Hoffman et al v. Ighodaro et al

Filing 82

MEMORANDUM AND ORDER. The plaintiffs' motion for conditional certification of a FLSA collective action (Docket No. 67 in McLean, 16 Civ. 4380) is granted. The plaintiffs' request to authorize notice is granted with the following modificatio ns: (1) the notice may only be addressed to employees who have been employed since January 8, 2013, and this change must also be made in the salutation; and (2) the "Further Information" section shall be changed to indicate that I approved the notice. Furthermore, the defendants shall provide, within fourteen days, a list of data in a computer-readable format that includes the names, last known mailing addresses, phone numbers, work locations, and dates of employment for all porters an d superintendents who have worked since January 8, 2010. The defendants shall post the notice and multiple copies of the opt-in form in a place conspicuous to all relevant employees for the duration of the opt-in period. SO ORDERED. Granting (67) Motion to Certify Class in case 1:16-cv-04380-LAK-JCF. (Signed by Magistrate Judge James C. Francis on 12/29/2016) Filed In Associated Cases: 1:16-cv-00155-LAK-JCF, 1:16-cv-04380-LAK-JCF Copies transmitted via ECF this date. (rjm)

Court authorize notice to potential opt-in plaintiffs.
reasons

that

follow,

the

plaintiffs’

motion

to

For the

conditionally

certify a collective action is granted and the plaintiffs’ requests
as to notice are granted in part and denied in part.
Background
The background of this action is set forth in my September
28, 2016 Report and Recommendation, see Hoffman v. Ighodaro, Nos.
16 Civ. 155, 16 Civ. 4380, 2016 WL 6093236, at *1-2 (S.D.N.Y. Sept.
28, 2016), report and recommendation adopted, 2016 WL 6092706
(S.D.N.Y Oct. 18, 2016), and I will repeat here only what is
necessary to this motion.
The individual defendants operate Precise Management, Inc.,
Precise Real Estate Management Inc., and Precise Building Services
Inc. (collectively,

“Precise”)

services in New York City.

to

provide

property

management

Hoffman, 2016 WL 6093236, at *1.

Precise employed the plaintiffs as superintendents and porters at
buildings

the

responsibilities
trash removal.

defendants
included
Id.

managed.
landscaping,

Id.

The

cleaning,

plaintiffs’
repairs,

and

The plaintiffs allege that the defendants

4380, with Hoffman v. Ighodaro, No. 16 Civ. 155.
Hoffman v.
Ighodaro, Nos. 16 Civ. 155, 16 Civ. 4380, 2016 WL 5812666, at *3
(S.D.N.Y. Sept. 28, 2016).
Although the plaintiffs moved for
conditional certification in McLean only, I will consider the
motion as though it had been properly filed in Hoffman.
2

willfully deprived them of regular and overtime wages, failed to
pay them on time, and did not issue accurate payroll statements or
notifications.

Id. at *2.

Discussion
A.
An

Conditional Certification
FLSA

plaintiff

may

elect

to

seek

certification

collective action, a process that consists of two stages.

of

a

Jeong

Woo Kim v. 511 E. 5th Street, LLC, 985 F. Supp. 2d 439, 445
(S.D.N.Y. 2013); see 29 U.S.C. § 216(b).

At the first stage, the

“court makes ‘an initial determination to send notice to potential
opt-in plaintiffs who may be “similarly situated” to the named
plaintiffs with respect to whether a FLSA violation has occurred.’”
Garcia v. Chipotle Mexican Grill, Inc., No. 16 Civ. 601, 2016 WL
6561302, at *3 (S.D.N.Y. Nov. 4, 2016) (quoting Myers v. Hertz
Corp., 624 F.3d 537, 555 (2d Cir. 2010)).

“At the second stage,

the district court will, on a fuller record, determine whether a
so-called

‘collective

action’

may

go

forward

by

determining

whether the plaintiffs who have opted in are in fact ‘similarly
situated’ to the named plaintiffs.”

Agerbrink v. Model Services

LLC, No. 14 Civ. 7841, 2016 WL 406385, at *1 (S.D.N.Y. Feb. 2,
2016) (quoting Myers, 624 F.3d at 555)).

At that point, the

district court typically looks to the “(1) disparate factual and
employment settings of the individual plaintiffs; (2) defenses
3

available to defendants which appear to be individual to each
plaintiff;

and

(3)

fairness

and

procedural

considerations

counseling for or against [collective action treatment].”

