Hicks et al v. T.L. Cannon Management Corp. et al
Filing
93
-CLERK TO FOLLOW UP- ORDER denying 55 Motion to Strike ; granting 24 Motion to Change Venue.. Signed by Hon. Michael A. Telesca on 6/4/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
ASHLEY HICKS, and KRISTIN RAYMOND,
on behalf of themselves and all other
employees similarly situated,
Plaintiffs,
v.
12-CV-6517T
DECISION AND ORDER
T.L. CANNON CORP., d/b/a APPLEBEE’S or
APPLEBEE’S NEIGHBORHOOD BAR AND
GRILL; T.L. CANNON MANAGEMENT CORP.;
TLC WEST, LLC; TLC CENTRAL, LLC;
TLC UTICA, LLC; TLC NORTH, LLC;
DAVID A. STEIN, individually and
as Owner and Chairman of
T.L. Cannon Corp. and as Director
and Chairman of T.L. Cannon Management
Corp.; MATTHEW J. FAIRBAIRN, individually
and as Owner and President of T.L. Cannon
Corp. and as Director and Chief Executive
Officer of T.L. Cannon Management Corp.;
and JOHN A. PERRY, individually and as
Vice-President and Director of Operations
of T.L. Cannon Corp. and as President of
T.L. Cannon Management Corp.,
Defendants,
________________________________________
INTRODUCTION
Plaintiffs, Ashley Hicks and Kristin Raymond (collectively,
“Plaintiffs”), bring this action on behalf of themselves and all
other employees similarly situated for violations of the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA”)
and the Minimum Wage Act of the New York Labor Law (“NYLL”),
Art. 19 § 650 et seq., against T.L. Cannon Corp., d/b/a Applebee’s
or Applebee’s Bar and Grill; T.L. Cannon Management Corp.; TLC
West, LLC; TLC Central, LLC; TLC Utica, LLC; TLC North, LLC; David
A. Stein, individually and as Owner and Chairman of T.L. Cannon
Corp. and as Director and Chairman of T.L. Cannon Management Corp.;
Matthew J. Fairbairn, individually and as Owner and President of
T.L. Cannon Corp. and as Director and Chief Executive Officer of
T.L. Cannon Management Corp.; and John A. Perry, individually and
as Vice-President and Director of Operations of T.L. Cannon Corp.
and as President of T.L. Cannon Management Corp. (collectively,
“Defendants”) relating to allegations that Defendants failed to pay
hourly employees the requisite minimum wage.
Defendants move for
an Order transferring this case to the United States District Court
for the Northern District of New York (“N.D.N.Y.”), pursuant to
28 U.S.C. § 1404(a).
Plaintiffs
move
for
an
Order
striking
Defendants’
Reply
submitted in support of their motion to transfer (Docket No. 52) on
the basis that it includes inaccurate factual assertions.
In the
alternative, Plaintiffs ask the Court to accept their memorandum in
support of their motion to strike as a sur-reply to respond to
those factual assertions.
For
the
reasons
discussed
herein,
this
Court
denies
Plaintiff’s motion to strike and Plaintiff’s request to accept
their memorandum as a sur-reply. The Defendants’ motion to transfer
this case to the United States District Court for the Northern
District of New York is granted.
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BACKGROUND
This lawsuit is the second case filed against Defendants on
behalf of a putative class of hourly employees working in over 50
Applebee’s locations throughout the state of New York that alleges
wage and hour violations under the FLSA and the NYLL.
The first
case, Roach, et al. v. T.L. Cannon Corp., et al., Case No. 10-cv00591 (“Roach”), has been pending in the N.D.N.Y. for nearly three
years.
In the Roach action that was filed in the N.D.N.Y.,
Plaintiffs
asserted
claims
for
minimum
wage
and
overtime
compensation alleging that Defendants did not pay their hourly
employees for breaks, and Plaintiffs alleged that employee time
records were altered resulting in an underpayment.
