Lorenzo v. Dee Mark Inc. et al
OPINION & ORDER: re: 18 MOTION to Certify Class (Conditional Collective Certification) filed by Filogonio Bacilio Lorenzo. For the foregoing reasons, plaintiff's motion for approval of a collective action (Docket # 18) is granted in part and denied in part as set forth herein. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 11/14/2023) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FILOGONIO BACILIO LORENZO
-v.DEE MARK INC. et al.,
OPINION & ORDER
23 Civ. 48 (MKV) (GWG)
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Filogonio Bacilio Lorenzo, on behalf of himself and a putative class and
proposed collective, has sued defendants Dee Mark Inc., Dee Jing Inc., Limupoke Inc., Penkae
Poolsuk, and Chatchai Huadwattana for violations of the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. (“FLSA”), New York State Labor Law (“NYLL”) wage-and-hour provisions, and
the Internal Revenue Code, 26 U.S.C. § 7434, as well as for breach of contract. See Complaint,
filed January 4, 2023 (Docket # 1) (“Comp”), ¶¶ 1-4. Before the Court is plaintiff’s motion for
conditional approval of the collective action under the FLSA pursuant to 29 U.S.C. § 216(b). 1
For the reasons stated below, plaintiff’s motion is granted in part and denied in part.
See Motion to Certify Class, filed June 29, 2023 (Docket # 18) (“Mot.”); Memorandum
of Law in Support, filed June 29, 2023 (Docket # 19) (“Mem.”); Declaration in Support of
Motion, filed June 29, 2023 (Docket # 20) (“Lee Decl.”); Memorandum of Law in Opposition,
filed July 19, 2023 (Docket # 21) (“Opp.”); Declaration of Chatchai Huadwattana, filed July 19,
2023 (Docket # 22) (“Huadwattana Decl.”); Declaration of Pornchanok Makmuang, filed July
19, 2023 (Docket #23) (“Makmuang Decl.”); Memorandum of Law in Reply, filed Aug. 11,
2023 (Docket # 28) (“Reply”); Affirmation in Support, filed Aug. 11, 2023 (Docket # 29) (“Lee
A. Allegations in the Complaint
Plaintiff was employed as a delivery person by defendant Dee Mark Inc., d/b/a Aroy Dee
Thai. Comp. ¶ 31. Plaintiff alleges that defendants collectively operate three restaurants: (1)
Aroy Dee Thai (operated by Dee Mark Inc.); (2) Kuu Ramen FiDi (operated by Dee Jing Inc.);
and (3) Kuu Ramen UES (operated by Limupoke Inc.). Comp. ¶¶ 9, 11; NYS Liquor Authority
Mapping Project, annexed as Exhibit D to Lee Reply Decl. (Docket # 29-1) (“LAMP”). Two of
the restaurants — Aroy Dee Thai and Kuu Ramen FiDi — operate in the same location and share
a common kitchen and storage area. Comp. ¶ 10. The complaint alleges that employees of all
three restaurants were sent between the locations as needed. Id. Defendant Poolsuk is “the
principal and executive officer” of all three corporate entities. Id. ¶ 12. Defendant Huadwattana
is “a co-founder and principal” of all three corporate entities. Id. ¶ 13. Both Poolsuk and
Huadwattana are responsible for hiring, firing, and supervising employees, as well as handling
compensation. Id. ¶¶ 12-13. Additionally, there is a centralized Human Resources department.
Id. ¶ 10.
During his employment, plaintiff was compensated weekly with a paycheck. Id. ¶ 44.
The complaint alleges that over the course of his employment, plaintiff was: (1) paid “at rates
below the New York State tip credit minimum wage and an improper overtime rate due to an
invalid tip credit,” id. ¶ 35; (2) required to perform non-tipped related activities, such as cooking
and dishwashing, during more than twenty percent of his working time, id. ¶ 37; (3) required to
perform catering services in which defendants charged a surcharge that was not disbursed to
plaintiff as required by the NYLL, id. ¶¶ 38-39; (4) required to share his tips with non-tipped
employees, id. ¶ 41; and (5) required to buy and maintain his own tools, such as bicycles,
helmets, and bags, totaling approximately forty dollars per month, id. ¶ 42.
