Rojas et al v. Kalesmeno Corp. et al

Filing 53

MEMORANDUM AND ORDER granting in part and denying in part #37 Motion to Certify Class. For the reasons set forth above, Plaintiff's motion for conditional collective action certification under Section 216(b) of the FLSA (Docket No. 37) is granted in part and denied in part. The Court grants conditional certification of the FLSA claim as a representative collective action pursuant to 29 U.S.C. 216(b) on behalf of all non-exempt employees (including servers, delivery persons, porters, food preparers, dishwashers, cooks, and cashiers) of The Flame Diner between January 10, 2014 and the present. The parties shall meet and confer and submit a revised notice within fourteen days of the entry of this Memorandum and Order. Upon approval, this notice shall be translated into Spanish. Within thirty days, the defendants shall produce a list of names, titles, compensation rates, last known mailing addresses, email addresses, telephone numbers, and dates of employment for all non-exempt workers at The Flame Diner for the three years prior to the filing of the complaint. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 7/19/2017) Copies Transmitted this Date By Chambers. (anc)

information for all prospective members of the collective; (4)
tolling the statute of limitations until counsel is able to send
this notice to potential collective members; (5) ordering the
defendants to post the plaintiffs’ proposed notice in conspicuous
locations at the defendants’ restaurants; and (6) requiring the
proposed notice be translated, posted, and mailed in Spanish.

For

the reasons set forth below, the plaintiffs’ motion is granted in
part and denied in part.
Background
Ambrioso, Domingo, and Carlos Rojas are employees of The Flame
Diner, a restaurant located at 893 9th Avenue, New York, NY.
(Complaint (“Compl.”), ¶¶ 23-25).

They have worked for the diner

as delivery persons, dishwashers, and porters. (Compl., ¶¶ 23-25).
Ambrosio was hired in June 2009, Domingo and Carlos in February
2013.

(Compl., ¶¶ 23-25).

The plaintiffs allege that throughout

their employment they have been paid fixed, cash salaries below
minimum wage.

(Compl., ¶¶ 23-27).

These salaries did not account

for overtime, although the plaintiffs worked over forty hours per
week.
stubs.

(Compl., ¶¶ 23-27, 31, 35).
(Compl., ¶ 26).

They were not provided with pay

Furthermore, the plaintiffs allege that

the defendants took an improper tip credit, as the plaintiffs
received neither proper notice that the defendants were taking a
tip credit, nor statements informing them of the amount of this
2

credit.

(Compl., ¶¶ 13, 28).

And they allege that the defendants

also failed to keep track of the tips the plaintiffs and other
employees received. (Compl., ¶ 30). The defendants also allegedly
failed to pay the plaintiffs a “spread of hours” premium when their
work days exceeded ten hours.

(Compl., ¶ 32).

They also did not

keep proper records of the plaintiffs’ employment. (Compl., ¶ 34).
In addition to The Flame Diner, the plaintiffs have sued
several individual defendants. Vasilios Katsanos is part owner and
chief executive of The Flame Diner.
Elias

Tsinias,

and

Konstantinos

(Compl., ¶ 9).
Katsanos

are

John Tsinias,
all

owners,

executives, or principals of Kalesmeno Corporation, doing business
as The Flame Diner. (Compl., ¶ 9).

The plaintiffs have also sued

three other restaurants -- Olympic Flame Diner, The Red Flame, and
Murray Hill Diner –- each of which is partially owned by Vasilios
Katsanos, who is also their Executive Officer.

(Compl., ¶ 9;

Declaration of Vasilios Katsanos dated May 31, 2017 (“Katsanos
Decl.”), ¶ 4).

Each is a separate legal entity.

The plaintiffs

argue that these other entities are liable under the “single
unified enterprise” theory.