Plaintiffs in
Roach sought to certify a putative statewide class of current and
former hourly employees of the New York Applebee’s locations that
were under the control of Defendants.
that
putative
class
included
A significant subsection of
employees
working
in
tipped
occupations.
The Court in Roach denied the plaintiffs’ motion to certify a
Rule 23 class encompassing all of the current and former employees
from over 50 Applebee’s locations and instead only certified an
FLSA collective action limited to a single restaurant.
Despite
this ruling, Defendants in Roach were directed to provide counsel
for the plaintiffs with the names and last known addresses of all
individuals employed by the Defendants for purposes of permitting
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the plaintiffs to engage in pre-certification discovery.
Counsel
for the Roach plaintiffs, who are the same counsel for Plaintiffs
here,
utilized
that
contact
list
to
solicit
thousands
of
individuals for participation in this lawsuit. Plaintiff’s counsel
included in this solicitation an opt-in consent form to become a
plaintiff in this lawsuit, that was yet to be filed.
Defendants
challenged the propriety of the solicitation by filing a motion for
a protective order in the Roach case. The Court denied Defendants’
requested relief because the information that Plaintiff’s counsel
relied upon was not subject to a protective order.
Here,
Plaintiffs
filed
their
Complaint
against
the
same
Defendants named in the Roach action. The two named Plaintiffs are
different than any of the named Plaintiffs in Roach, but both of
the named Plaintiffs in the instant action are included in the
putative class in Roach.
As in Roach, Plaintiffs here allege that
they have not been paid minimum wages under the NYLL and FLSA.
Like the plaintiffs in Roach, Plaintiffs allege that Defendants’
policies and practices result in an underpayment of minimum wages.
In particular, Plaintiffs claim that they were paid tipped wages
below the minimum wage even though they spent more than 20% of
their time working on non-tipped job duties.
in
Roach,
Plaintiffs
here
assert
their
themselves and others similarly situated.
Like the plaintiffs
claims
on
behalf
of
In fact, Plaintiffs
here, purport to represent a putative class of the same tipped
4
employees that formed a significant subset of the putative class of
hourly employees in Roach.
DISCUSSION
Plaintiff’s Motion to Strike
Plaintiffs move to strike Defendants' reply affirmation in
support of their motion to transfer venue on grounds that the reply
makes or relies on an inaccurate assertion, that the parties are
the same in this action and the Roach action pending in the
N.D.N.Y.
Additionally,
Plaintiffs
claim
that
the
information
contained in Defendants’ reply was not included in their initial
moving papers, and therefore Plaintiffs did not have an opportunity
to address the issue of whether the parties in both actions are the
“same.”
Rule 12(f) of the Federal Rules of Civil Procedure provides
in relevant part that "the court may order stricken from any
pleading any insufficient defense or any redundant, immaterial,
impertinent,
or
scandalous
matter."
Fed.
R.
Civ.
P.
12(f).
However, motions to strike are generally disfavored. N.Y. State
Elec. & Gas Corp. v. U.S. Gas & Elec., Inc., 697 F.Supp.2d 415,
438-39
(W.D.N.Y.
2010)(citing
Rochester-Genesee
Reg’l
Transp.
Authority v. Hynes-Cherin, 531 F.Supp.2d 494, 519 (W.D.N.Y. 2008)).
A motion to strike “will be denied unless the allegations have no
possible relation or logical connection to the subject matter of
the controversy and may cause some form of significant prejudice to
5
one or more of the parties to the action.” Rochester-Genesee, 531
F.Supp.2d at 519.
Here, Plaintiffs have not demonstrated and cannot demonstrate
that they have been prejudiced in any way by the Defendants’
characterization that the parties are the “same.”
