Vajic v. API Restaurant Corp. et al

Filing 49

OPINION & ORDER re: 36 MOTION to Certify Class conditional collective action filed by Daniel Slamna, Miroslav Vajic. Based on the conclusions set forth above, Plaintiffs' motion is granted, and the proposed notice is approved subject to the modifications set forth above. The parties shall submit a revised proposed notice to the Court within 60 days of the date of this order that is in conformance with the required modifications. Defendants are ordered to supply to Plaintiffs with the requested information regarding putative plaintiffs, and Plaintiffs are directed to utilize that information in accordance with the agreed-upon restrictions noted above. (Signed by Judge Robert W. Sweet on 6/27/2013) (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--------------------- ----------------x
DANIEL SLAMNA and MIROSLAV VAJIC,
individually and on behalf of all other
simil
y situated,
Plaintiffs,
-against-

12 Civ. 757(RWS)
OPINION & ORDER

API RESTAURANT CORP., CELLA FINE FOODS
INC., PIO RESTAURANT, LLC, SETA
RESTAURANT CORP., GIOVANNI APICELLA and
ANTONIO SPIRIDIGLIOZZI, jointly and
severally,
Defendants.

-------------------- -----------------X
A P PEA RAN C E S:
At

for Plaintiffs

THE LAW OFFICE OF JUSTIN A. ZELLER, P.C.

277 Broadway, Suite 408

New York, NY 10007

By:
Justin Alexander Zeller, Esq.

Brandon David Sherr, Esq.

Att

for Defendants

MILMAN LABUDA LAW GROUP, PLLC
3000 Marcus Avenue, Suite 3W8
Lake Success, NY 11042
By:
Netanel Newberger, Esq.
Joseph Martin Labuda, Esq.
Richard I. Milman, Esq.

Sweet, D. J.

Plaintiffs Miroslav Vajic ("Vajic") and Daniel Slamna
("Slamna", and collecti

y,

~

aintiffs") have moved for an

order (1) conditionally certifying the instant action as a
collective action pursuant to the Fair Labor Standards Act, 29
U.S.C. § 216(b)

("FLSA") against defendants API Restaurant Corp.

("API"), Cella Fine Foods Inc.
("

0"),

("Apicel

Seta Restaurant Corp.

("Cella"), Pio Restaurant, LLC
("Seta"), Giovanni Apicella

") and Antonio Spiridigliozzi ("Spiridigliozzi," and,

collecti vely, the "Defendants") ;

(2) approving

content of

the proposed notice of this action to the putative party
ling to all putative party

plaintiffs and authorizing its

plaintiffs and its posting in the workplaces of Defendants'
employees; and (3) compelling the Defendants to produce the
name, last known mailing address, telephone number, primary
language, and dates of employment of each putative party
plainti

Based on the conclusions set forth below, Plaintif
motion is granted, but

content of the proposed notice is

subject to the modifications set forth below.

1

Prior Proceedings

On January 31, 2012, Vaj
against Defendants.

filed an initial complaint

Defendants moved to dismiss the complaint

on April 27, 2012, and the motion to dismiss was marked
returnable on May 23, 2012.

However, on May 18, 2012,

Plaintiffs filed an amended complaint ("Amended Complaint"),
light of which the Defendants withdrew their motion to dismiss.

On June 4, 2012, Defendants filed a motion to dismiss
the Amended Complaint, and
2012, the motion was den

an opinion issued on July 20,
in part and granted in part.

On January 28, 2013, Plaintiffs filed the instant
motion for conditional certification of collective action
pursuant to the FLSA.

The motion was heard and marked fully

submitted on March 13, 2013.

Conditional Certification of Collective Action is Granted

Under the FLSA, employees may bring a collect
action "[on] behalf of . . . themselves and other employees
similarly situated."

29 U.S.C.

§

2

216(b).

The Second

rcuit

has long recognized that FLSA cases should, if possible, be
certified as collective actions in light of the "the broad
remedial purpose of the [FLSA], which should be given a liberal
construction, as well as with the interests of the courts in
avoiding a multipli

ty of suits."

Braunst

n v. E.

Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1978).

Courts in

s Circuit utilize a two-step process for

determining whether an action may proceed col
Section 216(b). ----'----=--­
See
554 (2d Cir.2010).

members.

rs v. Hertz

624 F.3d 537,

In the first stage of the analysis, the

court must make an init
plaintif

ctively under

I determination as to whether the named

are "similarly situated" to the putative col
Id.

ctive

see also Cunningham v. Elec. Data Sys. Corp., 754

F. Supp. 2d 638,

644

(S.D.N.Y. 2010)

v. United

(quoting

Svcs. Auto. Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007));
Morales v. Plantworks, Inc., No. 05 Civ. 2349 (DC), 2006 WL
278154, at *1 2 (S.D.N.Y. Feb. 2, 2006).
plaintif

If the named

make a "'modest factual showing'" that they and the

potential opt-in

aintiffs "'together were

ctims of a common

policy or plan that violated the law,'" conditional
certification and court-facilitated notice is appropriate.
Myers, 624 F.3d at 555 (quoting

_H_o_f~~~_~~~~~~~

3

R-.

