Li et al v. Ichiro Sushi, Inc. et al
Filing
79
MEMORANDUM AND ORDER. For the foregoing reasons, the plaintiffs' motion (Docket No. 53) is granted in part, as set forth above, and the proposed notice and consent forms, as modified, shall be disseminated within thirty days of the date of this order. Within two weeks of the date of this order, the defendants shall produce the names, last known mailing addresses, last known telephone numbers, last known e-mail addresses, and dates of employment for all delivery persons employed by the defen dants at Ichiro 2nd Avenue between December 31, 2011, and the present. Within thirty days of the date of this order, the defendants shall post the notice form, as modified. So ordered. Granting in part 53 Motion to Certify Class. (Signed by Magistrate Judge James C. Francis on 11/5/2015) Copies Mailed By Chambers. (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
JI LI, JIANHUI WU, BIN ZHANG, DE
:
PING ZHAO, and KAI ZHAO, on behalf :
of themselves and others similarly :
situated,
:
:
Plaintiffs,
:
:
- against :
:
ICHIRO RESTAURANT INC., ICHIRO
:
SUSHI INC., NEW ICHIRO SUSHI INC., :
and ICHIRO ASIAN FUSION, INC., all :
d/b/a ICHIRO, JIAN PING CHEN, JIN :
LI, HIU CHEN, and JUHANG WANG a/k/a:
JAMES WANG,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
14 Civ. 10242 (AJN) (JCF)
MEMORANDUM
AND ORDER
Plaintiffs Ji Li, Jianhui Wu, Bin Zhang, De Ping Zhao, and Kai
Zhao bring this action alleging violations of the Fair Labor
Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) against
the restaurant where they have worked, as well as against various
related persons and entities. The plaintiffs now move for an order
(1) conditionally certifying a collective action pursuant to 29
U.S.C. § 216(b); (2) requiring the defendants to produce contact
information for all non-managerial employees who have worked for
the defendants since December 31, 2011; (3) authorizing plaintiffs’
counsel to send notice of this action to prospective members of the
collective action; (4) tolling the statue of limitations for opt-in
plaintiffs during the proposed ninety-day opt-in period; and (5)
ordering the defendants to post the plaintiffs’ proposed notice in
conspicuous
locations
at
the
places
1
where
the
prospective
collective
action
members
worked
or
are
now
working.
The
defendants1 oppose the motion, arguing that the plaintiffs have not
shown that the putative collective action members are similarly
situated or have been subject to a common policy or plan.
For the
reasons that follow, the plaintiffs’ motion is granted in part.2
Background
The plaintiffs’ operative complaint names four corporations
and four individuals as defendants.
Am. Compl.”), ¶¶ 14-21, 28-37).
(First Amended Complaint (1st
Ichiro Restaurant Inc., Ichiro
Sushi Inc., New Ichiro Sushi Inc., and Ichiro Asian Fusion, Inc.
(collectively,
“Ichiro”),
operate
a
“sit-down
restaurant” chain known as Ichiro Restaurant.
22, 25).
Japanese
sushi
(1st Am. Compl., ¶¶
Ichiro has one location on Second Avenue in Manhattan
(“Ichiro 2nd
Avenue”)
and
(“Ichiro White Plains”).
another
in
White
Plains,
New
York
(1st Am. Compl., ¶¶ 14, 16, 18, 20).
Defendant Jian Ping Chen is an “owner, operator and/or officer” of
Ichiro, formerly oversaw Ichiro 2nd Avenue, and currently manages
Ichiro White Plains (1st Am. Compl., ¶¶ 30-32); Jin Li works as a
receptionist and manager at Ichiro 2nd Avenue (1st Am. Compl., ¶
34); Hui Chen is Ichiro’s CEO and chairman (1st Am. Compl., ¶¶ 351
To date, only six of the eight defendants named in the
complaint have filed appearances (Notice of Appearance dated June
18, 2015, docket no. 42); neither Jin Li nor Ichiro Restaurant Inc.
have appeared in this matter.
