Djurdjevich v. Flat Rate Movers, Ltd. et al

Filing 79

OPINION & ORDER: The parties shall resubmit a joint proposed notice that reflects the above resolutions no later than January 21, 2019. (Signed by Judge Alison J. Nathan on 1/7/2019) (mro)

Case 1:17-cv-00261-AJN-BCM Document 79 Filed 01/07/19 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Mirko Djurdjevich,
Plaintiff,

-vFlat Rater Movers, Ltd. et al,
Defendants
ALISON J. NATHAN, District Judge:
The Court is in receipt of the parties' joint letter regarding the Notice of Pendency. Dkt. No.
74 ("Joint Letter"). "The form of notice and its details are left to the broad discretion of this
Court." Ramos v. Platt, No. 1:13-CV-895 (GHW,) 2014 WL 3639194, at *5 (S.D.N.Y. July 23,
2014) (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)). The Court now
addresses the umesolved issues.

I.

Start Date for the Collective Action Period

The parties disagree about the state date for the collective action period. See Joint Letter at
1-3, 5-6. Plaintiff argues that it should begin on July 1, 2010, which is when Plaintiff alleges that
Defendants' wrongful conduct began. Joint Letter at 1. Defendants argue that it should begin
three years prior to the granting of conditional certification, which is November 13, 2015. Joint
Letter at 5. This Court concluded in its earlier Memorandum Opinion & Order on Defendants'
motion to dismiss that it was too early determine whether Plaintiffs claims merit equitable
tolling. See Dkt. No. 41 at 5-6. The Court explained: "it is not clear whether Defendants'
alleged failure to provide the required notice led to Plaintiffs ignorance of his rights or whether
he learned about his rights from another source." Id. at 6. The Court held that any arguments as

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to equitable tolling may be raised again, if appropriate, at the summary judgment stage. Id. For
these reasons, the Court then stated in its Opinion & Order on Plaintiff's motion for conditional
certification that "it is possible that other potential plaintiffs are similarly situated as Plaintiff,
such that equitable tolling may be warranted." Dkt. No. 70 at 9. Plaintiff argues this is why the
notice should extend back to July 2010.
However, Plaintiff cannot point to a single case in this district that has expanded the scope to
potential claims by opt-in plaintiffs to as long as eight and a half years in light of equitable
tolling. As this Court has explained in another case where the plaintiff sought to extend the optin period to six years for the same reason, "it is hard to identify a limiting principle to this
argument ... " Gaspar v. Pers. Touch Moving, Inc., No. 13-CV-8187 (AJN,) 2014 WL 4593944,
at *7 n.5 (S.D.N.Y. Sept. 15, 2014).
The longest period Plaintiff can point to is a six year period, based on cases where FLSA
claims overlap with NYLL claims. Courts in this Circuit remain split on the appropriateness of
adopting the NYLL' s limitations period for the purpose of sending FLSA notice to a group of
opt-in plaintiffs. It is true that Courts in this district have adopted a six year period for the notice
when actions also include NYLL claims. See, e.g., Fonseca v. Dircksen & Talleyrand Inc., No.
13-CV-5124 (AT), 2014 WL 1487279, at *6 (S.D.N.Y. Apr. 11, 2014); Guaman v. 5M Corp.,
No. 13-CV-3820 (LGS), 2013 WL 5745905, at *5 (S.D.N.Y. Oct. 23, 2013). This Court finds
the contrary view more persuasive. See Gaspar, 2014 WL 4593944, at *7. In particular,
authorizing notice to employees whose FLSA claims are untimely would amount to sending
those employees "a notice informing them that (1) there is a pending opt-in lawsuit, (2) they may
not opt in, and (3) they may later receive another notice should their status change due to class
certification." Lujan v. Cabana Mgmt., Inc., No. 10-CV-755 (ILG), 2011WL317984, at *9

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(E.D.N.Y. Feb. 1, 2011). For these employees, receiving an opt-in notice might be quite
confusing. See Ramos v. Platt, No. 13-CV-8957 (GHW), 2014 WL 3639194, at *4 (S.D.N.Y.
July 23, 2014); Sanchez v. El Rancho Sports Bar Corp., No. 13-CV-5119 (RA), 2014 WL
1998236, at *4 (S.D .N.Y. May 13, 2014); Trinidadv. Pref A Manger (USA) Ltd., 962 F.Supp.
2d 545, 564 (S.D.N.Y. 2013). Thus, the Court concludes that here, a three-year limitations
period is appropriate.
In light of the equitable tolling, the Court concludes that the three-year limitations period
should extend from the date of the filing of Plaintiffs complaint. See Gaspar, 2014 WL
4593944, at *7; Gomez v. Terri Vegetarian LLC, No. l 7-CV-213 (JMF), 2017 WL 2628880, at
*2 (S.D.N.Y. June 16, 2017) ("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"). Accordingly, the start date on the notice should be January 12, 2014, three
years prior to the filing of the complaint. See Dkt. No. 1.

