Contrera et al v. Langer et al.

Filing 262

REPORT AND RECOMMENDATION: re: 192 MOTION to Dismiss partial motion to dismiss pursuant to FRCP 12(b)(6) filed by 3940 Bronx Blvd Owner LLC, 3621 Broadway Owner LLC, 3600 Broadway Owner LLC, 3472 Knox Place Owner LLC, 3136 Perry Ave Owner LLC, 303 0 Valentine Ave Owner LLC, 2968 Perry Ave Owner LLC, 2933 Grand Concourse Owner LLC, 2925 Grand Concourse Owner LLC, 2755-61 Sedgwick Ave Owner LLC, 2701 Webb Ave Owner LLC, 2322 Grand Ave Owner LLC, 2320 Aqueduct Ave Owner LLC, 2291 University A ve Owner LLC, 2238 Morris Ave Owner LLC, 2215 Properties LLC, 2076-78 Creston Ave Owner LLC, 2059 8 LLC, 2055 Anthony Ave Owner LLC, 2006 ACP Blvd Portfolio LLC, 1881 Grand Concourse Realty LLC, 1829-1835 7 LLC, 1786 Topping Ave Owner LLC, 1728-173 0 Amsterdamn Avenue LLC, 1631 Grand Ave Owner LLC, 1530 Sheridan Ave Owner LLC, 1475 Sheridan Ave Owner LLC, 1212 Grand Concourse Owner LLC, 1160 Cromwell Ave Owner LLC, 1070 Ogden LLC, 1014 Gerard Ave Owner LLC, 975 Walton Ave Owner LLC, 751 Gerard Ave Owner LLC, 750-760 Pelham Pkwy Owner LLC, 707 St Nicholas LLC, 655 West 160 Holdings LLC, 638 West 160 Holdings LLC, 617 West 143 Holdings LLC, 610-620 West 141 Holdings LLC, 609-619 West 135 Street Owner LLC, 557-561 West 149 Holdings LLC, 521-5 23 W 156 St Owners LLC, 510 West 146 LLC, 414-102 Convent Owner LLC, 376 West 127 LLC, 373 West 126 LLC, 370-372 West 127 LLC, 350 West 115 LLC, 345 Manhattan Holdings LLC, 337 West 138 Holdings LLC, 323 E Mosholu Pkwy Owner LLC, 320 E 197 St Owner L LC, 311 West 111 Street LLC, 310 West 112th Street LLC, 307 West 113 LLC, 306-310 West 112 LLC, 305 West 111 LLC, 305-309 West 113 LLC, 303-309 West 113 LLC, 303 West 111 LLC, 302 West 112 Street LLC, 301 West 111-2051 8 LLC, 271 E 197 St Owner LLC, 255 West 116 LLC, 247-253 West 116 LLC, 243 West 116 LLC, 241 West 113 LLC, 239 West 116 LLC, 230 West 116 LLC, 226 W Tremont Ave Owner LLC, 164-172 West 141 Holdings LLC, 161-171 Morningside LLC, 161-165 E 179 St Owner LLC, 159 W 228 St Owner LLC, 1 55 W 162 Street LLC, 153-157 Lenox Holdings LLC, 153 Lenox Holding LLC, 151 West 228 St Owner LLC, 146 West 111 Street LLC, 145-153 Edgecombe Holdings LLC, 143 West 113 Street LLC, 141 West 113 LLC, 141-143 West 113 LLC, 141 West 116 LLC, 138 West 11 2 Street LLC, 138-140 West 112 LLC, 133 West 112 Street LLC, 133-135 West 116 LLC, 131-133 West 112 Street LLC, 131-133 West 112 LLC, 131 W Kingsbridge Owner LLC, 126 West 112 LLC, 124 West 112 Street LLC, 124 E 177 ST Owner LLC, 124 E. 117 LLC, 120- 129 West 112 LLC, 117-129 West 116 LLC, 115 West 113 LLC, 113-115 West 113 LLC, 110 West 116th LLC, 109 West 113 LLC, 107 West 113 LLC, 105-109 West 113 LLC, 102 Convent Owner LLC, 67 Lenox LLC, 65-67 Lenox LLC, 41 W 184 St Owner LLC, 35 Morningsid e Holdings LLC, 30-50 21 St Street Owner LLC, 17-25 St Nicholas LLC, 11-15 Broadway Owner LLC, 11 West 172 Street Owner LLC, 6 Morningside LLC, DDEH 2371 Second LLC, Manhattanville Holdings LLC, Neighborhood Stabilization Associates II. L.P., DDEH 31 1 E. 109 LLC, E&M Bronx Associates LLC, SG2-E&M Harlem Portfolio Owner LLC, Sunset Park NSA II, Sixth Avenue I Associates, DDEH 312 E 106 LLC, Galil 102 Convent LLC, Avenue W Equities LLC, DDEH 103 E 102 LLC, Galil 519 Portfolio LLC, E&M Lafayette Ow ner LLC, DDEH 411 E118LLC, Meyer Brecher, DDEH 233 E 111 Street LLC, Leibel Lederman, Galil Realty LLC, Galil 3621 Owner LLC, DDEH 238 E 111 LLC, Irving Langer, DDEH 137 E. 110 LLC, E&M 3600 Broadway LLC, Sunset Park N S A II, Sunset Park NSA 11, Sar asota Gold LLC, DDEH 411 E 114 LLC, E&M Harlem Portfolio Owner LLC, DDEH 124 E117 LLC, NSA Associates I, DDEH 234 E116 LLC, DDEH 154 E. 106 LLC, E&M Associates LLC, E&M Harlem Equities LLC, E&M Dunbar LLC, NSA Associates II, Galil Management LLC, D unbar Owner LLC, Galil 102 Convent Owner LLC, DDEH 235 E 111ST LLC, DDEH 234 E 116ST LLC, Sunset Park NSA 2, DDEH 417E 114ST LLC, DDEH 2156 Second LLC, Fabian Herrera, Galil 519 Portfolio Owner LLC, E&M Associates I, LLC, DDEH 244 E 117 LLC, DDEH 23 1 E 117 LLC, DDEH 112 E 103 LLC, E&M 116th Street LLC, E&M ACP Portfolio LLC, Aryeh Z. Ginzberg, DDEH 126 E 103ST LLC, DDEH 1567 Lexington LLC, ACP Blvd Portfolio LLC, E&M 48-53 LLC, E&M Lafayette Portfolio LLC, E&M Harlem Holdings LLC, DDEH 319 E 115 LLC, Antonio Reyes, Audobon 550 W 171 Portfolio LLC, DDEH 215 E 117 LLC, Rainbow Estates LLC, DDEH 102 E 103 LLC, Neighborhood Stabilization Associates I, L.P., DDEH 291 Pleasant LLC, Sunset Park Housing Associates, Pedro Batista, Sixth Avenue Rehab I Associates, DDEH 421 East 114th ST LLC, DDEH 2171 Third LLC, Sunset Park NSA I, DDEH 216 E 118 LLC, DDEH 122 E 103ST LLC, Manhattanville Mezz LLC, Galil Sullivan LLC. For the foregoing reasons, the motion to dismiss (Docket # 192) should be denied. Objections to R&R due by 3/19/2018 (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/05/2018) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
USVALDO CONTRERA et al.,
:
:
Plaintiffs,
:

