Porter v. Mooregroup Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOSHUA PORTER, et al,

Plaintiffs,

MEMORANDUM & ORDER

-against-

17-cv-7405 (KAM)(VMS)

MOOREGROUP CORPORATION, et al,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

On December 20, 2017, plaintiffs Joshua Porter

(“Porter”) and Sharkey Simmons (“Simmons”) (collectively,

“plaintiffs”) commenced this action against defendants

MooreGroup Corporation (“MooreGroup”); Martin Moore (“M.

Moore”); John Moore (“J. Moore”); and Gary Moore (“G. Moore”)

(collectively, “defendants”) alleging various wage and hour

violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§§ 201 et seq., New York Labor Law (“NYLL”), §§ 650 et seq., and

NYLL §§ 190 et seq. (ECF No. 1, Complaint.) Plaintiffs brought

their FLSA claims as a collective action on behalf of themselves

and all other similarly situated employees of the defendants and

their NYLL claims as a class action pursuant to Federal Rule of

Civil Procedure 23 on behalf of themselves and all fire guards,

welders, and other construction employees working for the

defendants in New York. (Id.)

By order dated May 15, 2018, with the defendants’

consent, the court granted plaintiffs’ motion to certify a

Collective Action pursuant to the FLSA. (ECF No. 19, Consent

Motion; ECF No. 21, Order Granting Motion to Certify FLSA

Collective Action.) The Collective Action Order limited the

class of potential plaintiffs to fire guards, welders, laborers,

and other construction employees who worked for the defendants

between December 20, 2014 and May 14, 2018. (May 15, 2018 Order

¶ 2.)

On January 2, 2020, the court granted plaintiffs’

motion to amend the complaint to add: plaintiff Emanuel Colajay

Rivera as a named plaintiff; Baldwin Harbor Contracting Inc.

(“Baldwin”) as a defendant; and retaliation claims, pursuant to

the relevant FLSA and NYLL statutory provisions, on behalf of

Simmons and Rivera. See Porter v. MooreGroup Corp., No. 17-cv-

07405 (KAM)(VMS), 2020 WL 32434, at *1 (E.D.N.Y. Jan. 2, 2020).

Plaintiffs filed an amended complaint on January 13, 2020. (See

ECF No. 63, Amended Complaint (“Amend. Compl.”).) Plaintiffs’

counsel sought leave from the court to file a late consent to

become a party plaintiff, pursuant to § 216(b) of the FLSA, on

behalf of Oscar Vigil. (ECF No. 70.) Magistrate Judge Vera M.

Scanlon granted plaintiffs’ request to file a late opt in

consent for Vigil on July 1, 2020. (See Minute Entry 7/1/2020;

Scheduling Order 11/12/2020.)

Following extensive discovery and a pre-motion

conference, the court set a briefing schedule for plaintiffs to

serve their motion for class certification, which is presently

before the court. (See generally ECF No. 90, Notice of

Plaintiffs’ Motion for Class Certification; ECF No. 91,

Memorandum of Law in Support of Plaintiffs’ Motion for Class

Certification (“Pls. Mem.”); ECF No. 92, Declaration of Brent

Pelton in Support of Plaintiffs’ Motion for Class Certification

(“Pelton Decl.”); ECF No. 93, Defendants’ Memorandum in

Opposition (“Defs. Mem.”); ECF No. 94, Declaration of Elbert

Nasis in Opposition to Plaintiffs’ Motion for Class

Certification (“Nasis Decl.”); ECF No. 95; Reply in Support of

Plaintiffs’ Motion for Class Certification (“Pls. Reply”).)1

Plaintiffs move for an Order certifying plaintiffs’

NYLL claims pursuant to Federal Rule of Civil Procedure 23, on

behalf of the following class: all fire guards, welders,

carpenters, laborers and other construction employees who worked

for the Mooregroup defendants at any time since December 20,

2011. (Pls. Mem. at 1-2, 19.) The case was previously

conditionally certified as a collective action under the Fair

1 On March 10, 2021, defendants requested that the deadline to commence

dispositive motion practice be extended sine die pending this court’s

decision on plaintiffs’ motion for class certification. (ECF No. 98.) The

court granted defendants’ request and extended the deadline to commence

dispositive motion practice sine die pending this court’s decision on

plaintiffs’ motion for class certification. (Dkt. Order 3/12/2021.)

Labor Standards Act. (See ECF Nos. 19, 21.) For the reasons

set forth below, the motion to certify a class action for the

NYLL claims is GRANTED.

