Plaintiffs Usvaldo Contrera, Francisco Lopez, Pedro Batista, Fabian Herrera, and Antonio Reyes—superintendents, handymen, and a porter at residential buildings in Upper Manhattan and the Bronx—filed this action against their purported employers: individuals, investment entities, management entities, and title-holding entities that plaintiffs collectively refer to as “the E & M Enterprise.” Plaintiffs move to have this case conditionally approved as a collective action under the Fair Labor Standards Act, 29 U.S.C. § 201 eh seq. (“FLSA”), with notice being sent to “all of Defendants’ current and former superintendents, porters, and handymen.”
I. BACKGROUND
A. Allegations in the Amended Complaint Regarding Wage' and Hour Violations
The amended complaint alleges that plaintiffs were not paid minimum wage and overtime wage rates required by the FLSA. See Amended Class Action Complaint, filed July 11, 2017 (Docket # 131) (“Am. Compl.”), at ¶¶ 402-412. More specifically, plaintiffs claim that superintendents employed by defendants had “to work an average of eighty (80) hours per week and to be on-call at all hours of the day and night,” but that defendants “failed to pay Superintendents for any hours that they worked in excess of forty each week.” Id. ¶¶5, 24. Plaintiffs claim that porters and handymen employed by defendants were also not paid for any hours they worked beyond 40, id. ¶ 25, alleging that defendants had a pattеrn of not paying for handymen’s first and last .half-hour of work, id. ¶ 7, and that porters worked an average of 70 hours per week without overtime corhpensation, id. ¶ 8.
B. Allegations in the Amended Complaint Regarding the Identity of Plaintiffs’ Employer,
Plaintiffs’ amended complaint names four individuals and over 160 . corporate entities as plaintiffs’ employers. The complaint alleges:
Defendants were and still are a centrally managed real estate enterprise [a.k.a. the “E & M Enterprise”] that was founded by Defendant Irving Langer (“Langer”) jn or about 1979, and. that, upon information and belief, owned, controlled, and managed more than 3,000 rental apartment units located in at least 262 apartment, buildings situated primarily in lower-income neighborhoods in Bronx, Brooklyn, Queens, and Upper Manhattan.... During the time period relevant ... the E & M Enterprise was controlled by individual defendants Lan-ger, Leibel Lederman (“Lederman”), Aryeh Z.- Ginzberg (“Ginzberg”) and Meyer Brecher (“Brecher”) ....
Id. ¶¶ 10, 12. The complaint alleges-that the “E & M Enterprise” had its principal place of business at 1465A Flatbush Avenue in Brooklyn, and maintained an office at 975 Walton Avenue in the Bronx. Id. ¶ 13. It alleges that Langer, Lederman, and Ginzberg owned and managed the Enterprise’s
C. Facts from Plaintiffs’ Declarations
1. Superintendent Plaintiffs
Contrera, Lopez, and Batista all worked as superintendents at buildings on the 600 block of West 160th Street in Manhattan: Contrera at 655 West 160th Street, and Lopez and Batista at 638 West 160th Street. See Contrera Decl. ¶2; Lopez Decl. ¶ 2; Batista Decl. ¶ 5. Contrera worked in this role from 2005 through July 1, 2015, Contrera- Decl. ¶ 2; Lopez from March 1995 through April 2014; Lopez Decl. ¶ 2; and Batista from January 2015 through March 2016, Batista Decl. ¶ 5. Lopez and Batista say their supervisor was Ephraim Weiss, or “Effi,” who described 638 West 160th Street’s owners as “E & M” when the building was sold to Weiss’s employers in 2013. Lopez Decl. ¶¶ 6, 8-9; Batista Decl. ¶ 24. Their paychecks were issued by “StaffPro Inc.” and “StaffE <& M.” Lopez Decl. ¶ 7; Batista Decl. ¶25.
Contrera was paid $400 per week, Lopez $275 per week, and Batista $600 per week while working as superintendents, regardless Of the number of 'hours they actually worked. Contrera Decl, ¶'9; Lopez Decl. «3,17; Batista Decl. «28, 31. They all claim that they worked over 40 hours per week, 'were required to be on-call at all times' in case of emergencies or tenant requests, and eoüld not take days off.