References herein to “the
defendants” are meant to indicate the defendants who have appeared.
2
A United States Magistrate Judge has the authority to rule
on a motion to authorize a collective action.
See Harper v.
Government Employees Insurance Co., 826 F. Supp. 2d 454, 456
(E.D.N.Y. 2011); Mazur v. Olek Lejbzon & Co., No. 05 Civ. 2194,
2005 WL 3240472, at *2 n.1 (S.D.N.Y. Nov. 30, 2005).
2
36); and Juhang Wang is an “owner, operator, and/or officer” of
Ichiro (1st Am. Compl., ¶ 37).
The plaintiffs have all worked as
delivery persons at Ichiro 2nd Avenue at various times between
September 2010 and the filing of the First Amended Complaint. (1st
Am. Compl., ¶¶ 9-13).
The plaintiffs initiated this suit in December 2014 and filed
the First Amended Complaint in April 2015.
The defendants’ motion
to dismiss the operative complaint is pending before the Honorable
Alison J. Nathan, U.S.D.J.
In their present motion, the plaintiffs move to conditionally
certify a collective action pursuant to 29 U.S.C. § 216(b) with
respect to two causes of action.
The proposed collective action
would include “those hourly paid, non-managerial employees of the
Defendants,
including
but
not
limited
to
or
[sic]
any
other
equivalent employee, who previously worked, or is currently working
for the Defendants during the past three (3) years.”
(Memorandum
of
Conditional
Law
in
Support
of
Plaintiffs’
Motion
for
Certification and Court-Authorized Notice (“Pl. Memo.”) at 7). The
plaintiffs first allege that they were not paid the federally
required minimum wage in violation of 29 U.S.C. § 206(a). (1st Am.
Compl., ¶¶ 40, 133-39).
Jianhui Wu states that, during his
employment with the defendants, he was paid a flat monthly fee that
fell below the hourly minimum wage.
(Declaration of Jianhui Wu
dated August 17, 2015 (“Jianhui Wu Decl.”), ¶¶ 9-11).
De Ping Zhao
and Kai Zhao make substantially the same allegations. (Declaration
of De Ping Zhao, dated August 18, 2015 (“De Ping Zhao Decl.”), ¶¶
3
8-10; Declaration of Kai Zhao dated August 17, 2015 (“Kai Zhao
Decl.”), ¶¶ 7-8).
The plaintiffs next allege that they were not
paid overtime for hours they worked in excess of forty hours in one
work week in violation of 29 U.S.C. §§ 207(a)(1) and 215(a).
(1st
Am. Compl., ¶¶ 40, 146-52; Jianhui Wu Decl., ¶ 13; De Ping Zhao
Decl., ¶ 12; Kai Zhao Decl., ¶ 10).
The plaintiffs submit that the
defendants have “a straightforward uniform policy” of not paying
their non-managerial employees minimum wage or overtime.
(Pl.
Memo. at 12).
Discussion
A. Legal Standard
Under the FLSA, plaintiffs may elect to seek certification to
proceed as a collective action.
See 29 U.S.C. § 216(b); Iglesias-
Mendoza v. LaBelle Farm, Inc., 239 F.R.D. 363, 367 (S.D.N.Y. 2007).
The Second Circuit has endorsed a two-step method to certify FLSA
collective actions.
Cir. 2010).
Myers v. Hertz Corp., 624 F.3d 537, 555 (2d
The first step -- the current stage of this litigation
-- requires the district court to determine whether there are
“similarly situated” potential plaintiffs who should receive notice
of the pending FLSA action and be given an opportunity to join it.
Id.
The relevant inquiry at this initial step is whether the
plaintiffs have shown that the proposed members of the collective
action are “similarly situated.”
See, e.g., Mendoza v. Casa de
Cambio Delgado, Inc., No. 07 Civ. 2579, 2008 WL 938584, at *1
(S.D.N.Y. April 7, 2008); Realite v. Ark Restaurants Corp., 7 F.