BACKGROUND

The court assumes familiarity with the background and

procedural history of this case, which were described in the

court’s previous written decision. See Porter v. MooreGroup

Corp., No. 17-cv-07405 (KAM)(VMS), 2020 WL 32434, at *1

(E.D.N.Y. Jan. 2, 2020).

On May 1, 2018, the parties filed a consent motion to

certify the FLSA collective action, which the court granted on

May 15, 2018. (ECF No. 19, Consent Motion; ECF No. 21,

Collective Action Order.) Pursuant to the Collective Action

Order, the court gave defendants 60 days to provide plaintiffs

with the names and contract information of all potential

plaintiffs. (ECF No. 21, ¶ 3.) In addition, the Collective

Action Order required plaintiffs to send notices to all

potential plaintiffs within 10 days following defendants’

required disclosure. (Id. ¶ 4.) All potential plaintiffs were

required to opt in within 60 days of the mailing of the notices.

(Id. ¶ 5.) Four opt-in plaintiffs, including plaintiff Rivera,

subsequently joined the case in September 2018. (ECF No. 23-25,

27, Consent to Become Party in a Collective Action.)

Plaintiffs filed the instant motion for class

certification of the New York Labor Law claims, which defendants

oppose. (See ECF Nos. 90, 91, 92, 93, 94.) Pursuant to Federal

Rule of Civil Procedure 23(a) and 23(b)(3), plaintiffs seek to

certify the following class alleging NYLL violations:

[A]ll fire guards, welders, carpenters,

laborers and other construction employees

who worked for the Mooregroup Defendants at

any time since December 20, 2011.

(Pls. Mem. at 1-2.)

LEGAL STANDARDS

I. Federal and State Labor Law

Under the Fair Labor Standards Act (“FLSA”), subject to

certain exceptions, an employee who works more than 40 hours in a

workweek must “receive[] compensation for his [or her] employment

in excess of [40] hours . . . at a rate not less than one and one-

half times the regular rate at which he [or she] is employed.” 29

U.S.C. § 207(a)(1). The New York State Labor Law (“NYLL”) also

generally provides for “one and one-half times the employee’s

regular rate” when the employee works more than 40 hours in a

workweek. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2; see

Martinez v. Hilton Hotels Corp., 930 F. Supp. 2d 508, 519

(S.D.N.Y. 2013).

Moreover, under the NYLL, all employers must “provide

his or her employees, in writing in English and in the language

identified by each employee as the primary language of such

employee, at the time of hiring, a notice containing,” inter alia,

“the rate or rates of pay.” N.Y. Lab. Law § 195(1)(a). “For all

employees who are not exempt from overtime compensation,” the

notice must include “the regular hourly rate and overtime rate of

pay.” Id.

“Because FLSA and NYLL claims usually revolve around the

same set of facts, plaintiffs frequently bring both types of

claims together in a single action using the procedural mechanisms

available under 29 U.S.C. § 216(b) to pursue the FLSA claims as a

collective action and under [Federal] Rule [of Civil Procedure] 23

to pursue the NYLL claims as a class action under the district

court’s supplemental jurisdiction.” Shahriar v. Smith & Wollensky

Rest. Grp., Inc., 659 F.3d 234, 244 (2d Cir. 2011).

II. Class Certification

Under Federal Rule of Civil Procedure 23 (“Rule 23”), a

plaintiff may bring a civil action on behalf of a class “only if”:

“(1) the class is so numerous that joinder of all members is

impracticable; (2) there are questions of law or fact common to

the class; (3) the claims or defenses of the representative

parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect

the interests of the class.” Fed. R. Civ. P. 23(a)(1)-(4). In

addition, under Rule 23(b)(3), which would govern the proposed

class action here, the court must find “that the questions of law

or fact common to class members predominate over any questions

affecting only individual members, and that a class action is

superior to other available methods for fairly and efficiently

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

In addition to the requirements of numerosity,

commonality, typicality, adequate representation, predominance,

and superiority set forth in Rule 23, the Second Circuit has

recognized an “implied requirement of ascertainability.” In re

Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir.

2006). “To be ascertainable, the class must be ‘readily

identifiable, such that the court can determine who is in the

class and, thus, bound by the ruling.’” Charron v. Pinnacle Grp.

N.Y. LLC, 269 F.R.D. 221, 229 (S.D.N.Y. 2010) (quoting McBean v.

