Lusk et al v. Serve U Brands, Inc. et al

Filing 57

DECISION AND ORDER granting 48 Plaintiffs' Motion to Amend or Correct and Named Plaintiffs are instructed to file their amended complaint within 10 days of entry of this Decision and Order; and denying 49 Defendants' Motion to Strike. Signed by Hon. Michael A. Telesca on 6/14/18. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SKYLER LUSK, TIA COUNCIL, VIKTORIA
O’BRIEN, and JUSTIN BYROAD, on
behalf of themselves and all other
employees similarly situated,

No. 6:17-cv-06451-MAT
DECISION AND ORDER

Plaintiffs,
-vsSERVE U BRANDS, INC., INSOMNIA
COOKIES, LLC, and SETH BERKOWITZ,
Defendants.

I. INTRODUCTION
Named

Plaintiffs

(“Council”),
(“Byroad”)

Viktoria

Skyler
O’Brien

(collectively

Lusk

(“Lusk”),

(“O’Brien”),

“Named

and

Plaintiffs”),

Tia

Council

Justin

Byroad

former

delivery

drivers for Defendant Insomnia Cookies, LLC (“Insomnia Cookies”),
commenced the instant action on July 11, 2017, alleging violations
of the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. § 201 et
seq., as well as violations of the state laws of New York,
Michigan, and Indiana.

Docket No. 1.

Defendants filed a motion

seeking dismissal of the complaint on September 15, 2017.
No. 35.

Docket

On February 12, 2018, the Court entered a Decision and

Order (the “February 12th Decision and Order”) (Docket No. 47)
granting Defendants’ motion to dismiss.

In particular, the Court

found that Named Plaintiffs had failed to allege plausible claims
for violations of the FLSA.

The Court further found that, because

Named Plaintiffs had not pled a viable federal claim, that it would

not be appropriate to exercise jurisdiction over Named Plaintiffs’
state law claims.

However, in the interests of justice, the Court

afforded Named Plaintiffs an opportunity to file a motion seeking
to amend their complaint and cure the defects identified by the
Court.
Named Plaintiffs have now filed a motion for leave to file an
amended complaint.

Docket

No.

48.

Defendants

oppose

Named

Plaintiffs’ request, and have filed a cross-motion asking the Court
to strike the Consents to Become a Party Plaintiff filed in
connection with this matter.

Docket Nos. 49-50.

For the reasons

discussed below, Named Plaintiffs’ motion for leave to file an
amended complaint is granted and Defendants’ cross-motion to strike
is denied.
II.

FACTUAL BACKGROUND
The factual background of this action is set forth in detail

in the February 12th Decision and Order, familiarity with which is
assumed for purposes of this Decision and Order.
the

instant

motion,

the

Court

has

summarized

For purposes of
the

relevant

additional factual allegations set forth in Named Plaintiffs’
proposed amended complaint below.
In the February 12th Decision and Order, the Court found that
Named Plaintiffs had failed to state a plausible minimum wage claim
under the FLSA because they had “failed to provide sufficient
information in their complaint for a finder of fact to be able to

2

determine their rate of pay in any given work week.”
at 5.

Docket No. 47

Accordingly, the Court explained, it was “impossible to

conclude from the allegations in the complaint that Defendants
failed to pay [Named Plaintiffs] the federally mandated minimum
wage in any given week.”

Id.

In response to the Court’s holding,

Named Plaintiffs have provided additional details about their rate
of pay in the proposed amended complaint.

In particular, Lusk

alleges that for the workweek September 21, 2015 through September
27, 2015, he was paid an hourly rate of $5.00 for 32.28 hours, plus
“additional wages” of $89.19 and “charge tips” of $85.00.
further alleges
March

13,

2016,

that

for

the

he

was

workweek

paid

an

March

hourly

7,

rate

2016
of

Lusk

through

$5.00

for

30.55 hours, plus “additional wages” of $88.33 and “charge tips” of
$65.75.
The other Named Plaintiffs have included similar allegations
in the proposed amended complaint.

Council states that for the

workweek December 21, 2016 through January 1, 2017, she was paid an
hourly rate of $5.00 for 21.90 hours, “additional wages” of $94.68,
and “charge tips” of $31.25, and that for the workweek May 23, 2016
through May 29, 2016, she was paid an hourly rate of $5.00 for
28.78 hours, “additional wages” of $75.73, and “charge tips” of
$63.50.