REPORT AND
RECOMMENDATION

:

16 Civ. 3851 (LTS) (GWG)

-v.-

IRVING LANGER et al.,

:

Defendants.
:
---------------------------------------------------------------x
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Usvaldo Contrera, Francisco Lopez, Pedro Batista, Fabian Herrera, and
Antonio Reyes — superintendents, handymen, and a porter at residential buildings in Upper
Manhattan and the Bronx — filed this action against various individuals and entities that
plaintiffs collectively refer to as “the E&M Enterprise” alleging that this enterprise employed
plaintiffs. Plaintiffs make claims against the E&M Enterprise under the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq. (“FLSA”), and several provisions of the New York Labor Law,
N.Y. Lab. Law § 190 et seq. (“NYLL”). Defendants now move to partially dismiss the amended
complaint as to plaintiffs Contrera and Lopez.1 For the reasons set forth below, this motion
should be denied.
1

See Notice of Motion, filed Sept. 8, 2017 (Docket # 192) (“Def. Not.”); Defendants’
Memorandum of Law in Support of Their Partial Motion to Dismiss, filed Sept. 8, 2017 (Docket
# 193) (“Def. Mem.”); Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for
Partial Dismissal, filed Oct. 12, 2017 (Docket # 196) (“Pl. Mem.”); Declaration of Marc
Rapaport, filed Oct. 12, 2017 (Docket # 197); Defendants’ Reply Memorandum of Law in
Further Support of Their Partial Motion to Dismiss, filed Nov. 1, 2017 (Docket # 203) (“Def.
Reply”); Plaintiffs’ Sur-Reply Memorandum of Law in Further Opposition to Defendants’
Motion for Partial Dismissal, filed Nov. 22, 2017 (Docket # 218); Defendants’ Sur-Sur-Reply
Memorandum of Law in Further Support of Their Partial Motion to Dismiss, filed Dec. 13, 2017
(Docket # 224).