(Memorandum of Law in Support of

Plaintiffs’ Motion for Conditional Collective Certification (“Pl.
Memo.”), at 2-3).
The plaintiffs initiated this action on January 10, 2017.
They

allege

that

they

are

entitled
3

to

(1)

unpaid

overtime

compensation; (2) unpaid minimum wages; (3) unpaid spread of hours
premiums;

(4)

statutory

damages;

(4)

liquidated

damages;

(5)

attorneys’ fees and costs; and (6) declaratory and injunctive
relief.

(Compl. at 20-21).

The plaintiffs have sued on behalf of

themselves, a putative collective of all non-exempt employees under
29 U.S.C. § 216(b), and a putative class of employees under Rule 23
of the Federal Rules of Civil Procedure.

(Compl., ¶¶ 12-22).

The

plaintiffs now seek collective action status for “all non-exempt
employees, including servers, bussers, delivery persons, porters,
food

preparers,

dishwashers,

cooks

and

cashiers,

employed

by

Defendants at each of their restaurants within the last six (6)
years

.

.

.

.”

(Pl.

Memo.

at

1).

The

defendants

oppose

conditional certification, as well as the plaintiffs’ proposed
notice, request for equitable tolling, posting of the notice at the
restaurants, and the request to produce information.
Discussion
A.

Conditional Certification
1.

Standard of Review

The plaintiffs seek conditional certification of a collective
action comprising all non-exempt employees at all four restaurants.
(Pl. Memo. at 1).

Failing that, they request certification of the

non-exempt employees at The Flame Diner.
in

Support

of

Plaintiff’s

Motion
4

for

(Reply Memorandum of Law
Conditional

Collective

Certification (“Reply”) at 11-12).

In addition to disputing the

merits of the plaintiffs’ claims, the defendants oppose the motion
arguing that the plaintiffs have failed to demonstrate that the
prospective collective action members are similarly situated to the
named plaintiffs.

(Memorandum of Law in Opposition to Plaintiffs’

Motion for Conditional Certification (“Def. Memo.”) at 6).
An FLSA plaintiff may elect to seek certification of a
collective action, a process that consists of two stages.1

Jeong

Woo Kim v. 511 E. 5th Street, LLC, 985 F. Supp. 2d 439, 445
(S.D.N.Y. 2013).

At the first stage –- the current stage of this

litigation –- 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)

1

The plaintiffs argue that the Court should follow Turner v.
Chiptole Mexican Grill, Inc., 123 F. Supp. 3d 1300 (D. Colo. 2015).
(Pl. Memo. at 10-15). The Turner court found that the two step
process is inappropriate and that allowing simple permissive
joinder is the correct approach to Section 216(b) collectives.
Turner, 123 F. Supp. 3d at 1305-09.
But the plaintiffs also
explicitly recognize that this is contrary to the long established
practice in the Second Circuit. (Pl. Memo. at 14; Reply at 1-2).
And other courts in our district and throughout this Circuit have
rejected calls to adopt the Turner approach. See Gomez v. Terri
Vegetarian LLC, No. 17 Civ. 213, 2017 WL 2628880, at *1 n.1
(S.D.N.Y. June 16, 2017); Augustyniak v. Lowe’s Home Center, LLC,
No. 14 CV 488, 2016 WL 462346, at *2 (W.D.N.Y. Feb. 8, 2016).
Accordingly I decline to apply Turner.
5

(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
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 stringent. 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.’” Fernandez v. Sharp
Management Corp., No. 16 CV 551, 2016 WL 5940918, at *2 (S.D.N.Y.
Oct. 13, 2016) (quoting Cardenas v. AAA Carting, No. 12 Civ. 7178,
2013 WL 4038593, at *1 (S.D.N.Y. Aug. 9, 2013)); accord Bittencourt
v. Ferrara Bakery & Cafe Inc., 310 F.R.D. 106, 111 (S.D.N.Y. 2015).
6

But while the burden is low, “certification is not automatic.”
Raniere v. Citigroup Inc., 827 F. Supp. 2d 294, 320 (S.D.N.Y.
2011), rev’d on other grounds, 553 F. App’x 11 (2d Cir. 2013).
“Conclusory allegations are not sufficient to support a motion for
conditional

collective

action

certification.”