O’Brien alleges that for the workweek November 30, 2015

through December 6, 2015, she was paid an hourly rate of $5.00 for
23.62 hours, “additional wages” of $72.94, and “charge tips” of

3

$58.25, and that for the workweek October 12, 2015 to October 18,
2015, she was paid an hourly rate of $5.00 for 25.95 hours,
“additional wages” of $76.50, and “charge tips” of $52.50.
provides

less

workweek

he

specific
earned

an

information,

but

estimates

hourly

of

$5.00

rate

for

Byroad

that
40

in

a

hours,

“additional wages” of $120.00, and “charge tips” of $90.00.
Turning to the issue of overtime, in the February 12th Decision
and Order, the Court found that Named Plaintiffs had failed to
plead sufficient factual matter to state a plausible claim that
they had worked compensable overtime in a given workweek.

Named

Plaintiffs Lusk and O’Brien have included in the proposed amended
complaint additional factual allegations intended to remedy this
shortcoming.

Lusk alleges that for the workweek August 17, 2015

through August 23, 2015, he worked 41.33 hours, but was not
appropriately compensated for his 1.33 hours of overtime work.

In

particular, Lusk claims that he was paid $5.00 per hour for his
initial 40 hours, as well as “additional wages” of $115.62, and
that he was paid at a rate of $9.375 for the remaining 1.33 hours.
O’Brien alleges that for the workweek from September 21, 2015
through September 27, 2015, she worked 49.72 hours and was not paid
at an overtime rate for any of these hours.

Named Plaintiffs

Council and Byroad have not alleged FLSA overtime claims.

4

III. DISCUSSION
A.

Named Plaintiffs’ Motion for Leave to Amend
1.

Legal Standard

Pursuant to Federal Rule of Civil Procedure 15(a), leave to
amend

shall

be

given

freely

“when

justice

so

requires.”

Nevertheless, it remains “within the sound discretion of the
district court to grant or deny leave to amend.”

Kim v. Kimm, 884

F.3d 98, 105 (2d Cir. 2018) (internal quotation omitted). In
particular, the Court may deny leave to amend “for good reason,
including futility, bad faith, undue delay, or undue prejudice to
the opposing party.”

McCarthy v. Dun & Bradstreet Corp., 482 F.3d

184, 200 (2d Cir. 2007).

A proposed amendment is futile where it

“fails to state a claim on which relief can be granted.”

Krys v.

Pigott, 749 F.3d 117, 134 (2d Cir. 2014). “The adequacy of a
proposed amended complaint to state a claim is to be judged by the
same

standards

as

those

governing

the

adequacy

of

a

filed

pleading.” Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162,
185 (2d Cir. 2012).
A proposed amended complaint, like all complaints, “must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks and citation
omitted).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable
5

inference that the defendant is liable for the misconduct alleged.”
Id.

Although a complaint need not provide “detailed factual

allegations,” it nevertheless must assert “more than labels and
conclusions,” and “a formulaic recitation of the elements of a
cause of action” will not suffice. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 545 (2007).

The plaintiff must plead facts that

“raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true.”
Id. (citations omitted).

In deciding whether to grant leave to

amend, the Court must accept as true all factual allegations in the
proposed amended complaint, and must draw all reasonable inferences
in favor of the nonmovant.

See Atwood v. Cohen & Slamowitz LLP,

716 F. App’x 50, 52 (2d Cir. 2017).
2.

The Proposed Amended Complaint Plausibly Alleges
Violations of the FLSA

Applying the legal standards set forth above, the initial
question the Court must determine is whether the proposed amended
complaint plausibly states a claim for violation of the FLSA.

For

the reasons discussed below, the Court finds that Named Plaintiffs
have plausibly alleged an FLSA minimum wage claim and that Named
Plaintiffs Lusk and O’Brien have plausibly stated an FLSA overtime
claim.

6

i.

Named Plaintiffs have Plausibly Alleged an
FLSA Minimum Wage Claim

Named Plaintiffs wish to pursue an FLSA claim for failure to
pay the federally mandated minimum wage. As the Court explained in
the February 12th Decision and Order, to plausibly state an FLSA
minimum wage claim, a complaint must allege that, during at least
one particular week, “the average of the Plaintiffs’ . . . wages
was less than the federal minimum wage.”
Inc.,

No.

13-CV-6458

June 24, 2014).

CJS,

2014

WL

Hart v. Crab Addison,

2865899, at

*11 (W.D.N.Y.

This is because “[u]nder what has become known as

the Klinghoffer rule,

taking its

name from

United

States

v.

Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir. 1960),
no minimum wage violation occurs so long as the total wage paid to
an employee in any given workweek divided by the total hours worked
in the workweek equals or exceeds the applicable minimum wage.”
Id. (internal quotation omitted).
Unlike the allegations in Named Plaintiffs’ initial complaint,
the

allegations

in

the

proposed

amended

complaint

provide

sufficient information necessary to calculate the Named Plaintiffs’
rates of pay in a particular workweek.

For example, Lusk alleges

that for the workweek September 21, 2015 through September 27,
2015, he was paid an hourly rate of $5.00 for 32.28 hours, plus
“additional wages” of $89.19 and “charge tips” of $85.00, for a
total sum of $335.59.

Lusk further alleges that, while he worked

for Defendants, he performed 1-2 delivery trips per hour, with an
7

average distance of 10 miles round trip.

Based on the IRS mileage

reimbursement rate for 2015, Lusk therefore claims that he was
entitled to reimbursement in a minimum amount of $5.75 per hour for
this time period. Accordingly, Lusk alleges that for this workweek,
he

was

paid

at

most

only

$4.65

per

hour.

Crediting

these

allegations as true, as the Court must at this stage of the
proceedings, Lusk has plausibly alleged that he was paid less than
the

federally

Similar

mandated

calculations

minimum

can

be

wage

in

performed

a

specific

for

the

workweek.

other

Named

Plaintiffs, and also show workweeks in which they were allegedly
paid less than the minimum wage.
Defendants set forth several reasons why Named Plaintiffs’
minimum wage allegations are allegedly deficient, none of which
have merit.
allegation

First, Defendants take issue with Named Plaintiffs’
that

Defendants

cannot

offset

their

minimum

wage

obligation based on the “additional wages” paid, arguing that this
allegation is an inaccurate legal conclusion and contravenes this
Court’s February 12th Decision and Order. However, and as discussed
above, even taking into account the additional wages and charge
tips paid to Named Plaintiffs, they have identified specific
workweeks in which they were allegedly paid less than the federal
minimum wage.

Accordingly, the issue of whether the additional

wages are rightly counted towards Defendants’ payment obligations

8

does not ultimately impact the plausibility of Named Plaintiffs’
minimum wage claims.
Moreover, while the Court did find that mandatory service
charges and additional wages may count towards Defendants’ minimum
wage obligations, Named Plaintiffs’s inclusion of their preferred
legal theory in the proposed amended complaint does not render its
factual allegations implausible. It is well-established that legal
conclusions

are

not

taken

plausibility of a pleading.

into

account

in

assessing

the

See, e.,g., Smith v. Mastercraft

Decorators, Inc., No. 09-CV-579S, 2011 WL 5191755, at *2 (W.D.N.Y.
Oct. 31, 2011) (in assessing the sufficiency of a complaint,
“conclusory allegations, labels, and legal conclusions . . . are
identified and stripped away”).

Moreover, “it is not uncommon for

complaints to allege a number of legal theories which really do not
fit the facts of the case,” and “[g]iven the fact that at the
outset of litigation it is often difficult to know which legal
theory will be supported by the facts developed during discovery,
counsel should be given some latitude in asserting a variety of
legal theories so that a plaintiff with a valid claim is not
prejudiced by counsel who puts the wrong legal label on that
claim.” Am.-European Art Assocs., Inc. v. Moquay, No. 93 CIV. 6793
(JSM), 1997 WL 13209, at *1 (S.D.N.Y. Jan. 14, 1997).

However,

Named Plaintiffs are reminded that in future motion practice, the

9

doctrine of law of the case will apply to the Court’s prior
holdings.
Defendants’ second argument is that Named Plaintiffs’ reliance
on the IRS’s mileage reimbursement rates is inappropriate, because
it is not an accurate reflection of the actual vehicle-related
expenses incurred by Named Plaintiffs. However, several other
federal courts have rejected this precise argument. For example, in
Darrow v. WKRP Mgmt., LLC, No. 09-CV-01613-CMA-BNB, 2011 WL 2174496
(D. Colo. June 3, 2011), the court considered an employee’s claim
that “his wages [were] reduced below the minimum wage [because] he
[was] under-reimbursed for vehicle-related expenses.”

Id. at * 3.