Zivali

v. AT&T Mobility, LLC, 784 F. Supp. 2d 456, 460 (S.D.N.Y. 2011)
(alteration in original) (quoting Laroque v. Domino’s Pizza, LLC,
557 F. Supp. 2d 346, 352 (E.D.N.Y. 2008)).
The standard at the first stage is not a stringent one -- all
that is required is a “‘modest factual showing’ based on the
‘pleadings and affidavits’ that the putative class members were
‘victims of a common policy or plan that violated the law,’” but
some showing is required beyond the allegations contained in the
complaint.

Fernandez v. Sharp Management Corp., No. 16 Civ. 551,

2016 WL 5940918, at *2 (S.D.N.Y. Oct. 13, 2016) (quoting Cardenas
v. AAA Carting, 12 Civ. 7178, 2013 WL 4038593, at *1 (S.D.N.Y.
Aug.

9,

2013)).

To

meet

this

burden,

the

plaintiff’s

own

declaration or the declarations of other potential class members
are sufficient.

Trinidad v. Pret a Manger (USA) Ltd., 962 F. Supp.

2d 545, 557-58 (S.D.N.Y. 2013).

Indeed, courts have granted

motions for conditional certification where only one plaintiff
submitted a declaration. See Khamsiri v. George & Frank’s Japanese
Noodle Resturaunt Inc., No. 12 Civ. 265, 2012 WL 1981507, at *1
(S.D.N.Y. June 1, 2012).

4

Five plaintiffs here have submitted declarations specifying
that Precise failed to pay them for regular and overtime hours and
that

the

defendants

furthermore,

the

committed

plaintiffs

other
assert

wage-and-hour
that

they

violations;

have

personal

knowledge of other employees -- not named in the lawsuit -- who
were subject to the same unlawful practices.

(Declaration of John

Godoy dated Oct. 26, 2016 (“Godoy Decl.”), ¶¶ 14-19; Declaration
of Edgar Hicks dated Nov. 3, 2016 (“Hicks Decl.”), ¶¶ 14-20;
Declaration of Eric Hoffman dated Nov. 3, 2016 (“Hoffman Decl.”),
¶¶ 14-19; Declaration of Willie Horne dated Nov. 2016 (“Horne
Decl.”), ¶¶ 13-19; Declaration of Gregory McClain dated Oct. 26,
2016 (“McClain Decl.”), ¶¶ 9-22).

Indeed, the declarations state

that other porters and superintendents employed by the defendants
were subject to the same unlawful practices at other buildings.
(Godoy Decl., ¶¶ 6, 16-17, 19; Hicks Decl., ¶¶ 6, 17-18, 20;
Hoffman Decl., ¶¶ 6, 16-17, 19; Horne Decl., ¶¶ 6, 16-17, 19;
McClain Decl., ¶¶ 6, 9, 18-20, 22; Declaration of Gregory McClain
dated Dec. 7, 2016, ¶¶ 15-31).

Therefore, the plaintiffs’ motion

to conditionally certify an FLSA collective action is granted.
B.

Notice

Although 29 U.S.C. § 216(b) does not expressly provide for
notice to potential opt-in plaintiffs, it is well settled that a
court may authorize such notice.
5

Cohen v. Gerson Lehrman Group,

Inc., 686 F. Supp. 2d 317, 331 (S.D.N.Y. 2010).

“‘When exercising

its broad discretion to craft appropriate notices . . . , District
Courts consider the overarching policies of the collective suit
provisions’ and ensure that putative plaintiffs receive ‘accurate
and timely notice concerning the pendency of the collective action,
so

that

they

participate.’”

can

make

informed

decisions

about

whether

to

Bittencourt v. Ferrara Bakery & Cafe Inc., 310

F.R.D. 106, 116 (S.D.N.Y. 2015) (quoting Fasanelli v. Heartland
Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007)).

Notice

prevents the “erosion of claims due to the running statute of
limitations” and promotes “judicial economy.”

Hernandez v. Bare

Burger Dio Inc., No. 12 Civ. 7794, 2013 WL 3199292, at *5 (S.D.N.Y.
June 25, 2013) (quoting Khamsiri, 2012 WL 1981507, at *1).
The plaintiffs here have provided a proposed notice as well
as a consent form.