Defendants have
repeatedly explained throughout both their memorandum in support of
their motion to transfer venue and their reply memorandum in
further
support
of
their
motion
to
transfer
venue
that
the
defendants in both actions are the same; that all of the putative
plaintiffs in this action are also putative plaintiffs in the Roach
action; that the two named Plaintiffs in this action are different,
but that they are included in the putative class of the Roach
action; that the geographical scope of the two actions is the same;
that Plaintiffs seek to represent a class of hourly employees who
have worked in any of Defendants’ restaurants across the state of
New York in both actions; and that Plaintiffs’ counsel solicited
participation in this action from a class list that was produced in
the Roach action.
I find that Defendants’ characterization that the parties as
the “same” in both cases does not cause any significant prejudice
to Plaintiffs, and accordingly, I deny Plaintiff’s motion to
strike.
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Plaintiffs’ Request to Submit a Sur-reply
Plaintiffs also request that the Court accept their motion to
strike as a sur-reply to address the contention that the parties in
this action are the “same” as the parties in the Roach action.
The local rules of this Court prohibit sur-reply papers. See
W.D.N.Y.R. 7(a)(6) ("Absent permission of the Judge hearing the
motion, sur-reply papers are not permitted"). This Court also
recognizes, however, that it is improper practice for a party to
raise new issues or arguments in its reply brief. See Ernst Haas
Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir.1999)
("[N]ew
arguments
may
not
be
made
in
a
reply
brief.");
Meadowbrook-Richman, Inc. v. Assoc. Fin. Corp., 253 F.Supp.2d 666,
680 (S.D.N.Y.2003).
Therefore, sur-reply papers may be permitted
where new evidence is presented on a party’s reply brief in further
support of its motion. Coyle v. Crown Enters., Inc., 2009 U.S.
Dist. LEXIS 22452, at *26 (W.D.N.Y. March 19, 2009).
Here, Defendants’ reply memorandum does not contain any new
factual assertions.
Defendants argued, both in their initial
motion to transfer and in their reply memorandum that the parties
were and are the “same.”
In fact, Defendants, referring to the
parties in this action, used the exact phrase “the same parties”
not once, but twice on the first page of their memorandum of law in
support of their motion to transfer venue (Docket No. 24-4).
Defendants also qualified the assertion that the parties are the
7
“same” by stating repeatedly that the named Defendants are all the
same, the putative class members in this action are all putative
class members in the Roach action, and the putative class in this
action comprises a substantial subset of the putative class members
in the Roach action. See Id. at 1, 2, 4, 5, 8, 9, 10, 11, 12.
Not only did Plaintiffs have an opportunity to reply to the
assertion that the parties were the “same,” Plaintiffs did, in
fact, reply to that assertion in their memorandum of law in
opposition to Defendants’ motion to transfer venue. See Docket
No. 50 at pg. 22.
Plaintiffs refute the claim that the parties are
the same by specifically stating, “defendants’ argument that this
action
and
Roach
have
the
‘same
putative
class
members’
is
incorrect’...This action involves only employees who were paid on
the basis of the tip credit.” Id.
Plaintiffs also stated, “Roach,
by contrast, involves all hourly employees regardless of whether
they were paid on the basis of the tip credit.” Id.
I find that Defendants’ did not present any new evidence in
their reply memorandum in further support of their motion to
transfer venue, and therefore, I deny Plaintiff’s request to submit
as a sur-reply their memorandum in support of their motion to
strike.
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Defendants’ Motion to Transfer Venue
Defendants request a transfer of venue to the United States
District Court for the Northern District of New York pursuant to
28 U.S.C. § 1404.
28 U.S.C. § 1404 provides, “[f]or the convenience of parties
and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where
it might have been brought or to any district or division to which
all parties have consented.” The threshold question in a motion to
change venue under § 1404 is whether the case could have been
brought in the proposed transferee district. 28 U.S.C. § 1404(a);
see Madison v. Dyal, 746 F. Supp. 2d 450, 452 (W.D.N.Y. 2010).
addition,
the
Court
may
consider,
inter
alia,
the
In
following
factors: “(1) the plaintiff's choice of forum, (2) the convenience
of witnesses, (3) the location of relevant documents and relative
ease of access to sources of proof, (4) the convenience of parties,
(5) the locus of operative facts, (6) the availability of process
to compel the attendance of unwilling witnesses, and (7) the
relative means of the parties.” N.Y. Marine and Gen. Ins. Co. v.