Benavides

v.

Serenity Spa NY Inc., 166 F. Supp. 3d 474, 481 (S.D.N.Y. 2016).
To meet this burden, the plaintiffs’ own declarations 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

Bittencourt,

310

F.R.D.

at

115;

Mata

v.

Foodbridge LLC, No. 14 Civ. 8754, 2015 WL 3457293, at *3 (S.D.N.Y.
June 1, 2015); Khamsiri v. George & Frank’s Japanese Noodle
Restaurant Inc., No. 12 Civ. 265, 2012 WL 1981507, at *1 (S.D.N.Y.
June 1, 2012).

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.
7

United Services Automobile Association, 491 F. Supp. 2d 357, 368
(S.D.N.Y. 2007)).
2.

The Flame Diner

The plaintiffs have established that the non-exempt employees
at The Flame Diner are similarly situated. The declarations of the
three named plaintiffs demonstrate the required factual nexus
between their claims and the claims of the putative collective
action members employed at The Flame Diner. See Mentor v. Imperial
Parking

Systems,

Inc.,

246

F.R.D.

178,

181

(S.D.N.Y.

2007)

(declarations outlining brief description of alleged consistent
FLSA violations sufficient to establish common policy or plan).
The declarations of all three plaintiffs state that they were not
paid overtime premiums, nor provided wage and hour notices, notices
of a tip credit, or wage statements.
Rojas

dated

November

1,

2016

(“A.

(Declaration of Ambrosio
Rojas

Decl.”),

¶¶

5-10,

Declaration of Carlos Rojas, dated November 1, 2016 (“D. Rojas
Decl.”), ¶¶ 5-10, Declaration of Domingo Rojas, dated November 1,
2016 (“D. Rojas Decl.”), ¶¶ 5-10).
Furthermore, each plaintiff states that he has learned that
other employees are subject to these policies through
observation and conversations with those employees.

personal
(A. Rojas

Decl., ¶¶ 4-11, C. Rojas Decl., ¶¶ 4-11, D. Rojas Decl., ¶¶ 4-11).
They provide a list of one dozen fellow employees to whom they
8

spoke regarding pay polices. (A. Rojas Decl., ¶ 4, C. Rojas Decl.,
¶

4,

D.

Rojas

Decl.,

¶

4).

From

these

conversations,

the

plaintiffs learned that these other employees were subject to the
same treatment.

(A. Rojas Decl., ¶ 4, C. Rojas Decl., ¶ 4, D.

Rojas Decl., ¶ 4). At the first stage, these sorts of declarations
describing conversations with co-workers “[are] sufficient to
establish

a

factual

nexus

between

collective action members].”

Plaintiffs

and

[putative

Sanchez v. El Rancho Sports Bar

Corp., No. 13 Civ. 5119, 2014 WL 1998236, at *2 (S.D.N.Y. May 13,
2014).

These

allegations

are

specific,

non-conclusory,

and

properly allege the existence of a common plan and similarlysituated plaintiffs. Cf. Morales v. Plantworks, Inc., No. 05 Civ.
2349, 2006 WL 278154, at *2 (S.D.N.Y. Feb. 2, 2006) (finding
plaintiffs had not met burden when they did not allege common
policy or plan or reference any other employees).
The defendants argue that the motion should be denied because
the list of employees in the declarations does not include their
last names.
detail

is

(Def. Memo. at 5).
not

necessary

to

However, at this stage, such

conditional

certification.

