Guo et al v. Tommy's Sushi Inc. et al
Filing
60
OPINION AND ORDER. For the reasons in this Opinion and Order, plaintiffs' motion for reconsideration is denied. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 57. re: 57 MOTION for Reconsideration of Judge's Order granting Plaintiffs' Conditional Certification to deliverymen only filed by Run Guo Zhang, She Jian Guo. (Signed by Judge Paul A. Engelmayer on 12/29/2014) (rjm)
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DOCUN1IÌNT
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LINITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC #:
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SHE JIAN GUO and RLIN GUQ ZHANG, on behalf
themselves and others similarly situated,
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of
14 Civ. 3964 (PAE)
OPINION & ORDER
Plaintifß,
-v-
TOMMY'S SUSHI [NC., d/b/a OrientalCafe; XU GIAN
DONG, also known as Danny Dong; HUANG NA; JOHN
DOE; JANE DOE;
Defendants
X
PAUL A. ENGELMAYER, District Judge:
On August 29,2074,plaintifß moved for conditional collective certification of a class
defined as all of defendants' non-managerial employees. Dkt. 25-29. On October 16,2014,
after full briefing, the Court granted plaintiffs' motion in part and conditionally certified a class
composed
of
all deliverymen employed by defendants rather than all employees. Dkt. 41
("October 16 Opinion"). The Court assumes familiarity with the underlying facts of this case
and with the Court's October 16 Opinion. See She Jian Guo v. Tommy's Sushi.kc.,
No. 14 Civ.
3946 (PAE),2014 TVL 5314822 (S.D.N.Y. Oct. I 6,2014). On December 16, 2014, plaintifß
filed
a
motion for reconsideration, Dkt. 57, along with a memorandum of law, Dkt. 58 ("P1.
Br."). Like plaintiffs' original motion for conditional collective certification, the motion for
reconsideration seeks certification of a class that is not limited to deliverymen and includes all of
defendants' non-exempt employees. For the following reasons, plaintiffs' motion is denied.
First, plaintiffs' motion is untimely. As plaintiffs acknowledge, see Pl. Br. 3, Local Rule
ooshall
be served within fourteen (14) days after the
6.3 directs that a motion for reconsideration
entry of the Court's determination of the original motion."l Despite this mandatory language,
plaintiffs filed their motion for reconsideration 61 days after the Court's October 16 Opinion.
Plaintiffs have explained neither the reason for this delay nor how reconsideration would
promote justice. Accordingly, plaintifß' late filing provides sufficient reason to deny the motion
for reconsideration.
Second,
plaintiffs' motion fails on the merits. The standard governing motions for
reconsiderationoois strict, and reconsideration
will generally
be denied unless the moving party
can point to controlling decisions or data that the court overlooked." Analytical Surveys, Inc.
v.
Tonga Partners, L.P.,684 F.3d 36, 52 (2dCir.2012) (citation omitted). Such amotion is
"neither an occasion for repeating old arguments previously rejected nor an opportunity for
making new arguments that could have been previously advanced." Associated Press v. tlS,
Dep't of Def.,395 F. Supp. 2d 17,19 (S.D.N.Y. 2005). Rather, reconsideration is appropriate
ooonly
when the [movingparty] identifies an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear enor or prevent manifest injustice."
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL lrrevocable Trust, 729 F .3d 99 , I04 (2d Cir .
2013) (citation omitted).
Here, plaintiffs do not identify a change in controlling law, allege that new evidence has
become available, or explain how the Court's decision constituted clear error or manifest
injustice, Rather, plaintiffs merely repeat their arguments in favor of conditional collective
certification of a class that includes all non-exempt employees. See Pl. Br.
4-7. Plaintiffs have
I Plaintifß also cite Federal Rule of Civil Procedure 59(e), which establishes a28-day deadline
for a litigant to file a motion to alter or amend a judgment. That Rule, however, pertains only to
judgments and is therefore inapplicable here. See In re CRM Holdings, Ltd. Sec. Litig., No. 10
Civ. 00975 (RPP), 2013 WL 787970, at *2 (S.D.N.Y. Mar. 4,2013). In any event, plaintiffs also
failed to meet the 28-day deadline for filing their motion.
2
therefore provided no basis for the Court to reconsider its prior decision. See, e.g., Goonan
v.
Fed. Reserve Bank of N.Y.,No. 12 Civ. 3859 (JPO), 2013 V/L 1386933, at *2 (S.D.N.Y. Apr. 5,
2013) ("Simply put, courts do not tolerate such efforts to obtain a second bite at the apple.").
Further, as the Court explained in its October 16 Opinion, plaintiffs' burden at the
conditional collective certification stage isoomodest," butooit is not non-existent," and
"certification is not automatic." Romero v. H.B. Auto. Grp., ftc,, No. 11 Civ. 386 (CM),2012
WL 15i4810, at *10 (S.D.N.Y. May
1, 2012). The
o'vague,
conclusorY, and unsupported
assertions" contained in plaintiffs' affidavits did not, and do not, suffice to establish that all
chefs, waiters, kitchen staft and dishwashers employed by defendants are similarly situated to
the deliverymen affiants. ,See October 16 Opinion, at
4-7. The cases plaintiffs now cite are not
to the contrary. See, e.g., Khamsiri v. George & Frank's Japanese Noodle Rest. Inc., No. 12
Civ.265 (PAE), 2012WL 1981507, at *1 (S.D.N.Y. June 1,2012) (granting conditional
collective certification of a class limited to employees "in any tipped position"); IglesiasMendozav, La Belle Farm, lnc.,239 F.R.D. 363,368 (S.D.N.Y. 2007) (granting conditional
collective certification where defendants made only "frivolous" atguments in opposition).
CONCLUSION
For the foregoing reasons, plaintifß' motion for reconsideration is denied. The Clerk
Court is respectfully directed to terminate the motion pending at docket number 57.
SO ORDERED
P^,tú
^
Paul A. Engelmayer
United States District Judge
Dated: December 29, 2014
New York, New York
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