Reyes et al v. Nidaja, LLC et al

Filing 17

OPINION re: 9 MOTION to Certify Class, filed by Raul Reyes. Based on the facts and conclusions set forth above, the motion to circulate notice of the lawsuit with opportunity to join is denied. (As is further set forth in this Order.) (Signed by Judge Robert W. Sweet on 7/31/2015) (spo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x
RAUL REYES, on behalf of himself
and others similarly situated,
Plaintiffs,

14 Civ. 9812
OPINION

-againstNIDAJA,LLC d/b/a GASTRONOMIE 491, and
NICOLE AHRONEE,
Defendants.

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

,....

.fl)s.nc S.DNY
II .~. ! .r" '. '·-·
r·,J~") l
,

,
I: .

A P P E A R A N C E S:

CILENTI & COOPER, P.L.L.C.
708 Third Avenue, 6th Floor
New York, NY 10017
By:
Peter Cooper, Esq.

Attorneys for Defendants

MOSES & SINGER LLP
The Chrysler Building
405 Lexington Avenue, 12th Floor
New York, NY 10174-1299
By:
David B. Feldman, Esq.
John Baranello, Esq.

•

·. '·

• .

..

11

"c·"
. .. :\ • , .: ' I

~' i.: ,c-:'' :.•,·>~I{'•.'. f
I
.,:
. 11. ' ,
'
i

Attorneys for Plaintiff

..~

v r:r1 El)

t~·

w;~:;;,·,.:[:,0Jb?_~

Sweet, D.J.

Plaintiff Raul Reyes

("Reyes" or the "Plaintiff") has moved

to, inter alia, disclose the pendency of this collective action
lawsuit under§ 216(b) of the Fair Labor Standards Act (the
"FLSA"), 29 U.S.C. §§ 201 et seq., through Court-facilitated
notice to all current and former non-managerial employees of
Nidaja,

Inc., d/b/a Gastronomie 491

("Nidaja") and Nicole

Ahronee ("Ahronee," collectively with Nidaja, the "Defendants)
employed between December 12, 2011 and the entry of judgment in
this action.

Based on the facts and conclusions set forth

below, the motion is denied.

Prior Proceedings

Reyes commenced this action on December 12, 2014, on behalf
of himself and as the representative of a putative class of
similarly situated employees, by filing a Complaint alleging,
inter alia, that the Defendants failed to pay overtime

compensation to their employees as mandated by the FLSA and New
York Labor Law.

The Plaintiff alleges that he worked in

positions that are classified as "non-exempt," but that he was
not paid for overtime work at the statutory rate of time-and-a-

1

half for hours worked over 40 per week.
~~

(Complaint, Dkt. No. 1,

13-16; see generally Affidavit of Raul Reyes, Dkt. No. 10

(the "Reyes Aff.") .)

Nidaja is a domestic business entity

organized under the laws of the State of New York, with a
principal place of business located at 491 Columbus Avenue in
Manhattan.

(Complaint~

6.)

Ahronee is alleged to be the

owner, shareholder, officer, director, and managing agent of
Nidaja, responsible for all business decisions and the oversight
of day-to-day operations.

(Complaint~

7, 40.)

The Plaintiffs

contend that since she controls significant business functions,
including Nidaja's wage and hour practices, she is an "employer"
within the meaning of the FLSA.

(See id.)

named plaintiff, was hired in July, 2013.

Reyes, the only
(Complaint~

13.)

On February 27, 2015, the Plaintiff filed the instant
motion seeking conditional certification.

(Dkt. No.

9.)

The

motion and its supporting papers state that Reyes has made the
required showing that he is similarly situated to other members
of the putative class, though they do not specifically reference
any paragraphs in the Complaint where the showing was made.

The

Reyes Affidavit does state that "I have observed that the other
employees who did work at Gastronomie 491 also worked more than
forty (40) hours per week, and they too were not paid overtime
wages at the rate of time and a half."

2

(Reyes Aff.

~

5.)

The

instant motion was heard and marked fully submitted on April 1,
2015.

The Requirements for a Collective Action Have Not Been
Established

The Plaintiff bears the burden of demonstrating that he is
"similarly situated" to other members of his proposed collective
action.

See Morales v. Plantworks, Inc., No. 05 Civ. 2349, 2006

WL 278154, at *2

(S.D.N.Y. Feb. 2, 2006).

Although courts in

this Circuit require only a "modest factual showing" from
plaintiffs seeking certification, id., that showing "must still
be based on some substance."