Contrera, Lopez, and Batista were supervised by E <& M managers based at an office at 975 Walton Avenue, Bronx, New York, where they picked up paychecks, attended meetings, and met other superintendents from buildings in the Bronx and Upper Manhattan. See Contrera Decl. ¶¶ 10-11; Lopez Decl. ¶¶ 18-22; Batista Decl. ¶¶ 28-30. Lopez and Batista recall specific meetings at this office led by “Effi” where they discussed superintendent responsibilities and work duties such as instructions to keep each building free of litter and garbage, to monitor each building’s boiler, and to be on-call for tenant requests. Lopez Decl. ¶¶ 18-19; Batista Decl. ¶¶ 28-30. They all estimate that 30-40 superintendents reported to this office, and attest that conversations with these other superintendents showed that they all were subject to similar policies regarding hours worked, rate of pay, and lack of overtime pay. Contrera Decl. ¶¶ 10-11; Lopez Decl. ¶¶ 18, 20-22; Batista Decl. ¶¶ 28-30.
2. Porter Plaintiff
Herrera began working as a porter at 655 West 160th Street, where Contrera was the superintendent, in 2013. Herrera Decl. ¶ 2. He occasionally performed porter work at 638 West 160th Street and, at the request of “Effi (who supervised superintendents and porters),” he served as a temporary superintendent at 638 West 160th Street for two weeks in 2016. Id. ¶¶ 3-4. His pay remained the same regardless of where he worked or what his title was. See id. ¶ 4. Herrera was paid $305.17 per week' in 2014 and $313.76 per week in 2015. M. ¶¶ 6-7. He worked about 70 hours per week—from approximately 7:00 a.m. to 8:00 p.m. Id. ¶ 9. He assisted Contrera with various tasks, including “taking out garbage, removing mattresses and other large items, cleaning the sidewalk, killing rats, helping with apartment repairs, plastering, painting, refinishing floors, shoveling snow, mopping floors, and cleaning windows.” Id. ¶¶ 2, 8. He was never told that he was entitled to receive overtime pay, was never asked to report to anyone the number of hours he worked, and received the same flat sum each week, “regardless of the number of hours that [he] worked.” Id. ¶ 5.
3. Handymen Plaintiffs
Batista and Reyes were employed as handymen by enterprises known as “E & M” and “Galil” and performed repairs and renovations at apartment buildings in Upper Manhattan and the Bronx. Batista Decl. ¶¶ 2-3; Reyes Decl. ¶¶ 2, 4. Batista worked as a handyman from April 2014 to approximately January 2015, Batista Decl. ¶¶ 3, 5, and Reyes worked as a handyman from 2012 until March 2016, Reyes Deck ¶ 2. Each was hired by a manager named Melendez Medina, who supervised a team of handymen who performed repairs and renovations at “E & M buildings.” Batista Decl ¶¶ 3, 13; Reyes Decl ¶¶ 3,11. Batista and Reyes state that Medina’s boss was defendant Meyer Brecher. See Batista Decl. ¶¶ 12-13; Reyes Decl. ¶¶ 3,11. Their paychecks from 2013 onwards were issued by “StaffPro, Inc.,” with the name “StaffE & M” printed at the bottom of each pays-tub. Batistа Decl, ¶ 8; Reyes Decl. ¶ 6; see also Antonio Reyes Paystub, dated Aug. 8, 2014 (attached as Ex. B to Reyes
Batista was paid $600 per week for 40 hours of work as a handyman, and Reyes was paid $500 per week for the same hours. See Batista Decl ¶¶ 18, 22; Reyes Decl. ¶ 14; Antonio Reyes Paystub, dated Aug. 8, 2014 (attached as Ex. B to Reyes Deck). Each attests that they were required to report to “E & M’s offices” at 975 Walton Avenue in the Bronx no later than 7:30 a.m, each work morning, in order to receive deliveries and speak with Medina. Batista Deck ¶¶ 13-15,18; Reyes Deck ¶¶ 4, 11-14. From there they would be dispatched to apartment buildings in Upper Manhattan and the Bronx. Batista Deck ¶ 15; Reyes Deck ¶4. They would sign in each morning, but would not sign out when they finished work that evening, generally after 5:30 p.m. Batista Deck ¶¶ 14, 18; Reyes Deck ¶¶ 14-15, 17. They were never asked how many hours they worked, never had a chance to report overtime hours, and were never paid for overtime despite regularly working over 40 hours per week. Batista Deck’ ¶¶ 14,17-18, 22; Reyes Deck ¶¶ 14-18. Additionally, Batista and Reyes were required to provide their own work tools, such as drills, hammers, trowels, saws, screwdrivers, chisels, and tape measures. Batista Deck ¶¶ 19-21; Reyes Deck ¶ 20.