The Darrow court concluded that Plaintiff had reasonably estimated
his vehicle-related expenses by relying on the “IRS business
mileage reimbursement rate” and the “ AAA estimate of the cost of
running and operating a car,” explaining that “FLSA plaintiffs can
rely on estimates provided that there is evidence that the estimate
is not an unreasonable approximation of the actual figure.” Id. at
*4. Similarly, in Perrin v. Papa John's Int'l, Inc., 818 F. Supp.
2d 1146(E.D. Mo. 2011), the court found that the IRS’s business
mileage

reimbursement

rate

was

sufficient

evidence

of

the

reasonableness of the plaintiff’s estimate of his vehicle-related
expenses to plausibly state a minimum wage violation. Id. at 1149.
The Court is persuaded by the reasoning in Darrow and other
similar

cases.

The

IRS’s

business
10

mileage

reimbursement

rate

provides a plausible basis for Named Plaintiffs’ to estimate their
vehicle-related expenses.

Moreover, at the pleading stage of an

FLSA action, a plaintiff may rely on estimates of items such as
hours worked and expenses incurred.

The Court therefore finds no

merit to Defendants’ objections to Named Plaintiffs’ proposed
amended claim for failure to pay the federally required minimum
wage.
ii.

The

Court

Named Plaintiffs Lusk and O’Brien have
Plausibly Alleged an FLSA Overtime Claim

next

considers

whether

the

proposed

amended

complaint plausibly states a claim for federal overtime violations.
The Court notes as an initial matter that the proposed amended
complaint contains overtime allegations related only to Named
Plaintiffs Lusk and O’Brien, and that Named Plaintiffs Council and
Byroad acknowledge in their reply memorandum that they “do not
currently

assert

overtime

claims.”

Docket

No.

54

at

18.

Accordingly, the Court has limited its consideration to whether or
not Named Plaintiffs Lusk and O’Brien have stated claims for
failure to pay overtime that are plausible on their face.
As the Court explained in the February 12th Decision and Order,
under applicable Second Circuit precedent, in order to state an
overtime claim under the FLSA, “[Named] Plaintiffs must allege
sufficient factual matter to state a plausible claim that they
worked compensable overtime in a workweek longer than 40 hours.”
Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106,
11

114 (2d Cir. 2013).

An allegation that a plaintiff worked more

than 40 hours in “some or all weeks” without being paid an
appropriate rate of compensation, which is what Named Plaintiffs
had included

in

their

plausibility standard.

original

complaint,

does

not

meet the

Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d

85, 89 (2d Cir. 2013).
In the proposed amended complaint, Named Plaintiffs Lusk and
O’Brien each identify a specific workweek in which they contend
they worked more than 40 hours and were not paid an appropriate
rate of overtime compensation.

Specifically, Lusk claims that

Defendants improperly calculated his overtime rate of pay for the
workweek he identifies, while O’Brien claims not to have been paid
at an overtime rate at all for the work week she identifies.
Pursuant to the FLSA, employees are entitled to overtime pay
“at a rate not less than one and one-half times the regular rate at
which [they are] employed.” 29 U.S.C. § 207.

An employee’s

“regular rate” is “the hourly rate actually paid for the normal,
non-overtime workweek.”

Scott v. City of New York, 592 F. Supp. 2d

475, 487 (S.D.N.Y. 2008) (internal quotation omitted and emphsasis
added).

Where an employee provides “tools of the trade which will

be used in or are specifically required for the performance of the
employer’s particular work,” the cost of such tools of the trade
must be taken into account in determining both the minimum and
overtime wages required to be paid.

12

29 C.F.R. § 531.35; see also

Jin M. Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08 CIV. 3725
DC, 2010 WL 4159391, at *4 (S.D.N.Y. Sept. 30, 2010).
If employees are unlawfully paid less than minimum wage, their
regular rate of pay is the statutory minimum.

See Hernandez v.

Jrpac Inc., No. 14 CIV. 4176 (PAE), 2016 WL 3248493, at *32
(S.D.N.Y. June 9, 2016) (where delivery drivers’ regular rates of
pay fell below the minimum wage, “the delivery workers’ regular
rate of pay for the purposes of calculating the overtime pay they
are due is the statutory minimum wage”); see also Copantitla v.
Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253, 291 (S.D.N.Y. 2011)
(regular rate cannot be lower than the statutory minimum).
The calculations that Lusk relies on to support his overtime
claim fail to comport with the legal principles set forth above.
Lusk

claims

that

for

the

workweek

August 23, 2015, he worked 41.33 hours.

August

17,

2015

through

Lusk further claims that

he was paid $5.00 per hour for his initial 40 hours, as well as
“additional wages” of $115.62, and that he was paid at a rate of
$9.375 for the remaining 1.33 hours.

