Hernandez v. Bare Burger Dio Inc. et al

Filing 25

OPINION: For the foregoing reasons, Plaintiff's Motion for Conditional Collective Action Certification, for approval of its notice and consent forms, to compel production of contact information, and to post the notice and consent forms at Defendants' restaurant is granted. (Signed by Judge Robert W. Sweet on 7/27/2013) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------ ---- ---- ----------GABINO HERNANDEZ,

On behalf of himsel
Plaintiffs and the

-x

FLSA Collective

ass,

Plaintiff,
12 Civ. 7794

inst ­
OPINION
BARE BURGER 010 INC., BAREBURGER INC.,
BAREBURGER GROUP LLC, GEORGE RODAS,
GREGORY DELLIS, and EFTYCHIOS
PELEKANOS,
Defendants.

------------------------ --x

A P PEA RAN C E S:

Attorne

for Plaintiff GABINO HERNANDEZ

LEE LITIGATION GROUP, P.L.L.C.

30 East 39th Street, Second Floor

New York, New York 10016

By:
C. K. Lee, Esq.

1

GORDON & REES, LLP
90 Broad Street, 23rd Floor
New York, New York 10004
Jeffrey Spiegel, Esq.
Michael Vollbrecht, Esq.
Ronald A. Giller, Esq.

(RWS)

Sweet, D.J.

Plaintiff Gabino Hernandez

("Mr. Hernandez" or "Plaintiff")

has brought an action for damages a

out of his employment

si

as a take-out food delivery person for Defendants Bare Burger
Dio Inc., Bareburger Inc., Bareburger Group LLC, George Rodas,
Gregory Dellis, and Eftychios Pelekanos (collectively,
"Defendants" or "Bareburge

nimum wa

for federal

and

overtime violations under the Federal Labor Standards Act
("FLSA") and New York State minimum wage, overtime and "spread
of hours"

olations.

This Court certified Plaintiff's motion

for Conditional Collective Action Certification on June 18,
2013.
On June 20, 2013, Plaintiff noti
of a discovery dispute that had arisen.

Court via letter
The

spute concerned

Defendants' responses to Plaintiff's Interrogatories and
Document Production Requests.
a motion to compel.

Plaintiff's

ter was treated as

For the foregoing reasons, PIa

iff's

motion is denied in part and granted in part.
I. PRIOR PROCEEDINGS

aintiff filed this lawsuit on October 18, 2012, under the
FLSA and NYLL, on behalf of himself and all non-exempt tipped

1

employees employed by Defendants wit

n the last three years

("Covered Employees" or "tipped employees") .
On May 2, 2013, Plaintiff filed a motion seeking the
: Conditional certification

llow

this action as a

representative collective action; Court-facil

ated notice of

this action to Covered Employees including a consent form (opt­
form)

i

approval of the proposed FLSA notice of this action

and consent form; production in Excel format by Defendants of
names, title, compensation rate, hours worked per week, period
employment, last known mailing addresses and all known
telephone numbers of Covered Employees within 10 days of t
Court's Order approving the motion; and posting of the notice in
a conspicuous location at the Bareburger restaurant operated by
Defendants.

On June 18, Plaintiff's motion was granted in its

entirety.
On March 22, 2013,
Interrogator
part

Plaintiff served his

rst Set of

s and Document Production Requests on Defendants.

s met and conferred on June 3, 2013 regarding disputes

over Defendants' responses, and Defendants agreed to provide
supplemental responses to PIa
Requests, Init

iff's Document Production

1 Disclosures and status of e-discovery

production by June 10, 2013.

On June 10, 2013, Defendants

provided their supplemental responses.
2

On June 20, 2013, Plaintiff submitted a letter to the Court
requesting that the Court compel Defendants' compliance with
certain outstanding discovery requests.

This motion was marked

fully submitted on July 10, 2013.
I I .

BACKGROUND

trade

Defendants operate a restaurant enterprise under t

name "Bareburger,ff located at 535 LaGuardia Place, New York, New
York, 10012.
P

intiff was employed by Defendants as a delivery

rson

from in or about October 2011 until in or about May 2012.
{Declaration of Gabino Hernandez ("Hernandez Decl. ff );

~

1.)

