Gomez v. Terri Vegetarian LLC et al

Filing 45

MEMORANDUM OPINION AND ORDER re: 31 MOTION to Certify Class (conditional collective), filed by Salvador Gomez. Upon review of the parties' submissions, Plaintiff's motion for conditional certification is GRANTED. The par ties shall meet and confer and, no later than June 30, 2017, submit revised versions of a proposed order, notice, and consent form in accordance with this Memorandum Opinion and Order. (Counsel should refer to the notices and consent forms in Tama y et al. v. Mr. Kabob Restaurant, Inc., 15-CV-5935 (JMF) (Docket No. 26), Sanz et al. v. Johny Utah 51 LLC et al., 14-CV-4380 (JMF) (Docket No. 61), and Saleem v. Corporate Transportation Group, Ltd., 12-CV-8450 (JMF) (Docket No. 67), for examples of notices and opt-in forms that the Court has previously approved.) The Clerk of Court is directed to terminate Docket No. 31, and as further set forth herein. Motions terminated: 31 MOTION to Certify Class (conditional collective). filed by Salvador Gomez. (Signed by Judge Jesse M. Furman on 6/16/2017) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SALVADOR GOMEZ, on behalf of himself, FLSA
:
Collective Plaintiffs, and the Class,
:
:
Plaintiff,
:
:
-v:
:
TERRI VEGETARIAN LLC d/b/a TERRI et al.,
:
:
Defendants.
:
:
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06/16/2017

17-CV-213 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
Plaintiff Salvador Gomez 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 Terri Vegetarian LLC (“Terri 1”), Terri 2 LLC (“Terri 2”), and Terri 3
LLC (“Terri 3”), all of which do business as Terri (collectively, the “Restaurant Defendants”), as
well as Craig Cochran, Jeffrey Lapadula, and Tomer Versano (collectively, with the Restaurant
Defendants, “Defendants”), to recover unpaid minimum wage and overtime pay. Plaintiff now
moves for conditional certification of a FLSA collective action. (Docket No. 31). Upon review
of the parties’ submissions, Plaintiff’s motion for conditional certification is GRANTED.
Plaintiff, who worked as a delivery person at Terri 3 from approximately March 2016 to
October 2016, moves to certify a class of “all non-exempt employees, including cooks, counter
persons and delivery persons,” employed at the Restaurant Defendants “within the last six (6)
years.” (Docket No. 31-1, ¶ 1; see Docket No. 33 (“Gomez Decl.”) ¶ 1; Docket No. 39
(“Versano Decl.”) ¶ 14). With respect to employees at Terri 3, Plaintiff carries 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, 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 also, e.g., Santiago
v. Tequila Gastropub LLC, No. 16-CV-7499 (JMF), 2017 WL 1283890, at *1 (S.D.N.Y. Apr. 5,
2017). 1 (See Docket No. 1 (“Compl.”); Docket No. 34 (“Reyes Decl.”); Gomez Decl.).
Defendants do not seriously argue otherwise, at least as to delivery persons at Terri 3. To the
extent that they argue that Plaintiff’s motion should be granted only as to delivery persons
(Docket No. 37 (“Defs.’ Opp’n), at 13-15), their argument falls short, as Plaintiff carries his low
burden of showing that other non-exempt workers were subject to the same hour and wage
practices. (See, e.g., Gomez Decl. ¶ 4; Reyes Decl. ¶ 4).
Whether Plaintiff’s motion should be granted as to non-exempt employees at Terri 1 and
Terri 2 presents a closer question, but the Court concludes that it should. Plaintiff alleges that
the Defendant Restaurants are commonly owned and operated under the same name, points that
Defendants appear to concede. (Gomez Decl. ¶ 2; Reyes Decl. ¶ 2; Docket Nos. 32-2, 32-3).
More significantly, Plaintiff and another former employee allege that employees were regularly

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Plaintiff invites the Court to follow Turner v. Chipotle Mexican Grill, Inc., 123 F. Supp.
3d 1300 (D. Colo. 2015), in holding that he need not meet any burden for others to join his FLSA
suit against Defendants. (Docket No. 32 (“Pl.’s Mem.”), at 9-16). But Plaintiff abandons that
argument in his reply memorandum of law (see Docket No. 44), and explicitly acknowledges
that it is contrary to the approach adopted by the Second Circuit and district courts within the
Second Circuit (see Pl.’s Mem. at 16-18). Accordingly, the Court declines Plaintiff’s invitation.

