Diaz v. New York Paving Inc.

Filing 308

OPINION AND ORDER re: 270 MOTION for Reconsideration re; 266 Memorandum & Opinion,, . filed by New York Paving Inc.. Because Defendants have not identified "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice," Kolel Beth Yechiel Mechil of Tartikov, Inc., 729 F.3d at 104, their motion for reconsideration is denied. The Parties are hereby ORDERED to file a joint status report on or before March 26, 2024. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 3/12/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDCSDNY
DOCUME T
ELECTRO I CALLY FILED

DOC#: _ _ _ _ _ __ _
DATE FILED: _
_ __ __
3/12/2024

DIAZ, individually and on behalf of all others
similarly situated,
Plaintiff,

18-CV-04910 (ALC)

-against-

OPINION & ORDER

NEW YORK PAVING INC.,
Defendant.
ANDREW L. CARTER, United States District Judge:
In an Opinion and Order issued on March 31, 2023, this Court granted Plaintiff Edgardo
Diaz’s (“Plaintiff”) motion for class certification. See ECF No. 266; Diaz v. N.Y. Paving Inc., No.
18-cv-4910 (ALC), 2023 U.S. Dist. LEXIS 57143 (S.D.N.Y. Mar. 31, 2023) (“Opinion & Order”).
Defendant New York Paving Inc. (“Defendant”) now moves for reconsideration of that decision.
For the reasons set forth below, Defendant’s motion is DENIED.
BACKGROUND
In its prior order, the Court certified Plaintiff to bring claims on behalf of a class of “[a]ll
persons who were employed by NY Paving as pavers at any time from June 3, 2012, through the
date of Judgment.” Opinion & Order at 2.
LEGAL STANDARD
I.

Motion for Reconsideration
“The standard for granting a motion for reconsideration is strict.” RCC Ventures, LLC v.

Brandtone Holdings Ltd., 322 F.R.D. 442, 445 (S.D.N.Y. 2017). Motions for reconsideration are
generally denied “unless the moving party can point to controlling decisions or data that the
court overlooked—matters, in other words, that might reasonably be expected to alter the

conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)
(citation omitted). A motion for reconsideration “is not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a
second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d
Cir. 2012). Therefore, a “motion for reconsideration should be granted only when the [moving
party] identifies an intervening change of controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of
Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (quoting Virgin Atl.
Airways, Ltd. V. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation
marks omitted). The moving party is barred from “advanc[ing] new facts, issues[,] or arguments
not previously presented to the Court' on a motion for reconsideration.” Steinberg v. Elkman,
No. 15CV278-LTS-DCF, 2016 U.S. Dist. LEXIS 52192, at *2 (S.D.N.Y. Apr. 6, 2016) (quoting
Nat'l Union Fire Ins. Co. of Pittsburgh v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)).
DISCUSSION
Defendant argues that the class certification decision should be reconsidered based on the
Court’s purported failure to consider certain material facts. See ECF 270 (“Motion”) at 1.
Specifically, Defendant argues that the Court overlooked the following facts:
•
•
•

the practice of “reporting” to the LIC Yard began and has continued as a
voluntary carpooling procedure for the benefit of non-foremen laborers
performing paving services (a “Paver”);
unlike Pavers, Defendant actually requires Foremen to report to the yard
prior to the first jobsite and compensates Foremen for this time; and
Defendant adduced evidence regarding the minimal amount of de minimis
time it would take Pavers to perform the preliminary work alleged (if any).

Id. at 1-2. Defendant argues that, if considered, these facts “would have led the Court to
ultimately deny class certification” because they establish “conflicts within the class definition,”