I. BACKGROUND
In deciding the defendants’ motion to dismiss, the Court assumes the allegations in the
complaint are true and draws all reasonable inferences in plaintiffs’ favor. See, e.g., Brown
Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 156-57 (2d Cir. 2017).
The amended complaint alleges that the defendants are business entities that owned,
controlled, or managed more than 3,000 rental apartments in at least 262 buildings in New York
City, as well as the individuals who controlled these entities (collectively, “the E&M
Enterprise”). See Amended Class Action Complaint, filed July 27, 2017 (Docket # 156) (“Am.
Compl.”), ¶¶ 10, 65-281.2 The individual defendants controlled all of the entity defendants from
the E&M Enterprise’s offices in Brooklyn and the Bronx. See id. ¶¶ 10-18. To manage these
buildings, the E&M Enterprise employed superintendents, porters, and handymen. See id. ¶¶ 59, 11. Plaintiffs allege that the E&M Enterprise applied uniform business policies and practices
to all of its superintendents, porters, and handymen working at the buildings it controlled. See
id. ¶ 19. These practices included encouraging superintendents, porters, and handymen to work
more than 40 hours per week, but refusing to pay them overtime compensation for hours worked
in excess of 40 per week, in violation of both the NYLL and the FLSA. See id. ¶¶ 1, 19, 23-25,
406-12, 430-36. The E&M Enterprise also purportedly paid these employees at a rate less than
the minimum wage permitted by the FLSA. See id. ¶¶ 1, 23-24, 286, 402-05.
From approximately 2005 through July 1, 2015, Contrera was a superintendent at 655
West 160th Street in New York, New York. Id. ¶ 36. The E&M Enterprise obtained ownership

2

Plaintiffs first attempted to file their amended complaint on July 7, 2017. See
Amended Class Action Complaint, filed July 7, 2017 (Docket # 129). However, due to filing
errors, the complaint is listed on the docket sheet as having been filed on July 27, 2017. See
Am. Compl.
2

of this building on approximately November 14, 2013, thereby becoming Contrera’s employer.
Id. ¶ 37. Contrera was required to reside at this building as a condition of his employment. Id.
¶ 356. Contrera’s duties as a superintendent included
among other tasks: maintaining the building’s appearance, cleaning, mopping, minor
repairs, plastering, minor plumbing, accepting oil deliveries, purchasing supplies,
communicating with tenants regarding minor repairs, sweeping the sidewalk, recycling,
garbage, cleaning the elevator hold, showing vacant apartments, cleaning and removing
discarded items from newly-vacated apartments, installing kitchen appliances including
stoves and refrigerators, maintaining bathroom and kitchen faucets, fitting locks,
patching drywall, communicating with contractors, shoveling snow, and allowing
emergency responders, including police, ambulance and fire personnel, into the building
at all hours of the night and day, and generally serving as the first point of contact for
resident service requests.
Id. ¶ 350.
Lopez was a superintendent at 638 West 160th Street in New York, New York, from
approximately March 1995 until around April 30, 2014. See id. ¶ 45. The E&M Enterprise
acquired ownership of this building on November 14, 2013, thereby becoming Lopez’s
employer. Id. ¶ 46. Lopez was required to be on call at all times. See id. ¶ 365. The Amended
Complaint does not state whether Lopez resided at this building. Lopez’s duties included
among other things, maintaining the appearance of the building, cleaning, mopping,
minor repairs, plastering, minor plumbing, accepting oil deliveries, ordering supplies,
communicating with tenants regarding minor repairs, sweeping the sidewalk, recycling,
garbage, cleaning and removing discarded items from newly-vacated apartments,
installing kitchen appliances including stoves and refrigerators, maintaining bathroom
and kitchen faucets, communicating with contractors, allowing emergency responders,
including police, ambulance and fire personnel, into the building, at all hours of the night
and day, shoveling snow, and performing other tasks at all hours.
Id. ¶ 364.
The amended complaint alleges that the E&M Enterprise designated in writing that both
Lopez and Contrera worked as “hourly employees who were entitled to (but never actually paid)
overtime compensation.” Id. ¶¶ 43, 52, 362, 378. These written designations indicated that
3