According to Lusk, his

regular rate should therefore have been calculated as $8.14 per
hour and his overtime rate should have been $12.21 per hour.
Lusk’s calculations in the proposed amended complaint fail to
take into account his factual allegations regarding his actual rate
of pay.

As discussed above, Lusk affirmatively alleges that,

taking into account the money he expended on vehicle-related

13

expenses and other “tools of the trade,” he was paid sub-minimum
wage for all hours that he worked for Defendants.

For example, and

as discussed above, for the work week September 21, 2015 through
September 27, 2015, Lusk alleges he was paid at most $4.65 per
hour. Because (accepting the allegations of the proposed amended
complaint

as

true)

Lusk’s

actual

rate

of

pay

was

below

the

statutory minimum, in calculating his overtime rate of pay, the
statutory minimum must be used as his regular rate.1
However, Lusk’s miscalculations do not render his overtime
claim implausible, because (again, accepting his allegations as
true), Defendants failed to pay him one and a half times the
federally mandated overtime rate in any event. In particular, Lusk
claims that he was paid at an overtime rate of only $9.375, which
is less than one and half times the federal minimum wage.

Because

this overtime rate is inadequate even taking into account Lusk’s
factual allegations regarding his regular rate of pay, the Court
finds that Lusk’s FLSA overtime claim is plausible when the proper
legal analysis is applied.

See Royston v. Wells Fargo, N.A.,

No. 08 CIV. 8715, 2012 WL 12883773, at *2 (S.D.N.Y. Apr. 25, 2012)

1

While a federal plaintiff has “substantial leeway under Rule 8(e) to plead
alternative, and even inconsistent, claims,” he may not take inconsistent factual
positions unless he is “legitimately . . . in doubt about the factual background
or legal theories supporting the claims or defenses .” Kwan v. Schlein, 246
F.R.D. 447, 451 (S.D.N.Y. 2007) (internal quotations omitted). In this case,
Lusk cannot plausibly purport to be in doubt about whether he expended the
vehicle-related expenses he claims in the amended complaint, inasmuch as those
facts are within his own knowledge. Accordingly, he cannot ignore those vehiclerelated expenses in connection with his overtime claim.

14

(noting that the Court is not “limited, in [its] legal analysis, to
considering the principles and theories articulated in the parties’
memoranda”).
Defendants

argue

that

Lusk’s

paystub

for

the

workweek

August 17, 2015 through August 23, 2015 shows that he was in fact
paid at an overtime rate of $15.67.

Setting aside the propriety of

considering such extrinsic evidence on a motion for leave to amend,
Defendants’ argument fails in any event to take into account Lusk’s
allegations regarding his vehicle-related expenses.

As set forth

above, an employee’s expenditures on necessary tools of the trade
must be accounted for in assessing both minimum wage and overtime
claims.

Here, Lusk has alleged that he spent at least $5.75 per

hour in vehicle-related expenses in 2015. Deducting $5.75 from the
$15.67 rate claimed by Defendants still results in an overtime rate
that is less than one and one half times the federally mandated
minimum wage.

Defendants’ argument therefore fails to demonstrate

that Lusk should not be permitted to proceed with an FLSA overtime
claim at this point in the proceedings.
Turning to O’Brien’s claim, she alleges that for the workweek
from September 21, 2015 through September 27, 2015, she worked
49.72 hours and was not paid at an overtime rate for any of them.
Defendants contend that these allegations are factually inaccurate,
and have submitted a declaration from their Payroll and Onboarding
Specialist, Katie Scheininger, that states O’Brien actually worked

15

only 31.37 hours from September 21, 2015 to September 27, 2015.
This factual dispute, which is based on submissions outside the
pleadings, is not amenable to resolution by the Court on a motion
for leave to amend.

See Santiago v. Steinhart, No. 89 CIV. 2069

(RPP), 1993 WL 410402, at *2 (S.D.N.Y. Oct. 13, 1993) (leave to be
amend should

be

granted

where

“the

alleged

futility

[of

the

proposed amendments] is based on factual issues which are in
dispute”).

Accepting

O’Brien’s

allegations

as

true,

she

has

plausibly alleged that Defendants’ failed to pay her overtime as
required by the FLSA.
For the foregoing reasons, the Court concludes that the
proposed amended complaint adequately alleges an FLSA overtime
claim on behalf of Lusk and O’Brien.

The Court therefore will

permit Lusk and O’Brien’s overtime claims to proceed at this time.
3.

