Molina et al v. Huaxcuaxtla Restaurant Corp. et al

Filing 50

ORDER with respect to 49 Letter Motion to Compel. By October 9, 2020, Defendants shall file a response letter, if any, in accordance with Individual Rule III.A.1. SO ORDERED. (Signed by Judge Lorna G. Schofield on 10/7/2020) (rro)

Case 1:20-cv-02481-LGS Document 50 Filed 10/07/20 Page 1 of 2
By October 9, 2020, Defendants shall file a response letter, if any,
in accordance with Individual Rule III.A.1.
SO ORDERED

Innessa M. Huot
[e-mail]

October 6, 2020
VIA ECF

Dated: October 7, 2020
New York, New York

The Honorable Lorna G. Schofield
United States District Court
Southern District of New York
40 Centre Street, Courtroom 1106
New York, New York 10007
Re: Molina, et al. v. Huaxcuaxtla Restaurant Corp., et al., No. 1:20-cv-2481-LGS-RWL
Dear Judge Schofield:
We represent Plaintiffs in the above-referenced action and write to respectfully request a
pre-motion conference, pursuant to Section III(A)(1) of Your Honor’s Individual Rules and
Procedures for Civil Cases, in connection with Defendants’ failure to comply with this Court’s
Order (ECF No. 48). Additionally, Plaintiffs respectfully request that the Court issue an Order
equitably tolling the statute of limitations of the potential members of the FLSA Collective from
August 21, 2020, through the expiration of the Court-approved notice period.
On September 22, 2020, Your Honor granted Plaintiffs’ Motion for Conditional
Certification of a Collective Action and ordered that Defendants produce contact information1 for
the potential members of the FLSA Collective, on or before October 2, 2020. ECF No. 48. Despite
Plaintiffs’ repeated attempts to obtain this information, Defendants have still not produced it – and
have not even responded to multiple emails requesting same. Your Honor’s Order also required
Notices to be disseminated to the members of the FLSA Collective on or before October 9, 2020.
Id. However, Plaintiffs are unable to disseminate Notices without first obtaining the Court-ordered
contact information from Defendants.
Accordingly, Plaintiffs respectfully request that the Court compel Defendants to comply
with its previous Order and immediately provide the contact information of the potential members
of the FLSA Collective, or, in the alternative, schedule a pre-motion conference regarding the
same.
Additionally, as this Court is aware, in collective actions under Section 216(b), employees
are not members of the collective until they affirmatively opt-in. Fonseca v. Dircksen &
Talleyrand Inc., No. 13 Civ. 5124 (AT), 2014 WL 1487279, at *1 (S.D.N.Y. Apr. 11, 2014). Thus,
until employees are given notice and are permitted to file consent forms to opt-in, the statute of
limitations continues to run against them on a daily basis. Hoffmann v. Sbarro, Inc., 982 F. Supp.
249, 260 (S.D.N.Y. 1997).

1

Contact information includes names, last known home addresses, home and mobile telephone
phone numbers, and email addresses. ECF No. 48.

685 THIRD AVENUE

NEW YORK, NY 10017

PHONE: [phone]

FAX: [phone]

EMPLOYEERIGHTSCOUNSEL.COM

FARUQILAW.COM

Case 1:20-cv-02481-LGS Document 50 Filed 10/07/20 Page 2 of 2

Page 2
Plaintiffs sought to protect the rights of the potential members of the FLSA Collective by
promptly filing their motion for court-authorized notice on August 21, 2020. Courts in the Second
Circuit “commonly” grant tolling from the date of the filing of the motion for conditional collective
certification. E.g., Varghese v. JP Morgan Chase & Co., No. 14 CIV. 1718 (PGG), 2016 WL
4718413, at *11 (S.D.N.Y. Sept. 9, 2016); Reyes v. NY F&B Servs. LLC, No. 15CV2882-LTSDCF, 2016 WL 796859, at *5 (S.D.N.Y. Feb. 22, 2016) (granting tolling from the filing of motion
for conditional certification); Schaefer v. M & T Bank Corp., 122 F. Supp. 3d 189, 198-99
(S.D.N.Y. 2015) (same); Xiao Ling Chen v. XpresSpa at Term. 4 JFK, LLC, No. 15 CV 1347
(CBA) (CLP), 2016 WL 11430475, at *10 (E.D.N.Y. Feb. 16, 2016) (same).
Accordingly, Plaintiffs respectfully request the Court issue an Order tolling the statute of
limitations for the potential members of the FLSA Collective from August 21, 2020, the date
Plaintiffs’ filed their motion for conditional collective certification, through the expiration of the
Court-approved notice period.
We thank Your Honor for the Court’s time and attention to this matter.
Respectfully submitted,

Innessa M. Huot

685 THIRD AVENUE

NEW YORK, NY 10017

PHONE: [phone]

FAX: [phone]

EMPLOYEERIGHTSCOUNSEL.COM

FARUQILAW.COM