Hernandez v. NGM Management Group LLC et al
Filing
29
OPINION: Here Plaintiff has not submitted the name of one employee to substantiate his contentions. He admitted in his deposition that he did not speak with any employees at Defendants' facility either during or after his employment. Plaintiff h as not elaborated on how the 20% calculation of hours in his workdays that were spent on non-tipped duties was determined or how many employees he saw suffered from the same scheme or plan. Plaintiff has failed to make the sufficient factual showing to justify conditional collective certification. Because the Plaintiff has not shown the requisite proof to warrant certification his motion at this time. So Ordered (Signed by Judge Robert W. Sweet on 10/17/2013) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------x
GABINO HERNANDEZ,
on behalf of himself, FLSA Collective
Plaintiffs and the Class,
12 Civ. 7795
Plaintiff,
OPINION
-againstNGM MANAGEMENT GROUP LLC d/b/a
BAREBURGER CHELSEA, et al.,
Defendants.
-----------------------------------------x
A P PEA RAN C E S:
Attorneys for Plaintiff
LEE LITIGATION GROUP, PLLC
30 Eas t 39 th Street, 2 nd Floor
New York, NY 10016
By:
C. K. Lee, Esq.
Attorneys for Defendants
PALMERI &
80 Maiden
New York,
By:
John
GAVEN, ESQS.
Lane, Suite 505
NY 10038
J. Palmeri, Esq.
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Sweet, D.J.
Plaintiff
ina Hernandez ("Hernandez" or the
"Plaintiff") has moved
a class of tipped
Group LLC d/b/a Ba
Defendant"). Upon the
conditional collect
loyees of the de
certification
NGM Management
r Chelsea ("NGM" or the "Corporate
s and conclusions set
rth below, the
motion is denied.
Prior Proceeding
On October 18, 2012, the Plaintiff filed t
st NGM, Nikos Karais
s lawsuit
chael Pitsinos and Geo
(the "Individual De
ndants" and collect
ly with
rate Defendants" the "Defendants") seeking unpaid
s
r the Fair Labor St
rds Act
("FLSA") and New York
labor law ("NYLL"). Plaintiff brought the FLSA claims on behalf
of h
in any t
Empl
that De
minimum
If and all non-exempt
s employed by De
position within the last six years
s"). Plaintiff's complaint al
s failed to pay Cove
under the FLSA and NYLL.
s
("Covered
s, among other claims,
loyees the proper
On the same day, Plaintiff filed a s
lar action
against Bareburger Dio Inc., Bareburger, Inc., Bareburger Group
LLC and
orge Rodas, Georgio Dellis and Eftychios
operators
a Bareburger
e kanos,
se at LaGuardia Place
("Bareburger Laguardia") .
tant motion was marked fully submitt
on July
10, 2013.
The Facts
Acco
Plaintiff was
ng to his affidavit
loyed full time as a
Bareburger
a franchise, was a
available at the
se operated
deposition, the
livery person at the
sed of similar work
the Defendants in
lsea
("Bareburger Chelsea") and obtained part-time employment at
Bareburger Chelsea on his days off from Bareburger Lagua
Tuesdays and Thurs
a,
, during the month of May 2012. Plaintiff
d not know the names of any other employee or the owners and
did not talk to
end of May 2012.
s employment at Ba
at Bareburger Chelsea after he left at
only documentary
r Chelsea is a t
relating to
card indicating
in cash on two occasions. The Individual Defendants have
2
the time
aside
denied any knowl
concerning the
Plaintiff.
The Motion Is Denied For Lack Of A Factual Basis
The Pla
iff has alle
that other tipped
at Bareburger Chelsea, similarly situated,
FLSA and NYLL, were
proper notice under
in non-t
receive
oyees
not rece
red to engage
duties exceeding 20% of their workday and
d not
r wage statements reflecting the proper amount of
i
tip credit or the
minimum wage. While such collect
the law
actions are favored
cause they
fit t
judicial system by enabling the "efficient resolution in one
proceeding of common issues of law and fact" and provide
employees with the opportunity to "lower indivi
vindicate rights by
----------~----~
ographic
1 costs to
pooling of resources," Hoffmann-La
, 493 U.S. 165, 170 (1989); Braunstein v E.
., Inc.,
------~~----------~------
600 F.2d 335, 336 (2d Cir. 1979);
Fasanelli v. Heartland Brewer
Inc.,
~------------------------------~~-----
(S. D. N . Y. 2007), an
e factual
allegation must be established.
3
516 F. Supp. 2d 317, 323
sis for the Plaintiff's
In Pri
June 12, 2006),
Inc., 2006 WL 1662614 (E.D.N.Y.
c v. Armour
strate Judge Go denied certification,
stating that:
[PJlaintiff
s not submitted any specific facts
concerning his
oyment nor connecting his
situation to others t
situated. For
t he claims are similarly
e, plaintiff fails to
describe or submit any
ation showing how
he or anyone else
by defendants were
paid, what their job duties were or the hours
they worked. Nor
s plaintiff identified a
single potential plaintiff even though defendant
apparently has provi
t
names of current or
former employees. Not only has plaintiff
to provide the minimal
site
that he was in an employee-empl
with defendants and was deni
has not substantiated his all
same was true of other
iled
1 showing
r relationship
overt
pay, he
ion that the
ial pIa
iffs.
rd. a *3; see also Morales v. Plantworks, 2006 WL 278154
Feb. 2, 2006)
pa
(denying certification where plaintiffs s
(SONY
tted
11 stubs for three plaintiffs due to an insuffi
showing that plaintiffs and potential class members were
of a common scheme or plan); Oiaz v. Elect. Bouti
Inc., 2005 WL 2654270 (W.O.N.Y. Oct. 17, 2005)
4
ct
of America
(denying class
certification under the FLSA and NYLL
re plaintiffs alleged
that they worked "off-the-clock" without
in part,
al
collective act
ation because,
ions were too individualiz
); D'Anna v. M
Md. 1995)
Corn Inc., 903 F. Supp 889 (D.
class certification where
make even a relat
to warrant
ly modest factual showi
aintiff failed to
).
Here, Plaintiff has not submitted
his contentions. He admitt
employee to substant
deposition that he
Defendants' facil
name of one
in his
not speak with any employees at
y e
r during or after his emplo
Plaintiff has not elabora
on how the 20% calculation of hours
in his workdays that were
determined or how many
scheme or plan. PIa
factual showing to justi
on non-tipped duties was
oyees he saw suffered
s
same
led to make the suffic
tional collective certificat
5
Because t
Plaintiff has not shown
requisite
proof to warrant certification his motion is denied at this
time.
It is so orde
New York, NY
October
2013
'1,
ROBERT W. SWEET
U.S.D.J.
6
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