City of N.Y., 260 F.R.D. 120, 132–33 (S.D.N.Y. 2009)).

“Rule 23 does not set forth a mere pleading standard.”

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “A

party seeking class certification must affirmatively demonstrate

his [or her] compliance with the Rule,” and “be prepared to prove

that there are in fact sufficiently numerous parties, common

questions of law or fact, etc.” Id. Class “certification is

proper only if ‘the trial court is satisfied, after a rigorous

analysis, that the prerequisites of Rule 23(a) have been

satisfied.’” Id. at 350-51 (quoting Gen. Tel. Co. of Sw. v.

Falcon, 457 U.S. 147, 161 (1982)). “The party seeking class

certification bears the burden of establishing by a preponderance

of the evidence that each of Rule 23’s requirements has been

met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010).

DISCUSSION

Pursuant to Federal Rule of Civil Procedure 23(a) and

23(b)(3), plaintiffs seek to certify the following class: “[A]ll

fire guards, welders, carpenters, laborers and other

construction employees who worked for the Mooregroup Defendants

at any time since December 20, 2011.” (See Pls. Mem. at 1-2.)

Defendants object to class certification, arguing that

plaintiffs failed to satisfy the commonality, adequacy of

representation, typicality, and numerosity requirements under

Rule 23(a), that common issues of law or fact do not

predominate, and a class action is not superior to individual

litigation in this case. (Defs. Mem. at 13-29.)

For the reasons set forth below, the court concludes

that plaintiffs have met the requirements of Federal Rule of

Civil Procedure 23(a) and (b)(3). Therefore, the court grants

plaintiffs’ motion for class certification and the appointment

of Pelton Graham LLC as class counsel.

As a threshold matter, however, the court agrees with

defendants that the potential class including “construction

employees” is potentially overbroad and exercises the court’s

discretion to modify the class. See Rivera v. Harvest Bakery

Inc., 312 F.R.D. 254, 267 (E.D.N.Y. 2016) (“It is well-

established that the court may, in its discretion . . . modify

the definition of the proposed class to provide the necessary

precision or to correct other deficiencies.” (alterations

omitted)). As conceded in plaintiff’s briefing, the relevant

NYLL class is limited to “Mooregroup employees who performed

manual construction labor, including but not limited to

carpenters, laborers, fire guards, and welders.” (Pls. Reply at

2.) Thus, the relevant NYLL class to be certified includes:

[A]ll fire guards, welders, carpenters,

laborers and other construction employees

who performed manual construction labor who

worked for the Mooregroup Defendants at any

time since December 20, 2011.

(emphasis added). The court addresses each of Rule 23’s

requirements for class certification below.

I. Numerosity

First, to satisfy Rule 23, the proposed class must be

“so numerous that joinder of all members is impracticable.”

Fed. R. Civ. P. 23(a)(1). “Impracticability does not mean

impossibility of joinder, but refers to the difficulty or

inconvenience of joinder.” In re Indep. Energy Holdings PLC

Sec. Litig., 210 F.R.D. 476, 479 (S.D.N.Y. 2002); see also

Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993)

(“Impracticable does not mean impossible.”). Courts in the

Second Circuit presume numerosity when the proposed class is at

least 40 members. Gortat v. Capala Bros., 949 F. Supp. 2d 374,

383 (E.D.N.Y. 2013) aff'd sub nom. Gortat v. Capala Bros., Inc.,

568 Fed. App’x 78 (2d Cir. 2014). “[A] plaintiff need not

present a precise calculation of the number of class members and

it is permissible for the court to rely on reasonable inferences

drawn from available facts[.]” Hill v. City of New York, 136

F.Supp.3d 304, 353 (E.D.N.Y. 2015). Relevant considerations as

to the practicability of joinder include “judicial economy

arising from the avoidance of a multiplicity of actions, ...

financial resources of class members, [and] the ability of

claimants to institute individual suits.” Balverde v. Lunella

Ristorante, Inc., No. 15-cv-5518, 2017 WL 1954934, at *5

(S.D.N.Y. May 10, 2017) (quoting Robidoux, 987 F.2d at 936).

Here, plaintiffs assert that forty (40) or more

construction employees worked for Mooregroup throughout the NYLL

limitations period, which is further confirmed by the § 216(b)

list identifying more than one-hundred (100) employees meeting

the § 216(b) collective list provided by defendants. (Pls. Mem.

at 19-20; Pelton Decl. ¶ 11.) Defendants counter that the

§ 216(b) list is “overly broad” and that joinder is practicable,

thus negating the numerosity requirement. (Defs. Mem. at 29-

30.)