Lafarge N. Am., 599 F.3d 102, 112 (2d Cir. 2010)(quoting D.H. Blair
& Co., Inc. v. Gottdiener, 462 F.3d 95, 106-7)). The party moving
for transfer must show by clear and convincing evidence that the
factors favor the transfer. N.Y. Marine, 599 F.3d at 113-114.
9
Venue is proper in a judicial district in which any defendant
resides, and a corporate defendant doing business in a state with
multiple districts “shall be deemed to reside in any district” in
which
§§
it
is
subject
1391(b)(1),
(d).
to
personal
There
is
no
jurisdiction.
question
that
28
U.S.C.
this
action
originally could have been brought against the Defendants in the
N.D.N.Y.
The same Defendants are currently defending the Roach
case that was initially brought in the N.D.N.Y.
(1) Plaintiffs’ Choice of Forum
Although a plaintiff’s choice of forum is generally entitled
to
substantial
deference
in
the
transfer
analysis,
in
class
actions, the plaintiff’s choice of forum is a less significant
consideration. See Warrick v. Gen. Elec. Co., 70 F.3d 736, 741 (2d
Cir. 1995); IBJ Schroeder Bank & Trust Co. v. Mellon Bank, N.A.,
730 F.Supp. 1278, 1282 (S.D.N.Y. 1990).
“The reason [for this] is
that in a class action there will be numerous potential plaintiffs,
each possibly able to make a showing that a particular forum is
best suited for the adjudication of the class’s claim.” Goggins v.
Alliance Capital Mgmt., L.P., 279 F.Supp.2d 228, 232 (S.D.N.Y.
2003).
Plaintiffs
chose
to
bring
this
case
in
this
District.
However, because Plaintiffs purport to represent a putative class
of similarly situated employees located all across the State of
10
New York, the Court finds that Plaintiffs’ choice of forum is
entitled to some weight, but not substantial deference.
(2) The Convenience of the Witnesses
Usually, the “convenience of both the party and non-party
witnesses
is
probably
the
single-most
important
fact
in
the
analysis of whether transfer should be granted.” Fuji Film Co. v.
Lexar Media, Inc., 415 F.Supp.2d 370, 373 (S.D.N.Y. 2006)(quoting
Berman v. Informix Corp., 30 F.Supp.2d 653, 656 (S.D.N.Y.1998)).
Because the claims in both actions are so intertwined, many of
the witnesses in the Roach action will also be called to testify in
this action.
Therefore, I find that the convenience of the
witnesses weighs in favor of transfer. See Dyson Inc. v. Maytag
Corp., 2006 U.S. Dist. LEXIS 73540 (S.D.N.Y. Oct. 11, 2006).
(3) The Location of Relevant Documents
As in the Roach action, the majority of the documents at issue
in this case are located at the 54 different Applebee’s restaurants
relevant to the case.
Out of the 54 restaurants at issue, 25 are
located in the W.D.N.Y., and 24 are located in the N.D.N.Y., the
neighboring district. Accordingly, I find that this factor neither
supports nor opposes transfer.
(4) The Convenience of Parties
Although the two named Plaintiffs in this action reside in and
worked in this district, the majority of the opt-in Plaintiffs
reside and work outside of this district. Additionally, all of the
11
Defendants here, and most of the putative plaintiffs are already
involved in a related case in the N.D.N.Y.
Therefore, the Court finds that this factor favors transfer.
(5) The Locus of Operative Facts
As with the location of the relevant documents, there is no
single locus of operative facts in this action. Plaintiffs purport
to represent hundreds of tipped employees who worked in different
restaurant throughout the state of New York-both in this district
and in the N.D.N.Y.
As there is no single locus of operative
facts, I find that this factor is neutral.