4
Supp. 2d 303, 306 (S.D.N.Y. 1998).
is
not
defined
by
the
FLSA
or
The term “similarly situated”
its
implementing
regulations.
Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997).
However, courts have determined that the applicable test is whether
the
plaintiffs
have
established
a
sufficient
“factual
nexus”
between their claims and the potential claims of the prospective
collective action members.
See, e.g., Mentor v. Imperial Parking
Systems, Inc., 246 F.R.D. 178, 181 (S.D.N.Y. 2007); Young v. Cooper
Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005).
Courts may
authorize sending notice if “plaintiffs make a ‘modest factual
showing’ that they and potential opt-in plaintiffs ‘together were
victims of a common policy or plan that violated the law.’”
Myers,
624 F.3d at 555 (quoting Hoffman, 982 F. Supp. at 261).
In making this showing, plaintiffs can rely on the pleadings,
but only when supplemented by other evidence, such as affidavits
from
named
plaintiffs,
opt-in
collective action members.
plaintiffs,
or
other
putative
See Fasanelli v. Heartland Brewery,
Inc., 516 F. Supp. 2d 317, 321 (S.D.N.Y. 2007) (“[T]he appropriate
inquiry . . . is whether the putative class alleged by Plaintiffs
is similarly situated based on the pleadings and any affidavits.”);
Prizmic v. Armour, Inc., No. 05 CV 2503, 2006 WL 1662614, at *2
(E.D.N.Y. June 12, 2006) (“[M]ere allegations in the complaint are
not sufficient [to meet the plaintiff’s burden on a motion for
collective action certification]; some factual showing by affidavit
or
otherwise
must
be
made.”
(quoting
Camper
v.
Home
Management Inc., 200 F.R.D. 516, 519 (D. Md. 2000))).
5
Quality
A court
“need not evaluate the underlying merits of a plaintiff’s claims to
determine whether the plaintiff has made the minimal showing
necessary for court-authorized notice,”
Damassia v. Duane Reade,
Inc., No. 04 Civ. 8819, 2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5,
2006), nor “resolve factual disputes, decide substantive issues
going to the ultimate merits, or make credibility determinations,”
Cunningham v. Electronic Data Systems Corp., 754 F. Supp. 2d 638,
644 (S.D.N.Y. 2010) (quoting Lynch v. United Services Automobile
Association, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)).
However,
the evidence must be “sufficient to demonstrate that [current] and
potential plaintiffs together were victims of a common policy or
plan that violated the law.”
Furthermore,
the
plaintiff’s
Realite, 7 F. Supp. 2d at 306.
supporting
allegations
must
be
specific, not conclusory. Morales v. Plantworks, Inc., No. 05 Civ.
2349, 2006 WL 278154, at *3 (S.D.N.Y. Feb. 2, 2006).
The second stage of collective active certification occurs
after notice is sent, the opt-in period concludes, and discovery
closes.
At the second stage, which involves a “more stringent
factual determination,” Lynch, 491 F. Supp. 2d at 368, the Court
must, “on a fuller record, determine whether a [] ‘collective
action’ may go forward by determining whether the plaintiffs who
have opted in are in fact ‘similarly situated’ to the named
plaintiffs.”
Myers, 624 F.3d at 555.
If the opt-in plaintiffs are
not similarly situated, the class “may be ‘de-certified’” and
“opt-in plaintiffs’ claims may be dismissed without prejudice.”
Id.
6
B.
Conditional Certification
The defendants argue that the plaintiffs have not satisfied
their burden to conditionally certify a collective action because,
first, they have not identified an unlawful policy and, second,
they have not established that other employees are similarly
situated.
(Defendants’ Memorandum of Law Opposing Plaintiffs’ 29
U.S.C. § 216(b) Motion for Collective Action and Rule 23 Class
Action (“Def. Memo.”) at 5-7).3
Both state and federal law mandate that employees be paid at
least a minimum hourly rate.