Plaintiff filed this suit on January 4, 2023. See Comp. He now moves for approval of an
FLSA collective and a proposed notification to putative members of the collective pursuant to
section 216(b). See Mot. Plaintiff’s proposed FLSA collective consists of persons who “are or
were employed by DEE MARK INC., DEE JING INC., or LIMUPOKE INC., as a [sic] front of
the house non-exempt tipped employees, including delivery persons, servers, runners, bussers,
and bartenders at any time between January 4, 2017 and the present.” Notice of Pendency,
annexed as Exhibit A to Lee Decl. (Docket # 20-1) (“Proposed Not.”), at 1.
B. Plaintiff’s Declaration
Plaintiff has provided his own sworn declaration in support of this motion. See
Declaration of Filogonio Bacilio Lorenzo, annexed as Exhibit C to Lee Decl. (Docket # 20-3)
(“Lorenzo Decl.”). Lorenzo states that he was hired as a delivery person for defendant Aroy Dee
Thai in July 2021 and worked approximately 41.5 hours per week until July 2022. Lorenzo
Decl. ¶¶ 1, 7. Lorenzo performed work both for Aroy Dee Thai and Kuu Ramen FiDi, the
restaurants that share an address. Id. ¶ 2. Over the course of his employment, defendant Penkae
Poolsuk “operate[d] the totality of the [r]esturants,” including Aroy Dee Thai, Kuu Ramen FiDi,
and Kuu Ramen UES. Id. ¶ 4. Lorenzo identifies several other delivery persons (Victor, Felipe,
Leo, and Nacho) who he asserts were all subject to the “same wage and hour policies.” Id. ¶ 6.
Lorenzo describes a number of FLSA violations in his declaration, asserting that (1) he
and his co-workers were required to perform “excessive amounts of sidework,” which reduced
the amount of tips they would make throughout the day, id. ¶ 12; (2) that he and his co-workers
were required to share their tips with non-tipped employees, specifically a cook named Victor,
id. ¶ 15; (3) that “Manager Kate” would take his and his co-workers’ tips, id. ¶ 16; (4) that he
and his co-workers were “required to buy and provide [their] own tools and working materials,
such as bicycles, helmets, bags, flashlights, protective vests, and tools to repair [their]
bicycle[s],” id. ¶¶ 18-19; and (5) that he and his co-workers “did not receive the proper overtime
compensation, despite working over forty hours per workweek due to an invalid tip credit,” id. ¶
17. Lorenzo states somewhat vaguely that speaking to his coworkers resulted in his believing
that “it was common knowledge that Defendants engaged in the practices described in this
statement.” Id. ¶ 6. Other paragraphs of his declaration are more direct in indicating that
Lorenzo had personal knowledge that workers other than himself were the victims of the alleged
FLSA violations. See id. ¶ 11 (Lorenzo “observed [his] co-workers also spending more than two
hours” doing non-tipped work); id. ¶ 12 (complaints of other co-workers regarding “excessive
amounts of sidework” to the exclusion of delivery work); id. ¶ 16 (co-workers complained to
Lorenzo that kitchen employees received a portion of tips); id. ¶ 19 (co-workers complained
about spending money on bike maintenance).
C. Defendants’ Declarations
Defendants have provided two declarations from Makmuang and defendant Huadwattana.
See Makmuang Decl.; Huadwattana Decl. Makmuang is the owner of Dee Mark Inc., d/b/a Aroy
Dee Thai. Makmuang Decl. ¶ 1. Makmuang states that plaintiff Lorenzo was employed by Aroy
Dee Thai, and that Aroy Dee Thai is not affiliated with either of the Kuu Ramen corporate
entities (Dee Jing Inc. and Limupoke Inc.). Id. ¶ 3. Makmuang also states that plaintiff Lorenzo
“never worked for either of the other Defendants’ restaurants,” and that “Aroy Dee Thai has its
own staff” and “does not share employees, services, records, or equipment.” Id. ¶¶ 4, 5, 7.
Defendant Huadwattana is the owner of Dee Jing Inc. and Limupoke Inc., the corporate
entities operating the Kuu Ramen locations. Huadwattana Decl. ¶ 1. Huadwattana indicates that
Lorenzo “never worked for either [of the Kuu Ramen locations] in any capacity,” and similarly
that the restaurants do not share any employees or resources. Id. ¶¶ 4, 9.
