Ye v. 2953 Broadway LLC et al

Filing 76

ORDER granting in part and denying in part 70 Motion to Certify Class. For the foregoing reasons, Plaintiffs' motion for conditional collective certification is GRANTED with respect to a class encompassing delivery workers and DENIED wit h respect to a broader class encompassing all non-managerial employees. The statute of limitations on the FLSA claims is tolled from October 26, 2018 until the future date on which the Court approves the form of notice to potential class members and enters an order governing the noticing procedure. In light of the Court's rulings above, the parties are directed to confer and submit by no later than June 12, 2020 a revised proposed notice to potential class members and an order govern ing noticing in substantially the same form as those filed with Plaintiff's motion papers. (See Troy Decls. Exs. 2, 3.) The Clerk of the Court is directed to close the open motion [dkt. no. 70]. SO ORDERED. (Signed by Judge Loretta A. Preska on 6/3/2020) (va)

Case 1:18-cv-04941-LAP Document 76 Filed 06/03/20 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
XING YE, JIA WANG LIN, HONGYI LIN,
LIAN YAN CHEN, YONG ZHOU WANG, on
their own behalf and on behalf of
others similarly situated,
Plaintiffs,
No. 18 Civ. 04941

-versus2953 BROADWAY INC. d/b/a VINE
SUSHI, and CHO KAM SZE a/k/a TOMMY
SZE,

ORDER

Defendants.
LORETTA A. PRESKA, Senior United States District Judge:
Plaintiffs Xing Ye, Liang Yan Chen, Maohui Lin, Hongyi Lin,
and Jia Wang Lin (“Plaintiffs”), on behalf of themselves and
others similarly situated, bring this action under the Fair
Labor Standards Act (“FLSA”) and New York State Labor Law
against Defendants 2953 Broadway Inc. d/b/a Vine Sushi and Cho
Kam Sze a/k/a Tommy Sze.
(“Compl.”) [dkt. no. 5].)

(See Complaint, dated June 4, 2018
Plaintiffs allege that Defendants

violated federal and state labor laws by, among other things,
failing to pay Plaintiffs legally mandated wages and overtime,
provide meal breaks, and comply with recordkeeping and notice
requirements.
Plaintiffs move for conditional certification of this
action as a collective action.
Jan. 31, 2020 [dkt. no. 70].)

(See Notice of Motion, dated
Plaintiff’s motion seeks an
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order: (1) granting collective action status under 29 U.S.C.
§ 216(b) of the FLSA; (2) directing Defendants to produce
contact and employment information for non-managerial employees
for the period of June 2015 to the present; (3) authorizing
distribution of notice to members of the putative class so they
can opt into this action; and (4) equitably tolling the statute
of limitations for 90 days until the expiration of the opt-in
period.

(Id. at 1-2.)

For the reasons set forth below,

Plaintiffs’ motion is GRANTED in part and DENIED in part.
I.

BACKGROUND
Plaintiff Xing Ye initiated this putative collective action

in June 2018.

(See Compl.)

Xing Ye, a former deliveryman

employed at the Japanese restaurant that Defendants operated,
alleges that Defendants committed a host of violations of the
FLSA and NYLL, including by, among other things, failing to pay
their employees minimum wage, overtime, and New York’s “spread
of hours” premium.

(Id.)

Plaintiffs Hongyi Lin, Jia Wang Lin,

Liang Yan Chen, Maohui Lin, and Yong Zhong Wang -- who are also
former deliverymen employed by Defendants -- filed consents to
become Plaintiffs in this case.

(See dkt. nos. 43-46, 47.)

In connection with their conditional certification motion,
five Plaintiffs submitted affidavits detailing their employment
conditions and compensation.

(See Declaration of John Troy,

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dated Jan. 31, 2020 (“Troy Decl.”) [dkt. no. 71], Exs. 4-8.)
The substance of those affidavits is as follows:
● Xing Ye worked as a deliveryman for Defendants from
September 2012 to April 2013. (Troy Decl. Ex. 4 ¶ 3.)
He worked approximately 70 hours per week, was paid a
flat rate of $60 per day, and never received overtime or
the “spread of hours” premium. (Id. ¶¶ 5-12)
● Liang Yan Chen worked as a deliveryman periodically from
March 2003 until 2017. (Troy Decl. Ex. 5 ¶ 3.) He
worked approximately 80 hours per week, was paid a flat
rate of $300 per week, and never received overtime or the
“spread of hours” premium. (Id. ¶¶ 7-21.) As part of
his employment, Chen had to purchase electric bicycles
and batteries and was never reimbursed. (Id. ¶¶ 22-25.)
● Maohui Lin worked as a deliveryman periodically from July
2014 until December 2015. (Troy Aff. Ex. 6 ¶¶ 5-15.) He
worked between approximately 60 and 70 hours per week,
was paid $250 if he worked 5 days per week or $300 if he
worked six days, and never received overtime or the
“spread of hours” premium. (Id. ¶¶ 9-27.) Maohui Lin
was required to purchase an electric bicycle and
batteries and was not reimbursed. (Id. ¶¶ 28.)
● Hongyi Lin worked as a deliveryman from January 2012 to
December 2014. (Troy Aff. Ex. 7 ¶ 3.) He worked
approximately 74 hours per week, was paid a flat rate of
$261 per week, and never received overtime or the “spread
of hours” premium. (Id. ¶¶ 8-19.) Hongyi Lin was
required to purchase an electric bicycle and batteries
and a replacement when the bicycle was stolen and was
never reimbursed. (Id. ¶¶ 20-22.)