(6) The Availability of Compulsory Process
There is no indication that this factor is relevant for this
action.
Defendants have been more than willing to grant access to
key witnesses in the Roach case, who are likely to be key witnesses
here as well.
Although discovery in this action has been minimal
thus far, the witnesses here will be substantially similar to the
witnesses in Roach, and Plaintiffs have failed to name any witness
whom they could not obtain by virtue of litigating in the N.D.N.Y.
in Roach or in this action.
Accordingly, this factor neither
supports nor opposes transfer.
(7) The Relative Means of the Parties
Because
Plaintiffs
and
their
counsel
seek
to
represent
hundreds of tipped employees, the relative means of the parties
does not weigh in favor of or against transfer. Baltimore v. Toyota
12
Motor Credit Corp., 2001 U.S. Dist. LEXIS 7451, at *6 (S.D.N.Y
June 8, 2001) (holding that “[b]y filing a class action, Plaintiffs
have essentially placed themselves on equal footing with Defendants
with respect to their means”).
Therefore, I find that this factor
is neutral.
(8) Balancing the Factors
One factor weighs against transfer: the Plaintiffs’ choice of
forum.
However,
as
Plaintiffs
represent
a
putative
class
of
employees located throughout the state of New York, this factor is
not afforded substantial deference.
Four factors are neutral, and
the remaining two factors weigh heavily in favor of transfer.
I find that the interests of justice and judicial efficiency
strongly support the transfer of this case in light of the pending
Roach
action
that
involves
similar
claims,
parties
who
are
substantially the same, the same counsel for both Plaintiffs and
Defendants, and a significant overlap in discovery. See Fuji, 415
F.Supp.2d at 376 (“it is well established that the existence of a
related action pending in the transferee court weighs heavily
towards transfer”); Williams v. City of N.Y., 2006 U.S. Dist. LEXIS
6470, at *9 (S.D.N.Y. Feb. 21, 2006)(“[E]xistence of a related
action in the transferee district is a strong factor to be weighed
with regard to judicial economy, and may be determinative.”);
Goggins, 279 F.Supp.2d at 234 (existence of related actions in
another tribunal was “[t]he single most significant circumstance
13
favoring transfer [of][the] action”); see also Continental Grain
Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960)(“To permit a situation
in
which
two
cases
involving
precisely
the
same
issues
are
simultaneously pending in different District Courts leads to the
wastefulness of time, energy and money that § 1404(a) was designed
to prevent.”).
Plaintiffs argue that to transfer a case for reasons of
judicial economy alone is reversible error.
Plaintiffs cite to In
re Warrick v. Gen. Electric Co., 70 F.3d 736 (2d Cir. 1995), in
support of this contention.
the Second
Circuit
In Warrick, the Court of Appeals for
reversed
a
transfer
of venue
because
the
district court did not evaluate the convenience of the witnesses
and the availability of evidence, which both “weighed heavily”
against transfer. Id. at 740-41.
The Court in Warrick also noted
that “the effect of the transfer was...to foreclose consideration
of the case for reasons having nothing to do with ‘the convenience
of the parties and witnesses’ within the meaning of 28 U.S.C.
§ 1404(a).”
Id. at 737.
Here, as clearly distinguished from
Warrick, an evaluation of the convenience of witnesses and the
convenience of the parties, as well as the interests of justice and
judicial economy, supports transfer.
Therefore, in the exercise of its discretion and in the
interest of justice, this Court finds that Defendants have shown
through
clear
and
convincing
evidence
14
that
the
balance
of
convenience
weighs
strongly
in
favor
of
transfer
to
the
United States District Court for the Northern District of New York.
CONCLUSION
For the reasons set forth herein, the Clerk of the Court is
directed to transfer this case to the United States District Court
for the Northern District of New York.
Plaintiffs’ motion to
strike is denied, and their request to file their memorandum in
support of their motion to strike as a sur-reply is also denied.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
___________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
June 4, 2013
Rochester, New York
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