II. GOVERNING LAW
29 U.S.C. § 216(b) of the FLSA provides, in pertinent part:
An action to recover . . . liability . . . may be maintained against any
employer . . . by any one or more employees for and in behalf of himself or
themselves and other employees similarly situated.
While the statute does not prescribe any procedures for approval of collective actions, section
216(b) has long been construed to grant authority to a district court to permit notices to be sent to
potential plaintiffs informing them of the option to join the suit. See Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 169 (1989) (“[D]istrict courts have discretion, in appropriate cases, to
implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs.”); Braunstein v. E.
Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1978) (“Although one might read the
[FLSA], by deliberate omission, as not providing for notice, . . . it makes more sense, in light of
the ‘opt-in’ provision of § 16(b) of the Act, 29 U.S.C. § 216(b), to read the statute as permitting,
rather than prohibiting, notice in an appropriate case.”) (citations omitted). “Orders authorizing
notice are often referred to as orders ‘certifying’ a collective action, even though [the] FLSA
does not contain a certification requirement.” Wood v. Mike Bloomberg 2020, Inc., 484 F.
Supp. 3d 151, 156 (S.D.N.Y. 2020) (citations omitted). The act of “certifying” a collective
action, however, means only that this Court has “exercise[d] . . . [its] discretionary power . . . to
facilitate the sending of notice” to potential members of the collective. Myers v. The Hertz
Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010) (internal quotation marks and citations omitted).
The approval of a collective action thus amounts to a “‘case management’ tool for district courts
to employ in ‘appropriate cases.’” Id. (quoting Hoffmann-La Roche Inc., 493 U.S. at 169, 174).
“The requirements of Fed. R. Civ. P. 23 do not apply to the approval of a collective
action.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005). Accordingly,
“no showing of numerosity, typicality, commonality and representativeness need be made.” Id.
(citations omitted). Furthermore, “‘[i]n contrast to the procedures for a class action under Fed.
R. Civ. P. 23,’ in a collective action, ‘only plaintiffs who affirmatively opt in can benefit from
the judgment.’” Wood, 484 F. Supp. 3d at 156 (citations omitted).
The Second Circuit has endorsed a “two-step process” for treatment of a proposed
At step one, the district court permits a notice to be sent to potential opt-in
plaintiffs if the named plaintiffs make a modest factual showing that they and
others together were victims of a common policy or plan that violated the law.
[Myers,] 624 F.d at 555. At step two, with the benefit of additional factual
development, the district court determines whether the collective action may go
forward by determining whether the opt-in plaintiffs are in fact similarly situated
to the named plaintiffs. Id.
Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016). Thus, the threshold
issue in deciding whether to authorize notice in an FLSA action is whether plaintiffs have
demonstrated that there are other employees who are “similarly situated.”
As a result, at this preliminary stage, the focus of the inquiry “is not on whether there has
been an actual violation of law but rather on whether the proposed plaintiffs are ‘similarly
situated’ under 29 U.S.C. § 216(b) with respect to their allegations that the law has been
violated.” Young, 229 F.R.D. at 54 (citations omitted); accord Guillen v. Marshalls of MA, Inc.,
841 F. Supp. 2d 797, 800 (S.D.N.Y. 2012). Therefore, a court “should not weigh the merits of
the underlying claims” at the conditional approval stage, and “must take care to avoid even the
appearance of judicial endorsement of the merits of the action.” Hamadou v. Hess Corp., 915 F.
Supp. 2d 651, 662 (S.D.N.Y. 2013) (internal quotation marks and citations omitted). Plaintiffs
need only make “a modest factual showing sufficient to demonstrate that they and potential
plaintiffs together were victims of a common policy or plan that violated the law.” Hoffmann v.
Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997). Nonetheless, “the factual showing, even if
modest, must still be based on some substance.” Guillen v. Marshalls of MA, Inc., 750 F. Supp.
2d 469, 480 (S.D.N.Y. 2010).
Once employees have opted in and after discovery is complete, “courts conduct a more
stringent ‘second tier’ analysis upon a full record to decide whether the additional plaintiffs are
similarly situated to the original plaintiffs.” Wood, 484 F. Supp. 3d at 157 (quoting Indergit v.
