MEMORANDUM & ORDER
In this action, Plaintiff Vincente Juarez brings various claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and New York law against Defendants 449 Restaurant, Inc. (“449 Restaurant”), 88 2nd Ave. Food Corp. (“Second Avenue”), Pirgos Food Corp. (“Pirgos”), and John Kapetanos. Currently before the Court are (1) Plaintiffs motion for an order granting conditional class certification, court-authorized notice, and expedited discovery pursuant to the FLSA, and (2) Defendants’ cross-motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Dkt. Nos. 13, 22. For the following reasons, Plaintiffs motion is granted and Defendants’ motion is denied.
I. Background
According to Plaintiff, Defendants-operate a Manhattan restaurant chain known as the Moonstruck Diners. The chain’s four locations are owned and operated by distinct legal entities, three of which are Defendants here: 449 Restaurant’s diner is located at 449 Third Avenue, Second Avenue’s diner is located at 88 Second Avenue, and Pirgos’s diner is located at 244 Madison Avenue. Am. Compl. ¶¶ 24, 32, 39. The fourth Moonstruck Diner is located at 250 East 58th Street. E.g., PI. Ex. C. Plaintiff claims that Kapetanos, ■through the corporate entities associated with each Moonstruck Diner, operates the chain of restaurants “as a single integrated enterprise.” PL Br. at 2.
Plaintiff worked as a cook at three of the Moonstruck Diners from “approximately 2007 to July 23, 2013.” PI. Deck ¶2. He worked primarily at 449 Restaurant’s diner on Third Avenue, but he states that he was sometimes directed by Kapetanos or other managers to work shifts at the Sec
Plaintiff initiated this action on October 2, 2013, and аfter Defendants filed a motion to dismiss, Plaintiff amended' his complaint on November 22, 2013. Dkt. No. 12. In his Amended Complaint, Plaintiff alleges that during his time at the Moonstruck Diners, he was paid a flat weekly salary that neither adequately compensated him for his overtime hours, as required by the FLSA and the New York Labor Law (Counts I and II), see 29 U.S.C. § 207(a)(1); N.Y. Lab. Law §§ 650-665, nor included the “spread of hours” premium mandated by New York regulations (Count III), see N.Y. Comp.Codes R. & Regs. tit. 12, § 142-2.4. He also brings two claims alleging violations of New York statutes that require employers to furnish their employees with wage notices and statements (Counts IV and V), see N.Y. Lab. Law § 195(1), (3). He brings his FLSA claim on behalf of himself and other “similarly situated” employees, pursuant to the FLSA’s collective action mechanism, see 29 U.S.C. § 216(b), and his state law claims as part of a putative class action under Federal Rule of Civil Procedure 23. Am. Compl. ¶¶ 9-10.
Plaintiff filed his motion for conditional certification, court-authorized notice, and expedited discovery on November 26, 2013. Dkt. No. 13. Along with their opposition brief, Defendants filed a cross-motion for judgment on the pleadings on December 30, 2013. Dkt. No. 22. On January 13, 2014, Plaintiff filed a brief in further support of his own motion and in opposition to Defendants’ cross-motion; Defendants did not file a reply brief with respect to their cross-motion, so both motions were fully submitted as of January 13.
Pursuant to the case management plan and scheduling order governing this action, Dkt. No. 21, fact discovery was set to close on April 21, 2014. But at the parties’ request, the Court has adjourned that deadline with respect to discovery related to the Second Avenue and Pirgоs diners until the two pending motions are decided. Dkt. Nos. 31, 33.
II. Defendants’ Motion for Judgment on the Pleadings
The Court will address Defendants’ Rule 12(c) motion for judgment on the pleadings first. Dkt. No. 22. Defendants argue that Plaintiffs claims against Second Avenue and Pirgos should be dismissed for failure to state a claim on which relief can be granted. For the following reasons, Defendants’ motion is denied.
A. Legal Standard.
Under Rule 12(c), a party may move for judgment on the pleadings “[a]f-ter the pleadings are closed.” Courts evaluate such motions under the same standards applicable to motions tо dismiss for failure to state a claim pursuant to Rule 12(b)(6). Hayden v. Paterson,
B. Discussion
Defendants contend that Plaintiff hаs not adequately pled that Second Avenue and Pirgos violated the FLSA’s overtime provisions because he does not allege that he ever worked more than 40 hours in any week at those two Defendants’ diners. As a result of this failure, Defendants argue, Plaintiff does not plausibly allege entitlement to FLSA overtime pay for his work at those diners.