Contrera’s hourly rate was $10.00 per hour, with an overtime rate of $15.00 per hour, see id.
¶ 43, whereas Lopez’s hourly rate was $9.17 per hour, with an overtime rate of $13.76 per hour,
see id. ¶ 52; StaffPro Employee Enrollment Application, dated Nov. 18, 2013 (annexed as Ex. C
to Declaration of Scott Katz, dated Sept. 19, 2016 (annexed as Ex. D. to Declaration of Larry R.
Martinez, filed Sept. 23, 2016 (Docket # 42))), at *2.3 Both Lopez and Contrera were required to
remain “on-call” at all times, and worked in excess of 40 hours per week. See Am.
Compl. ¶¶ 351-52, 365-66. Nevertheless, both Lopez and Contrera state that they were paid a
fixed weekly amount without overtime compensation. See id. ¶¶ 358-60, 370-71.
B. Procedural History
On May 23, 2016, plaintiffs filed the original complaint in this action. See Class Action
Complaint, filed May 23, 2016 (Docket # 1) (“Compl.”). This complaint sought relief for
violations of the minimum wage and overtime provisions of the FLSA, see id. ¶¶ 310-20, but did
not seek overtime wages under the NYLL. On September 23, 2016, defendants moved to
dismiss the complaint, or in the alternative, for summary judgment. See Notice of Motion, filed
Sept. 23, 2016 (Docket # 40); Defendants’ Memorandum of Law in Support of Their Motion to
Dismiss or, in the Alternative, for Summary Judgment, filed Sept. 23, 2016 (Docket # 43).
While that motion was pending, plaintiffs filed a motion for approval of this case as a
collective action. See Notice of Motion, filed Mar. 7, 2017 (Docket # 104); Memorandum of
Law in Support of Plaintiffs’ Motion to Conditionally Certify Fair Labor Standards Act
Collective Action and Authorize that Notice Be Issued to All Persons Similarly Situated, filed
Mar. 7, 2017 (Docket # 111). Plaintiffs thereafter filed the amended complaint. See Am.

3

“*__” refers to page numbers created by the ECF system.
4

Compl. The amended complaint included a claim for overtime wages under the NYLL on behalf
of all plaintiffs. See Am. Compl. ¶¶ 430-36. After the amended complaint was filed, the Court
deemed defendants’ motion to dismiss or for summary judgment withdrawn, see Order, filed
July 10, 2017 (Docket # 130), and approved this case as a collective action, see Contrera v.
Langer, 2017 WL 4444829 (S.D.N.Y. Oct. 5, 2017). In the meantime, on September 8, 2017,
defendants filed the instant partial motion to dismiss the amended complaint. See Def. Not.
Defendants seek to dismiss Contrera’s and Lopez’s claims for overtime compensation
under the NYLL pursuant to the “Janitorial Exemption.” See Def. Mem. at 6-10. Defendants
also seek to have Lopez’s claims under the FLSA dismissed for failure to comply with the
statute of limitations. See id. at 11-14. We first discuss the law applicable to motions to dismiss
and then address defendants’ arguments.
II. LEGAL STANDARD GOVERNING A MOTION TO DISMISS UNDER 12(b)(6)
A defendant may move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
where the plaintiff “fail[s] to state a claim upon which relief can be granted.” To survive such a
motion, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). As
the Supreme Court noted in Iqbal,
[a] claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has
acted unlawfully.
Id. (citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct,” a complaint is insufficient under Federal Rule of Civil
5

Procedure 8(a)(2) because it has merely “alleged — but it has not shown — that the pleader is
entitled to relief.” Id. at 679 (alteration and internal quotation marks omitted) (quoting Fed. R.
Civ. P. 8(a)(2)). An affirmative defense “may be raised in a pre-answer Rule 12(b)(6) motion ‘if
the defense appears on the face of the complaint.’” Chen v. Major League Baseball Props., Inc.,
798 F.3d 72, 81 (2d Cir. 2015) (quoting Iowa Pub. Emps. Ret. Sys. v. MF Global, Ltd., 620 F.3d
137, 145 (2d Cir. 2010)).
Additionally, on a motion to dismiss for failure to state a claim, a court’s
consideration is limited to the factual allegations in [the complaint], which are
accepted as true, to documents attached to the complaint as an exhibit or
incorporated in it by reference, to matters of which judicial notice may be taken,
or to documents either in plaintiff[’s] possession or of which plaintiff[ ] had
knowledge and relied on in bringing suit.
Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc. v.
Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)); accord Halebian v. Berv, 644 F.3d 122,
130 n.7 (2d Cir. 2011); Portillo v. Webb, 2017 WL 4570374, at *1 (S.D.N.Y. Oct. 11, 2017).
Finally,“matters judicially noticed by the District Court are not considered matters outside the
pleadings.” Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008).
III. JANITORIAL EXEMPTION
Defendants argue that neither Lopez nor Contrera were entitled to overtime
compensation under the NYLL due to the “janitorial exemption” found in N.Y. Comp. Codes R.
& Regs. tit. 12, § 141-3.4. The NYLL contains no statutory requirement for overtime pay.
Ballard v. Cmty. Home Care Referral Serv., Inc., 264 A.D.2d 747, 747 (2d Dep’t 1999).
However, “regulations promulgated by the New York Department of Labor . . . generally require
employers to pay overtime wages for all hours worked in excess of forty hours per week, so long
as the employees are not exempt under one of various statutory categories.” Koljenovic v. Marx,
6