Defendants’
Arguments
Regarding
the
Sufficiency
of
the
Collective
Action
Allegations are Premature

Defendants also argue that even if Named Plaintiffs have
stated individual FLSA claims, the proposed amended complaint’s
allegations

regarding

“similarly

situatedness”

and

the

appropriateness of a collective action are improper and inadequate.
Accordingly, Defendants ask the Court to find that this action
cannot proceed on a collective basis.
The Court finds Defendants’ arguments regarding the adequacy
of Named Plaintiffs’ collective action allegations premature.

16

No

motion for certification of a collective action is currently
pending before

the

Court,

nor

have

Named

Plaintiffs

had

the

opportunity to make the “modest factual showing” required at the
conditional certification phase.
F.3d

537,

555

(2d

Cir.

See Myers v. Hertz Corp., 624

2010).

Accordingly,

“[a]lthough

[Defendants’] raise[] significant questions about whether this case
could . . . be maintained as a collective action, it would be
premature to reach that question at this juncture.”

Lamur v.

Sunnyside Cmty. Servs., Inc., No. 11-CV-4439 CBA RLM, 2012 WL
3288770, at *5 (E.D.N.Y. Aug. 9, 2012) (declining to dismiss
collective action claims at outset of litigation).

If and when

Named Plaintiffs seek certification of this matter as a collective
action, Defendants will have the opportunity to fully litigate the
merits of that request.
4.

The Proposed Amended Complaint Adequately
Alleges that Defendant Seth Berkowitz is Named
Plaintiffs’ Employer

Defendants next argue that the proposed amended complaint
fails

to

plausibly

allege

that

Defendant

Seth

Berkowitz

(“Berkowitz”) qualifies as an employer under the FLSA.

The Court

finds this argument meritless.
“To be held liable under the FLSA, a person must be an
‘employer,’ which § 3(d) of the statute defines broadly as ‘any
person acting directly or indirectly in the interest of an employer
in relation to an employee.’” Herman v. RSR Sec. Servs. Ltd., 172
17

F.3d 132, 139 (2d Cir. 1999) (quoting 29 U.S.C. § 203(d)). “The
Supreme Court has emphasized the ‘expansiveness’ of the FLSA’s
definition of employer,” and the Second Circuit has noted that
“[a]bove and beyond the plain language, . . . the remedial nature
of the statute further warrants an expansive interpretation of its
provisions so that they will have “‘the widest possible impact in
the national economy.’” Id. (quoting Carter v. Dutchess Community
College, 735 F.2d 8, 12 (2d Cir. 1984)).
With respect to “whether a given individual is or is not an
employer,” the Second Circuit has explained that “the overarching
concern is whether the alleged employer possessed the power to
control the workers in question with an eye to the ‘economic
reality’ presented by the facts of each case.”
citations omitted).

Id. (internal

There are four factors a court considers in

applying the “economic reality” test: “whether the alleged employer
(1) had the power to hire and fire the employees, (2) supervised
and controlled employee work schedules or conditions of employment,
(3) determined the rate and method of payment, and (4) maintained
employment records.”

Id. (quotation omitted).

No factor standing

alone is dispositive; instead, the totality of the circumstances
must be taken into account.

Id.

In this case, Named Plaintiffs allege that Berkowitz is the
CEO of Defendants Serve U Brands, Inc. (“Serve U”) and Insomnia
Cookies.

Named Plaintiffs further allege that Berkowitz: (1) has

18

the authority to control Insomnia Cookies’ operations, including
“functions relating to employment, human resources and payroll;”
(2) was “actively involved in the creation and/or maintenance of
the illegal policies complaint of in this case;” (3) “has the power
to hire and fire employees, control the terms and conditions of
their employment, and determine the rate and method of their pay;”
and (4) has “financial control” over Serve U and Insomnia Cookies.
Docket No. 48-3 at ¶¶ 50-52, 55-59.
Named Plaintiffs’ allegations are sufficient, at this stage,
to state a plausible FLSA claim against Berkowitz.

Although Named

Plaintiffs do not allege that they personally interacted with
Berkowitz, the Second Circuit has made it clear that “[n]othing
. . . in the FLSA . . . requires an individual [defendant] to have
been

personally

complicit

in

FLSA

violations.”

Catsimatidis, 722 F.3d 99, 110 (2d Cir. 2013).

Irizarry

v.

Instead, it is

sufficient if an individual defendant has “operational control over
employees,” which “does not mean that the individual ‘employer’
must be responsible for managing plaintiff employees — or, indeed,
that he or she must have directly come into contact with the
plaintiffs, their workplaces, or their schedules.”

Id.