(Notice of Federal Lawsuit with Opportunity to

Join (“Notice”), attached as Exh. A to Declaration of Anthony
Portesy dated Nov. 11, 2016 (“Portesy Decl.”); Consent to Become
a Party Plaintiff, attached as Exh. B to Portesy Decl.).

Notice

to potential opt-in plaintiffs is appropriate here within the
following guidelines.
1.

Relevant Employment Period

The defendants assert that notice should be sent only to
workers employed within three years of the filing of the complaint
6

because that is the limitations period under the FLSA, while the
plaintiffs assert that the relevant period for notice should be
six years because they have also asserted claims under the New
York

Labor

limitations.

Law

(“NYLL”)

which

has

a

six-year

statute

of

There is a split in this Circuit on whether the

covered period for collective action notice should be three years
or six years when NYLL claims are alleged.

See Romero v. La Revise

Associates, L.L.C., 968 F. Supp. 2d 639, 649 (S.D.N.Y. 2013);
Trinidad, 962 F. Supp. 2d at 563 (collecting cases).
Courts applying the three-year period reason that, where no
New York state class action has been certified, “[t]hree years is
the maximum time period to join an FLSA collective action . . . .
If and when a class is certified under New York law, class members
will

receive

notice

notification process.”

at

that

time

through

the

class

action

Romero, 968 F. Supp. 2d at 649; see also

Garcia, 2016 WL 6561302, at *9 (holding that three-year covered
period

was

appropriate

when

plaintiff

certification of NYLL claim).

had

not

moved

for

Additionally, using a six-year

period may cause confusion to “plaintiffs who potentially have two
disparate claims with different statutes of limitations,” and it
may be inefficient to provide “notice to plaintiffs whose claims
may well be time-barred.”

Trinidad, 962 F. Supp. 2d at 564.

The rationale for approving a six-year window is that it is
7

economical to provide “notice to plaintiffs with FLSA claims who
may

also

have

limitations.”

NYLL

claims

subject

to

a

six-year

statute

of

Id.

Additionally, six years may be appropriate

when the potential class is not very large and the notice itself
mitigates possible confusion.

Benavides v. Serenity Spa NY Inc.,

166 F. Supp. 3d 474, 484-85 (S.D.N.Y. 2016).
The three-year period more effectively serves the goal of
efficiency in this case and will avoid confusing individuals whose
claims arise only under the NYLL, that is, those whose employment
by Precise ended more than three but less than six years before
the complaint was filed.

Furthermore, the potential class in this

case is large and the notice does little to mitigate possible
confusion.

Therefore, notice will be limited to individuals who

were employed within three years of the date of the complaint.
See Benavides, 166 F. Supp. 3d at 485.
2.

Relevant Employees

The defendants contend that notice should be limited to the
locations at which the plaintiffs worked and should not be sent to
porters.

“In this Circuit, courts have regularly found named

plaintiffs to be similarly situated to employees at locations where
they did not work, provided that the plaintiffs demonstrate that
they were all subject to the same allegedly unlawful policy or
practice.”

Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 662
8

(S.D.N.Y. 2013).

The declarations and the complaints support the

inference that the defendants had unlawful wage-and-hour policies
throughout their enterprise, as the plaintiffs have asserted that
Precise

managed

numerous

residential

properties

and

that

challenged practices occurred in many of the buildings.

the

(Godoy

Decl., ¶¶ 5-7, 17; Hicks Decl., ¶¶ 5-8, 18; Hoffman Decl., ¶¶ 58, 17; Horne Decl., ¶¶ 5-7, 17; McClain Decl., ¶¶ 5-9, 20).
Additionally, the plaintiffs have properly asserted that there are
similarly situated porters.

(Godoy Decl., ¶¶ 10, 16; Hicks Decl.,

¶¶ 10, 17; Hoffman Decl., ¶¶ 10, 16; Horne Decl., ¶¶ 9, 16; McClain
Decl., ¶¶ 11, 20).

Notice may therefore be provided to both

superintendents and porters at all locations managed by Precise.
3.
The

Return Address for Consent Forms

plaintiffs

assert

that

the

consent

forms

should

be

returnable to their counsel, while the defendants argue that they
should be sent to the Clerk of the Court to prevent discouraging
potential plaintiffs from seeking other counsel.