See

Serebryakov v. Golden Touch Transportation of NY, Inc., 181 F.
Supp. 3d 169, 172, 175 (E.D.N.Y. 2016) (plaintiffs met initial
burden despite not providing last names of co-workers with whom
they conversed); Rivera v. Harvest Bakery, Inc., No. 13 Civ. 691,
9

2014 WL 3611831, at *4 (E.D.N.Y. July 7, 2014) (same); Jeong Woo
Kim, 985 F. Supp. 2d at 444 n.2, 451 (same).

And the fact that the

plaintiffs do not have complete information for their co-workers is
precisely why they are requesting that the defendants produce this
data.
The defendants also argue that the other employees at The
Flame Diner are not similarly situated because they have different
titles and responsibilities from the named plaintiffs.
at

6).

But

the

plaintiff

need

not

show

that

(Def. Memo

all

proposed

collective action members held identical jobs or were subject to
identical treatment; rather, certification is appropriate “where
all putative class members are employees of the same [] enterprise
and allege the same types of FLSA violations.”

Fasanelli v.

Heartland Brewery, Inc., 516 F. Supp. 2d 317, 322 (S.D.N.Y. 2007).
Despite

the

differences

in

titles

and

responsibilities,

the

plaintiffs have demonstrated that these potential opt-in plaintiffs
are similarly situated with respect to the claims.

See Walston v.

Edward J. Young, Inc., No. 15 CV 457, 2016 WL 3906522, at *6
(E.D.N.Y. Feb. 22, 2016) (collective action appropriate despite
opt-in

plaintiffs

having

different

titles

and

job

responsibilities); Guaman v. 5 M Corp., No. 13 Civ. 3820, 2013 WL
5745905, at *4 (S.D.N.Y. Oct. 23, 2013) (“In the Second Circuit,
courts routinely find employees similarly situated ‘despite not
10

occupying the same positions or performing the same job functions
in the same locations, provided that they are subject to a common
unlawful

policy

or

practice.’”)

(quoting

Summa

v.

Hofstra

University, 715 F. Supp. 2d 378, 390 (E.D.N.Y. 2010))); Cano v.
Four M Food Corp., No. 08 CV 3005, 2009 WL 5710143, at *7 (E.D.N.Y.
Feb. 3, 2009) (“It is not necessary for the purposes of conditional
certification that the prospective class members all performed the
same duties, or worked during the same time periods, or worked at
the same locations as the named plaintiffs.”).
2.

Other Restaurants

“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 (S.D.N.Y. 2013).
To

make

this

determination

“[c]ourts

consider

whether

the

plaintiffs have made an adequate factual showing to support an
inference that such a uniform policy or practice exists, and
whether the locations share common ownership or management.”
The

plaintiffs

argue

integrated enterprise.

that

the

defendants

are

a

Id.

single

(Pl. Memo. at 2-3). “Whether or not

Defendants operated as a single enterprise is a complicated and
fact-specific inquiry that is not properly determined at the class
11

certification stage.”

Tiro v. Public House Investments, LLC, 288

F.R.D. 272, 279 (S.D.N.Y. 2012).

The question at this juncture is

not whether the restaurants were part of the same enterprise, but
rather whether there was a “uniform policy or practice.”

Hamadou,

915 F. Supp. 2d at 662. Here, the plaintiffs have presented no
evidence to that effect.
The plaintiffs do not claim to know the payroll systems and
policies at the other restaurants. While they claim that they know
from personal observations and conversations that other employees
at The Flame Diner were subject to similar treatment

(A. Rojas

Decl., ¶¶ 4-11, C. Rojas Decl., ¶¶ 4-11, D. Rojas Decl., ¶¶ 4-11),
they do not allege to have conversed with employees at the other
restaurants. The plaintiffs’ mere belief that the policies are the
same

at

the

collective

other

action

restaurants

is

certification.

insufficient
See

Apolinar

to
v.

justify
R.J.