999 F. Supp. 2d 396, 399 (E.D.N.Y. 2014).
The regulations at issue in this case provide that employees in the Building Service
Industry, “except a janitor in a residential building, [must be paid] for overtime at a wage rate of
1 ½ times the employee’s regular rate for hours worked in excess of 40 hours in a workweek.”4
N.Y. Comp. Codes R. & Regs. tit. 12, § 141-1.4. The regulations define a janitor as someone
“employed to render any physical service in connection with the maintenance, care or operation
of a residential building.” Id. § 141-3.4. Under this regulation, “[w]here there is only one
employee, such employee shall be deemed the janitor.” Id. However, “[w]here there is more
than one employee in the building, the employer shall designate an employee who lives in the
building as the janitor.” Id. A building may have only one janitor. See id.
“[T]he purpose of having an employer ‘designate’ one employee as a janitor is to force
the employer to make a clear, pre-litigation choice about how to compensate its workers.”
Almonte v. 437 Morris Park, LLC, 2015 WL 7460019, at *5 (S.D.N.Y. Nov. 24, 2015). The
designation is necessary to mitigate the “risk of the employer compensating several employees at
the reduced ‘janitor’ rate and then using after-the-fact designations to ward off subsequent wage
and overtime claims.” Koljenovic, 999 F. Supp. 2d at 401. However, when only one employee
is capable of being designated the janitor — either because he or she is the only employee
performing janitorial services in the building, or the only such employee living in the building —
then “the employee is considered the exempt janitor under section 141-3.4” regardless of
whether the employee was designated as such. Id. at 401; accord Lee v. Kim, 2013 WL

4

Plaintiffs have not contested that the amended complaint shows that Lopez and
Contrera were employees in the Building Services Industry and that the buildings at which they
worked were “residential buildings.”
7

4522581, at *5 (finding employees to be janitors when they were the only employees capable of
being designated as such).
Because the janitorial exemption is an affirmative defense, “[d]efendants bear the burden
of establishing that the janitorial exemption set forth in section 141-3.4 applies.” Koljenovic,
999 F. Supp. 2d at 399. Thus, this defense “may be raised by a pre-answer motion to dismiss
under Rule 12(b)(6), without resort to summary judgment procedure” because “the defense
appears on the face of the complaint.” Gjoni v. Orsid Realty Corp., 2015 WL 4557037, at *7
(S.D.N.Y. July 22, 2015). The janitorial exemption is to be “narrowly construed against the
employer” in light of the NYLL’s “remedial purpose.” Koljenovic, 999 F. Supp. 2d at 399.
The defendants spend much time seeking to show that Contrera and Lopez were
“janitors” within the meaning of the regulation notwithstanding their “superintendent” titles.
Def. Mem. at 7-10. This argument, however, need not be reached because, allowing every
reasonable inference in plaintiffs’ favor as we must at this stage of the litigation, see Brown
Media Corp., 854 F.3d at 156-57, the allegations in the complaint do not conclusively
demonstrate that only one employee performed janitorial services in the plaintiffs’ buildings,
that each plaintiff was the only employee performing janitorial services who lived in his
building, or that defendants actually designated either employee as a janitor.
First, Contrera and Lopez cannot be deemed to be janitors on the ground that they were
the only employees who worked in their buildings, as this assertion is not made in the amended
complaint. Indeed, the amended complaint states otherwise. It alleges that Fabian Herrera
began working at the 655 West 160th Street building as a porter in approximately 2013, and that
Herrera “assisted Contrera.” See Am. Compl. ¶ 390. The amended complaint also alleges that
Herrera occasionally performed work at 638 West 160th Street, which is the building where
8

