Hernandez v. NGM Management Group LLC et al, No. 1:2012cv07795 - Document 29 (S.D.N.Y. 2013)
Court Description: OPINION: Here Plaintiff has not submitted the name of one employee to substantiate his contentions. He admitted in his deposition that he did not speak with any employees at Defendants' facility either during or after his employment. Plaintiff h as not elaborated on how the 20% calculation of hours in his workdays that were spent on non-tipped duties was determined or how many employees he saw suffered from the same scheme or plan. Plaintiff has failed to make the sufficient factual showing to justify conditional collective certification. Because the Plaintiff has not shown the requisite proof to warrant certification his motion at this time. So Ordered (Signed by Judge Robert W. Sweet on 10/17/2013) (js)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------x GABINO HERNANDEZ, on behalf of himself, FLSA Collective Plaintiffs and the Class, 12 Civ. 7795 Plaintiff, OPINION -againstNGM MANAGEMENT GROUP LLC d/b/a BAREBURGER CHELSEA, et al., Defendants. -----------------------------------------x A P PEA RAN C E S: Attorneys for Plaintiff LEE LITIGATION GROUP, PLLC 30 Eas t 39 th Street, 2 nd Floor New York, NY 10016 By: C. K. Lee, Esq. Attorneys for Defendants PALMERI & 80 Maiden New York, By: John GAVEN, ESQS. Lane, Suite 505 NY 10038 J. Palmeri, Esq. IlrscH' :.,.l f:':T '-=-======--=;1 s-i I~' noc: j n i ET ,-:(,~ .. ,. "... r: ll,~~.· ! ~ I . - ¢ , ., '"' . . \ <~,. .' Y} Ij !·I~.CL! ,~~~/: ;~- :~~ -;b11efu i! t-.:==-=-==--=.:... ~_ ---: U Sweet, D.J. Plaintiff ina Hernandez ("Hernandez" or the "Plaintiff") has moved a class of tipped Group LLC d/b/a Ba Defendant"). Upon the conditional collect loyees of the de certification NGM Management r Chelsea ("NGM" or the "Corporate s and conclusions set rth below, the motion is denied. Prior Proceeding On October 18, 2012, the Plaintiff filed t st NGM, Nikos Karais s lawsuit chael Pitsinos and Geo (the "Individual De ndants" and collect ly with rate Defendants" the "Defendants") seeking unpaid s r the Fair Labor St rds Act ("FLSA") and New York labor law ("NYLL"). Plaintiff brought the FLSA claims on behalf of h in any t Empl that De minimum If and all non-exempt s employed by De position within the last six years s"). Plaintiff's complaint al s failed to pay Cove under the FLSA and NYLL. s ("Covered s, among other claims, loyees the proper On the same day, Plaintiff filed a s lar action against Bareburger Dio Inc., Bareburger, Inc., Bareburger Group LLC and orge Rodas, Georgio Dellis and Eftychios operators a Bareburger e kanos, se at LaGuardia Place ("Bareburger Laguardia") . tant motion was marked fully submitt on July 10, 2013. The Facts Acco Plaintiff was ng to his affidavit loyed full time as a Bareburger a franchise, was a available at the se operated deposition, the livery person at the sed of similar work the Defendants in lsea ("Bareburger Chelsea") and obtained part-time employment at Bareburger Chelsea on his days off from Bareburger Lagua Tuesdays and Thurs a, , during the month of May 2012. Plaintiff d not know the names of any other employee or the owners and did not talk to end of May 2012. s employment at Ba at Bareburger Chelsea after he left at only documentary r Chelsea is a t relating to card indicating in cash on two occasions. The Individual Defendants have 2 the time aside denied any knowl concerning the Plaintiff. The Motion Is Denied For Lack Of A Factual Basis The Pla iff has alle that other tipped at Bareburger Chelsea, similarly situated, FLSA and NYLL, were proper notice under in non-t receive oyees not rece red to engage duties exceeding 20% of their workday and d not r wage statements reflecting the proper amount of i tip credit or the minimum wage. While such collect the law actions are favored cause they fit t judicial system by enabling the "efficient resolution in one proceeding of common issues of law and fact" and provide employees with the opportunity to "lower indivi vindicate rights by ----------~----~ ographic 1 costs to pooling of resources," Hoffmann-La , 493 U.S. 165, 170 (1989); Braunstein v E. ., Inc., ------~~----------~------ 600 F.2d 335, 336 (2d Cir. 1979); Fasanelli v. Heartland Brewer Inc., ~------------------------------~~----- (S. D. N . Y. 2007), an e factual allegation must be established. 3 516 F. Supp. 2d 317, 323 sis for the Plaintiff's In Pri June 12, 2006), Inc., 2006 WL 1662614 (E.D.N.Y. c v. Armour strate Judge Go denied certification, stating that: [PJlaintiff s not submitted any specific facts concerning his oyment nor connecting his situation to others t situated. For t he claims are similarly e, plaintiff fails to describe or submit any ation showing how he or anyone else by defendants were paid, what their job duties were or the hours they worked. Nor s plaintiff identified a single potential plaintiff even though defendant apparently has provi t names of current or former employees. Not only has plaintiff to provide the minimal site that he was in an employee-empl with defendants and was deni has not substantiated his all same was true of other iled 1 showing r relationship overt pay, he ion that the ial pIa iffs. rd. a *3; see also Morales v. Plantworks, 2006 WL 278154 Feb. 2, 2006) pa (denying certification where plaintiffs s (SONY tted 11 stubs for three plaintiffs due to an insuffi showing that plaintiffs and potential class members were of a common scheme or plan); Oiaz v. Elect. Bouti Inc., 2005 WL 2654270 (W.O.N.Y. Oct. 17, 2005) 4 ct of America (denying class certification under the FLSA and NYLL re plaintiffs alleged that they worked "off-the-clock" without in part, al collective act ation because, ions were too individualiz ); D'Anna v. M Md. 1995) Corn Inc., 903 F. Supp 889 (D. class certification where make even a relat to warrant ly modest factual showi aintiff failed to ). Here, Plaintiff has not submitted his contentions. He admitt employee to substant deposition that he Defendants' facil name of one in his not speak with any employees at y e r during or after his emplo Plaintiff has not elabora on how the 20% calculation of hours in his workdays that were determined or how many scheme or plan. PIa factual showing to justi on non-tipped duties was oyees he saw suffered s same led to make the suffic tional collective certificat 5 Because t Plaintiff has not shown requisite proof to warrant certification his motion is denied at this time. It is so orde New York, NY October 2013 '1, ROBERT W. SWEET U.S.D.J. 6
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