Navarro v. Madison Bistro NYC Inc. et al

Filing 41

MEMORANDUM OPINION AND ORDER re: 29 MOTION to Certify Class as FLSA Collective Action filed by Pablo Tobias Navarro. Upon review of the parties' submissions, Plaintiff's Second Motion for Class Certification and Notice (Docket No. 29) is hereby GRANTED as further set forth in this order. Accordingly, and mindful that Defendants have not raised any specific objections to the Proposed Notice and Consent to Join Lawsuit forms, it is hereby ordered that: 1. The Court approves the form of Notice of Pendency and Consent to Join Lawsuit, in the modified form attached to this Order, and finds that the mailing of such Notice substantially in the manner and form set forth in paragraph 2 of this Order will constitute the best notice practicable under the circumstances to members of the Class. Plaintiffs may engage a third party notice administrator to facilitate mailing of the Notices to putative class members as further set forth in this order. 7. Discovery is hereby extended until three months after the end of the opt-in period. 8. The parties shall appear for a conference with the Court on September 10, 2013, at 3:15 p.m. The Clerk of Court is directed to terminate the Motion for Conditional Collective Certification. (Docket No. 29)., ( Status Conference set for 9/10/2013 at 03:15 PM in Courtroom 1105, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 5/7/2013) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
PABLO TOBIAS NAVARRO, individually and on behalf :
of others similarly situated,
:
:
Plaintiff,
:
:
-v:
:
PGM NEW YORK, INC. (d/b/a MADISON BISTRO)
:
AND CLAUDE PHILIP GODARD,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X
JESSE M. FURMAN, United States District Judge:

May 07, 2013

12 Civ. 6663 (JMF)
MEMORANDUM OPINION
AND ORDER

Upon review of the parties’ submissions, Plaintiff’s Second Motion for Class
Certification and Notice (Docket No. 29) is hereby GRANTED.
Although the question is a close one, Plaintiff has carried his “low” burden at this stage
of making a “modest factual showing” that he and “potential opt-in plaintiffs together were
victims of a common policy or plan that violated the law.” Myers v. Hertz Corp., 624 F.3d 537,
555 (2d Cir. 2010) (internal quotation marks omitted); see also, e.g., Amador v. Morgan Stanley
& Co. LLC, No. 11 Civ. 4326 (RJS), 2013 WL 494020, at *2 (S.D.N.Y. Feb. 7, 2013) (noting
that a plaintiff may rely “on [his] own pleadings, affidavits, [and] declarations” to support a
motion for class certification (quoting Hallissey v. Am. Online, Inc., No. 99 Civ. 3785 (KTD)),
2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008)); Lynch v. United Servs. Auto. Ass’n, 491 F.
Supp. 2d 357, 367-68 (S.D.N.Y. 2007) (noting that, on a motion for preliminary certification of
collective action, the court does not resolve factual disputes, decide ultimate issues on the merits,
or make credibility determinations).
Furthermore, after discovery, Defendants may move for decertification of the collective

action. See, e.g., Davis v. Abercrombie & Fitch Co., No. 08 Civ. 1859 (PKC), 2008 WL
4702840, at *10 (S.D.N.Y. Oct. 23, 2008). “At that point, the court determines on a full record,
and under a more stringent standard, whether the additional plaintiffs are in fact similarly
situated.” Id. If the Court finds “that all plaintiffs are similarly situated, the collective action
proceeds to trial; otherwise, the class is decertified and the claims of the opt-in plaintiffs are
dismissed without prejudice.” Id.
Accordingly, and mindful that Defendants have not raised any specific objections to the
Proposed Notice and Consent to Join Lawsuit forms, it is hereby ordered that:
1.

The Court approves the form of Notice of Pendency and Consent to Join

Lawsuit, in the modified form attached to this Order, and finds that the mailing of such Notice
substantially in the manner and form set forth in paragraph 2 of this Order will constitute the best
notice practicable under the circumstances to members of the Class. Plaintiffs may engage a
third party notice administrator to facilitate mailing of the Notices to putative class members.
2.

On or before thirty (30) days after entry of this Order, the plaintiffs or their

designated representatives shall cause a copy of the Notice of Pendency and Consent to Join
Lawsuit form, as modified by the Court and attached to this Order, to be mailed by first class
mail to:
All current and former employees of PGM NEW YORK, INC. (d/b/a
MADISON BISTRO) and CLAUDE PHILIP GODARD, and/or any other
entities affiliated with or controlled by any one or more of the foregoing
businesses and/or individuals, who performed restaurant labor as cooks, sous
chefs, dishwashers, salad preparers, food runners, busboys, wait staff, and all
other restaurant-related labor from August 31, 2009, through the present.
Corporate officers, shareholders, directors, administrative employees, and
other customarily exempt employees are not part of the defined class.
3.