Lopez worked. See id. ¶¶ 364, 391. Thus, the face of the amended complaint does not allow a
finding that Contrera and Lopez were the only employees who worked in their buildings.
Second, while the amended complaint states that Contrera lived in the building in which
he performed services, see id. ¶ 356, the complaint makes no such allegation as to Lopez, and in
any event does not allege that each plaintiff was the sole resident janitor in their buildings.
Defendants attempt to get around this fact by asserting that “nowhere in their Memorandum (or
via affidavit of Plaintiffs Contrera or Lopez) do they dispute the simple fact that Plaintiffs
Contrera and Lopez were the sole live-in janitors who performed janitorial duties at their
respective buildings.” See Def. Reply at 5; see also id. at 5 n.2 (stating that plaintiffs “never
allege any other janitor resided in the same building as they did.”); id. at 8 (“Plaintiffs do not
even allege other individuals performed janitorial duties, or lived, at their building.”). The
problem with this argument is that it is contrary to the standards that govern a motion to dismiss
for failure to state claim. Case law does not require that a party opposing a motion to dismiss
deny factual contentions asserted by a defendant seeking to interpose an affirmative defense.
See, e.g., Chen, 798 F.3d at 81 (“A plaintiff is not required to plead the absence of [an
affirmative] defense.”).
Finally, defendants have failed to satisfy their burden of showing that the amended
complaint establishes that the defendants designated either Lopez or Contrera as janitors.
Certainly, no allegation in the complaint states that defendants made a written designation. This
arguably ends the matter. Nonetheless, we recognize that case law permits a court to find a
designation where certain conditions are met even without a written designation. For example,
Almonte noted that courts have considered the following factors:
(I) whether Plaintiff was the only employee who lived in the building; (ii) the manner in
9

which Plaintiff and other employees were compensated; (iii) whether Plaintiff was listed
as a “janitor” or “superintendent” in the employer’s official business records; (iv)
whether Plaintiff received written notice that he would be compensated as a building
janitor; and (v) whether Plaintiff or his employer represented to third parties that Plaintiff
was the “janitor” or “superintendent.”
Almonte, 2015 WL 7460019, at *5. But given that every reasonable inference must be drawn in
plaintiffs’ favor, the allegations in the amended complaint would not allow us to find that these
factors favored defendants. Indeed, the amended complaint (through an annexed exhibit) even
alleges that some of these factors did not apply. For example, a memorandum from “StaffPro,”
through which defendants allegedly spoke, see Am. Compl. ¶¶ 27, 302-03, 309-10, 323, 335,
337-39, 343, 359, 423, and which is attached to the amended complaint, informed
superintendents that if they “work beyond their work hours, with the prior express approval of
Management, [then they] will receive pay in accordance with their hourly rate and applicable
overtime laws,” see StaffPro Memorandum (annexed as Ex. E to Am. Compl.), at *2. Although
this statement does not necessarily mean that superintendents were entitled to overtime in light
of the reference to “applicable overtime laws,” its mention of overtime and an “hourly rate”
strongly suggests that they would be paid overtime. Similarly, the amended complaint also
alleges that the defendants designated Contrera and Lopez as hourly employees who were
entitled to be paid overtime compensation. See Am. Compl. ¶¶ 362, 378. The fact that
defendants indicated that Contrera and Lopez were entitled to overtime compensation is contrary
to the notion that defendants designated Contrera and Lopez as janitors exempt from receiving
such compensation. An employee receiving hourly compensation is also inconsistent with that
employee’s designation as a janitor, as the Building Services Industry regulations provide that
janitors are to be compensated on a per-unit per-week basis. See N.Y. Comp. Codes R. & Regs.
tit. 12, § 141-1.2.
10

In sum, the defendants’ motion fails because the allegations in the amended complaint do
not show that the janitorial exemption applies to Contrera and Lopez.
IV. STATUTE OF LIMITATIONS
Defendants argue that Lopez’s FLSA claims must be dismissed as time-barred because
Lopez failed to consent to become a plaintiff, as required by 29 U.S.C. § 216(b), until after the
applicable statute of limitations had run. Def. Mem. at 11-14.
The “lapse of a limitations period is an affirmative defense that a defendant must plead
and prove.” Staehr, 547 F.3d at 426. As such, at the motion to dismiss stage, a claim may be
dismissed on statute of limitations grounds only “if the defense appears on the face of the
complaint.” Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12 (2d Cir. 2014)
(citing Staehr, 547 F.3d 406, 425 (2d Cir. 2008)); accord Ghartey v. St. John’s Queens Hosp.,
869 F.2d 160, 162 (2d Cir. 1989) (motion to dismiss under Rule 12(b)(6) on statute of limitations
ground proper “[w]here the dates in a complaint show that an action is barred by the statute of
limitations”).
The provision at issue, 29 U.S.C. § 256, states that an action is deemed commenced
under the FLSA
(a) on the date when the complaint is filed, if [a plaintiff] is specifically named as a party
plaintiff in the complaint and his written consent to become a party plaintiff is filed on
such date in the court in which the action is brought; or (b) if such written consent was
not so filed or if his name did not so appear — on the subsequent date on which such
written consent is filed in the court in which the action was commenced.
29 U.S.C. § 256. The factual premise of defendants’ argument is as follows. The amended
complaint alleges that Lopez left his employment with the E&M Enterprise on April 30, 2014.
See Am. Compl. ¶ 45. The original complaint in this action was filed on May 23, 2016, and did
not attach a consent form from the plaintiff. See Compl. On July 25, 2017, Lopez filed a form
11