● Jia Wang Lin worked as a deliveryman from December 2015
to September 2016. (Troy Decl. Ex. 8 ¶ 3.) He worked
approximately 70 hours per week, was paid a flat rate of
$300 per week, and never received overtime or the “spread
of hours” premium. (Id. ¶¶ 5-15.) He was required to
purchase a motorcycle and fuel. (Id. ¶ 16.)
Two of Plaintiffs’ affidavits contain information regarding
the hours and compensation of non-delivery workers employed as
waiters or chefs.

(See Troy Decl. Exs. 4, 5.)
3

In short, the

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affidavits indicate that waiters generally worked around ten
hours per day, six days per week for $300-400 per month, and
that chefs worked around twelve hours per day, six days per week
for between $1,500 and $3,000 per month.

(See Troy Decl. Ex. 4

¶¶ 38-44, Ex. 5 ¶¶ 31-90 & chart at pp. 4-5.)
II.

LEGAL STANDARD

Section 216 of the FSLA allows employees to bring
collective action lawsuits against their employers on behalf of
themselves and “similarly situated” employees who “consent in
writing” to become party plaintiffs.

29 U.S.C. § 216(b).

When

a plaintiff seeks to bring a collective action under the FSLA
“on behalf of similarly situated employees, courts have
discretion, in appropriate cases, to implement section 216(b) by
facilitating notice to potential plaintiffs of the pendency of
the action and of their opportunity to opt-in as represented
plaintiffs.”

Weng v. Kung Fu Little Steamed Buns Ramen Inc., 17

Civ. 273 (LAP), 2018 WL 1737726, at *2 (S.D.N.Y. Mar. 26, 2018)
(citation, quotation marks and alterations omitted).
The Court of Appeals has endorsed a two-step method for
determining whether a case should be certified as a collective
action under the FSLA.

See Myers v. Hertz Corp., 624 F.3d 537,

554-55 (2d Cir. 2010).

“This process entails analysis of

whether prospective plaintiffs are ‘similarly situated’ at two
different stages: an early ‘notice stage’ and again after

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discovery is fundamentally complete.”

Mata v. Foodbridge LLC,

No. 14 Civ. 8754, 2015 WL 3457293, at *2 (S.D.N.Y. June 1, 2015)
(citing McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438,
442 (S.D.N.Y. 2012)).

At the first step, the court may

conditionally certify the case as a collective action by “making
an initial determination to send notice to potential opt-in
plaintiffs who may be ‘similarly situated’ to the named
plaintiff with respect to whether a FLSA violation has
occurred.”

Myers, 624 F.3d at 555.

At the second step,

following discovery, the court determines “on a fuller record
. . . 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.”

Id.

If the

court finds that the opt-in parties are not similarly situated,
it may decertify the action.

Id.

Plaintiffs’ motion in this case concerns step one of the
FSLA’s certification procedure.

“During this conditional

certification stage, Plaintiffs have the burden of making a
modest factual showing that they and the potential opt-in
Plaintiffs ‘together were victims of a common policy or plan
that violated the law.”

Weng, 2018 WL 1737726, at *3 (citation

and internal quotation marks omitted).

At this point, “there is

a low standard of proof because the purpose of the first stage
is merely to determine whether similarly situated plaintiffs do

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in fact exist.”

Myers, 624 F.3d at 555 (internal quotation

marks omitted).

Nevertheless, plaintiffs may not discharge

their burden by merely making “unsupported assertions.”

Id.

They must provide “actual evidence of a factual nexus” between
their situation and those of the putatively “similarly situated”
employees. Qing Gu v. T.C. Chikurin, Inc., No. 13 Civ. 2322 (SJ)
(MDG), 2014 WL 1515877, at *3 (E.D.N.Y. Apr. 17, 2014).
When deciding a motion for conditional certification, the
court does not “resolve factual disputes, decide substantive
issues going to the ultimate merits, or make credibility
determinations.”

Lynch v. United Servs. Auto, Ass’n, 491 F.