Batista and Reyes state that they worked with approximately 30’ other handymen who were all subject to the same policies and treatment they were. Batista Deck . ¶¶ 14, 18-20; Reyes Deck ¶¶ 13-15, 18, 21. Reyes specifically refers to the fact that he had conversations with other handymen who stated they were not paid for all hours worked, Reyes Deck ¶ 18, and Batista says that “[his] coworkers told [him] that E & M did not pay overtime,” Batista Deck ¶ 14.
D. Other >■ Evidence Submitted by Plaintiffs
The record includes excerpts from deposition transcripts of Ginzberg and Brecher in another lawsuit. See Transcript Excerpts, Deposition of Aryeh Ginzberg, dated Jan. 27, 2016, Fortune Society, Inc. v. Sandcastle Towers Hous. Dev. Fund Corp., No. 14 Civ. 6410 (E.D.N.Y.) (attached as Ex. 7 to Am. Comph) (“Ginzberg Dep.”); Transcript Excerpts, Deposition of Meyer Brecher, dated Nov. 18, 2015, Fortune Society, Inc. v. Sandcastle Towers Hous. Dev. Fund Corp., No. 14 Civ. 6410 (E.D.N.Y.) (attached as Ex. 5 to Déclaration of Marc A. Rapaport, filed Nov. 2, 2016 (Docket. #91)) (“Brecher Dep.”). Ginzberg explains in the deposition that there are many individuals who work for “some E & M associated entity,” but several hundred of them are “officially under StaffPro”—E & M’s payroll company— “even though they really work for our company.” Id at 52-53.
The -amended complaint also attaches two memoranda on StaffPro letterhead from “StaffE & M” explaining employee work schedules, overtime rules, break rules, and how to record hours worked. See Memoranda from Staff E & M, dated Dec. 4, 2012 (attached as Ex. 6 to Am.
Another document is a management agreement between “E & M Bronx Asspci-ates LLC” and entities listed as “Portfolio Owner” and “Deed Holders” for buildings in Upper Manhattan. See Management Agreement (attached as Ex. 2 to Am. Compl.). There are additionally other documents, diagrams, and statements purporting to' show how Ginzberg, Langer, and Ledérman “exercise! ] ownership and control” over thosé buildings. See Harlem Portfolio Ownership Diagram (attached as Ex. 3 to Am. Compl.); Affirmation of Irving Langer, Georgia Malone & Co. v. E & M Assocs., No. 1506660/2014 (Sup. Ct. Mar. 17, 2016) (attached as Ex. 4 to Am. Compl.); Guaranty (attached as Ex. 5 to Am. Compl.).
II. APPLICABLE LEGAL PRINCI- - ->LES
The FLSA was enacted to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). Section 216(b) оf 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. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
Id, § 216(b). 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 mandate that notice be given to potential plaintiffs informing them of the option to join the suit. See Hoffmann-La Roche Inc. v. Sperling,
Thе Second Circuit has endorsed a “two-step process” for approval of an FLSA collective action:
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.[3]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.,
“Neither the FLSA nor its implementing regulations , define the term Similarly situated.’ However, courts have held that plaintiffs can meet this burden by making 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.” Id. (citing cases); accord Myers,
“At the second stage, the district court will, on a fuller record, determine whether a so-called ‘collective action’ may go forward by determining whether the plaintiffs who have opted in are in fact ‘similarly situated* to the named plaintiffs.” Myers,
Plaintiffs request that the Court approve the text and permit the circulation of a notice of the pendency of this action to all superintendents, porters, and handymen employed by the defendants from six years before plaintiffs filed their complaint to the present date. Pis. Mem. at 2-3. We address the scope of this proposed collective action first, then address plaintiffs’ request that the Court approve the text of their proposed notice, see id. at 2; Notice of Lawsuit with Opportunity to Join (attached as Ex. 13 to Rapaport Decl.) (“Proposed Notice”), and that the statute of limitations be tolled for any individual who joins the lawsuit in the future, see Pis. Mem. at 3.