in which he consented to become a party plaintiff. See Consent to Become a Party Plaintiff,
filed July 25, 2017 (Docket # 153). Because more than three years elapsed between the time
Lopez left his employment and the time the consent form was filed, and the maximum
limitations period for an FLSA claim is three years, 29 U.S.C. § 255(a), defendants argue that
Lopez’s FLSA claim must be dismissed. See Def. Mem. at 11-14.
Lopez argues, see Pl. Mem. at 13-16, that the written consent requirement was met not by
the consent form filed on July 25, 2017, but by a filing that was made on March 7, 2017, when
plaintiffs moved to conditionally approve this case as an FLSA collective action pursuant to 29
U.S.C. § 216(b). See Notice of Motion, filed Mar. 7, 2017 (Docket # 104); Memorandum of
Law in Support of Plaintiffs’ Motion to Conditionally Certify Fair Labor Standards Act
Collective Action and Authorize that Notice Be Issued to All Persons Similarly Situated, filed
Mar. 7, 2017 (Docket # 111). At the time that motion was filed, Lopez — among other named
plaintiffs — filed a declaration in support of it. See Declaration of Francisco Lopez, filed Mar.
7, 2017 (Docket # 106) (“Lopez Decl.”). The caption of this declaration indicated that the
named plaintiffs, including Lopez, brought this action “individually and on behalf of all others
Similarly situated.” Id. at 1. Lopez stated in this declaration that he was a “Plaintiff in this
action” and submitted his declaration “in support of Plaintiffs’ Motion to Circulate a Notice of
Pendency under the Fair Labor Standards Act.” Id. ¶ 1. A certified-translated Spanish version
of this declaration was signed by Lopez and dated March 5, 2017. See id. at *6-11.5
As defendants correctly point out, see Def. Mem. at 12, case law makes clear that the

5

Consideration of this declaration is proper because a court “may take judicial notice on
a motion to dismiss of filings in state or federal court.” Williams v. Nat’l Gallery of Art,
London, 2017 WL 4221084, at *5 n.9 (S.D.N.Y. Sept. 21, 2017) (citation omitted).
12

