Lujan v. Cabana Management, Inc.
2012 U.S. Dist. LEXIS 104585
E.D.N.Y2012Background
- Cabana operates three NYC-area restaurants: Cabana 70 (Forest Hills, Queens), Cabana Midtown (Manhattan), Cabana Seaport (Lower Manhattan).
- Lujan worked 2002–2009 at Midtown and Queens locations as busboy, runner, and dishwasher.
- Lujan filed suit in Feb 2010 on behalf of himself and others alleging FLSA/NYLL violations, including minimum wage, overtime, and tip withholding.
- Court conditionally certified the FLSA collective in Feb 2011 and permitted notice to opt-ins; discovery followed and motions to decertify and to certify NYLL class were filed.
- Three motions to strike various declarations/evidence were litigated; the court resolved those motions, granting in part and denying in part, and granted substantial portions of plaintiffs’ cross-motion to strike.
- Rulings addressed Rule 26/evidence-admissibility issues, with numerous declarations stricken or limited and several hearsay challenges overruled or limited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 7/5/11 Rule 23 declarations should be struck. | Plaintiffs contend declarations are probative and necessary; issues of timeliness and disclosure are outweighed by relevance. | Declarations were not properly disclosed, are cookie-cutter, and contain hearsay/lack of personal knowledge. | Denied in part; some hearsay portions excluded, but many declarations largely admissible for certification purposes. |
| Whether the 2010 Declarations can be used at decertification. | These declarations show similarly situated plaintiffs under NYLL; should be considered. | Hearsay and consistency concerns reduce reliability at decertification. | Denied to the extent of excluding inadmissible hearsay; overall consideration allowed on fuller record. |
| Whether Cabana Declarants were properly disclosed under Rule 26 and whether preclusion applies under Rule 37. | Declarants were relevant and timely; disclosure adequate. | Many Cabana Declarants were not properly identified; discovery violations. | Grant in part: 31 Cabana Declarations precluded; other Cabana declarations allowed; preclusion based on Patterson factors. Also, Gimson and Mantell declarations precluded; Gimson timekeeping declaration not disclosed; Mantell not properly identified. |
| Whether Frechter and Cmayo declarations constitute improper expert testimony. | Declarations are factual/witness testimony; not improper experts. | Some declarations amount to expert testimony not disclosed. | Declined to strike Frechter and Cmayo declarations as improper expert testimony; Gimson and Mantell declarations precluded under Rule 37. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (admissibility standards at class-certification stage; Daubert concerns acknowledged)
- In re Salomon Analyst Metromedia Litig., 544 F.3d 474 (2d Cir. 2008) (threshold evidentiary standards for Rule 23 at certification stage)
- Haas v. Delaware & Hudson Ry. Co., 282 Fed.Appx. 84 (2d Cir. 2008) (preclusion/notice issues under Rule 26; late disclosure consequences)
- Kam Hing Enters., Inc. v. Wal-Mart Stores, Inc., 359 Fed.Appx. 235 (2d Cir. 2010) (disclosure of witnesses and evidence; sufficiency of notices)
- All Star Carts & Vehicles, Inc. v. BFI Canada Income Fund, 280 F.R.D. 78 (E.D.N.Y. 2012) (admissibility/evidentiary standards at certification stage)
- Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006) (factors for sanctions under Rule 37 in discovery)