Supp. 2d 357, 368 (S.D.N.Y. 2007).

Rather, the court need only

“examine[] the pleadings and affidavits to determine whether the
named plaintiffs and putative class members are similarly
situated.”

McGlone, 867 F. Supp. 2d at 442.

“If the Court

finds that they are, it will conditionally certify the class and
order that notice be sent to potential class members.”

Mata,

2015 WL 3457293, at *3.
III. DISCUSSION
a.

Conditional Certification of Collective Action

Plaintiffs’ motion seeks conditional certification of a
class covering all “non-managerial employees” who worked for
Defendants from June 4, 2015 to the present.
¶ 2.)

(See Troy Decl.

The Court concludes that Plaintiffs have made the “modest

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factual showing” needed to conditionally certify a class
encompassing delivery workers employed by Defendants but have
not made the required showing to certify a broader class
covering other categories of employees.
In support of their motion, Plaintiffs, all of whom were
deliverymen, submitted affidavits regarding their work for
Defendants.

(See Troy Decl. Exs. 4-8.)

These affidavits show

that Plaintiffs worked similar hours -- between 65 and 80 hours
per week -- and that Defendants compensated them similarly,
including, among other things, by paying them between $60/day
and $300/week, denying them overtime, and failing to pay New
York’s “spread hours” premium.

(See Troy Decl. Ex. 4 ¶¶ 5, 7,

9, 11, 12; Ex. 5 ¶¶ 7, 13; Ex. 6 ¶¶ 9-16, 21-22; Ex. 7 ¶¶ 4, 8;
Ex. 8 ¶¶ 4-5, 9.)

From these affidavits, “[t]he Court can

fairly infer that other deliverymen worked similar shifts for
comparable pay, thereby suffering the same violations of the
FLSA and NYLL.”

She Jian Guo v. Tommy’s Sushi Inc., No. 14 Civ.

3964 (PAE), 2014 WL 5314822, at *3 (S.D.N.Y. Oct. 16, 2014)
(granting conditional certification based on three affidavits
from deliverymen stating that they worked about 70 hours/week
for $250); see also, e.g., Weng, 2018 WL 1737726, at *3
(granting conditional certification based on three affidavits
stating that deliverymen worked around 65 hours/week for

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$1000/month).

Conditional certification of a class of delivery

workers is therefore granted.
Plaintiffs have not, however, made a sufficient factual
showing to certify a class including workers beyond deliverymen.
The Court notes that two Plaintiffs (Ye and Chen) submitted
affidavits with detailed information regarding the positions,
schedules, and compensation for chefs and waiters employed by
Defendants.

(See Troy Decl. Exs. 4, 5.)

But those affidavits

on their own are not enough for conditional certification
because they give insufficient background on how the affiants
came to know the employment details of the non-delivery workers.1
There is “a consensus in this district that where a plaintiff
bases an assertion of common policy on observations of coworkers
or conversations with them, he must provide a minimum level of
detail regarding the contents of those conversations or
observations.”

Reyes v. Nidaja, LLC, No. 14 Civ. 9812, 2015 WL

4622587, at *2-3 (S.D.N.Y. Aug. 3, 2015) (collecting cases); see
also Sanchez v. JMP Ventures, L.L.C., 13 Civ. 7264 (KBF), 2014
WL 465542, at *2 (S.D.N.Y. Jan. 27, 2014) (denying conditional
certification when affidavit was based on plaintiff’s

1
Plaintiff Ye states that he knew one waiter’s hours and pay
because the “working schedule is very regular in the restaurant”
and “it is Defendants’ common policy not to pay waiters more
than [$25] a week.” (Troy Decl. Ex. 4 ¶¶ 42-43.) Plaintiff
Chen, in turn, appears to base his knowledge on having
“befriended” and been “close with” some employees. (Troy Decl.
Ex. 5 ¶¶ 26-67, 38.) Neither affiant provides any further
details on how they know the hours or pay for chefs or waiters.

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observations and conversations with other employees but did not
“provide any detail as to a single such observation or
conversation” (emphasis in original)).

Because Plaintiffs

failed to proffer any baseline facts regarding their knowledge
of the hours and pay for non-deliverymen, they fall short of
meeting their burden for collective certification as to those
workers.

Conditional certification as to non-delivery workers

is therefore denied.
b.

Equitable Tolling

Plaintiff asks the Court to toll the statute of limitations
for their FLSA claims for 90 days until the expiration of the
opt-in period.

(Plaintiff’s Memorandum of Law, dated Jan. 31,

2020 [dkt. no. 72] at 20; Plaintiff’s Reply Memorandum, dated
Mar. 13, 2020 [dkt. no. 74] at 6-8.)

“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.”
Bloomberg, L.P., 298 F.R.D. 152, 170 (S.D.N.Y. 2014).