requirement of a written consent in 29 U.S.C. § 256 applies even to the “named” plaintiff in a
collective action under the FLSA. See, e.g., El v. Potter, 2004 WL 2793166, at *9 (S.D.N.Y.
Dec. 6, 2004) (“Thus, all plaintiffs, including named plaintiffs, must file written consents in
order to begin their lawsuits, and the courts have made clear that a suit does not begin until a
consent has been filed.”), amended on denial of reconsideration, 2005 WL 646346 (S.D.N.Y.
Mar. 18, 2005); accord Mendez v. The Radec Corp., 260 F.R.D. 38, 52 (W.D.N.Y. 2009)
(“Although it may seem curious that this consent requirement would apply to a named plaintiff,
this requirement has been held to apply even to the named plaintiffs in a collective action under
the FLSA.”).
That there must be a “written consent,” however, does not answer the question of what
document qualifies as a “written consent” within the meaning of § 256. Courts in this circuit
have noted that “it is not clear what form the written consent must take, especially when the
alleged party plaintiff is a named plaintiff.” Callari v. Blackman Plumbing Supply, Inc., 988 F.
Supp. 2d 261, 281 (E.D.N.Y. 2013) (internal quotation marks omitted) (quoting D’Antuono v. C
& G of Groton, Inc., 2012 WL 1188197, at *2 (D. Conn. Apr. 9, 2012)); accord Mendez, 260
F.R.D. at 52 (“courts have generally not taken a strict approach with regard to the form of the
written consent, a[t] least with respect to named plaintiffs.”) (emphasis in original). The statute
gives no guidance on what constitutes a “written consent.” And courts have routinely found that
§ 256’s requirement is satisfied where a named plaintiff files a sworn declaration with the court
stating that he or she is the named plaintiff in a collective action. See Callari, 988 F. Supp. 2d at
282 (plaintiff’s signed declaration constituted valid written consent to commence a collective
action when plaintiff identified himself as the named plaintiff in the action and the caption
indicated that plaintiff brought the action “on behalf of himself and other employees similarly
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situated.”); Mendez, 260 F.R.D. at 52 (same); see also D’Antuono, 2012 WL 1188197, at *4
(written consent requirement of section 256 satisfied when the named plaintiff in a collective
action filed an affidavit “implicitly verifying the complaint, expressing an interest that legal
action be taken to protect her rights, and expressing an interest in being a party plaintiff.”)
(citations omitted). These cases note the purposes of requiring consent are to “put the
Defendants on notice” of a plaintiff’s participation in a lawsuit, and to “ensure that each plaintiff
intends to participate in the case, and is not simply a procedural figurehead for an enterprising
class action lawyer.” D’Antuono, 2012 WL 1188197, at *2.
Although defendants argue that the above-cited cases “are not overly insightful,” Def.
Reply at 3, defendants do not identify the flaw in their reasoning. Our examination of the statute
persuades us they are correctly decided. First and foremost, 29 U.S.C. § 256(a) expansively
requires only a “written consent to become a party plaintiff” but does not specify any other
requirements for that consent. Accordingly, where a signed declaration demonstrates a
plaintiff’s consent to be a party plaintiff in a collective action, we do not see why it would not
satisfy the statutory requirement. Further, this manner of consent fulfills the purpose of the
statute by putting the defendants on notice and ensuring that the declarant in fact intends to act as
a plaintiff in a collective action.
Defendants cite to a string of cases to support the proposition that even for named
plaintiffs in an FLSA collective action, “until a ‘consent to join’ or ‘opt-in’ form, is filed with
the court, the statute of limitations continues to run.” See Def. Reply at 10. But this proposition
is undisputed. What is important is that none of the cases cited by defendants hold that a sworn
statement of the kind Lopez filed in this action fails to qualify as a “written consent” under §
256. Indeed, none of the cited cases require that a written consent to join an FLSA collective
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action take any specific form, other than being written and filed with the court. Accordingly,
these cases do not address the question of whether Lopez’s declaration constitutes sufficient
written consent to join this action, let alone counsel against so finding.
Defendants also cite to cases holding that merely listing a plaintiff in a complaint is
insufficient to constitute a written consent to join an action. See Def. Reply at 11-12 (citing
Gomez v. Tyson Foods, Inc., 799 F.3d 1192 (8th Cir. 2015), and Harkins v. Riverboat Servs.,
Inc., 385 F.3d 1099 (7th Cir. 2004)). Defendants argue that by this same principle, the
declaration at issue should also be deemed insufficient. Id. This is a non sequitur. It makes
sense that a complaint cannot function as a written consent where there is no indication that the
plaintiff has approved his or her inclusion. This distinction was noted in Harkins which
reasoned that “[i]t makes no difference that you are named in the complaint, for you might have
been named without your consent.” Harkins, 385 F.3d at 1101. Here of course, Lopez makes
clear in his declaration, which he signed, see Lopez Decl. at *11, that he is a party to the lawsuit,
id. ¶ 2.
Defendants cite to a recent decision of this Court, Knox v. John Varvatos, Inc., 2017 WL
4675781 (S.D.N.Y. Oct. 17, 2017), for the proposition that this Court must accord a “strict
interpretation of the FLSA’s opt-in and statute of limitations requirements set forth by
Congress.” Def. Reply at 12. In fact, Knox states only that the rules governing the equitable
tolling doctrine are “strict.” Knox, 2017 WL 4675781, at *9. It does not apply any special
canon of interpretation to the FLSA.
Finally, defendants argue that because Lopez “filed an opt-in form on July 25, 2017,
more than four months after his attorneys filed his declaration in support of his motion for
conditional certification,” it shows that he was not “confident” that his declaration satisfied the
15

written consent requirement. See Def. Reply at 14. What matters, however, is whether the
declaration showed that Lopez was consenting to join the lawsuit and thus satisfied the written
consent requirement at the time it was filed. If it did, then a subsequent filing of a consent form
could not negate its effect.
In sum, Lopez’s declaration qualifies as “written consent” within the meaning of 29
U.S.C. § 256(a) and therefore Lopez’s FLSA claim was timely filed.6

6

Defendants’ memorandum of law also makes a number of arguments that are irrelevant
to their motion to dismiss, including arguments regarding class certification. See Def. Mem. at
14-16. Defendants do not explain why it would be appropriate to address these arguments on a
motion to dismiss, and the Court declines to do so.
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V. CONCLUSION
For the foregoing reasons, the motion to dismiss (Docket# 192) should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties have fourteen (14) days (including weekends and holidays) from service
of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d).
A party may respond to any objections within 14 days after being served. Any objections and
responses shall be filed with the Clerk of the Court, with copies sent to the Hon. Laura Taylor
Swain at 500 Pearl Street, New York, New York 10007. Any request for an extension oftime to
file objections or responses must be directed to Judge Swain. If a party fails to file timely
objections, that party will not be permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner. LLP
v. Atkinson, Haskins, Nellis, Brittingham. Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.
2010).
Dated: March 5, 2018
New York, New York

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