29 U.S.C. § 206(a)(1); N.Y. Comp.
3
The defendants raise other arguments that merit only brief
attention. First, the defendants assert that Ichiro Sushi Inc.
sold its restaurant (presumably Ichiro 2nd Avenue) to New Ichiro
Sushi Inc. and that the two companies are not related. (Def. Memo.
at 3). The plaintiffs, however, allege that the four corporate
defendants named in their complaint form a single entity doing
business as Ichiro.
(1st Am. Compl., ¶ 23).
Whether distinct
entities may be treated as a “single employer” for purposes of FLSA
liability is a factual inquiry. See Perez v. Westchester Foreign
Autos, Inc., No. 11 Civ. 6091, 2013 WL 749497, at *7 (S.D.N.Y. Feb.
28, 2013) (describing factual considerations relevant to “single
employer” inquiry). The question of whether New Ichiro Sushi Inc.
is an independent entity is therefore irrelevant for purposes of
the present motion. See PAL v. Sandal Wood Bar N Grill, No. 14
Civ. 301, 2015 WL 237226, at *1 (S.D.N.Y. Jan. 15, 2015) (refusing
to consider arguments that go “to the underlying merit of
plaintiffs’ claims” made in opposition to motion to certify
collective action).
Second, the defendants make the incomprehensible argument that
the Ichiro 2nd Avenue restaurant itself “might be an asset owned by
some of the defendants” that “does not possess the capacity to be
sued.” (Def. Memo. at 6). The main problem with this argument is
that the plaintiffs have sued not Ichiro 2nd Avenue, but rather the
corporations and individuals that they allege operate that
restaurant.
Finally, contrary to the defendants’ characterization of the
plaintiffs’ motion in their opposition memorandum, the plaintiffs
have not moved to have a class certified under Rule 23 of the
Federal Rules of Civil Procedure.
7
Codes R. & Regs. (“NYCRR”) tit. 12, § 146-1.2.
During the period
of the plaintiffs’ employment with the defendants, the minimum
hourly wage they were required to receive under the FLSA was $7.25.
29 U.S.C. § 206(a)(1).
The New York minimum wage rate was $7.25
per hour until December 31, 2013, $8.00 per hour until December 31,
2014, and $8.75 per hour thereafter.
12 NYCRR § 146-1.2.
The FLSA
further requires that employers “compensate employees who work over
forty hours per week with overtime pay at the rate of one and
one-half times the regular rate.”
Wong v. Hunda Glass Corp., No.
09 Civ. 4402, 2010 WL 2541698, at *2 (S.D.N.Y. June 23, 2010); see
also 29 U.S.C. § 207(a)(1).
The plaintiffs allege that the defendants willfully paid them
less than the minimum wage and failed to pay them overtime.
Am. Compl., ¶ 2).
(1st
The First Amended Complaint sets out both the
hours each plaintiff worked during specific time-frames and the
monthly or weekly compensation they received for that work.
Am. Compl., ¶¶ 54-62, 68-73, 80-85, 95-100, 110-113).4
(1st
However,
4
The plaintiffs have (unhelpfully) neglected to calculate the
hourly pay each plaintiff received so as to demonstrate that their
wages were illegally low. Instead, they simply provided the number
of hours each plaintiff worked per week and the amount they were
paid per week or month. Below I have calculated the approximate
hourly rate for each plaintiff by taking a rough estimate of the
weekly pay rate and dividing it by the number of hours worked:
1. For plaintiff Ji Li: $3.02 per hour between August 24,
2012, and December 22, 2012, $2.63 per hour between December
23, 2012, and January 31, 2013, and $3.01 per hour from
February 1, 2013, to May 29, 2013 (1st Am. Compl., ¶¶ 54-62);
2. For plaintiff Jianhui Wu: $2.89 per hour between July 16,
2013, and September 30, 2013, $3.26 per hour between October
1, 2013, and September 5, 2014, and $3.59 per hour between
September 6, 2014, to October 6, 2014 (1st Am. Compl., ¶¶ 688
besides certain conclusory statements, the complaint does not
include any factual support for the plaintiffs’ contention that
other employees of the defendants were subjected to the unlawful
policy of not being paid minimum wage or overtime.