Guillen v. Marshalls of MA, Inc.,

750 F. Supp. 2d 469, 480 (S.D.N.Y. 2010).

The Plaintiff's bare

assertion that other employees also worked overtime without
proper compensation does not clear even this low bar.
A plaintiff must provide some actual evidence of a factual
nexus between him and the rest of the class he seeks to
represent; conclusory allegations will not suffice.

See Prizmic

v. Armour, Inc., No. 05-CV-2503, 2006 WL 1662614, at *2
( E. D. N. Y. June 12, 2 0 0 6)

("mere allegations in the complaint are

not sufficient; some factual showing by affidavit or otherwise
must be made."); Mendoza v. Casa de Cambio Delgado, Inc., No. 07
Civ. 2579, 2008 WL 938584, at *l (S.D.N.Y. Apr. 7, 2008)

3

("While

this is a very liberal standard, conclusory allegations or lack
of a nexus with the putative class will prevent the case from
moving forward as a collective action.").

Declarations

submitted in connection with motions for certification must
allege facts showing such a nexus, not mere statements that
others are similarly situated.

See, e.g., Morales, 2006 WL

278154, at *3 ("Here, plaintiffs have offered only a conclusory
allegation in their complaint; they have offered nothing of
evidentiary value.

Because plaintiffs have failed to meet this

minimal requirement, their motion for class certification is
denied."); see also Adair v. Wisconsin Bell, Inc., No. 08-C-280,
2008 WL 4224360, at *9 (E.D. Wis. Sept. 11, 2008)

("[I]f

declarations in support of conditional certification are not
required to be more probative than bare allegations, the
requirement of factual support would be superfluous."
(quotations and citation omitted)).

1. A Common Policy Has Not Been Adequately Established

Reyes has alleged facts regarding his own pay and hours,
declaring that he did not receive overtime compensation despite
working sixty or seventy hours a week, and that he did not
receive wage statements that accurately indicated his hours

4

worked, hourly rate, and the basis for his pay.
3-4.)

(Reyes Aff.

<JI<Jl

The only factual allegation concerning others is Reyes'

statement that "I have observed that the other employees who did
work at Gastronomie 491 also worked more than forty

(40) hours

per week, and they too were not paid overtime wages at the rate
of time and a half."

(Id.

There are no other statements

at 5.)

or facts that would tend to show that Reyes is similarly
situated to the other unnamed employees, nor does he identify
any of the other employees by name or indicate the time or
circumstances surrounding his observations.

Reyes also does not

state that he had conversations with any other employee
regarding their treatment, pay,

job duties, or responsibilities.

Motions for conditional certification have been denied
where the only substantive allegations were nonspecific personal
observations and conversations.

For instance, in Sanchez v. JMP

Ventures, LLC, No. 13 Civ. 7264, 2014 WL 465542, at *2

(S.D.N.Y.

Jan. 27, 2014), the Court rejected conditional certification
where the plaintiff had made factual allegations about his own
underpayment and alleged that those policies were "common
practice" at the defendant restaurants based on "observations"
and conversations with other employees.

The Court denied the

motion, noting that because he did not provide "any detail as to
a single such observation or conversation,
5

. the Court is

left with a list of generalized allegations that have been
molded into a declaration which reads similarly to the
complaint."

Id.

(emphasis in the original).

Here, the

Plaintiff has not stated that he had conversations with any
other employees.

A single unsupported statement about

observations in the Plaintiff's declaration is insufficient to
warrant conditional certification.
In Ali v. New York City Health and Hospitals Corp., No. 11
Civ. 6393, 2013 WL 1245543, at *3 (S.D.N.Y. Mar. 27, 2013), the
Court denied a motion for conditional certification where the
"sole basis" for the plaintiff's belief that others were
similarly situated was "conversations with other respiratory
therapists," without providing additional information about the
conversations or their substance.

In Barfield v. New York City

Health and Hospitals Corp., No. 05 Civ. 6319, 2005 WL 3098730,
at *1 (S.D.N.Y. Nov. 18, 2005), the Court denied conditional
certification where a plaintiff offered "nothing but limited
anecdotal hearsay" to support the idea that other nurses were
similarly situated.

In Levinson v. Primedia Inc., No. 02 Civ.

2222, 2003 WL 22533428, at *2 (S.D.N.Y. Nov. 6, 2003), the Court
denied conditional certification to plaintiffs who alleged a
companywide policy but "fail[ed] to support this legal
conclusion with a factual showing that extends beyond their own

6

circumstances."

The Court deemed the plaintiffs' statement that

"for many guides, and perhaps most guides, myself included, the
monthly compensation that was received was often less than the
minimum wage" to be insufficient.