II.

Language Describing Defendants' Position

The parties disagree about the language describing Defendants' position. See Joint Letter at
3-4, 6-7. The Court concludes that the Notice of Pendency should include the following
language, which is drawn from each parties' submission:
Defendants deny these allegations and maintain that the Named Plaintiff and other
similarly situated individuals were properly classified and compensated, and thus do not have
claims under the FLSA. Flat Rate Movers, Ltd. maintains that Plaintiff and other
subcontractors were independent contractors exempt from federal and state minimum wage
and overtime laws. Flat Rate Movers, Ltd. intends to ask the Court to decertify the collective
action. The Court has not made any determinations on the merits regarding any of Plaintiffs
claims. Receipt of this notice does not indicate an entitlement to recovery.

III.

Location for Return of Consent Form

The parties disagree as to whether the notice should direct that consent forms be returned to

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Plaintiffs' counsel, or to the Court. See Joint Letter at 4, 7. Courts in this Circuit have split on
whether notices should direct recipients to return consent forms to plaintiffs attorneys or to the
Clerk of Court in FLSA cases. Compare, e.g., Nahar v. Dozen Bagels Co. Inc., No. 15-CV-1613
(ALC) (FM), 2015 WL 6207076, at *7 (S.D.N.Y. Oct. 20, 2015) (finding a process whereby optin forms are returned to the Clerk of Court "unnecessary and ... burdensome to the Court"); with,
e.g., Brabham v. Mega Tempering & Glass Corp., No. 13-CV-54 (JG), 2013 WL 3357722, at *7

(E.D.N.Y. July 3, 2013) (ordering that opt-in forms be returned to the Court, as the alternative
approach could "discourage[ ] potential opt-in plaintiffs from seeking outside counsel" and delay
tolling of the statute of limitations).
The Court will allow the notice to direct putative plaintiffs to return consent forms to
Plaintiff's counsel. Plaintiff's counsel will be in a better position to answer potential questions
by putative members of the collective. Further, the notice states that a putative plaintiff need not
retain Plaintiff's counsel, a factor which mitigates any problems associated with having consent
forms returnable to Plaintiff's counsel. See Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 60
(S.D.N.Y. 2009) ("Because the notice states that opt-in plaintiffs can select their own counsel,
there is only a minimal risk that opt-in plaintiffs will be discouraged from seeking their own
counsel.").

IV.

Opt-in Period

The parties disagree as to the opt-in period. Joint Letter at 4-5, 7. The Court authorizes a 60day opt-in period. See Markv. Gawker Media LLC, No. 13-CV-4347 (AJN), 2014 WL
5557489, at *1 (S.D.N.Y. Nov. 3, 2014) ("[C]ourts in this district have coalesced around a
standard 60-day notice period.") (collecting cases).

V.

Distribution of the Notice

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The parties also dispute by what methods Plaintiffs counsel may disseminate notice to the
putative collective. See Joint Letter at 5, 7. The Plaintiffs seek to publish notice by mail, email,
and workplace posting. See Joint Letter at 5. The Defendants object to the latter two methods.
See Joint Letter at 7. The Court will permit the Plaintiffs to distribute the notice by mail, email,

and workplace posting, as requested.
Courts in this district regularly permit notice in FLSA actions to be disseminated not only by
mail, but also by email. See Sanchez, 2016 WL 4533574, at *6-7 (noting that "Email addresses
and telephone numbers are efficient methods of providing notice," and later stating that "first
class mail and email may both serve as efficient means of ensuring that potential opt-in plaintiffs
receive timely notice"); Martin v. Sprint/united Mgmt. Co., No. 15-CV-5237 (PAE), 2016 WL
30334, at *19 (S.D.N.Y. Jan. 4, 2016) ("Courts in this Circuit routinely approve email
distribution of notice and consent forms in FLSA cases") (collecting cases).
And "[c]ourts routinely approve the posting of notice on employee bulletin boards and in
common employee spaces." Bhumithanarn v. 22 Noodle Mkt. Corp., No. 14-CV-2625 (RJS),
2015 WL 4240985, at *4 (S.D.N.Y. July 13, 2015) (quoting Mendoza v. Ashiya Sushi 5, Inc., No.
12-cv-8629 (KPF), 2013 WL 5211839, at *9 (S.D.N.Y. Sept. 16, 2013) (collecting cases)).

VI.

Conclusion

The parties shall resubmit a joint proposed notice that reflects the above resolutions no later
than January 21, 2019.
SO ORDERED.

~

Dated: January
, 2019
New York, New York
United States District Judge

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