In this

case, Named Plaintiffs’ allegations, taken as true, satisfy the
standard for qualifying Berkowitz as an employer under the FLSA.
See Hinckley v. Seagate Hosp. Grp., LLC, No. 16-CV-6118 CJS, 2016
WL 6524314, at *11 (W.D.N.Y. Nov. 3, 2016) (allegations that

19

individual was “primarily responsible for implementing business
decisions . . ., including but not limited to decisions concerning
company labor guidelines, budgets, and other financial controls”
were “sufficiently factual to plausibly state that [the individual]
is

an

employer”).

Accordingly,

the

Court

finds

that

Named

Plaintiffs have plausibly stated FLSA claims against Berkowitz.
5.

The
Court
will
Exercise
Supplemental
Jurisdiction over the State Law Claims

Finally, the Court notes that Defendants ask the Court to
decline

to

exercise

supplemental

Plaintiffs’ state law claims.

jurisdiction

over

Named

However, because the Court finds

that the proposed amended complaint adequately states claims under
the FLSA for the reasons set forth above, there is no basis to
decline to exercise supplemental jurisdiction. Defendants’ request
that

the

Court

dismiss

the

state

law

claims

for

lack

of

jurisdiction is accordingly denied.
B.

Defendants’ Cross-Motion to Strike

In addition to opposing Named Plaintiffs’ motion for leave to
amend, Defendants have filed a cross-motion asking the Court to
strike the Consents to Become a Party Plaintiff (the “Consents”)
signed by Named Plaintiffs and others and filed in connection with
this action.

Defendants contend that the Consents fail to comply

with the relevant provisions of the FLSA. Defendants further argue
that Plaintiffs’ counsel has improperly created a website and
solicited opt-in plaintiffs for this action, thereby “usurp[ing]
20

the Court’s power to monitor the notice process.” Docket No. 50 at
25.
Pursuant to the FLSA, any individual wishing to become a
party plaintiff must give “consent in writing to become such a
party and such consent [must be] filed in the court in which such
action is brought.” 29 U.S.C. § 216(b).

“Both FLSA and relevant

case law require named plaintiffs to submit written consent to join
in a collective action, and this requirement is not satisfied by
the filing of the complaint alone.”

D’Antuono v. C & G of Groton,

Inc., No. 3:11CV33 MRK, 2012 WL 1188197, at *2 (D. Conn. Apr. 9,
2012).
The FLSA does not dictate any particular form or content for
the written consent.

See id. (“While it is clear that some

document in addition to the complaint must be filed, it is not
clear what form the written consent must take.”).
“[[w]ith

respect

to

form,

courts

have

shown

Moreover,
considerable

flexibility as long as the signed document indicates consent to
join the lawsuit.”

Manning v. Gold Belt Falcon, LLC, 817 F. Supp.

2d 451, 454 (D.N.J. 2011); see also Mendez v. The Radec Corp., 260
F.R.D. 38, 52 (W.D.N.Y. 2009) (“[C]ourts have generally not taken
a

strict

approach

consent. . . .

with

regard

to

the

form

of

the

written

The statute itself does not mandate any particular

form, and in general, all that is required is a signed statement
indicating the plaintiff’s intent, and consent, to participate as

21

a plaintiff in the collective action.”); Perkins v. S. New England
Tel. Co., No. CIV.A. 3:07-CV-967JC, 2009 WL 3754097, at *3 n.2
(D. Conn. Nov. 4, 2009) (noting that “a consent form need not take
any

specific

form”

and

that

“courts

have

generally

accepted

irregular consent forms where the signed document verifies the
complaint, indicates a desire to have legal action taken to protect
the

party’s

rights,

plaintiff”).

or

states

a

desire

to

become

a

party

Here, Defendants contend that the Consents are

invalid and should be stricken because they do not identify the
specific action to which the signees are consenting to join.
Court finds this argument without merit.

The

The purposes of the

FLSA’s consent requirement are “to put the Defendants on notice”
and to “ensure that each plaintiff intends to participate in the
case,” D’Antuono, 2012 WL 1188197 at *2, and those purposes are
fulfilled by the Consents in this case. Defendants are fully aware
of

the

identities

of

the

party

plaintiffs,

and

the

Consents

expressly manifest the party plaintiffs’ intent to participate in
“any Fair Labor Standards Act action for unpaid wages and related
relief against . . . Insomnia Cookies, and any related entity or
person,” (see, e.g., Docket No. 2-1 at 1-4).
The Court is not persuaded by Defendants’ argument that the
FLSA requires the written consent to refer to a specific court or
action.