The overtime provision of the FLSA provides that “no employer shall employ any of his employees ... for a workweek longer than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). Defendants do not contest the adequacy of Plaintiffs allegations that he worked more than 40 hours per week or that he was not lawfully compensated for that work. Def. Opp. at 9-12. Instead, the question is which Defendants are responsible under the FLSA for paying Plaintiff sufficiently for the hours that he worked — in оther words, who counts as his “employer.” As relevant here, an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee,” an “employee” is “any individual employed by an employer,” and to “employ” means “to suffer or permit to work.” 29 U.S.C. § 203(d), (e)(1), (g); Barfield v. N.Y.C. Health & Hosps. Corp.,
Plaintiff urges the Court to apply the “single integrated enterprise” test that numerous district courts have used to assess whether a group of distinct but closely affiliated entities should be treated as a single employer for FLSA purposes. E.g., Bravo v. Established Burger One, LLC, No. 12-cv-9044 (CM),
Stripping away its various conclusory (or arguably conclusory) statements, the Amended Complaint still contains well-pleaded factual allegations that “the Moon
Taken together, these factual allegations are sufficient to plead that Defendants operated as a single integrated enterprise, and thus qualify as a single statutory' “employer” under the FLSA. See Bravo,
III. Plaintiffs Conditional Certification Motion
Plaintiff moves for an order granting conditional certification, court-authorizеd notice, and expedited discovery pursuant to 29 U.S.C. § 216(b). Dkt. No. 13. Plaintiff seeks, to send notice of this action to “all individuals who have worked as cooks, food preparers, dishwashers, and other non-exempt workers at the Moonstruck Diners located at 449 Third Avenue, 88 Second Avenue, and 244 Madison Avenue in New York City since October 2, 2007.” PI. Br. at 11. Defendants contest
A. Legal Standard
The FLSA authorizes workers to sue on behalf of both themselves and “other employees similarly situated.” 29 U.S.C. § 216(b). District courts in FLSA actiоns have discretion to implement this collective mechanism by “ ‘facilitating notice to potential plaintiffs’ of the pendency of the action and of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp.,
Plaintiffs motion involves the initial determination of whether to send notice to potential opt-in plaintiffs.
Although Plaintiffs burden at this stage is low, “it is not non-existent,” and he cannot rely uрon “unsupported assertions.” Id. (quoting Ali,
B. Discussion
Defendants concede that Plaintiff has carried his burden with respect to workers at 449 Restаurant’s diner, where he “primarily worked.” PI. Deck ¶ 12; see Def. Opp. at 5. Indeed, Plaintiffs declaration states that while he worked more than 40 hours per week and more than 10 hours per day, “the restaurants never monitored or recorded the hours I worked,” and he was paid a set weekly salary that did not include overtime or spread-of-hours compensation. PL Decl. ¶¶ 3-8. Other workers he knew, who also worked more than 40 hours weekly and 10 hours daily, were paid in the same fashion. Id. ¶ 6. This evidence suffices, at this stage, to suggest that Plaintiff аnd other employees at 449 Restaurant’s diner were subject to the same allegedly unlawful pay policies.
However, Defendants dispute that Plaintiff has demonstrated a sufficient “factual nexus” between himself and workers at the Second Avenue and Pirgos diners. Def. Opp. at 5. Plaintiffs showing is insufficient, Defendants contend, because he did not work extensively at these two diners and because his “bare belief’ that Kapetanos owns and manages all three diners does not suffice to demonstrate that emplоyees at all three were subject to a “common policy or plan.” Id. at 7. The Court disagrees.