Within 15 days after entry of this Order, Defendants shall furnish to
2

Plaintiffs’ counsel and the designated notice administrator a list containing the names and last
known address of all individuals employed by Defendants from August 31, 2009, through the
present. This mailing list is to be furnished in electronic form and shall be treated by the Parties
as confidential.
4.

The modified Notice of Pendency and Consent to Join Lawsuit form shall be

published in English and Spanish. Plaintiffs’ counsel shall file with the Clerk of the Court a
certification from the Spanish interpreter retained to translate the modified Notice of Pendency
and Consent to Join Lawsuit form.
5.

Should a significant number of Notices be returned as undeliverable with no

forwarding address, Plaintiffs reserve the right to apply to the Court for permission to cause a
copy of this Notice, substantially in the same form attached hereto, to be published in a Spanishlanguage newspaper.
6.

The deadline for a Consent to Join Lawsuit form to be postmarked or received by

the Court shall be ninety days from the earliest date of mailing of the notice.
7.

Discovery is hereby extended until three months after the end of the opt-in period.

8.

The parties shall appear for a conference with the Court on September 10, 2013,

at 3:15 p.m.
The Clerk of Court is directed to terminate the Motion for Conditional Collective
Certification. (Docket No. 29).
SO ORDERED.

Dated: May 7, 2013
New York, New York

3

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

PABLO TOBIAS NAVARRO, individually and on
behalf of others similarly situated,

Plaintiffs,
12 Civ. 3133 (JMF)
-againstNOTICE OF PENDENCY
PGM NEW YORK, INC., (d/b/a MADISON
BISTRO) and CLAUDE PHILIP GODARD,
Defendants.
----------------------------------------------------------------X

IMPORTANT NOTICE
ADVISING YOU OF YOUR
LEGAL RIGHTS

TO: All current and former employees of PGM NEW YORK, INC.
(d/b/a MADISON BISTRO) and CLAUDE PHILIP GODARD, and/or any
other entities affiliated with or controlled by any one or more of the
foregoing businesses and/or individuals, who performed restaurant labor as
cooks, sous chefs, dishwashers, salad preparers, food runners, busboys,
wait staff, and all other restaurant-related labor from August 31, 2009,
through the present, at Madison Bistro restaurant located at 238 Madison
Avenue, New York, New York 10016. Corporate officers, shareholders,
directors, administrative employees, and other customarily exempt
employees are not part of the defined class.
If you worked for PGM NEW YORK, INC. (d/b/a MADISON BISTRO) or CLAUDE
PHILIP GODARD (collectively referred to as “Madison Bistro or “defendants”) at any time
since August 31, 2009, the purpose of this Notice is to advise you of this lawsuit, and to further
advise you of certain rights you may have with respect to this action.
Plaintiff PABLO TOBIAS NAVARRO is a former employee who worked at Madison
Bistro and who has brought this action on behalf of himself and all other current and former
employees to recover unpaid minimum wages and overtime compensation (for all hours worked
in excess of 40 per week) for which they have been incorrectly paid.
This lawsuit seeks the payment of minimum wages and overtime wages pursuant to the
Fair Labor Standards Act (29 U.S.C. 201 et seq.) and New York State Labor Law allegedly owed
to current and former employees of Madison Bistro who worked as restaurant workers.
Corporate officers, shareholders, directors, administrative employees, and other customarily
exempt employees are not part of the defined class.
You may be owed payment if you worked for Madison Bistro and were not paid at least
the minimum wage for all hours worked. You may be owed payment even if you are an
employee that received tips. You may be owed payment if Madison Bistro took any portion of
your tips or gratuities. Lastly, you may be owed payment if you worked for Madison Bistro for

more than 40 hours per week and you were not paid overtime at time and one-half (1.5x) your
normal hourly rate of pay for all hours actually worked over forty (40) hours each week.
Defendants vigorously deny any wrongdoing and/or liability to plaintiff or any other past
or present employee who may allege that he or she was underpaid. Defendants strongly deny
that any employee was underpaid for his or her work at any time.
This Notice is meant to advise you of your right to participate in this lawsuit as a
claimant and plaintiff under the Fair Labor Standards Act if you believe that you were
underpaid by Madison Bistro.
No determination has been made that you are owed any minimum wages, overtime
wages or gratuities, and the Court is not endorsing the merits of this lawsuit or advising
you to participate in this lawsuit. You are under no obligation to respond to this notice.
Federal law prohibits Madison Bistro from retaliating against you in any manner if
you wish to join this lawsuit.
*

*

*

FEDERAL LAW CLAIMS
If you worked for Madison Bistro at anytime on or after August 31, 2009, you may be
entitled to certain protection under the Federal Fair Labor Standards Act for all hours that you
received less than the minimum wage for all hours worked. You may be entitled to these
protections even if you are an employee that received tips. You may also be entitled to certain
protection under the Fair Labor Standards Act for all work performed in excess of 40 hours each
week when you may not have been paid one and one-half times (1.5x) your regular hourly wage
rate.
If you wish to participate in this portion of the lawsuit, you must have the enclosed
written “Consent to Join Lawsuit” form filed with the Clerk of the Court. If you do not sign and
mail the “Consent to Join Lawsuit” form to the address listed below, you will not be permitted to
seek recovery of unpaid wages under the Fair Labor Standards Act in this case.