For example,
the plaintiffs allege that the defendants engaged in “a pattern and
practice of failing to pay [their] employees, including Plaintiffs,
compensation for all hours worked, minimum wage, and overtime” (1st
Am. Compl., ¶ 2), but provide no basis for concluding that any
employees other than the plaintiffs experienced such treatment.
However, in support of this motion, the plaintiffs have also
submitted the declarations of Jianhui Wu, De Ping Zhao, and Kai
Zhao.
With respect to the hours each declarant worked and the
compensation he received, these declarations repeat the allegations
raised in the First Amended Complaint.
(See Jianhui Wu Decl., ¶¶
4-10; De Ping Zhao Decl., ¶¶ 4-9; Kai Zhao Decl., ¶¶ 4-7).
But two
of the declarations also provide information about other employees.
For example, Jianhui Wu states that he “personally know[s] of a
kitchen worker, who . . . is paid [$2500] to [$2600] per month
regardless of the hours he worked” and that he is “aware of about
73);
3. For plaintiff Bin Zhang: $2.16 per hour between May 1,
2012, and July 31, 2013, and $3.39 per hour between June 1,
2014, and July 15, 2014 (1st Am. Compl., ¶¶ 80-85);
4. For plaintiff De Ping Zhao: Between $2.33 and $3.02 per
hour from May 1, 2012, and June 30, 2014 (1st Am. Compl., ¶¶
95-100); and
5. For plaintiff Kai Zhao: $3.16 per hour from September 20,
2010, to April 30, 2012 (1st Am. Compl., ¶¶ 110-113).
9
four [] waitresses who are paid $600-$700 [] in cash in the
beginning of the month regardless of the hours they worked.”
(Jianhui Wu Decl., ¶¶ 21-22).
Kai Zhao adds that he “spoke to a
Hispanic worker, who is similarly underpaid, which ranges from
[$450] to [$550] per week regardless of the hours they [sic]
worked,
based
on
conversations.”
(Kai
Zhao
Decl.,
¶
16).
Crucially, neither declaration states the number of hours these
other employees worked or describes the circumstances in which
these conversations or observations took place.
I have no trouble concluding that the complaint and the
declarations submitted in support of this motion sufficiently
establish the existence of a common policy or practice of not
paying minimum wage or overtime.
See Colon v. Major Perry Street
Corp., No. 12 Civ. 3788, 2013 WL 3328223, at *6 (S.D.N.Y. July 2,
2013) (observing that it is “beyond dispute that courts regularly
determine that two or three declarations corroborating each other
constitute a sufficient amount of evidence” to establish a common
policy, and collecting cases).
The more challenging issue is
determining whether the plaintiffs have shown that other employees
are similarly situated.
The problems with the plaintiffs’ submissions are two-fold.
First, both the complaint and the supporting declarations lack even
minimal
detail
about
the
plaintiffs’
conversations
observations of, the defendants’ other employees.
with,
and
See Reyes v.
Nadaja, LLC, No. 14 Civ. 9812, 2015 WL 4622587, at *3 (S.D.N.Y.
Aug. 3, 2015) (“[I]n this district [] where a plaintiff bases an
10
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.”).
The
details
that
are
included
in
the
declarations
(e.g.,
“[p]ersonally, I am aware of a waitress who is from Indonesia”
(Jianhui
Wu
Decl.,
¶
25))
are
irrelevant
for
purposes
of
establishing that other employees are similarly situated.
Second, and more importantly, the evidence the plaintiffs have
provided
regarding
the
defendants’
treatment
of
their
other
employees is consistent with, if not suggestive of, a lawful
policy, at least with regard to minimum wage and overtime.
Take
the example of the kitchen worker Jianhui Wu describes, who is paid
at least $2,500 per month.
(Wu Decl., ¶ 21).
At $8.75 per hour
($13.125 for overtime), working sixty hours per week for four weeks
the employee would earn $2,450, before taxes.