The Southern District of New York rejected a remarkably

similar argument in Soler v. G & U, Inc., 103 F.R.D. 69 (S.D.N.Y.

22

1984).

In that case, the consents at issue provided that the

signee “consent[ed] to be a party plaintiff in an action under the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq., to secure any
unpaid minimum wages, liquidated damages, attorney’s fees, costs
and other relief arising out of [his] employment in Orange County,
New York, in 1978 and/or 1979.”

Id. at 76 n.12.

The defendant

argued that these consents failed to comply with the FLSA, but the
court rejected that argument, explaining that “[a]lthough the
consent to sue forms filed with the Court are general and do not
name a specific defendant, the FLSA does not require this level of
specificity.” Id. at 76. The Court agrees with the reasoning in
Soler.

The FLSA requires only that an employee consent in writing

to become a party plaintiff to an action.

It does not dictate that

the consent identify a particular court or case in order to be
effective.
Moreover, Defendants’ argument that a valid consent must
relate to a specific operative complaint is belied by the plain
language of the statute itself.
that

a

party

plaintiff’s

The FLSA expressly anticipates

written

contemporaneously with the complaint.

consent

may

be

filed

See 29 U.S.C § 256(a)

(stating that an FLSA action may be commenced by an individual
claimant “on the date when the complaint is filed, if he is
specifically named as a party plaintiff in the complaint and his
written consent to become a party plaintiff is filed on such date

23

in the court in which the action is brought”). Such consents would
as a matter of course have been signed prior to the commencement of
the action.
The Court also does not find that Plaintiffs’ counsel has
engaged

in

improper

plaintiffs.

communications

with

potential

opt-in

“In the context of Rule 23 class actions, the Supreme

Court has held that parties or their counsel should not be required
to

obtain

prior

judicial

approval

before

communicating

in

a

pre-certification class action, except as needed to prevent serious
misconduct.”

Maddox v. Knowledge Learning Corp., 499 F. Supp. 2d

1338, 1342 (N.D. Ga. 2007) (citing Gulf Oil Co. v. Bernard, 452
U.S. 89, 94-95 (1981)).

“The smattering of lower courts to have

addressed the issue [of pre-certification communications in the
collective action context] have taken a similar approach to that
outlined in Gulf Oil: relying upon their broad case management
discretion

to

generally

allow

pre-notice

communications

while

actively limiting misleading statements in such communications.”
Id.;

see

also

Piper

v.

RGIS

Inventory

Specialists,

Inc.,

No. C-07-00032 (JCS), 2007 WL 1690887, at *7 (N.D. Cal. June 11,
2007) (“In general, pre-certification communications with potential
collective action members are permitted unless there is a ‘clear
record and specific findings that reflect a weighing of the need
for a limitation and the potential interference with the rights of
the parties.’”) (quoting Gulf Oil, 452 U.S. at 94-95).

24

In this case, contrary to Defendants’ arguments, the Court
does not find that the information disseminated by Plaintiffs’
counsel to potential opt-in plaintiffs is misleading or that “the
precertification communications at issue warrant the need for a
limitation on the speech of [Named] Plaintiffs and Plaintiffs’
counsel.”

Vogt v. Texas Instruments Inc., No. CIVA 3:05CV2244 L,

2006 WL 4660133, at *4 (N.D. Tex. Aug. 8, 2006) (prohibiting
plaintiffs’ counsel from distributing a flyer containing misleading
information

-

specifically,

a

formula

purporting

to

allow

prospective plaintiffs to calculate their potential recovery). The
website maintained by Plaintiffs’ counsel in this case makes it
clear that the Court has not yet authorized notice, that no
liability determination has been made, and that there is no money
available at this time.
information

on

the

Defendants have failed to identify any
website

or

in

Plaintiffs’

counsel’s

communications that warrants interference by the Court.
For all the foregoing reasons, the Court denies Defendants’
motion to strike.

The Consents filed in this case are sufficient

to comply with the requirements of the FLSA, and Defendants have
failed to show that Plaintiffs’ counsel engaged in improper or
misleading communications with prospective opt-in plaintiffs.
IV. CONCLUSION
For the reasons set forth above, Named Plaintiffs’ motion for
leave to file an amended complaint (Docket No. 48) is granted.

25

Named Plaintiffs are instructed to file their amended complaint
within 10 days of entry of this Decision and Order. Defendants’
cross-motion to strike (Docket No. 49) is denied.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 14, 2018
Rochester, New York

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