982 F.

Supp. 249, 261 (S.D.N.Y. 1997))i see also Cunningham, 754 F.
Supp. 2d at 644; Lynch, 491 F. Supp. 2d at 368. For this reason,
the init

1 phase is often termed the nnotice stage."

See

Lynch, 491 F. Supp. 2d at 368.

As explained in Ranier v. Citigroup Inc., 827 F. Supp.
2d 294

(S.D.N.Y. 2011),

Because certification at this first early
stage is preliminary and subject to
reevaluation, the burden
r demonstrating
that potential plaintiffs are similarly
situated is very low. The leniency of this
requirement is consistent with the broad
remedial purpose of the FLSA.
At this initial step, Plaintif
need only
provi
some factual basis from which the
court can determine if simi rly situated
potential plaintiffs exist.
Plaintiffs may
satisfy this requirement by relying on their
own
eadings, affidavits, declarations, or
the affidavits and declarations of other
potential class members. In some cases, it
may be appropriate to
nd
aintiffs and
potential plaintif
similarly situated
based simply on plaintiffs' substantial
allegations that they and potential
plaintiffs were common victims of a FLSA
violation, parti
arly where de ndants
have admitted that the actions challenged by
plainti
reflect a company-wide policy.
At this stage, the court need not evaluate
the underlying merits of a plaintiff's
claims to
ermine whether the plaintiff
has made the minimal showing necessary for
court-authori
notice.

4

Id. at 319-20 (internal quotation marks, c

ions and

alterations omitted).

Here, the two named plaintiffs, as well as four
putative pIa

iffs, have submitted affidavits stating that,

during the Defendants' employment of the affiants, the
Defendants had a policy and practice of refusing to pay them
minimum wages and overtime, and the affiants observed that there
were numerous other employees - many of whom are identified in
the affidavits by name
duties that the pIa

who performed the same or similar job
iffs performed, worked similar hours

workweek to the affiants, and were paid by the Defendants in
same legally-deficient manner in which Defendants paid the
affiants.

See Affidavit of Plaintiff (Barbu)

in Support of

Plaintiffs' Motion to Conditionally Certify a Collective Action;
Affidavit of Plaintiff (Borozia) in Support of Plaintiff's
Motion to Conditionally Certify a Collective Action; Af
of

intiff (Estrada)

Conditionally Certi

davit

Support of Plaintiffs' Motion to
a Collective Action;

idavit of

aintiff (Flores) in Support of Plaintiffs' Motion to
Conditionally Certify a Collective Action; Affidavit of
Plaintiff (Slamna) in Support of Plaintiffs' Motion to
Conditionally Certify a Collective Action; Affidavit of

5

Plaintiff (Vajic)

in Support of Plaintiffs' Motion to

Conditionally Certify a Collective Action.

Courts

this Dist

ct and Circuit have concluded

that affidavits containing similar content provided suf
basis for granting a motion
collective action.

See

r conditional certification of

---'---""-­

se Noodle Restaurant

cient

Khamsiri v. Geo

Inc.

& Frank's

No. 12 Civ. 265 (PAE) , 2012 WL

1981507, at *1 (S.D.N.Y. June I, 2012); Pefanis v.

Diner, Inc., No. 08 Civ. 002 (DLC) , 2008 WL 4546526 (S.D.N.Y.

Oct. 8, 2008);

546 F. Supp. 2d

55 (E.D.N. Y. 2008)

(collecting cases).

Accordingly, Plaintiffs

here have met their "minimal burden" of demonstrating simil

ty

of situation with the proposed members of the collective action,

and therefore merit a grant of conditional certi
esias-Mendoza v. La Belle

cation.