Even the four
waitresses being paid $600-700 per month could be earning minimum
wage or more, depending on the number of hours they work.
The
point is that, based on the plaintiffs’ evidence, there is simply
no way to know whether other employees were similarly underpaid.
Accordingly, the plaintiffs have failed to make even a modest
showing that the proposed collective action members are similarly
situated.
See Levinson v. Primedia Inc., No. 02 Civ. 2222, 2003 WL
22533428, at *2 (S.D.N.Y. Nov. 6, 2003) (denying conditional
certification where plaintiffs failed to show that defendants’
unlawful
practice
“extend[ed]
circumstances”).
11
beyond
[plaintiffs’]
own
In their myopic push to certify as broad a class as possible,
the plaintiffs have neglected to argue that their evidence would at
least support certification of a class consisting only of delivery
persons.
Nevertheless,
because
the
plaintiffs’
evidence
is
consistent with regard to the treatment of delivery persons, and
because the plaintiffs allege that other employees (including,
potentially, other delivery persons) experienced similar treatment,
I conclude that the certification of a collective action consisting
of delivery persons is warranted.
Creations, Inc.,
See Garcia v. Spectrum of
F. Supp. 3d __, __, 2015 WL 2078222, at *7
(S.D.N.Y. 2015) (limiting conditional certification to employees
with same job title); She Jian Guo v. Tommy’s Sushi Inc., No. 14
Civ. 3964, 2014 WL 5314822, at *3-4 (S.D.N.Y. Oct. 16, 2014)
(same).
the
Because none of the allegations in the complaint or in
plaintiffs’
declarations
implicates
Ichiro
White
Plains,
certification is limited to delivery persons at Ichiro 2nd Avenue.
C.
To
Production of Employee Contact Information
facilitate the dissemination of notice to prospective
collective action members, the plaintiffs have requested that the
Court order the defendants to produce
a Microsoft
Excel
data
file
containing
contact
information, including but not limited to last known
mailing addresses, last known telephone numbers, last
known email addresses, Social Security numbers, work
locations, and dates of employment for all those
individuals who have worked for the Defendants as [] nonmanagerial employee[s] between December 31, 2011 and the
date this Court decides this Motion.
(Pl. Memo. at 18).
Based on the broad remedial purposes of the
FLSA, district courts have substantial discretion to authorize
12
notice and discovery in FLSA actions.
See Hoffmann-La Roche Inc.
v. Sperling, 493 U.S. 165, 172-73 (1989) (authorizing district
court’s involvement in issuance of notice in FLSA collective action
so as to enforce statute’s “broad remedial goal”); accord Lynch,
491 F. Supp. 2d at 367.
defendants
to
provide
It is appropriate here to order the
to
plaintiffs’
counsel
information of all potential opt-in plaintiffs.
the
contact
See Whitehorn v.
Wolfgang’s Steakhouse, Inc., No. 09 Civ. 1148, 2010 WL 2362981, at
*3 (S.D.N.Y. June 14, 2010) (allowing pre-certification discovery
and
ordering
production
of
putative
class
members’
names,
addresses, and last known telephone numbers).
A question remains, however, as to what contact information
the Court should order the defendants to produce -- the plaintiffs
have requested not only the names and addresses of potential
plaintiffs, but also their e-mail addresses and telephone and
social
security
numbers.
Although
the
defendants
do
not
specifically oppose the request to produce social security numbers,
I nevertheless conclude that it is unnecessary to require that
disclosure at this time.
See generally Guan Ming Lin v. Benihana
National Corp.,
Supp.
755
F.
2d
504,
514-15
(S.D.N.Y.
2010)
(denying request to release social security numbers citing privacy
concerns and absence of compelling need, and collecting authority).
The plaintiffs have made no attempt to justify their request for
this highly sensitive information.
produce
the
names,
last
known
The defendants shall, however,
mailing
addresses,
last
known
telephone numbers, last known e-mail addresses, and dates of
13
employment for all delivery persons employed by the defendants at
Ichiro 2nd Avenue between December 31, 2011, and the present.