Rite Aid Corp., 2010 WL 2465488, at *4 (S.D.N.Y. June 16, 2010)). If the court determines at
that stage that the opt-in plaintiffs are not similarly situated to the named plaintiff, then “[t]he
action may be ‘de-certified’ . . . and the opt-in plaintiffs’ claims may be dismissed without
prejudice.” Myers, 624 F.3d at 555 (citations omitted).
Plaintiff requests that we approve a notice of the pendency of this action to be sent to “all
front of the house non-exempt tipped employees, including delivery persons, servers, runners,
bussers, and bartenders, employed by Defendants within the last six years.” Mem. at 1.
Defendants respond that plaintiff has failed to show that defendants operate a single integrated
enterprise, Opp. at 5, and that plaintiff’s collective action violations are factually deficient, id. at
3. In addition to approval of the collective action, plaintiff requests equitable tolling on the
statute of limitations on behalf of the collective until plaintiff “is able to send notice to potential
opt-in plaintiffs.” Mem. at 16.
We address first whether authorization of any notice is appropriate in this case and then
address the request for equitable tolling.
A. Whether a Notice Should be Authorized
1. Single Integrated Enterprise
The complaint alleges that all three restaurants — Aroy Dee Thai, Kuu Ramen FiDi, and
Kuu Ramen UES — operate as a “single integrated enterprise under the common control of the
Corporate and Individual Defendants.” Comp. ¶ 10; see also Mem. at 2. Defendants argue that
“Plaintiffs Have Not Established that Defendants Operate as a Single Integrated Enterprise,”
Opp. at 5, and provide evidentiary material that purportedly contradicts the allegations in the
complaint, see, e.g., id. at 6. As noted, Huadwattana, the owner of the Kuu Ramen locations,
states that “Lorenzo never worked for either [of the Kuu Ramen] restaurants in any capacity,”
Huadwattana Decl. ¶ 4, and that the Kuu Ramen locations are not “affiliated in any way with”
Aroy Dee Thai, id. ¶ 3. Makmuang, the owner of Aroy Dee Thai, states that Lorenzo was
employed by Aroy Dee Thai, Makmuang Decl. ¶ 4, but that Aroy Dee Thai is “not affiliated in
any way” with the Kuu Ramen restaurants, id. ¶ 3. In addition to the affidavits, defendants
submit employee lists from the three defendant restaurants purportedly showing that there is no
overlap in the workforce. Opp. at 6; Kuu Ramen FiDi Employee List, annexed as Exhibit A to
Huadwattana Decl. (Docket # 22-1); Kuu Ramen UES Employee List, annexed as Exhibit B to
Huadwattana Decl. (Docket # 22-2); Aroy Dee Thai Employee List, annexed as Exhibit A to
Makmuang Decl. (Docket # 23-1).
The problem with defendants’ argument is that in “evaluating whether court-authorized
notice is appropriate, ‘the court does not resolve factual disputes, decide ultimate issues on the
merits, or make credibility determinations.’” Diaz v. S & H Bondi’s Dep’t Store, 2012 WL
137460, at *3 (S.D.N.Y. Jan. 18, 2012) (quoting Davis v. Abercrombie & Fitch Co., 2008 WL
4702840, at *9 (S.D.N.Y. Oct. 23, 2008)). “[I]f the plaintiff’s allegations are sufficient on their
face to support [conditional approval], a defendant may not defeat the plaintiff’s motion by
presenting conflicting factual assertions.” Jeong Woo Kim v. 511 E. 5th St., LLC, 985 F. Supp.
2d 439, 446 (S.D.N.Y. 2013). Here, defendants make no argument that the allegations in the
complaint are legally insufficient to allege that the defendants are a single integrated enterprise.
Instead, they present “conflicting factual assertions,” id., which are impermissible at this stage.
Even if defendants sought to attack the allegations in the complaint without resorting to
evidentiary matter, we would reject the attempt to have this Court decide the merits of this aspect
of the complaint given that all that is before us is a motion to approve a collective action. As
case law reflects, “consideration of the merits is absolutely inappropriate at the conditional
approval stage.” Wood, 484 F. Supp. 3d at 158 (internal quotation marks omitted); accord
Guzman v. Three Amigos SJL Inc., 117 F. Supp. 3d 516, 527 (S.D.N.Y. 2015) (arguments that
“attack the merits of the case, raise factual disputes, or question the credibility of Plaintiffs’
declarations . . . are not issues that can be addressed at this juncture”) (punctuation omitted).
