Sanchez v. Jyp Foods Inc., et al

Filing 33

MEMORANDUM OPINION AND ORDER re: 23 MOTION to Certify Class Conditional Certification of a Collective Action filed by Marco Antonio Sanchez. Plaintiff's motion for conditional certification of a collective action is GRANTED . As for the parties' subsidiary disputes, the Court rules as set forth herein. The parties shall meet and confer and, no later than January 17, 2017, submit revised versions of the proposed Order, notice, and consent form in accordance w ith this Memorandum Opinion and Order. (Counsel are directed to Docket No. 67 in Saleem v. Corporate Transportation Group, Ltd., 12-CV-8450 (JMF), and Docket No. 26 in Tamay et al. v. Mr. Kabob Restaurant, Inc., 15-CV-5935 (JMF), and Docket No. 61 in Sanz et al. v. Johny Utah 51 LLC et al., 14-CV-4380 (JMF), for examples of notices and opt-in forms that the Court has previously approved.) The Clerk of Court is directed to terminate Docket No. 23. (Signed by Judge Jesse M. Furman on 1/10/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
MARCO ANTONIO SANCHEZ, individually and on
:
behalf of all other similarly situated persons,
:
:
Plaintiffs,
:
:
-v:
:
JYP FOODS INC., et al.,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X

01/10/2017

16-CV-4472 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
Plaintiff Marco Antonio Sanchez brings this action pursuant to the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York State Labor Law (“NYLL”), N.Y.
Lab. Law § 650 et seq., against Jyp Foods Inc., doing business as Kristabelli, and Joon Kim
(together, “Defendants”) to recover unpaid minimum wage and overtime pay. On November 28,
2016, Plaintiff moved for conditional certification of a FLSA collective action and for approval
of a collective action notice. (Docket No. 23). Upon review of the parties’ submissions,
Plaintiffs’ motion for conditional certification is GRANTED.
Plaintiff has carried his “low” burden at this stage of making a “modest factual showing”
that he and “potential opt-in plaintiffs together were victims of a common policy or plan that
violated the law.” Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) (internal quotation
marks omitted); see also, e.g., Amador v. Morgan Stanley & Co. LLC, No. 11-CV-4326 (RJS),
2013 WL 494020, at *2 (S.D.N.Y. Feb. 7, 2013) (noting that a plaintiff may rely “‘on [his] own
pleadings, affidavits, [and] declarations’” to support a motion for collective action certification

(quoting Hallissey v. Am. Online, Inc., No. 99-CV3785 (KTD), 2008 WL 465112, at *1
(S.D.N.Y. Feb. 19, 2008)). (See Docket No. 1 ¶¶ 20, 22-31, 34-35; Docket No. 25 Exs. B-D).
Defendants’ arguments to the contrary — most notably, their argument with respect to the socalled “tip credit” (Docket No. 28, at 5-7) — not only go to the merits, which are beyond the
scope of the present motion, see, e.g., Lynch v. United Servs. Auto. Ass’n, 491 F. Supp. 2d 357,
367-68 (S.D.N.Y. 2007), but also serve to confirm that there are common issues of fact and law
that render this case appropriate for conditional certification.
Accordingly, Plaintiff’s motion for conditional certification of a collective action is
GRANTED. As for the parties’ subsidiary disputes, the Court rules as follows:
•

As Plaintiff has made a showing that Defendants’ policies extended to bartenders
and servers (Docket No. 26, at 2-4), Defendants’ objection to the scope of the
collective is overruled.

•

Notice shall be sent to all current and former bussers, servers, bartenders, and
runners on or after June 14, 2013 — namely, within three years of the date on
which the Complaint was filed. See, e.g., Hamadou v. Hess Corp., 915 F. Supp.
2d 651, 668 (S.D.N.Y. 2013) (“Notice would normally be provided to those
employed within three years of the date of the notice. However, because
equitable tolling issues often 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
plaintiffs’ actions will be entertained at a later date.” (internal quotation marks
and citation omitted)).

•

Defendants shall post notices in a conspicuous non-public location at their place
of business. See, e.g., Sanchez v. Salsa Con Fuego, Inc., No. 16-CV-473 (RJS)
(BCM), 2016 WL 4533574, at *7 (S.D.N.Y. Aug. 24, 2016) (“[C]ourts 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.” (internal
quotation marks omitted)).

•

Defendants shall produce not only the names and last-known addresses of
potential collective members, but also last-known telephone numbers and e-mail
addresses. Defendants shall not, in the first instance, produce any Social Security
numbers. If a notice is returned as undeliverable, Defendants shall provide the
Social Security number of that individual to Plaintiff’s counsel. Any Social
Security numbers so produced will be maintained by Plaintiff’s counsel alone and
used for the sole purpose of performing a skip-trace to identify a new mailing
2

address for notices returned as undeliverable. All copies of Social Security
numbers, including any electronic file or other document containing the numbers,
will be destroyed once the skip-trace analysis is completed. Within fourteen days
following the close of the opt-in period, Plaintiff’s counsel will certify in writing
to the Court that the terms of this Order have been adhered to and that the
destruction of the data is complete. These procedures are sufficient to safeguard
the privacy information of potential plaintiffs. See, e.g., Shajan v. Barolo, Ltd.,
No. 10-CV-1385 (CM), 2010 WL 2218095, at *1 (S.D.N.Y. June 2, 2010).
•

The notice should include defense counsel’s contact information. (Docket No. 29,
at 6 n.3 (consenting to add defense counsel’s information to the proposed notice)).

•

To avoid disputes over timeliness, potential opt-in plaintiffs shall be required to
send their consent forms directly to the Clerk of Court rather than to Plaintiff’s
counsel.

•

Section V of the proposed notice is approved as is.

•

Plaintiff’s counsel is permitted to send a reminder notice thirty days before the
close of the opt-in period.

The parties shall meet and confer and, no later than January 17, 2017, submit revised versions
of the proposed Order, notice, and consent form in accordance with this Memorandum Opinion
and Order. (Counsel are directed to Docket No. 67 in Saleem v. Corporate Transportation
Group, Ltd., 12-CV-8450 (JMF), and Docket No. 26 in Tamay et al. v. Mr. Kabob Restaurant,
Inc., 15-CV-5935 (JMF), and Docket No. 61 in Sanz et al. v. Johny Utah 51 LLC et al., 14-CV4380 (JMF), for examples of notices and opt-in forms that the Court has previously approved.)
The Clerk of Court is directed to terminate Docket No. 23.
SO ORDERED.
Date: January 10, 2017
New York, New York

3