49

Restaurant, LLC, No. 15 CV 8655, 2016 WL 2903278, at *7 (S.D.N.Y.
May

18,

location]

2016)
says

(“plaintiffs’
[sic]

nothing

own

experiences

about

the

[working

existence

of

at

one

illegal

employment policies at other [] locations”); Monger v. Cactus Salon
& Spa’s LLC, No. 08 CV 1817, 2009 WL 1916386, at *2 (E.D.N.Y. July
6, 2009) (plaintiffs’ belief that other locations were subject to
same policy insufficient to certify collective action); Bernard v.
Household International, Inc., 231 F. Supp. 2d 433, 435-36 (E.D.
12

Va. 2002) (rejecting extension of collective action to locations
where plaintiffs did not work given lack of evidence and specific
allegations regarding practices at those locations).
The plaintiffs claim that they were “regularly required to
transfer ingredients and supplies among the restaurants.”

(A.

Rojas Decl., ¶ 2, C. Rojas Decl., ¶ 2, D. Rojas Decl., ¶ 2).

This,

however, provides no evidence of unified payroll policies.

Brief

and incidental interactions with other locations do not mean the
plaintiffs have shown that these employees are similarly situated.
Espinoza v. 953 Associates LLC, 280 F.R.D. 113, 126 (S.D.N.Y.
2011).

The plaintiffs also allege that the restaurants have a

common ownership group.

(Compl., ¶¶ 7, 9).

But “evidence of

common ownership is not evidence that the same unlawful employment
policy was in place at each of the [] restaurants.”

Guamann, 2013

WL 5745905, at *3.
The Complaint also alleges that the plaintiffs “sometimes were
required

to

locations].”

substitute

for

absent

(Compl., ¶ 7).

employees

[at

the

other

However, this allegation is not

supported by any of the plaintiffs’ declarations, nor is it cited
in their brief on this motion.

And, other than conclusory,

unsupported claims in the Complaint (Compl., ¶ 9), the plaintiffs
make no showing that Mr. Katsanos or any other manager directly
oversaw all of the restaurants.
13

Cf. Cheng Chung Liang v. J.C.

Broadway Restaurant, Inc., No. 12 Civ. 1054, 2013 WL 2284882, at *1
(S.D.N.Y.

May

23,

2013)

(single

supervisor

over

multiple

restaurants “provides adequate evidence to indicate that employees
at other restaurants controlled by defendants may be similarly
situated”).

The plaintiffs’ declarations provide no additional

information tending to demonstrate a common policy across the
locations.

Cf. Qing Tian Zhuo v. Jia Xing 39th Inc., No. 14 CV

2848, 2015 WL 1514950, at *4 (S.D.N.Y. April 1, 2015) (certifying
collective action over multiple locations based on affidavit where
employee testified to common ownership, management, and specific
personal conversations with employees working at other locations).
The plaintiffs’ burden may be low at this stage of litigation, but
“it is not non-existent.”

Romero v. H.B. Automotive Group, Inc.,

No. 11 Civ. 386, 2012 WL 1514810, at *10 (S.D.N.Y. May 1, 2012).
They have failed to meet that burden with regard to the other
restaurants.
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.

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
14

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, 310 F.R.D. at 116 (quoting Fasanelli,

516 F. Supp. 2d at 323).

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).
1.

Content

The plaintiffs have submitted a proposed notice and opt-in
consent form.

(Proposed Notice of Pendency of Lawsuit Regarding

Wages, attached as Exh. A to Pl. Memo).

The defendants raise

several concerns with the content of the plaintiffs’ proposed
notice. (Def. Memo. at 7-9). The plaintiffs now suggest they meet
and confer with the defendants to resolve these details. (Reply at
13).

Accordingly, I order the parties to meet, confer, and submit

a joint proposed notice within fourteen days of the entry of this
Memorandum and Order. If there are still disagreements, each party
will provide a letter explaining the disagreements and reasons for
their preferences.
2.

Notice Period

The defendants assert that notice should be sent only to
15

workers employed within three years of the filing of the complaint
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 NYLL, which
has a six-year statute of limitations.