Accordingly, we reject defendants’ argument that their contentions as to the defendants not being
a single integrated enterprise would bar the motion for conditional approval of a collective
2. Similarly Situated
Defendants argue that plaintiff fails to satisfy the burden of showing that employees are
similarly situated. Opp. at 3. As was explained in Contrera v. Langer, 278 F. Supp. 3d 702, 716
(S.D.N.Y. 2017) there are
two broad methods by which a plaintiff may show he or she is “similarly
situated” to the group of employees to whom he or she seeks to send notice of
a lawsuit. One is a “top-down” method of proof, in which a plaintiff provides
evidence from a central office or from management levels of an employer
showing that the employer had a policy or practice of treating all employees
in the class similarly with respect to the allegedly illegal labor law
practice . . . . The other form of proof may be called “bottom-up” — that is,
where plaintiffs and sometimes other employees provide affidavits conveying
their own experience with the employer, or recount conversations with other
employees, and then seek to draw an inference that an illegal policy or
practice exists that covered a group of employees broader than the plaintiff or
the other employees who provided the affidavits.
Here, plaintiff provides “bottom-up” arguments in the form of his own affidavit, in which
plaintiff recounts his experience and conversations with other employees. See Lorenzo Decl.
While plaintiff has submitted only an affidavit from himself, a single affidavit — “containing no
more than some combination of descriptions of personal experience, observations of other
employees sharing that experience, and references to conversations with those employees” —
has “repeatedly” been held to be an appropriate basis on which to grant approval of a collective
action. Ramirez v. Liberty One Group LLC, 2023 WL 4541129, at *3 (S.D.N.Y. July 14, 2023)
(collecting cases); accord Hernandez v. Bare Burger Dio Inc., 2013 WL 3199292, at *3
(S.D.N.Y. June 25, 2013) (collecting cases); Fernandez v. Sharp Management Corp., 2016 WL
5940918, at *3 (S.D.N.Y. Oct. 13, 2016) (collecting cases).
Plaintiff proposes that the collective encompass “all non-exempt tipped employees,
including delivery persons, servers, runners, bussers, and bartenders among others.” Comp. ¶ 17.
Defendants argue that either the collective action should be rejected entirely, Opp. at 4-5, or that
it should be limited to delivery workers, id. at 7-8.
As to delivery workers, plaintiff’s declaration states that he had discussions with other
delivery persons, including Victor, Felipe, Leo, and Nacho. Lorenzo Decl. ¶ 6. “While working,
and  grabbing drinks,” plaintiff and the other delivery employees “would complain about the
excessive amounts of sidework” they were required to perform (thereby depriving them of
receiving a higher amount of delivery tips), would “complain and discuss how it was unfair
that kitchen employees . . . regularly received a portion of [their] tips,” and “would discuss and
complain how it was unfair [d]efendants made [them] spend [their] money on bike
maintenance.” Id. ¶¶ 12, 16, 19. These allegations easily allow the inference that the delivery
employees were similarly situated with respect to FLSA violations. See Ramirez, 2023 WL
4541129, at *8; see also Gomez v. Kitchenette 123 Inc., 2017 WL 4326071, at *5 (S.D.N.Y.
Sept. 5, 2017) (granting conditional approval of collective action as to delivery employees based
on a lone affidavit that references “a list of nine individuals (listed only by first name) with
whom [plaintiff] state[d] he discussed wage and hour violations”).