FILING THE CONSENT TO JOIN LAWSUIT FORM
If you wish to participate in the portion of this lawsuit that seeks payment of improperly
withheld minimum wages and overtime wages under the Fair Labor Standards Act, you must
sign and return the enclosed Consent to Join Lawsuit form to the Clerk of the Court at the
address provided below. If you fail to mail a signed Consent to Join Lawsuit form to the Clerk
of the Court, you will not be eligible to participate in the Fair Labor Standards Act portion of this
lawsuit. Consent to Join Lawsuit forms filed after [90 days from date of Notice] will be rejected
unless good cause is shown for the delay.
IF YOU WISH TO FILE A CLAIM FOR UNPAID MINIMUM WAGES
AND/OR UNPAID OVERTIME PAY UNDER THE FEDERAL FAIR
LABOR STANDARDS ACT AS PART OF THIS LAWSUIT, YOU MUST
MAIL THE ENCLOSED CONSENT TO JOIN LAWSUIT FORM
POSTMARKED BY [90 days from date of Notice] TO:
Clerk of Court
U.S. District Court for the Southern District of New York
500 Pearl St.
New York, NY 10007-1316
If you fail to mail a signed Consent to Join Lawsuit form by [90 days from date of
Notice] you may not be eligible to participate in the Fair Labor Standards Act portion of this
lawsuit.
Michael A. Faillace, Esq., of Michael Faillace & Associates, P.C., 60 East 42nd Street,
Suite 2020, New York, New York 10065 Tel: [phone] Fax: [phone] represents
the Plaintiff in this case. You will not be required to pay any fee for services provided by
Plaintiff’s counsel Michael Faillace & Associates, P.C. If you are represented by Plaintiff’s
attorneys, their costs and fees will be paid out of any recovery against Madison Bistro. You
have a right to consult with an attorney about this matter. If you wish to be represented by other
counsel, you may retain another attorney, but you will be responsible for paying that attorney.
Further information about this Notice, the deadline for joining the lawsuit, the form provided or
answers to other questions concerning this lawsuit may be obtained by contacting the Plaintiff’s
attorney Michael A. Faillace, Esq., telephone number [phone], facsimile number (212)
317-1620. If you require Spanish translation, please ask for Michael Faillace, Esq., Yolanda
Rivero, Esq. or Pedro Polanco. Any communications with Michael Faillace & Associates, P.C.
are privileged and confidential and will not be disclosed to anyone without your permission.
You have a right to participate in this action even if you are an
undocumented alien or if you were paid in cash.
PLEASE DO NOT CONTACT THE CLERK OF THE COURT WITH
QUESTIONS INVOLVING THIS LAWSUIT.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------X
PABLO TOBIAS NAVARRO, individually and on
behalf of others similarly situated,

Plaintiffs,
12 Civ. 6663 (JMF)

-againstPGM NEW YORK, INC., (d/b/a MADISON
BISTRO) and CLAUDE PHILIP GODARD,
Defendants.
----------------------------------------------------------------X
CONSENT TO JOIN LAWSUIT
Please check ONE of the following options:
I consent to become a party plaintiff in this lawsuit, and I hereby designate the
law firm of Michael Faillace & Associates, P.C., 60 East 42nd Street, Suite 2020, New York,
NY 10065, telephone [phone] as my attorneys.
I consent to become a party plaintiff in this lawsuit, and I wish to proceed with
alternative counsel of my choosing, or on my own.
Signature:

Print Name:

Address:
Zip Code:
E-mail:

Apt.

Phone Number: (
@

.

)

IF YOU WISH LAST DAY RECOVERY OF UNPAID MINIMUM WA FORM IS
THE TO SEEK TO FILE THIS CONSENT TO JOIN LAWSUIT
______________________________
CONSENT TO JOIN LAWSUIT FORMS FILED AFTER [90 Days from date of Notice] WILL BE
REJECTED UNLESS GOOD CAUSE IS SHOWN FOR THE DELAY

IF YOU WISH TO SEEK RECOVERY OF UNPAID MINIMUM WAGES
AND/OR OVERTIME COMPENSATION UNDER THE FEDERAL FAIR
LABOR STANDARDS ACT AS PART OF THIS LAWSUIT, YOU MUST
MAIL THE ENCLOSED CONSENT TO JOIN LAWSUIT FORM
POSTMARKED BY [90 days from date of Notice] TO:
Clerk of Court
U.S. District Court for the Southern District of New York
500 Pearl St.
New York, NY 10007-1316
If you fail to mail a signed Consent to Join Lawsuit form by [90 days
from date of Notice], you may not be eligible to participate in the FLSA
portion of this lawsuit.