D.
Mailing Notice to Potential Opt-in Plaintiffs
The plaintiffs next request that the Court order notice be
issued to all potential collective action members.
Although the
FLSA has no provision for issuing notice in a collective action, it
is well settled that district courts have the power to authorize a
plaintiff to send such notice to other potential plaintiffs.
See
Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d
335, 336 (2d Cir. 1978) (per curiam) (court-authorized notice
“comports with the broad remedial purpose of the [FLSA], . . . as
well as with the interest of the courts in avoiding multiplicity of
suits”); Hoffmann, 982 F. Supp. at 261. “When exercising its broad
discretion
to
craft
appropriate
notices
in
individual
cases,
District Courts consider the overarching policies of the collective
suit
provisions”
“accurate
and
and
ensure
timely
notice
that
putative
concerning
plaintiffs
the
pendency
receive
of
the
collective action, so that they can make informed decisions about
whether to participate.”
Fasanelli, 516 F. Supp. 2d at 323
(quoting Hoffman-La Roche, 493 U.S. at 170).
The plaintiffs have
submitted a proposed notice, to which the defendants object in
three respects.5
5
The defendants provide a fourth objection: “[T]here exists
further more defects and deficiencies in the Plaintiff’s [sic]
proposed notice that shall be corrected.” (Def. Memo. at 10). The
defendants, however, fail to state what the other “defects and
deficiencies” are, leaving the Court with no clue as to the
substance of their objection.
14
Under the FLSA, the statute of limitations is three years for
willful violations and two years for non-willful violations.
U.S.C. § 255(a).
29
Although the defendants indicate that they
“vigorously dispute [that] violations of the FLSA, if any, were
willful” (Def. Memo. at 10), they do not specifically argue that
the two-year statute of limitations period should apply to the
claims of any opt-in plaintiffs.
that
the
proposed
notice
Instead, the defendants argue
improperly
refers
to
the
date
the
plaintiffs filed their complaint, rather than three years from the
date of this order,
as the relevant time frame for opt-in claims.
(Def. Memo. at 9).
The defendants are correct that, because the
three-year
statute
of
limitations
period
for
willful
FLSA
violations runs for each individual plaintiff until that individual
opts into
the
action,
notice
is
generally
directed
to
those
employed within three years of the date of the mailing of the
notice.
See 29 U.S.C. §§ 255(a), 256; Whitehorn v. Wolfgang’s
Steakhouse,
However,
Inc.,
“because
767
F.
Supp.
equitable
2d
445,
tolling
451
issues
(S.D.N.Y.
often
2011).
arise
for
prospective plaintiffs, courts frequently permit notice to be keyed
to the three-year period prior to the filing of the complaint,
‘with the understanding that challenges to the timeliness of
individual plaintiff’s actions will be entertained at a later
date.’”
Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 668 (S.D.N.Y.
2013) (quoting Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 410
(S.D.N.Y 2012)); see also Slamna v. API Restaurant Corp., No. 12
Civ. 757, 2013 WL 3340290, at *4 (S.D.N.Y. July 2, 2013); Raimundi
15
v. Astellas U.S. LLC, No. 10 Civ. 5240, 2011 WL 5117030, at *2
(S.D.N.Y. Oct. 27, 2011).
On that basis, it is appropriate to
calculate the three-year period for notice from the filing of the
complaint, with the understanding that the defendants are free to
later challenge the timeliness of individual plaintiffs’ claims.6
Next, the defendants argue that opt-in plaintiffs should be
directed to file their consent forms with the Clerk of Court for
this District, rather than with plaintiffs’ counsel.
(Def. Memo.
at 10). “The majority of courts [] have directed opt-in plaintiffs
to mail the consent forms to plaintiffs’ counsel.”