A. Conditional Certification of Collective Action
Plaintiffs define the class of potential opt-in plaintiffs as superintendents, porters, and handymen currently or previously employed at “the E & M Enterprise’s buildings.” Pis. Mem. at 2. To support their claim that defendants all operate as one “enterprise,” plaintiffs point to thе evidence described above and argue that it demonstrates common ownership of “the E & M Enterprise’s constituent entities.” IcL at 15-17. They also argue that this evidence shows that the wage and hour policies applicable to plaintiffs applied to all of the handymen, superintendents, and porters employed by defendants. See id. at 17-21; Miller Letter at 3-4. Defendants counter that plaintiffs are improperly using an “integrated enterprise” theory to identify their “employer” for FLSA purposes. Defs. Mem. at 3-9; Hampton Letter at 2-5. Additionally, they argue that the plaintiffs only demonstrate personal knowledge of wage and hour polices for 638 and 655 West 160th Street, and of the actions of a single supervisor who had limited responsibilities.
We begin by addressing whether plaintiffs have shown that the persons they seek to have notified are employed by the same person or entity that employs plaintiffs. We then consider whether the plaintiffs have shown that they are similarly situated to all superintendents, porters, and handymen employed by this person or entity.
1. Common Ownership or Management
In addressing defendants’ argument regarding the plaintiffs’ employers, we are mindful of the fact 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,
We thus disagree with defendants that “[w]hether Plaintiffs may proceed ... using an ‘integrated enterprise’ theory is a
“When there are ambiguities in the papers seeking collective action status, the court must draw all inferences in favor of the plaintiff at the preliminary certification stage.” Jeong Woo Kim v. 511 E. 5th St., LLC,
Having established that one or more of the defendants manage or supervise’ all 'the employees of E & M, the next question is whether plaintiffs have shown that all-superintendents, handymen,-and porters employed by the “E & M enterprise” are similarly situated to plaintiffs with respect to their allegations regarding overtime and other FLSA violations.
While not every case under -section 216(b) may be neatly sorted into categories, case law points to 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. For example, in Hoffmann v. Sbarro, Inc.,
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. Thus, in Fernandez v. Shаrp Management Corp.,
Plaintiffs here make both kinds of arguments.-With respect to their “top-down” arguments, see Pis. Mem. at 11-12, 14-16;
We next examine the plaintiffs’ sworn declarations to see if they provide sufficient evidence from the “bottom-up” perspective to find that plaintiffs are similarly situated to the class of employees to whom they seek to have notice sent.
a. Superintendents
Contrera, Lopez, and Batista all declare that they worked as superintendents at 655 or 638. West 160th Street, performed substantially, similar tasks, and were paid a flat salary despite working well over 40 hours per week. Contrera Decl. ¶¶ 2-9, 11; Lopez Decl. ¶¶ 2-3, 13-17; Batista Decl. ¶¶5, 23-27, 31.- They were issued identification cards that read “E & M Associates LLC” or “Galil Management LLC.” Contrera Decl. ¶ 13; Lopez Decl. ¶ 9; Batista Decl. ¶ 2; see also Usvaldo Contrera ID Card (attached as Ex. A to Contrera Deck); Francisco Lopez ID Card (attached as Ex; B to Lopez Deck); Pedro Batista ID Card (attached as Ex. -A to Batista ■ Deck). They each were supervised by “Effi”—Ephraim Weiss. Lopez Deck ¶¶ 3, ■ 8, 13; Batista Deck ¶¶ 29-30.
The fact that these individuals were employed at the same two buildings, worked for the same supervisor, regularly visited the same management office operating under the-- same corporate name, and- were denied overtime wages despite working over 40 hours per.week, easily allows the inference that there was a policy or practice at these two. buildings’ of not paying overtime. See, e.g., Yap v. Mooncake Foods, Inc.,
The declarations also satisfy plaintiffs’ modest burden of showing that this policy applied to superintendents supervised from the office at 975 Walton Avenue. Contrera and Lopez aver that they met other superintendents at 'the 975 Walton Avenue office each week when they сollected their paychecks there, and that the other superintendents they met also complained about not receiving overtime pay. Contrera Deck ¶¶ 10-11; Lopez Decl. ¶¶ 21-22. Plaintiffs testify that they shared the same manager, who called meetings at this office to discuss the work obligations of superintendents, including those - who did not work at their buildings. See Lopez Deck - ¶¶ 18-20; Batista Deck ¶¶ 28-30. Thus, the plaintiffs’ declarations as to their conversations with these employees provide evidence of a uniform policy affecting all superintendents who reported to the 975 Walton Avenue office in the Bronx, and meets their modest burden of showing that these other superintendents are “similarly situated” to them.