As an initial matter, the extent to which Plaintiff himself worked at the other two diners is not dispositive; what matters is whether he and employees at those restaurants were “similarly situated” with respect to the FLSA violations alleged in the complaint. Courts often authorize notice to employees of restaurant locations where the named plaintiff did not work at all, as long as there is sufficient evidence that those employеes were subject to the same allegedly unlawful policies. E.g., Mendoza v. Ashiya Sushi 5, Inc., No. 12-CV-8629 (KPF),
Given that Plaintiff and the potential opt-in plaintiffs must be similarly situated “with respect to whether a FLSA violation has occurred,” Myers,
Here, Plaintiff has offered sufficient evidence that employees at the three Moonstruck Diners shared the same employer, despite the fact that the three locations are owned by different entities. As noted, distinct entities can be treated as a single “employer” under the FLSA if they qualify
Defendants claim that Plaintiffs only evidence suggesting an integrated enterprise is his “bare belief’ that Kapetanos owns and manages the three locations, Def. Opp. at 7, but that is not accurate. Plaintiff also describes specific similarities between the restaurants, such as the facts that the “uniforms worn by cooks and similar workers were the same,” that the diners shared a' website, and that the interior design and menus were similar between the three diners. PL Deck ¶¶ 13, 15; see also PI. Ex. D. And he has submitted documents from New York’s Division of Corporations show-, ing that Kapetanos is the Chief Executive Officer of two of the three corporate Defendants, as well as the non-party East 58th Street diner. PL Ex. C. In light of Plaintiffs minimal burden at this stage, the Court concludes all of this evidence together is sufficient to suggest that the threе diners were operated as a single integrat-. ed enterprise, and thus that employees of all three diners shared a single employer under the FLSA.
Arguably, that would suffice to permit an inference that unlawful pay policies implemented at 449 Restaurant’s diner extended to the other two locations — and thus suggest that employees at all three diners were subject to “a common policy or plan” — because the fact that the three diners were run as an integrated enterprise might reasоnably imply that they had uniform wage-and-hour policies. See Cheng Chung Liang v. J.C. Broadway Rest, Inc., No. 12-cv-1054 (TPG),
Defendants’ arguments to the contrary are not persuasive. For instance, they point to an affidavit from Kapetanos indicating, most significantly, that he “has no authority over the employees” at the two diners in which Plaintiff did not primarily work. Kapetanos Aff. ¶ 7; see Def. Opp. at 8. But to the extent that this testimony
Nor is the case law that Defendants cite inconsistent with the Court’s conclusion. In Laroque v. Domino’s Pizza, LLC,
In sum, Plaintiff has carried his burden at this stage of demonstrating a “factual nexus” uniting him with employees at all three Moonstruck Diner locations at which he worked. Accordingly, the Court concludes that notice should be sent to employees of all three diners.
C. Plaintiffs Proposed Notice
Having concluded that court-authorized notice should be sent to employees of all three diners, the Court turns tо the form of such notice and its method of distribution. “By monitoring preparation and distribution of the notice, a court can
Plaintiff has submitted a proposed notice, PL Ex. E, and Defendants have lodged numerous objections to both the notice itself and Plaintiffs proposеd method of disseminating it, Def. Opp. at 12-18. Rather than address these objections seri-atim, the Court directs the parties to meet and confer and make a good-faith effort to agree on both the text of the proposed notice and its method of dissemination. See Ouedraogo,
IV. Conclusion
For the foregoing reasons, Plaintiffs motion is granted and Defendants’ cross-motion is denied. This resolves Docket Nos. 13 and 22.
As the Court has already discussed, the parties must submit a joint letter by July 18, 2014 concerning the notice to be sent to potential opt-in plaintiffs. By that same date, the parties are also directed to submit a proposed schedule for the completion of discovery.
SO ORDERED.
Notes
. As noted in more detail below, the Court is limited to considering certain materials in deciding the two pending motions. This section is intended to provide background information, not to convey or identify any operative facts or allegations on which the Court has rеlied in deciding the motions.
. Defendants do not separately address Plaintiff's state law claims, although, they contend that "all claims” against them should be dismissed. Def. Opp. at 9. Because the Court rejects their arguments, for dismissal, the precise scope of their motion need not be addressed further.
. The Court notes that there is some disagreement among district courts with respect to whether the single-integrated-enterprise theory, which was developed in the context of the National Labor Relatiоns Act, see, e.g., Radio & Television Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile, Inc.,
. “[W]hile courts speak of ‘certifying’ a FLSA collective action, it is important to stress that the ‘certification’ we refer to here is only the district court’s exercise of the discretionary power ... to facilitate the sending of notice to potential class members.” Myers,
. Again, in this procedural posture, the Court assumes without deciding that the single-integrated-enterprise theory is available under the FLSA. See supra note 3-
. The Laroque and Eng-Hatcher courts also declined to credit the plaintiffs' evidence in part because it was rebutted by othér affidavits submitted by the defendants. See La-roque,