailing of notice].
[Plaintiff’s Attorney’s
Information]
YOU CAN ALSO FAX THE CONSENT TO JOIN FORM TO [FAX
NUMBER] OR SCAN AND EMAIL IT TO:
[EMAIL ADDRESS]

I consent to join the collective action and authorize [Plaintiff’s Attorney] to act on my behalf in all
matters relating to this action, including any settlement of my claims.
SIGNATURE

PRINT NAME

Address

City, State, Zip Code

Telephone Number

Email Address

Start Date

End Date

4

1

While the parties are not expected to agree to any issues of willfulness, this order provides for the
insertion of three (3) years for the FLSA claims and six (6) years for cases that assert both NYLL and
FLSA claims.
2
Insert title/job description.
3
Specify the allegations against Defendants.
4
Insert either federal (FLSA) or federal and state (FLSA/NYLL).
5
Specify alleged violations and type of laws violated (federal or federal and state).
6
Specify alleged violations and type of laws violated (federal or federal and state).
7
Specify the allegations against Defendants.
8
Specify alleged violations and type of laws violated (federal or federal and state).

5