The cases defendants cite do not counsel otherwise. For example, in Vasquez v. Vitamin Shoppe Industries, Inc.,
Defendants briefly argue that we should exclude buildings that are unionized or are subject to “prevailing wage” contracts from any class. See Defs. Mem. at 14-15 (citing Declaration of Scott Katz, dated Sept. 19, 2016 (attached as Ex. D to Declaration of Larry R. Martinez, filed Sept. 23, 2016 (Docket #42)). But the mere fact that contracts exist regarding payment of wages at some buildings does nothing to show that the wage violations identified in plaintiffs’ declarations do not exist at such buildings as well.
We agree with defendants, however, that plaintiffs have not shown that they are similarly situated to superintendents who work or worked at properties outside of .Upper Manhattan and the Bronx. See Hampton Letter at 6-7. No declarant worked at a building outside of these two areas or claims to have information from employees of defendants outside these areas. Although plaintiffs argue that the “E & M Enterprise” maintains common, citywide payroll policies, they do not present evidence that lets us infer a city-wide policy to not pay superintendents overtime. Our case is thus distinguishable from those like Rosario v. Valentine Ave. Discount Store, Co.,
We are sympathetic to plaintiffs’ argument that they may be entitled to certain inferences because “specific information about the E & M Enterprise’s multi-entity corporate structure is uniquely within Defendants’ knowledge,” Pis. Reply at 7, and defendants have declined to provide a full explanation of the ownership of their buildings. We have therefore already accepted plaintiffs’ argument that one or more of the defendants may be deemed the employer of all employees of the buildings owned by E & M. However, even where businesses have common ownership, an
The case of Siewmungal v. Nelson Management Group Ltd.,
Accordingly, the Court will authorize notice to all superintendents who were supervised or managed by agents of the defendants who operated out of 975 Walton Avenue, Bronx, New Yоrk.
b. Porters
Unlike the superintendent plaintiffs, Herrera does not allege that he had any conversations with other porters about their pay or their work schedule, or ever had'to visit the 975 Walton Avenue, Bronx, office. Rather, Herrera claims that he worked with Contrera at 655 West 160th Street and occasionally at 638 West 160th Street, was supervised by “Effi,” never received overtime pay despite working an average of 70 hours per week, and performed similar tasks to what the superintendents did, such as taking out garbage, removing mattresses, killing rats, and helping with repairs. See Herrera Decl. ¶¶ 2-5, 8-9,
If this testimony was presented alone, it would fail to show that other employees are “similarly situated” to Herrera. When considered with the evidence presented as to the superintendents, however, we reach a different conclusion. “In the Second Circuit, courts routinely find employees similarly situated despite not occupying the same positions or performing the same job functions and in the same locations, provided that they are subject to a common unlawful policy or practice.” Guaman v. 5 M Corp.,
Accordingly, notice is authorized as to all porters who were supervised • or managed by agents of the .defendants who operated out of 975 Walton Avenue, Bronx, New York. .
e. Handymen
Two named plaintiffs—Batista and Reyes—worked as handymen for en-, terprises called “E & M” or “Galil.” Batista Deck ¶ 2; Reyes Deck ¶ 2. Batista started as a handyman in about April 2014, Batista Deck ¶2, and Reyes in approximately 2012, Reyes Deck ¶ 2. They were both initially hired by Melendez Medina, who reported to “Mayer,” who Reyes believed was in charge of building maintenance and construction for E & M. Batista Deck ¶ 3; Reyes Deck ¶ 3. They reported to “E & M’s management office” at 975 Walton Avenue in the Bronx at 7:30 a.m. each morning, and were dispatched from there to perform repair work at various buildings in Upper Manhattan and the Bronx. Batista Deck ' ¶¶ 15, 18; Reyes Deck ¶¶ 4, 11, 13-15. They generally worked until 5:30 p.m. Batista Deck ¶ 18; Reyes Deck 1115. Despite working 45 hours per week, they were only ever paid for eight hours of work per day, 40 hours pеr week. Batista Deck ¶ 18; Reyes Deck ¶¶ 14-18. They each worked with a team of about 30 handymen. Batista Deck ¶14; Reyes Deck ¶ 13. Reyes avers that based on his conversations with other E & M handymen, he learned that “other handymen who worked for E & M also were not paid anything for the extra hours that we worked.” Reyes Deck ¶ 18. .