“the existence of a serious question as to” the superiority of class aggregation, and “a lack of
common questions of law or fact amongst the class members.” Id. at 2.
Separately, Defendant also argues that the Court overlooked facts as to Plaintiff’s
adequacy as a class representative. The first factual allegation is that Plaintiff only worked select
dates in 2016 and 2017 prior to a compensation policy change in June 2018. Id. The second is
that, to the extent the Class Order includes foremen, inherent conflicts between foremen and
pavers should preclude Plaintiff from serving as a class representative. Id. The third is that
Plaintiff, as a member of Local 175, performed substantively different work than those pavers in
Local 1010. Id. The final argument is that Plaintiff ought not be able to bring claims on behalf
of pavers at the Old Bethpage facility. Id.
Defendant has previously raised many of these arguments to this Court on several
occasions and did so in its prior motion opposing class certification. See ECF No. 254 at 4-7
(arguing that Defendant had no policy mandating “laborers” report to the yards and provided
non-obligatory carpooling services); id. at 7 (arguing that “only Foremen were required to arrive
at the Yard, and only Foremen had to ensure their crew had all necessary tools and materials”);
id. at 5 (arguing that Plaintiffs had not adequately alleged they were required to undertake
“preparatory work”); id. at 24-25 (discussing Defendant’s change in compensation policies in
2018); id. at 23-24 (arguing that the class ought not include Foreman as pavers and Foreman
were subject to “materially different policies”); id. at 25 (raising objections to the inclusion of
pavers who worked “out of Old Bethpage” in the Plaintiff’s class); id. at 22-23 (arguing that the
class “must exclude Local 1010 Unit Members”); see also ECF No 38 (raising the same
arguments in opposition to Plaintiff’s motion for conditional certification of FLSA collective
action); ECF No. 61 (doing the same in opposition to Plaintiff’s Request for Corrective Notice);

ECF No. 238 (doing the same in its motion for decertification of the conditional collective).
Defendant’s arguments have been unsuccessful at each turn, except as to their argument on the
Old Bethpage facility. See ECF No. 232 (clarifying that the Old Bethpage pavers are not
involved in the present litigation and that Plaintiff would have to amend his complaint to include
their claims). 1
“Contrary to [Defendant’s] assertions,” these arguments “w[ere] not overlooked.”
Kassman v. KPMG LLP, 2018 U.S. Dist. LEXIS 215151, at *4 (S.D.N.Y. Dec. 21, 2018). First,
the Court explicitly considered and rejected several of these arguments in its prior Order. See
Opinion & Order at 4-7 (considering Defendant’s arguments as to reporting to the Yard and
preparatory work); Id. at 7-9 (doing the same as to Defendant’s arguments regarding Foremen’s
comparative responsibilities and compensation). While “[t]he Court did not explicitly address
every argument made by the [Defendant], . . . [i]t is plain that [these argument] w[ere] implicitly
rejected in the Court’s” Order. Kassman, 2018 U.S. Dist. LEXIS 215151 at *4. See Opinion &
Order at 6 (finding that potential class members, regardless of union membership status or
compensation structure, “are invested in proving that NY Paving had a de facto policy of
requiring workers to report to a central location and complete various tasks before officially
“clocking-in”).
Additionally, it is not the role of this court at the class certification stage “to engage in
free-ranging merits inquiries.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466
(2013). Rather, the “key inquiry at this stage is . . . whether the constituent issues that bear on
defendant’s ultimate liability are provable in common.” Megason v. Starjem Rest. Corp., 2014

For the avoidance of doubt, and in accordance with Magistrate Judge Gorenstein’s determinations, the Court
clarifies that the prior Opinion & Order’s class definition excludes Old Bethpage facility pavers from the class
definition as Plaintiff has yet to amend their complaint to include those workers.
1

U.S. Dist. LEXIS 3910, at *20 (S.D.N.Y. Jan. 10, 2014) (citing Myers v. Hertz Corp., 624 F.3d
537, 550 (2d Cir. 2010)) (cleaned up). Despite Defendant’s attempts to frame their arguments as
stemming from “the indisputable factual record,” many of these matters remain hotly contested
between the Parties. 2 Mot. at 9, 21; see also ECF No. 280 at 15-17 (presenting Plaintiff’s factual
contentions in opposition). Such determinations of fact would be improper for the Court to make
at the current stage of the litigation.
CONCLUSION
Because Defendants have not identified “an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice,"
Kolel Beth Yechiel Mechil of Tartikov, Inc., 729 F.3d at 104, their motion for reconsideration is
denied. The Parties are hereby ORDERED to file a joint status report on or before March 26,
2024.
SO ORDERED.

Dated: March 12, 2024
New York, New York

_______________________________
ANDREW L. CARTER, JR.
United States District Judge

The Court makes no statement here as to whether or not there exist sufficient questions of material fact potentially
precluding summary judgment.

2