2014 WL 5314822, at *5.
She Jian Guo,
However, “in order to ensure that opt-in
Plaintiffs understand that they may choose their own counsel,”
Hernandez v. Fresh Diet Inc., No. 12 Civ. 4339, 2012 WL 5936292, at
*2 (S.D.N.Y. Nov. 21, 2012), the plaintiffs must include the
following language in the notice they send to potential opt-in
plaintiffs:
“You have the right to retain an attorney of your
choosing to represent you in this action or another
action against the defendants. If you choose to retain
another attorney or to represent yourself, you may join
this lawsuit by submitting an appropriate consent form
directly to the Clerk of Court by the deadline indicated
herein.”7
Finally, the defendants ask that the opt-in period be limited
6
There is, therefore, no need at this time to decide whether
the statute of limitations should be tolled for hypothetical opt-in
plaintiffs.
7
The plaintiffs shall include this language as a stand-alone
paragraph immediately following the paragraph in their proposed
notice that begins, “If you fail to mail a signed Consent to Join
Lawsuit form . . . .”
16
to forty-five days from the date notice is mailed.
(Def. Memo. at
10). The plaintiffs offer no reply to the defendants’ position and
provided no substantive arguments in their initial memorandum as to
why their proposed ninety-day opt-in period is appropriate.
Pl. Memo. at 9, 17).
(E.g.
“While some courts have granted up to 90 day
opt-in periods, they generally do so where the period is agreed
upon between the parties or special circumstances require an
extended opt-in period.”
Whitehorn, 767 F. Supp. 2d at 452
(collecting cases). Because the plaintiffs have not pointed to any
special circumstances or advanced any meaningful arguments in
support
of
their
proposed
defendants’ request.
opt-in
period,
I
will
grant
the
Accordingly, the plaintiffs must amend their
notice to indicate that opt-in plaintiffs must consent to join the
action within forty-five days from the date notice is mailed.
In summary, the plaintiffs’ request for authorization to mail
the
proposed
notice
and
consent
forms
is
granted,
but
the
plaintiffs must make the following amendments: (1) the notice must
make clear that the collective action is limited to individuals who
worked as delivery persons at Ichiro 2nd Avenue; (2) the notice
must include the language provided above regarding the right to be
represented by other counsel; and (3) the deadline for filing the
consent form is forty-five days from the date notice is mailed.
E. Translation of Notice
The
plaintiff
has
proposed
translating
and
sending
the
proposed notice and consent forms in English, Chinese, and Spanish.
(Pl. Memo. at 17).
The defendants do not object.
17
As such, the
notice and
English,
consent
Chinese,
forms
and
should
be
Spanish.
translated
The
and
plaintiff
posted
must
in
file
certifications from the persons retained to translate the forms.
F. Request to Post Notice
The plaintiffs ask that the Court order the defendants to post
the
notice
in
restaurants.
“conspicuous
locations”
at
The defendants do not object.
the
defendants’
“Courts routinely
approve requests to post notice on employee bulletin boards and in
other common areas, even where potential members will also be
notified by mail.”
cases).
Whitehorn, 767 F. Supp. 2d at 449 (collecting
Thus, the defendants shall post notice in a conspicuous
location at Ichiro 2nd Avenue.
Conclusion
For the foregoing reasons, the plaintiffs’ motion (Docket No.
53) is granted in part, as set forth above, and the proposed notice
and consent forms, as modified, shall be disseminated within thirty
days of the date of this order.
Within two weeks of the date of
this order, the defendants shall produce the names, last known
mailing addresses, last known telephone numbers, last known e-mail
addresses,
and
dates
of
employment
for
all
delivery
persons
employed by the defendants at Ichiro 2nd Avenue between December
31, 2011, and the present.
Within thirty days of the date of this
order, the defendants shall post the notice form, as modified.
18
SO ORDERED.
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated:
New York, New York
November 5, 2015
Copies mailed this date to:
John Troy, Esq.
Troy Law, PLLC
41-25 Kissena Blvd., Suite 119
Flushing, NY 11355
David Yan, Esq.
Law Offices of David Yan
136-20 38th Ave., Suite llE
Flushing, NY 11354
Jian Ping Chen
3907 Prince St., #SC
Flushing, NY 11354
19
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