“[W]hile courts

in this district have not come to a consensus on this issue, ‘[t]he
majority of courts [] have directed opt-in plaintiffs to mail the
consent form to plaintiffs’ counsel.’”

Agerbrink, 2016 WL 406385,

at *4 (second and third alterations in original) (quoting She Jian
Guo v. Tommy’s Sushi Inc., No. 14 Civ. 3964, 2014 WL 5314822, at
*5 (S.D.N.Y. Oct. 16, 2014)).

Since the notice here advises
9

potential opt-in plaintiffs that they may seek alternative counsel
(Notice at 4), there is no reason to require that consents be
returned directly to the Court.

See She Jian Guo, 2014 WL 5314822,

at *5 (mailing to plaintiffs’ counsel “particularly appropriate”
when notice advises that alternative counsel may be sought).
4.

“Further Information” Section of Notice

Section 10 of the notice indicates that the Honorable Lewis
A. Kaplan, U.S.D.J., authorized the notice.

It should instead

reflect that I have done so.
5.

Posting in Defendants’ Place of Business

The defendants have not objected to posting the notice at
their business locations.

The defendants shall post the notice

and multiple copies of the opt-in form at their office locations
in a place conspicuous to all relevant employees for the duration
of the sixty-day opt-in period.

See Schear v. Food Scope America,

Inc., 297 F.R.D. 114, 129 (S.D.N.Y. 2014).
6.
The

Discovery of Identifying Information

plaintiffs

have

requested

that

the

Court

order

the

defendants to produce information to effect the notice, and the
defendants have not objected.

Specifically, they ask for “a list

of data in computer-readable format that includes the names, last
known mailing addresses, phone numbers, dates of birth, work
locations, and dates of employment for all of Defendants’ porters
10

and superintendents since June 13, 2010.”

(Memorandum of Law in

Support of Plaintiffs’ Motion to Conditionally Certify a FLSA
Collective Action and Authorize Issuance of Notice of Pendency to
Collective Class and Prospective Class Members at 11).
Requests for the production of names, mailing addresses,
telephone

numbers,

and

employment

dates

of

potential

opt-in

plaintiffs are generally granted, and there is no reason to deny
the request here.

See Sanchez v. Salsa Con Fuego, Inc., No. 16

Civ. 473, 2016 WL 4533574, at *5 (S.D.N.Y. Aug. 24, 2016); Diatta
v. Iguana New York Ltd., 15 Civ. 6399, 2016 WL 2865132, at *6
(S.D.N.Y.

May

10,

2016).

Identification

of

the

employment with the defendants is also appropriate.

places

of

See Jie Zhang

v. Wen Mei, Inc., No. 14 CV 1647, 2015 WL 6442545, at *7 (E.D.N.Y.
Oct. 23, 2015).

However, the plaintiffs have not explained why

dates of birth are necessary, and that request is therefore denied
without prejudice to it being renewed upon a showing that this
information is necessary to locate any potential opt-in plaintiff.
See Valerio v. RNC Industries, LLC, 314 F.R.D. 61, 75 (E.D.N.Y.
2016).
Therefore, the defendants shall produce within fourteen days
of the date of this Memorandum and Order a list of data in a
computer-readable

format

that

includes

the

names,

last

known

mailing addresses, phone numbers, work locations, and dates of
11

employment for all porters and superintendents.

Since -- in the

normal course of discovery -- the plaintiffs will also discover
this information for individuals covered only by the NYLL, the
defendants shall produce this information for employees who have
worked since January 8, 2010.
7.

Defendants’ Request for Party Conference

The defendants insist that the Court direct the parties to
confer on a joint notice to be presented for Court approval.
the

defendants

have

plaintiffs’ draft.

already

stated

their

objections

to

Yet,
the

Therefore, there is no need to delay this

action further.
Conclusion
The plaintiffs’ motion for conditional certification of a
FLSA collective action (Docket No. 67 in McLean, 16 Civ. 4380) is
granted.

The plaintiffs’ request to authorize notice is granted

with the following modifications: (1) the notice may only be
addressed to employees who have been employed since January 8,
2013, and this change must also be made in the salutation; and (2)
the “Further Information” section shall be changed to indicate
that I approved the notice.

Furthermore, the defendants shall

provide, within fourteen days, a list of data in a computerreadable

format

that

includes

the

names,

last

known

mailing

addresses, phone numbers, work locations, and dates of employment
12