At

all times during his employment, he was a tipped employee.
(Id.)

Plaintiff alleges that during his employment, he was paid

a regularly hourly rate of $4.00 per hour from October 2011 to
January 2012, and $5.00 per hour from January 2012 to May 2012,
in violation of the statutory minimum wage rate required for all
tipped employees.

.

~~

aintiff

2 -3. )

so alleges that he

worked in excess of 40 hours per week and was not compensated
with the statutorily required overtime pay.

(Id.

<]I

5.)

More

specifically, Plaintiff alleges that Defendants failed to
provide proper t

credit

cause they:

proper notice under the FLSA and NYLL;
3

(1) did not provide
(2)

iled to properly

calculate overtime rate;
duties exceeding 20% of
food, and

(3) caused him to engage in non-tipped
s workday including cooking, preparing

ing the restaurant and (4) did not provide proper

wage statements

forming Plaintiff of the amount of tip credit
riod.

for each payment

(PIa

iff's Memorandum ("Mem.U) at

6. )
that during his

In addition, Mr. Hernandez mainta
employment,

personally observed that other tipped employees

were also paid below the statutory wage, worked in excess of 40
hours per week without

ing properly compensated for overt

were not provided proper written wage notice or t
notice, and were often requi
act
4-7. )

credit

to engage in non-tipped

ties exceeding 20% of their workday.

(Hernandez Decl.

~~

Furthermore, Mr. Hernandez asserts that he regularly

exceeded ten hours per work day without any spread of hour
premium, and personally observed that no empl
Defendants received

employed by

spread of hour payments even when their

workday exceeded ten hours per day.
aintiff asserts that Cove

.

~

8.)

Employees,

including Mr.

Hernandez, are owed compensation for unpaid (1) minimum wage,
(2) overtime pay,

(3)

liquidated damages, and (4) attorneys fees

and expenses.

4

With re

, Plaintiff served

ct to these cla

Interrogatories and Document Production Requests on Defendants
on March 22, 2013.

After Defendants' supplemental responses on

June 10, Plaintiff sill maintains that Defendants' responses are
de

cient.
III. PLAINTIFF'S MOTION TO COMPEL IN DENIED WITH RESPECT TO
REQUEST NO. 13, AND GRANTED AS TO ALL OTHER OUTSTANDING
REQUESTS
Rule 26(c) autho

zes courts, for good cause, to "rna

order which justice requires to protect a

any

rty or person from

annoyance, embarrassment, oppression, or undue burden or
expense, including .
0,

1

. that certain matters not be inqui

or that the scope of the

sclosure or discovery be

ted to certain matters

." Fed.R.Civ.P. 26(c). "[T]he

burden is upon the party seeking non-dis

osure or a protective

order to show good cause." Dove v. Atlantic Capital Corp., 963
F.2d IS, 19 (2d Cir.1992)

(citations omitted).

A.
In request No. 13, Plaintiff seeks tax returns from the
formation of Defendant Bareburger, Inc. to the present date. 1

1 Plaintiff initial
requested discovery from the past s~x years to the
present, but Mr. Hernandez has amended his request to the date of Defendants'
formation until the present date
ven that Bareburger, Inc., was founded in
2009.

5

"Although tax returns are not privileged documents, Court's
are reluctant to order their

scovery in part because of the

'private nature of the sensitive
and

formation contained therein,

part from the public interest in encouraging the filing

by taxpayers of complete and accurate returns.'" Chen v. Repblic

Rest. Corp., 2008 WL 793686, at *2
(ci

g Smi

v.

(S.D.N.Y. Mar. 26, 2008)

,83 F.R.D. 437, 438

(S.D.N.Y.l979);

Wiesenberger v. W.E. Hutton & Co., 35 F.R.D. 556, 557
(S.D.N.Y.l964)). In order to reconcile privacy concerns with
liberal pretrial discovery, a two prong inqui

must

used

when determining whether a party's tax returns should be
produced

r discovery. Cooper v. Hallgarten & Co., 34 F.R.D.