Inc., 239 F.R.D. 363, 367

~~~ .. ~~~~~.~~~~--~~~~~~---~~----~

(S.D.N.Y.2007).

Plaintiffs' Proposed Notice is Approved With Modifications

PI

ntif

further request that the Court approve of

the proposed notice submitted by Plaintiffs, and that such
notice be

sseminated to all putative collective action

6

and be posted in t

plaintif

putative plaintiffs' places of

employment.

Although the FLSA does not expressly provide a
district court with the authority to order notice,

[tJhe Second Circuit has recognized a
district court's authority to order that
notice be given to potential members of a
plaintiff class
actions under [
FLSA]
(generally referred to as 'collective
actions'), pursuant to
optprovisions
of the FLSA.
By monitoring preparation and
distribution of the notice, a court can
ensure that it is timely, accurate, and
informative.
Both the parties and
court
benef
from settling disputes about the
content of t
notice be re it is
distributed.

Raniere, 827 F. Supp. 2d at 326-27 (internal quotation marks and
citations omitted).
authorized notice of a

details of the content of courtlective action are left to the

discretion of the trial court.
Spe

See Hoffmann-La Roche Inc. v.

ing, 493 U.S. 165, 170 (1989).

Defendants have contended that there are a number of
defi

encies with the content of the proposed notice submitted

by Plaintiffs (the "Proposed Notice") .

7

Defendants contend that the notice should be directed
only to

ters, instead of to"

1 non-exempt hourly employees

of the defendants at the defendants' restaurants," as proposed
by Plaintiffs.

Defendants argue that the affidavits submitted

in support of Plaintiffs' motion "do not make any assertions
that Defendants fail

to properly pay employees other than

those who performed dut
waiters."

s similar to that of Plaintiffs-i.e.,

Defendant's Memorandum of Law in Opposition to

Plaintiffs' Motion to Proceed as a Collect
FLSA ("Oef. Opp.") at 7.

Action Under the

However, each of t

six affiants who

submitted an affidavit in support of the instant motion has
sworn that he observed illegal pay practices with respect to not
just waiters, but rather all employees with duties "pertaining
to the operation of the defendants' restaurant."
fidavit

(Slamna)

E.g.,

In Support of Plaintiffs' Motion to

Conditionally Certify a Collective Action

~~

2,

4 ("I observed

that there were about sixteen or seventeen other employees at
the restaurant

which I worked who performed the same job

duties that I performed in that their duties

operating the defendants' restaurant.

[.

.J

ined to
All of these

employees were paid in the same manner that I was pa
specifically that they were not
minimum wages.")

id overtime premium

(emphasis added).

8

[or]

Thus, "Plaintiff[s] ha[ve]

shown that all non-exempt hourly employees of defendant[s] are
"similarly situated" as to . .
Pefanis v. Westwa
454526, at *1

the

aims asserted here,"

No. 08 Civ. 002

(DLC) , 2008 WL

(S.D.N.Y. Oct. 8, 2008), and the requested scope

of notification is appropriate.

Defendants contend that the proposed notice should be
to individuals employed by Defendants for a two-

direct

period, rather than the three-year period propos
Plaintiffs, because Plaintiffs have not est
FLSA's three-year statute

r

by

ished that the

limitations, which applies only in

instances of willful conduct by the employer, is applicable
here.

Def. Opp. at 8.

However, at the conditional

certification stage, a plaintiff need not provide evidence
sufficient to establish willfulness in order for the three-year
period to be utili
"allegations of .

for notification purposes; rather, mere
.

misclassification" of overtime hours "are

sufficient to warrant authorizing notice for a three-year
period."

Davis v. Abercrombie & Fitch Co., No. 08 Civ. 1859

(PKC), 2008 WL 4702840, at *12 (S.D.N.Y. Oct. 23, 2008)
(collecting cases).

The three year period proposed by

Plaintiffs is therefore appropriate.

9

Defendants contend that that notice should be sent to
putative plaintif

who were employed by Defendants up to three

years prior to the date of the Court's granting of Plaintiff's
motion

conditional certification, rather than those employed

up to three years prior to the
Plaintiff proposes.

ling of the complaint, as

Def. Opp. at 9.

However, courts in this

District have held that the three-year period is calculated from
the date of the filing of the action, see Raimundi v. Astellas
U.S. LLC, No. 10 Civ. 5240 (WHP), 2011 WL 5117030, at *2
(S.D.N.Y. Oct. 27, 2011), and Defendants have produ

no

authority to the contrary.

Defendants contend that the 60-day period provided to
putative party plaintiffs to opt

to the collective action is

unduly lengthy, and should instead be set at 45 days.

However,

a 60-day timeframe is appropriate, given the Defendants' alleged
failure to keep employment records, see Amended Complaint
which may resu
pIa

iffs.

in dif

~

34,

culty locating putative party

See Cuzco v. Orion Builders, Inc., 477 F. Supp. 2d

628, 635 (S.D.N.Y. 2007).

Moreover, a 60-day opt-in period has

regularly been approved by courts in this District.
Whitehorn

Inc., 767 F. Supp. 2d 445,