As it relates to non-delivery employees, however, the declaration stands on a different
footing. While Lorenzo repeatedly states that he spoke to the delivery employees whom he
names, Lorenzo Decl. ¶¶ 6, 12, 15 19, he does not give the name of a single non-delivery person
and never says that he spoke to any such non-delivery personnel. More to the point, he provides
no allegations showing that he has personal knowledge as to how non-delivery personnel were
treated. Instead, any allegations regarding other employees are conclusory, without reference to
any basis of knowledge or the particular category of employee. See, e.g., id. ¶ 4 (“Defendants
provide the same terms of employment to employees at all locations.”); id. ¶ 6 (“Based on my
work experience and my personal observations and conversations with co-workers, I know that
all employees of Defendants were subject to the same wage and hour policies.”); id. ¶ 11 (“I
observed my co-workers also spending more than two hours a shift preparing food; dishwashing;
doing porter work; taking out garbage; putting away incoming deliveries; etc.”); id. ¶ 15 (“Other
employees employed by Defendants were also required to share their tips with non-tipped
employees.”). Such “general” and “vague” allegations that “do not mention a single specific
conversation that [plaintiff] had” with the non-delivery employees cannot satisfy plaintiff’s
burden. Yang v. Asia Market Corp., 2018 WL 2227607, at *2 (S.D.N.Y. Apr. 3, 2018). Case
law recognizes that “where a plaintiff fails to provide sufficient details that the proffered
unlawful policy or practice also affected employees in different job functions or roles, courts will
limit the collective to only those job functions for which the plaintiff bore his or her evidentiary
burden.” Ramirez, 2023 WL 4541129, at *8. Thus, the Court will not expand the FLSA
collective beyond the delivery workers. See, e.g., Gomez, 2017 WL 4326071, at *5
(“[A]lthough the Court finds that there are sufficient details to support Plaintiff’s contention that
delivery persons were subject to a common policy or plan, the assertions in the affidavit that go
beyond delivery persons are insufficiently detailed to justify certification of a broader
collective.”); Leonardo v. ASC, Inc., 2018 WL 5981996, at *3 (S.D.N.Y. Nov. 14, 2018)
(denying conditional approval for “all non-managerial employees” because “[p]laintiff’s
affidavit offers no specific conversations, names, or other details to show that employees other
than kitchen staff were part of a common policy”) (emphasis in original); Campos v. Lenmar
Restaurant Inc., 2019 WL 6210814, at *4 (S.D.N.Y. Nov. 21, 2019) (“In contrast to bussers and
servers, for whom Plaintiff can point to specific details from his own experience or from
conversations with specifically named employees, Plaintiff is unable to provide any nonconclusory allegations about the conditions that other non-managerial employees experienced.”).
Lorenzo argues that the proposed collective should encompass both delivery and nondelivery employees since “[t]he key question for the similarly situated inquiry is not whether
plaintiff’s job duties are identical to other potential opt-in plaintiffs, but rather, whether the
proposed plaintiffs are similarly situated . . . with respect to their allegations that the law has
been violated.” Reply at 10 (quoting Chui v. American Yuexianggui of LI LLC, 2020 WL
3618892, at *5 (S.D.N.Y. July 2, 2020) (quoting Knox v. John Varvatos Enterprises Inc., 282 F.
Supp. 3d 644, 656 (S.D.N.Y. 2017)). However, as discussed above, Lorenzo must state more
than mere conclusory allegations. For example, in Lorenzo’s cited case, Chui, the court limited
the proposed collective to only certain job titles for which specific evidence had been provided.
2020 WL 3618892, at *7-8. Lorenzo, however, fails to provide any factual allegations
referencing personal knowledge as to the employer’s practices with regard to non-delivery
For similar reasons, Lorenzo has not met his burden of showing that the identified
practices occurred at all three of the defendants’ restaurants. Lorenzo and all four of his coworkers worked exclusively at two of the three restaurants: Aroy Dee Thai and Kuu Ramen FiDi.
See Lorenzo Decl. ¶ 6. There is absolutely no evidentiary matter submitted that shows that the
practices occurred at the third location, Kuu Ramen UES, which is situated miles away from the
other two locations. Plaintiff refers on several occasions to improper practices by “Manager
Kate,” see id. ¶¶ 14, 16, but never provides any statements from personal knowledge that
“Manager Kate” operated at the Kuu Ramen UES location. We thus follow cases that have
limited collective actions to only those locations operated by an employer for which sufficient
evidentiary matter had been supplied as to practices at those locations. See, e.g., Santiago v.
Tequila Gastropub LLC, 2017 WL 1283890, at *1-2 (S.D.N.Y. Apr. 5, 2017); Jing Fang Luo v.
Panarium Kissena Inc., 2016 WL 11263668, at *9 (E.D.N.Y. Nov. 23, 2016), adopted by 2017
WL 1216571 (E.D.N.Y. Mar. 30, 2017); Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d
545, 557-58 (S.D.N.Y. 2013); see generally Ramirez, 2023 WL 4541129, at *9 (limiting
collective to the “one location of which [plaintiff] specifically alleges firsthand knowledge”
where plaintiff failed to allege with “any specificity”, inter alia, “how often or when [plaintiff
was] substituted there; how [the locations] were managed in relation to the other locations; how
employees were hired or assigned to them; . . . or any other details that would bolster her
argument that the alleged time-shaving extended beyond the” location where she worked).