This evidence, in combination with other evidence regarding superintendents, is sufficient to establish that a group of handymen were “similarly situated” to these plaintiffs such that notice of a potential collective action is warranted. See, e.g., Fernandez,
Accordingly, notice is authorized as to all handymen who were, supervised or managed by agents of the defendants who operated out of 975 Walton Avenue, Bronx, New York.
B. Form of Notice
“Upon authorizing the distribution of notice to potential opt-in plaintiffs, the district court maintains ‘broad discretion’ over the form and content of the notice.” Martin v. Sprint/united Mgmt. Co.,
Courts have selected both time periods. One case summarizes the split as follows:
The courts that have approved six-year notice periods have cited the economy of providing notice to plaintiffs with FLSA claims who may also have NYLL claims subject to a six-year statute of limitations. See, e.g., [Winfield v. Citibank, N.A.,843 F.Supp.2d 397 , 410-11 (S.D.N.Y. 2012)]; [Schwerdtfeger v. Demarchelier Mgmt., Inc.,2011 WL 2207517 , at *6 (S.D.N.Y. June 6, 2011)]; [Klimchak v. Cardrona, Inc.,2011 WL 1120463 , at *7 (E.D.N.Y. Mar. 24, 2011)]. By contrast, the courts that have approved three-year notification windows have cited the confusion caused by notifying plaintiffs who potentially have two disparate claims with different statutes of limitations, along with the inefficiency of providing notice to plaintiffs whose claims may well be time-barred. See[,] e.g., Hamadou,915 F.Supp.2d at 667-68 ; [Lujan v. Cabana Mgmt., Inc.,2011 WL 317984 , at *9 (E.D.N.Y. Feb. 1, 2011)]; [McBeth v. Gabrielli Truck Sales, Ltd.,768 F.Supp.2d 396 , 400 (E.D.N.Y. 2011)].
Trinidad v. Pret a Manger (USA) Ltd.,
As Trinidad notes, there is the potential for “confusion caused by notifying plaintiffs who potentially have two disparate claims with different statutes of limitations” as well as “inefficiency” in “providing notice to plaintiffs whose claims may well be time-barred.” Id.; accord Rojas,
In the present case, we believe that “the three-year period more effectively serves the goal of efficiency ... and will avoid confusing individuals whose claims arise only under the NYLL .... ” Rojas,
C. Tolling
Plaintiffs’ motion in this case centers on the notice that plaintiffs seek to have sent to current and former employees of defendants. But plaintiffs also request that the Court rule that the statute of limitations be tolled for opt-in plaintiffs from the date of the filing of the complaint or, at the latest, the date the instant motion was filed. See Pis. Mem. at 23-25. The limitations period for FLSA claims is at most three years. See 29 U.S.C. § 255(a). If the limitations period is not so tolled, opt-in plaintiffs would not be able to make claims
1. Law Governing Equitable Tolling
The doctrine of equitable tolling- allows a court to extend a statute of limitations “on a case-by-case basis to prevent inequity.” Warren v. Garvin,
The Supreme Court has made clear, however, that the conditions for applying the doctrine are strict. “Generally, 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,
The Second Circuit has repeatedly cautioned that “equitable tolling is considered a drastic remedy applicable only in rare and exceptional circumstances.” A.Q.C. ex rel. Castillo v. United States,
2. Whether Potential Opt-in Plaintiffs Have Shown Entitlement to Equitable Tolling
Here, plaintiffs have failed to establish the first prong of the equitable tolling doctrine. Plaintiffs provide 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.” Lawrence,
We are aware that some courts in this district have assessed the actual (or “named”) plaintiffs diligence when granting equitable tolling in this context. See Flood v. Carlson Rests. Inc.,
In their brief, plaintiffs cite to McGlone,
In sum, 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. Thus, we need not reach the second prong of the equitable tolling doctrine. See, e.g., Hintergerger,