------~-- ....~------~--~------~-- ....~~------

451-52 (S.D.N. Y. 2011)

See

(col

ing cases).
10

Defendants contend that the notice should state that
putative c

s members "may be required to pay costs if they do

not prevail."

. Opp. at 9.

Courts

this

strict have

found that such notification is appropriate, provided that the
operative language makes clear that is there is only
possibility, rat

r than a probability, that putat

will be responsible

costs.

See --------~--------------~
Halliss
v. Am. Online

Inc., No. 99 Civ. 3785 (KTD), 2008 WL 465112, at *4
Feb. 19, 2008).

iffs may

deposit

(S.D.N.Y.

In addition, courts have found it appropriate

to include language advising "of
pi

plainti

possibility that opt-in

required to provide information, appear for a

, and/or testify in court."

Salomon v. Adderl

Indus., Inc., 847 F. Supp. 2d 561,566 (S.D.N.Y. 2012).
Accordingly, language to that effect should be added to the
proposed notice.

Defendants contend that the notice should contain t
name, address, and
Def. Opp. at 10.

ephone number of Defendants' counsel.
Courts

this Circuit have generally

concluded that such information is appropriate for inclusion in
a notice of collective action, see
Marketplace, 282 F. Supp. 2d 101, 108 (S.D.N.Y. 2003); Cano v.
11

s

No. 08 Civ. 3005 (JFB)

Four M Food Co

(AKT) , 2009 WL

5710143, at *11 (E.D.N.Y. Feb. 3, 2009), so the relevant
information should be included in Plaintiffs' proposed notice.

Defendants contend that the notice should include
language explaining that it has not been established that any
employee who worked for Defendants was paid in an illegal
manner.

Def. Opp. at 10.

However, the first page of the

Proposed Notice already states that "[t]he defendants deny that
they violat

the law, that they owe any employee any

compensation, and that they owe liquidat
no need

r inc

damages,N so there is

ion of the additional language suggested by

Defendants.

Defendants contend that there is no need for
not

to contain the anti-retal

Def. Opp. at 11.
included

ion language of the FLSA.

However, such an advisement is regularly

notices of collective action, see Salomon, 847 F.
e here.

Supp. 2d at 566, and is appropr

Defendants contend that any putative plaintiff
choosing to opt-in should be directed to send his or her
"Consent to Jo

N

form ("consent form N) to the Clerk of Court,
12

rather than to Plaintiffs' counsel, on the theory that the
discourages opt-in plaintiffs from

latter practice implic
se

ing other counsel.

District are

f. Opp. at 11.

Courts in this

it on this issue.

Hallissey,

2008 WL 465112, at *4 (ordering consent forms mailed to the
court) with
(CM)

Linens 'N

(LMS), 2007 WL 15

No. 06 Civ. 12901

511, at *10 (S.D.N.Y. Apr. 26, 2007)

rmitting consent forms to be sent to plaintiffs' counsel).
In the absence of a clear consensus on this issue, it is
appropriate to err on the side of caution and instruct putat
plaintiffs to submit their consent forms to the C
Court, rather than to Plaintiff's counsel.
should

modifi

rk of the

The proposed notice

accordingly.

Finally, Defendants contend that there is no need for
the notices to be posted at the workp
plaintiffs, since t
individuals.
approve

s of

putative

notices will be mailed to all applicable

Def. Opp. at 12 13.

However, "[c]ourts rout

ly

sts to post notice on employee bulletin boards and

in other common areas, even where potential members will also be
notified by mail."

Whitehorn, 767 F. Supp. 2d at 449.

of the notices is therefore appropriate.

13

Posting

Plaintiffs Are Entitled to the Name, Mailing Address, Telephone
Number, Primary Language, and Dates of Employment of Each
Putative Party Plaintiff

Defendants contend that

aintiffs' request that

Defendants provide the telephone numbers and dates of employment
of the putative plaintiffs is inappropriate at this juncture.
Def. Opp. at 12.

However, courts in this District have approved

such a request, see Dumitrescu v. Mr. Chow Enters., Ltd., No. 07
Civ. 3601, 2008 WL 2600667, at *7 (S.D.N.Y. June 30, 2008);
v. Duane Reade

Inc., No. 06 Civ. 2295, 2007 WL

2873929, at *6 (S.D.N.Y. Oct. 2, 2007), and Defendants
authority case law from this Dist
given Plaintiffs'

in opposition.

no
Moreover,

limitations for use of the telephone

numbers,l the concerns expressed by Defendants are unfounded.

1 Plaintiffs have stated that they will contact putative party
plaintiffs by telephone number only if an error is indicated
the address provided or the notice is returned.

14

Conclusion

Based on the conclusions set forth above,

aintif

motion is granted, and the proposed notice is approved subject
to the modifications set forth above.

parties shall submit

a revised proposed notice to the Court within 60 days of the
date of this order that is in conformance with the required
modifications.

Defendants are ordered to supply to
the requested

rmation regarding putat

intiffs with
plaintiffs, and

Plaintiffs are directed to utilize that information
accordance with the agreed-upon restrictions noted above.

It is so ordered.

New York, NY
June
2013

2-1

ROBERT W. SWEET
U.S.D.J.

15