There is a split in this

Circuit as to 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

at

that

time

through

the

class

action

notification process.” Romero, 968 F. Supp. 2d at 648-49; see also
Garcia, 2016 WL 6561302, at *9 (holding that three-year covered
period

was

appropriate

when

certification of NYLL claim).

plaintiff

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.
16

The rationale for approving a six-year window is that it is
efficient to provide “notice to plaintiffs with FLSA claims who may
also

have

NYLL

claims

subject

to

a

six-year

statute

of

limitations.” Id. Additionally, six years may be appropriate when
the potential class is not very large and the notice itself
mitigates possible confusion.

Benavides, 166 F. Supp. 3d at 484-

85.
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
ended more than three but less than six years before the complaint
was filed.

Therefore, notice will be sent to all non-exempt

employees who worked at The Flame Diner in the three year-period
before the filing of the complaint.
3.

Posting of Notice

The plaintiffs ask that the Court order the defendants to post
the

notice

restaurants.

in

“conspicuous

locations”

at

the

defendants’

The defendants object, claiming that “[p]osting

notice is not necessary where defendants provide sufficient contact
information for potential collective members.”

(Def. Memo. at 9).

This is perplexing given that they state on the very next page of
their brief that they may be unable to provide sufficient contact
information for potential collective members.
17

(Def. Memo. at 10).

Furthermore, “[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.”
F. Supp. 2d at 449 (collecting cases).

Whitehorn, 767

“Posting notice in the

workplace maximizes potential plaintiffs’ opportunities to be
informed of the pendency of the litigation and consider whether to
opt in.”

Mendoza, 2013 WL 5211839, at *9. There is no evidence

that posting such a notice will be particularly burdensome.

Thus,

the defendants shall post the notice in a common, non-public
employee space at The Flame Diner.
4.

Translation of Notice

The plaintiff has proposed translating the notice and consent
form into Spanish.
object.

(Pl. Memo. at 23).

The defendants do not

Accordingly, the notice and consent form, when completed

and agreed upon, shall be translated into Spanish, and both the
English and Spanish versions shall be mailed and posted. See Colon
v. Major Perry Street Corp., No. 12 Civ. 3788, 2013 WL 3328223, at
*8 (S.D.N.Y. July 2, 2013) (“[N]otice may be translated into the
mother

tongue

of

non-English

speaking

groups

of

potential

plaintiffs.”). The plaintiffs’ shall file a certification from the
interpreter attesting to the accuracy of the translation.

18

C.

Equitable Tolling

The plaintiffs request that the FLSA statute of limitations be
tolled until they are able to send notice to potential opt-in
plaintiffs.

(Pl. Memo. at 23-24). “Unlike Rule 23 class actions,

in a FLSA collective action, the limitations period continues to
run for each plaintiff until he or she files written consent with
the court to join the lawsuit.”
152, 170 (S.D.N.Y. 2014).

Jackson v. Bloomberg, 298 F.R.D.

“A statute of limitations may be tolled

as necessary to avoid inequitable circumstances.” Iavorski v. U.S.
I.N.S., 232 F.3d 124, 129 (2d Cir. 2000).

“The Second Circuit has

cautioned that the doctrine should be invoked ‘only in rare and
exceptional circumstances.’”

Mendoza v. Ashiya Sushi 5, Inc., No.

12 Civ. 8629, 2013 WL 5211839, at *10 (S.D.N.Y. Sept. 16, 2013)
(quoting Zerilli-Edelglass v. New York City Transit Authority, 333
F.3d 74, 80 (2d Cir. 2003)).
The plaintiffs offer no justification for this request.

And

there are no special circumstances such as a delay in deciding the
pending motion that would make equitable tolling appropriate.
Jackson,

298

F.R.D.

152,

170-71

(seven-month

delay

in

Cf.

court

deciding motion justified equitable tolling). At this point “it is
not yet clear whether or not any potential plaintiffs will be
barred from this action due to a delay in notice.”