We are certainly aware that this approach means that" some employees of defendants' will not be entitled to pursue potentially meritorious wage claims under thé FLSA. But the enforcement of any statute of limitations results 'in meritorious claims going uncompensated. More to the point, even courts of equity “must be governed by rules and precedents no less than the courts of law.” Lonchar v. Thomas,
Of course, some plaintiffs' who receive notice will have claims that pre-date the three-year period depending on how long they worked for defendants. Thus, after any such plaintiffs have opted in, these plaintiffs will be free to make equitable tolling arguments. We are aware that one court has criticized a procedure under which a court allows applications for tolling on an individualized basis rather than making a categorical equitable tolling ruling. See Jackson v. Bloomberg, L.P.,
3. Whether Notice Should be Sent to Former Employees Who Ended Their • Employment With Defendants More Than 3 Years Prior to the Date the Notice Is Mailed
That the Court cannot grant equitable tolling at this stage of the case, however, does not end our inquiry. This is because plaintiffs • are seeking to have the notice period calculated based on the date the complaint was filed, see Pis. Mem. at 22-23, and presumably would be prepared to have the entitlement of any future opt-in plaintiffs to equitable tolling be decided at a later stage of the case. In other words, plaintiffs would seek, to have the notice sent to employees whose employment with defendants ended more than three years ago on the theory that one or more of these employees might qualify for equitable tolling were they to make the requisite showing once they joined the lawsuit. Under this scenario, notice would be sent to all employees in this case who worked for defendants three years prior to the filing of the lawsuit or the filing of this motion and the Court would determine later whether equitable tolling would be permitted for any of the employees who later join the lawsuit. Courts authorizing notice under this logic note that while they will not toll the statute of limitations before providing notice to potential opt-in plaintiffs, they will send out notice to the wider group of employees and permit “challenges to the timeliness of individual plaintiffs’ actions ... at a later date.” See Martin,
The question then becomes under what conditions should notice be sent to employees whose employment ended before the start of the three-year limitations period. Some courts have • permitted notice to a wider group of employees simply on the theory that “equitable tolling issues often arise for prospective plaintiffs” in FLSA suits. Winfield,
We disagree with these cases, however, to the extent they do not conduct an analysis of the potential for equitable tolling in the particular case at hand. As the Second Circuit has noted, equitable tolling is expected to occur in only “rare” circumstances, Phillips,
We agree, rather, with those courts that have conducted some inquiry into whether there are particular circumstances suggesting that potential plaintiffs might actually succeed in demonstrating entitlement to equitable tolling. See, e.g., Gaspar v. Pers. Touch Moving, Inc.,
In this case, plaintiffs have not shown that there is a realistic possibility that any individuals whose employment fell outside the limitations period will be able to demonstrate equitable tolling. Plaintiffs briefly note that potential opt-in plaintiffs are likely unaware of their rights
Ill sum, because plaintiffs have not shown a realistic possibility that employees whose employment ended outside the limitations period will be able to demonstrate equitable tolling, notice will be sent'only to individuals who were last employed by defendants within three years prior to the date the notices are mailed.
IV. CONCLUSION
For the foregoing reasons, plaintiffs’ motion for conditional approval of a collective action (Docket # 104) is granted in part and denied in part as set forth herein.
SO ORDERED.