In sum, Lorenzo has carried his “modest” burden of demonstrating he is similarly situated
to other delivery employees who worked at Aroy Dee Thai and Kuu Ramen FiDi. He has not
done so, however, for any other workers, including non-delivery “non-exempt tipped
employees.” Accordingly, notice should be distributed only to delivery employees who worked
at Aroy Dee Thai and Kuu Ramen FiDi, but not to other employees. See Campos, 2019 WL
6210814, at *4 (limiting notice to “bussers and servers” but not other “non-exempt employees”);
She Jian Guo v. Tommy’s Sushi Inc., 2014 WL 5314822, at *3 (S.D.N.Y. Oct. 16, 2014)
(limiting the proposed collective to delivery employees due to the plaintiffs’ “vague, conclusory,
and unsupported assertions”).
B. Equitable Tolling
The FLSA provides for a statute of limitations period of at most three years. See 29
U.S.C. § 255(a). Plaintiff asks the Court to equitably toll the statute of limitations “until such
time that Plaintiff is able to send notice to potential opt-in plaintiffs.” Mem. at 16. Defendants
oppose this request. Opp. at 8-9.
As the Supreme Court has stated, “a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Here, plaintiff “provide[s] no facts or even arguments regarding existing or potential opt-in
plaintiffs that reflect that these employees of the defendants have been pursuing their rights
diligently.” Contrera, 278 F. Supp. 3d at 723 (internal quotation marks omitted). Thus, “we
have no basis for making a ruling at this time that any current or future opt-in employees’ claims
must be equitably tolled given that there has been no showing that they have met the ‘diligence’
prong of the equitable tolling doctrine.” Id. at 725; accord Perez Perez v. Escobar Construction,
Inc., 540 F. Supp. 3d 395, 409 (S.D.N.Y. 2021). We reject plaintiff’s invitation to equitably toll
the statute simply to account for the time period spent by the Court in deciding the motion for
conditional approval for the reasons stated in Contrera, 278 F. Supp. 3d at 723-27. Accordingly,
Lorenzo’s request for equitable tolling is denied. Should plaintiffs who join the collective action
have time-barred claims, they may present arguments for equitable tolling at the time they join.
See Perez Perez, 540 F. Supp. 3d at 408-09.
C. Proposed Order
Lorenzo has requested the Court order several measures in addition to collective action
approval, including approval of a notice and consent form; the production of “names, titles,
compensation rates, dates of employment, last known mailing addresses, email addresses [,] all
known telephone numbers,” and Social Security Numbers 2 of the relevant employees; and “the
posting of the notice, along with the consent forms, in [d]efendants’ places of business where
[the relevant employees] are employed, by Plaintiff’s counsel at any time during regular business
hours.” Proposed Order, annexed as Exhibit 1 to Mot. (Docket # 18-1) (“Proposed Order”), at 2;
Mem. at 1-2. Additionally, Lorenzo requests that notice be sent to workers who were employed
It is unclear under what conditions plaintiff is seeking Social Security Numbers in light
of the discrepancy between Lorenzo’s Proposed Order, see Proposed Order, annexed as Exhibit 1
to Mot. (Docket # 18-1) (“Proposed Order”), at 2, and his memorandum of law, see Mem. at 1-2.
In the Proposed Order, Lorenzo states that Social Security Numbers are required “[t]o the extent
there are notice mailings returned as undeliverable.” Proposed Order at 2. In his memorandum
of law, Lorenzo does not make this request conditional on the return of the notice mailing. Mem.
“by Defendants on or after the date that is 6 years before the filing of the Complaint.” Proposed
Order at 1; Mem. at 1.
Defendants do not address any of these issues in their memorandum of law. Accordingly,
we assume that the parties can reach agreement as to the form of the notice. If not, they are free
to bring any disagreements to the Court’s attention.
For the foregoing reasons, plaintiff’s motion for approval of a collective action (Docket
# 18) is granted in part and denied in part as set forth herein.
Dated: November 14, 2023
New York, New York
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