Whitehorn v.

Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 450 (S.D.N.Y.
19

2011). To the extent that there are opt-in plaintiffs who would be
barred, the Court will consider applications for equitable tolling
on an individual basis. See id.; Mendoza, 2013 WL 5211839, at *10.
D.

Production of Employee Contact Information

To

facilitate the dissemination of notice to prospective

collective action members, the plaintiffs have requested that the
Court order the defendants to produce “the names, social security
numbers, titles, compensation rates, dates of employment, last
known mailing addresses and all known telephone numbers of all
Covered Employees.”

(Proposed Order, ¶ 4).

Based on the broad remedial purposes of the FLSA, district
courts

have

substantial

discretion

to

authorize

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.

It is appropriate here to order the defendants to

provide to plaintiffs’ counsel the contact information of all
potential
Steakhouse,

opt-in
Inc.,

plaintiffs.
No.

09

See

Civ.

1148,

Whitehorn
2010

WL

v.

Wolfgang’s

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).
20

“In selecting the manner of

issuing the notice, this court must strike the appropriate balance
in

ensuring

notification

to

[potential

class

members]

minimizing disturbance to [defendants’] business.”

while

Hallissey v.

America Online, Inc., No. 99 Civ. 3785, 2008 WL 465112, at *3
(S.D.N.Y. Feb. 19, 2008).
Courts in this district and throughout the Second Circuit have
repeatedly emphasized the importance of discovery of the email
addresses and telephone numbers of putative collective members.
See Melgadejo v. S&D Fruits & Vegetables Inc., No. 12 Civ. 6852,
2013 WL 5951189, at *7 (S.D.N.Y. Nov. 7, 2013) (“Disclosure of the
names, addresses, telephone numbers and email addresses of putative
class

members

is

commonplace

in

this

district

because

such

information is essential to identifying and notifying potential
opt-in plaintiffs”); In Re Penthouse Executive Club Compensation
Litigation,

2010

WL

4340255,

at

*5-6

(production

of

names,

addresses, telephone numbers “essential to identifying potential
opt-in plaintiffs and should be disclosed”).

The only claim of

burden asserted by the defendants is that it would be difficult to
coordinate the collection of data from all the restaurants, but
this objection is moot as the collective has been limited to
employees of The Flame Diner.

(Katsanos Decl., ¶ 13).

Although the defendants do not specifically oppose the request
to produce social security numbers, I nevertheless conclude that
21

this measure is unnecessary at this time.

See generally Guan Ming

Lin v. Benihana National Corp., 755 F. Supp. 2d 504, 514-15
(S.D.N.Y. 2010) (denying request to release social security numbers
citing

privacy

concerns

collecting authority).
returned

as

and

absence

of

compelling

need,

and

If a significant number of notices are

undeliverable,

the

plaintiffs

can

request

more

information that would facilitate tracing former employees.

See

Iriarte v. Café 71, Inc., No. 15 Civ. 3217, 2015 WL 8900875, at *6
(S.D.N.Y. Dec. 11, 2015); Fa Ting Wang v. Empire State Auto Corp.,
No. 14 CV 1491, 2015 WL 4603117, at *16 (S.D.N.Y. July 28, 2015).
Accordingly, the defendants shall provide the plaintiffs with
a list of names, titles, compensation rates, last known mailing
addresses,

email

addresses,

telephone

numbers,

and

dates

of

employment for all non-exempt workers at The Flame Diner for the
three

years

prior

to

the

filing

of

the

complaint.

If

the

defendants do not have complete information with regard to certain
employees, they shall so indicate in their production. This list
shall

be

furnished

within

Memorandum and Order.

thirty

days

of

the

entry

of

this

To the extent that the parties have not

previously entered into a stipulation and order of confidentiality,
they shall do so for this purpose.
Conclusion
For the reasons set forth above, Plaintiff’s motion for
22