482, 484

(S.D.N.Y.l964). "Tax documents should not be provided

r discovery purposes unless

(1) they appear relevant to the

subject matter of the action, and (2) there is a compelling need
for

documents because the

not otherwise re

formation contained therein is

ily obtainable." Chen,

see also Smith v. Bader, 83 F.R.D. 437

2008 WL 793686, at *2;

(S.D.N.Y.1979)

Cooper v. Hallgarten & Co., 34 F.R.D. 482,
Ellis v.

484

(citing

(S.D.N.Y.1964))i

ty of New York, 243 F.R.D. 109, 111-112

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

iff contends that the tax returns are "material,

relevant and necessary" because Defendant Bareburger,
6

Inc.

s

ss annual revenues of $500,000 (co-defendants

not admitted to
Bareburger
this

0,

Inc. and Bareburger Group LLC have admitted to

their answers)

the tax returns thus go to the heart

of the jurisdictional issue.

(Memorandum to Compel Discovery,

"Mem. to Compel"; at 2.)

Because the same information could

found through alternat

and less invasive means such as

Defendants' financial records,

Plaintiff's request for

Defendants' tax records is denied.

B. Document Re

st No. 11

Plaintiff maintains that Defendants

not adequately

ir original response to Request No. 11

supplemented

financial statements from Defendants'
and that this

(all

rmation to the present),

formation is "material, relevant and necessary"

because Defendant Bareburger, Inc. has not admitted to

s

annual revenues of $500,000 (co-defendants Bareburger Dio,

Inc.

and Bareburger Group LLC have admitted to this in their answers)
and the financial statements thus go to the
ju

sdictional issue.

(Mem. to Compel at 2.)

Defendants have not articulat
informat

should be withhe

this informat

of the

a reason why this

Plaintiff's motion to compel

is therefore granted. See Palm Bay Intern.,

Inc. v. Marchesi Di Barolo S.P.A., 2009 WL 3757054, at *4
7

(E.D.N.Y. Nov. 9, 2009)

("[F]inancial records sought by

are discoverable and

De
defin

Federal

ion of relevance because they are 'reas

s'

y calculat

discovery of admissible evidence.'")

to lead to t
c

11 within t

(internal

ions omitted).
C. Document

st No. 1 and E Discove

With respect to Request No. 1 and all e

documents are no longer in

Defendants respond that the reques
their possession.

scovery,

Specifically, Defendants explain

their

payroll was conducted on a program known as "QuickBooks," that
they did not use a third-party provi
Sandy, in dest
of t

r, and that Hurricane

ng their offices and computers, devastated all

payroll records, including wiping out their back-up

servers.

Defendants have provided insurance letters evidencing

truction of

se files and denial of coverage for t

ir

losses.
Plaintiff, in turn, alleges that

informat

requested

must exist in personal computers, PDAs, blackberries or other
such devices.

Plaintiff also contends that copies of payroll or

backup documentation, including copies of QuickBooks reports,
may
such as

been emailed or provi
CPA.

in hard

To the extent

to a thi

party,

intiff is correct, Defendant
8

rmation relevant to

is ordered to produce all existing
Request No. 1 and outstanding e
provided.

scove

that has not yet been

Further, Defendant is ordered to produce any pay

records, or other information relevant to Request No. 1 and ediscovery, which have accumulat

since Hurricane Sandy.

D. Class
Defendants assert that they produced all requested class
information on the relevant deadl
c

, July 10, 2013.

aintiff

rifies that in addition to the Class List, which was ordered

in this Court's June 18, 2013 Opinion and Order,

Plaintiff

s

requested various forms of class discovery in its First Set of
Interrogatories and Document Production Requests. To the extent
Defendants have not compl

with these requests, they are

ordered to do so.

9

IV.

CONCLUSION
going reasons,

For

Plaintiff's Motion

Conditional Collective Action Certification, for approval of
notice and consent forms,

to compel production of contact

information, and to post the notice and consent forms at
Defendants' restaurant is granted.
It is so ordered.

New York, NY
July ~l
2013

'

. SWEET
U.S.D.J.

10

s