Id.

And in Flores v. Osaka

Health Spa, Inc., No. 05 Civ. 962, 2006 WL 695675 (S.D.N.Y. Mar.
16, 2006), the court found a Complaint factually insufficient
for conditional certification where the plaintiff stated that
"it is my understanding that the other massage therapists
working my shift did the same" amount of work, without
explaining what that understanding was based on.

These cases

show a consensus in this district that where a plaintiff bases
an assertion of a common policy on observations of coworkers or
conversations with them, he must provide a minimum level of
detail regarding the contents of those conversations or
observations.

Reyes' allegations and affidavit therefore fail

to establish a common policy.

2. The Factual Nexus Between Reyes and the Putative Class
Action Members Has Not Been Established

The Plaintiff has summarily alleged that he is similarly
situated to all non-managerial employees

(See Complaint

~~

18-

25), but does not state what work the others do, or whether it
was the same, similar, or related to the work that Reyes
7

performed.
(Id.

~

Reyes was employed as a kitchen assistant and cook

13), but his responsibilities, relationship with

supervisors, and work expectations may have been quite different
from those of waiters, dishwashers, delivery workers,
bartenders, busboys, or other employees in a busy restaurant.
There are no allegations in the Complaint sufficient to
establish that Reyes or his job circumstances are similar to the
class he wishes to represent.
In Qi Zhang v. Bally Produce, Inc., No. 12 Civ. 1045, 2013
WL 1729274, at *3 (S.D.N.Y. Apr. 22, 2013), the Court denied
conditional certification where a plaintiff failed to show that
the other members of his proposed class had similar duties,
responsibilities, and lines of supervision.

Although the

plaintiff argued that an affidavit from a single plaintiff could
be sufficient to establish that other proposed class members
were similarly situated, the Court took issue not with the use
of an affidavit, but rather "with the quality of the plaintiff's
evidence, which fails to address the duties and responsibilities
of the other [coworkers].

Even the cases cited by plaintiff

included some evidence regarding the job duties and
responsibilities of the putative opt-ins."

Id.

Reyes has not

described with any detail what his own job duties are, and has
not stated what other employees do and whether or how their

8

responsibilities and treatment are similar to his.

He has

stated simply that the other employees at Gastronomie 491 "did
work," and that he observed that they were not paid overtime.
(Reyes Aff.

~

5.)

This vague statement fails to establish a

factual nexus between himself and the coworkers he seeks to
include in his class.
In reply, Reyes argues that his burden for demonstrating
the existence of similarly situated employees is "extremely
minimal," and that the allegation in paragraph 5 of his
affidavit is sufficient.

(P.'s Reply Mem., Dkt. No. 16, at 10.)

Although the burden on the plaintiff at this stage is a lenient
one, the cases Reyes cites in his brief are factually
distinguishable because they all involve plaintiffs who made
factual showings of at least some significance.
Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 57

See, e.g,

(S.D.N.Y. 2009)

(citing five different declarations from employees regarding the
defendants' tipping policy); Williams v. Twenty Ones, Inc., No.
07 Civ. 3978, 2008 WL 2690734, at *l (S.D.N.Y. June 30, 2008)
(granting conditional certification where plaintiffs submitted
multiple affidavits as well as "documentary evidence" including
payroll and earnings reports); Rubery v. Buth-Na-Bodhaige, Inc.,
569 F. Supp. 2d 334, 337
burden

(W.D.N.Y. 2008)

("Plaintiff has met her

by producing affidavits and time records from other

9

Shop Managers which are indicative of a common policy or plan .
. ").

The only case Reyes cites where conditional

certification was granted based solely on the plaintiffs'
observations of other employees, Li v. Qiu Jian Lin, No. 10 Civ.
8454, 2011 WL 2848417, at *2

(S.D.N.Y. July 18, 2011), at least

had two plaintiffs submitting affidavits stating that a policy
existed.
"While Plaintiff's burden is low, it is not non-existent certification is not automatic."
Group,
2012)

Romero v. H.B. Automotive

Inc., No. 11 Civ. 386, 2012 WL 1514810, at *10 (S.D.N.Y.
(quotation omitted).

Reyes' submission, which broadly

asserts that he "observed that the other employees who did work"
also were not paid overtime, is insufficient to meet even the
minimal standards for conditional certification.

Conclusion

Based on the facts and conclusions set forth above,
the motion to circulate notice of the lawsuit with opportunity
to join is denied.

10

It is so ordered.

New York, NY
July? I , 201s

BERT W. SWEET
U.S.D.J.

11