Notes
. See Notice of Motion, filed Mar. 7, 2017 (Docket # 104); Declaration of Usvaldo Contrera; filed Mar. 7, 2017 (Docket # 105) ("Contrera Decl.”); Declaration of Francisco Lopez, filed Mar. 7, 2017 (Docket # 106) ("Lopez Decl.”); Declaration of.Pedro Batista, filed Mar, 7, 2017 (Docket # 107) ("Batista Deck”); Declaration of Fabian Herrera, filed Mar, 7, 2017 (Docket # 108) ("Hererra Decl.”); Declaration of Antonio Reyes, filed Mar. 7, 2017 (Docket # 109) ("Reyes Deck”); Declaration of Marc A. Rapaport, filed Mar. 7, 2017 (Docket #110) ("Rapaport Deck”); Memorandum of Law in Support of Plaintiffs’ Motion- to Conditionally Certify Fair Labor Standards Act Collective Action and Authorize that Notice be Issued to All Persons Similarly Situated, filed Mar. 7, 2017 (Docket # 111) ("Pis. Mem."); Opposition Declaration of Scott Kаtz,' filed Apr. 24, 2017 (Docket #116); Opposition Declaration of Larry R. Martinez, filed Apr. 24, 2017 (Docket # 117); Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion to Conditionally Certify Fair Labor Standards Act Collective and Authorize that Notice be Issued to All Persons Similarly Situated, filed Apr. 24, 2017 (Docket # 118) (“Defs. Mem.”); Plaintiffs' Reply Memorandum of Law in Further Support of Motion to Conditionally Certify Fair Labor Standards Act Collective Action and Authorize that Notice be Issued to All Persons Similarly Situated, filed May 25, 2017 (Docket # 119) ("Pis. Reply”); Letter from Meredith R. Miller, Esq., dated Aug. 4, 2017 (Docket # 174) ("Miller Letter”); Letter from Christopher P. Hampton, Esq., dated Aug. 11, 2017 (Docket # 180) ("Hampton Letter”).
. Lopez says that, based on conversations "with other E & M maintenance employees,” including Contrera, Reyes, and Batista, he is "aware that E & M ,.. also paid them through StaffPro Inc. with paystubs listing ‘StaffE & M.’ ” Lopez Decl. ¶ 7.
. Lopez claims that he took two weeks of vacation per year, but was required to pay for his temporary replacement, Lopez Decl. ¶ 16.
. Reyes avers that "LGL2 Bronx Portfolio LLC,” "LGLS Bronx Portfolio LLC,” and "Bronx Platinum Portfolio LLC” issued him his paychecks for the first three years of his employment, with the paystubs listing the address as 1465A Flatbush Ave, Brooklyn, NY, and the phone number as (718) 434-9440. Reyes Decl. ¶ 5. He says that he knows these as "the main office and telephone number of E & M.” Id He states that beginning in 2013, 'his paychecks and paystubs were issued to him by “StaffPro, Inc,” and "StaffE & M.” Ick ¶ 6.
. Defendants identify the “Effi” named in plaintiffs' declarations as Ephraim Weiss. Defs. Mem. at 2 n.5. They claim that Weiss managed approximately 25 buildings, including 638 and 655 West 160th St. IcL at 14 n.21.
. Defendants’ previous objection that no named plaintiffs are handymen, see Defs. Mem. at 17-20, is now moot because the amended complaint includes two handymen.
. As further explanation, Lopez’s declaration also includes a letter drafted by defendant E & M Bronx Associates LLC’s attorney as part of Lopez’s New York State Division of Human Rights case, which states that "[E & M Bronx Associates LLC] first retained this payroll company (Staff Pro LLC) to handle the payroll with respect to all Superintendents employed at premises that it manages as of January 1, 2013.” Bittner Letter at 2.
. Although Contrera did not declare that he was supervised by "Effi,” the letter terminating his employment was signed by Weiss. See Weiss Letter. Lopez additionally says that "[b]ased on my conversations with [Contrera] ... he was also supervised by Ephraim Gold-stein [sic],” Lopez; Decl. ¶ 13, .
. In Laroque v. Domino's Pizza, LLC,
. On a similar point, although plaintiffs claim that “the putative collective for superintendents and porters must be limited to the ... Manhattanville Portfolio," Hampton Letter at 7 n.10, the evidence in the record does not show that the wage and hour policies applicable to these buildings did not also apply to other buildings in Upper Manhattan and the Bronx owned and operated by defendants, or that the "Manhattanville Portfolio” is the limit of defendants’ holdings in that area. In other words, there may be superintendents and porters in Upper Manhattan and the Bronx similarly situated to plaintiffs at properties outside of the "Manhattanville Portfolio.”
. Other courts have found a delay in resolving a particular motion too brief to be considered "extraordinary" and have refused to equitably toll the statute of limitations on that basis. See Vasto v. Credico (USA) LLC,
. We are also concerned that an individual who receives notice that he may join litigation justifiably believes that he has a realistic potential to recover money. It seems unfair to raise such hopes if the suit is time-barred and there is no basis for concluding that the employee will overcome that bar. It also may unnecessarily subject such individuals to potential burdens of participating in the litigation of a time-barred claim.