Jackson v.
Courts

may nonetheless equitably “toll the limitations period to avoid
inequitable circumstances, giving due consideration to whether
the plaintiffs have acted with reasonable diligence in pursuing
their claims.”

Id.

Several courts have held that “the period

of pendency of a motion for collective action certification can
serve as an extraordinary circumstance justifying application of

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the equitable tolling doctrine.”

Mendoza v. Ashiya Sushi 5,

Inc., No. 12 Civ. 8629 (KPF), 2013 WL 5211839, at *10 (S.D.N.Y.
Sept. 16, 2013) (internal quotation marks omitted); see also,
e.g., Jackson, 298 F.R.D. at 170 (“The delay required to decide
a motion may warrant equitable tolling.”).
Given the procedural history of this case, some equitable
tolling is warranted.

Plaintiff Ye filed this suit in June 2018

and moved for conditional certification the following October.
(See dkt. nos. 1, 27.)

Before the Court ruled on the pending

certification motion, the parties advised that they had settled
the case, and in April 2019, they moved for the Court to approve
the settlement.

(See dkt. no. 42.)

Over the ensuing months,

five more Plaintiffs opted into the lawsuit, and the settlement
ultimately collapsed.

(See, e.g., dkt. nos. 43-51, 64.)

In

January 2020, Plaintiffs’ filed the instant, renewed motion for
collective certification, and briefing closed in March 2020.
(See dkt. no. 68.)

Because of the detours this case has taken,

over one and a half years have passed since Plaintiff Ye first
moved for conditional certification, and, as a result, some
class members’ claims might now be time-barred.

In the interest

of fairness, the Court will toll the limitations period from the
date Plaintiff Ye filed the initial certification motion until
the date that the Court approves the form of notice to potential
class members and enters an order governing the noticing

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procedure.

See Cabrera v. Stephens, No. 16 Civ. 3234, 2017 WL

4326511, at *7 (E.D.N.Y. 2017) (equitably tolling the statute of
limitations along similar lines to account for delays in
deciding a conditional certification motion).
c.

Paragraph 15 of the Proposed Order

As part of their motion papers, Plaintiffs filed a proposed
order governing the dissemination of notice to potential class
members.

(Troy Decl. Ex. 3.)

Among other things, the proposed

order (1) directs Defendants to produce a Microsoft Excel
spreadsheet listing the contact information for former
employees, along with a certification that the list is complete,
and (2) authorizing Plaintiffs to send notice of the action to
the individuals identified on Defendants’ list.

(Id. ¶¶ 1-13.)

Defendants object to paragraph 15 of the proposed order,
which permits Plaintiffs to seek relief if Defendants fail to
provide a complete list or if the list does not fully facilitate
effective notice.

Specifically, paragraph 15 states:

Should Defendants fail to furnish a complete
Excel list . . . OR more than 20% of Notices be
returned as undeliverable with no forwarding
address, Plaintiff reserves the right to apply to
the Court for permission to cause an abbreviated
version of the [notice] to be published . . . at
Defendants’
expense
for
Defendants’
failure
furnish accurate addresses.
(Troy Decl. Ex. 3 ¶ 15 (emphasis added).)

Defendants argue that

this paragraph’s cost-shifting clause is unfair because the
proposed order already requires Defendants to certify the

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completeness of their employee contact list and because
Defendants cannot guarantee that their former employees still
live at the addresses in Defendants’ records.

(Memorandum of

Law in Opposition, dated Feb. 21, 2020 [dkt. no. 73] at 11.)
Although the Court agrees that Defendants should not be
required to pay the costs of supplemental notice simply because
their former employees might have moved to new residences not
reflected in Defendants’ records, the Court does not find the
substance of paragraph 15 of proposed order objectionable.

That

paragraph imposes no liabilities on Defendants; it only reserves
Plaintiffs’ right to make a motion if problems arise in the
notice process.

If the conditions set forth in paragraph 15

materialize, Plaintiffs may make their motion, and the Court
will determine the appropriate relief, if any, at that point.
IV.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for
conditional collective certification is GRANTED with respect to
a class encompassing delivery workers and DENIED with respect to
a broader class encompassing all non-managerial employees.

The

statute of limitations on the FLSA claims is tolled from October
26, 2018 until the future date on which the Court approves the
form of notice to potential class members and enters an order
governing the noticing procedure.

In light of the Court’s

rulings above, the parties are directed to confer and submit by

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no later than June 12, 2020 a revised proposed notice to
potential class members and an order governing noticing in
substantially the same form as those filed with Plaintiff’s
motion papers.

(See Troy Decls. Exs. 2, 3.)

The Clerk of the

Court is directed to close the open motion [dkt. no. 70].
SO ORDERED.
Dated:

June 3, 2020
New York, New York
__________________________________
LORETTA A. PRESKA, U.S.D.J.

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