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required to work interchangeably between the Restaurant Defendants and to transfer supplies and
ingredients between the Restaurant Defendants; were threatened with termination if they refused
to work at a different restaurant location that was short-staffed; and that the three restaurants
were subject to the same wage and hour policies. (Gomez Decl. ¶¶ 2, 5; Reyes Decl. ¶ 2).
Defendants dispute Plaintiff’s claim that he was asked to work at the other locations on a regular
basis, but — notably — their own submissions confirm that Plaintiff was directed, on at least one
occasion, to work at Terri 2, thus confirming the central point. (Versano Decl. ¶¶ 9-14). In any
event, factual disputes are not a basis to deny certification at this stage. See, e.g., Lynch v.
United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 367-68 (S.D.N.Y. 2007).
For the foregoing reasons, the Court concludes that Plaintiff satisfies his low burden as to
all three Restaurant Defendants, and thus grants Plaintiff’s motion for conditional certification of
a collective action. See, e.g., Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 662-64 (S.D.N.Y.
2013) (certifying a collective action including employees at locations other than the location
where the plaintiff was primarily employed); see also Juarez v. 449 Rest., Inc., 29 F. Supp. 3d
363, 370-71 (S.D.N.Y. 2014) (same); Mendoza v. Ashiya Sushi 5, Inc., No. 12-CV-8629 (KPF),
2013 WL 5211839, at *5 (S.D.N.Y. Sept. 16, 2013); cf. Santiago, 2017 WL 1283890, at *1-2
(limiting certification to the location where the plaintiff was employed where he had alleged only
that he had worked at one of the other two locations, “without providing any information
concerning the timing, duration, terms, or conditions of such work”; stated “that ‘[t]o the best of
[his] knowledge’ Defendants ‘control and operate’ the three restaurants and that ‘[e]mployees at
Defendants’ Restaurants were interchangeable and shifted as needed’”; and cited only one
employee who had worked at each of the other locations).

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Accordingly, Plaintiff’s motion for conditional certification is GRANTED. With respect
to the parties’ subsidiary disputes and Plaintiff’s proposed notice and opt-in form, the Court
further rules as follows:
•

Given that the statute of limitations for claims under the FLSA is, at most, three
years, there is no basis or need to send notice to those who worked for Defendants
more than three years prior to Plaintiff’s filing of his Complaint. See, e.g.,
Hamadou, 915 F. Supp. 2d at 668 (“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 citations omitted)).

•

Plaintiff’s categorical request for equitable tolling of the statute of limitation is
denied — without prejudice to an application from any opt-in plaintiff based on
an individualized showing that tolling is warranted. See, e.g., Whitehorn v.
Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 451 (S.D.N.Y. 2011) (holding
that, where “equitable tolling may extend the statute of limitations for certain
prospective plaintiffs . . . . it is appropriate for notice to be sent to the larger class
of prospective members, with the understanding that challenges to the timeliness
of individual plaintiffs' actions will be entertained at a later date”).

•

Within two week of this Memorandum Opinion and Order, 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 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).

•

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.

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•

The consent form shall be modified to make clear that potential plaintiffs may
retain other counsel (or represent themselves).

•

Finally, the Notice should be modified to advise recipients that their immigration
status does not affect their entitlement to recover back wages or to participate in
the lawsuit and that they have a right to participate in the action even if they are
undocumented immigrants.

The parties shall meet and confer and, no later than June 30, 2017, submit revised versions of a
proposed order, notice, and consent form in accordance with this Memorandum Opinion and
Order. (Counsel should refer to the notices and consent forms in Tamay et al. v. Mr. Kabob
Restaurant, Inc., 15-CV-5935 (JMF) (Docket No. 26), Sanz et al. v. Johny Utah 51 LLC et al.,
14-CV-4380 (JMF) (Docket No. 61), and Saleem v. Corporate Transportation Group, Ltd., 12CV-8450 (JMF) (Docket No. 67), for examples of notices and opt-in forms that the Court has
previously approved.)
The Clerk of Court is directed to terminate Docket No. 31.

SO ORDERED.
Date: June 16, 2017
New York, New York

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