The court concludes that there are sufficiently

numerous potential class members to make joinder impractical.

See Robidoux, 987 F.2d at 936 (“the difficulty in joining as few

as 40 class members should raise a presumption that joinder is

impracticable” (citing 1 Herbert B. Newberg, Newberg on Class

Actions: A Manual for Group Litigation at Federal and State

Levels § 3.05, at 141-42 (2d ed. 1985))). In this case,

defendants have admitted that “between twenty and twenty-five

laborers and ten to twelve carpenters” worked at a job site at

any given time. (Defs. Mem. at 3 (citing Nasis Decl. ¶ 3, Ex.

A, J. Moore Dep. 43:14-25, 44:2-4).) Furthermore, several

deponents attested that Mooregroup typically employs in excess

of forty (40) workers at a time at various job sites. (See

Pelton Decl., E. Rivera Dep. 100:6-15 (around thirty employees

at 2nd Avenue job site); H. Martinez Dep. 77:22-80:22 (fifteen

employees in Hempstead and twenty-five employees in Westbury),

82:13-84:25 (twelve employees in Staten Island); S. Simmons Dep.

262:2-25 (stating that defendants employ “a good 60, 70

people”), 328:19-329:21; J. Rogel Dep. 69:5-24 (thirty-five to

forty-five employees in Jamaica, twenty-five to thirty-five in

Long Island City, and ten in Manhattan).)

Moreover, “a finding of numerosity is supported where,

as here, the potential class members are of limited financial

means, or may fear retaliation by their employer.” Spencer v.

No Parking Today, Inc., No. 12-cv-6323 (ALC) (AJP), 2013 WL

1040052, at *13 (S.D.N.Y. Mar. 15, 2013), report and

recommendation adopted, No. 12-cv-6323 (ALC) (AJP), 2013 WL

2473039 (S.D.N.Y. June 7, 2013). Considering the potential size

and limited resources of the proposed class, the court finds it

reasonable to infer that joinder is impracticable and that the

proposed class satisfies the requirement of numerosity. See Jie

Zhang v. Wen Mei, Inc., No. 14-cv-1647 (JS)(SIL), 2017 WL

8813132, at *15 (E.D.N.Y. Dec. 28, 2017), report and

recommendation adopted, No. 14-cv-1647 (JS)(SIL), 2018 WL 878988

(E.D.N.Y. Feb. 14, 2018).

II. Commonality

Next, the court must find that there are “questions of

law or fact common to the class.” Fed. R. Civ. P. 23(a)(2).

Commonality exists when “[t]he legal theory set forth in [the]

[c]omplaint is common to all class members,” such as where an

“alleged failure to pay overtime violates New York’s labor law.”

Noble v. 93 Univ. Pl. Corp., 224 F.R.D. 330, 342 (S.D.N.Y. 2004

2004). “Commonality may be met even though class members’

individual circumstances differ, so long as their injuries

derive from a unitary course of conduct.” Espinoza v. 953

Assocs. LLC, 280 F.R.D. 113, 124 (S.D.N.Y. 2011) (quoting Noble,

224 F.R.D. at 338 (internal quotation marks omitted)).

Commonality is usually satisfied in wage cases “where

the plaintiffs allege that defendants had a common policy or

practice of unlawful labor practices.” Lewis v. Alert Ambulette

Serv. Corp., No. 11-cv-442, 2012 WL 170049, at *10 (E.D.N.Y.

Jan. 19, 2012) (citing Noble, 224 F.R.D. at 343 (commonality

requirement satisfied where all potential class members were

alleged to have been harmed by common practice of defendants’

failure to adequately pay for overtime hours; legal theory set

forth in complaint was common to all class members)); see also

Espinoza, 280 F.R.D. at 127 (“[C]laims by workers that their

employers have unlawfully denied them wages to which they were

legally entitled have repeatedly been held to meet the

commonality prerequisite for class certification.”).

Viewing the record as a whole, the court concludes

that commonality requirement is satisfied because the evidence

adequately establishes, at a minimum, that there is at least

“one issue common to all class members” that provides the

“unifying thread” binding the claims of class members together.

Martinez v. Ayken, Inc., No. 13-cv-7411 (LDW) (AKT), 2016 WL

5107143, at *10 (E.D.N.Y. Feb. 29, 2016) (quoting Damassia v.

Duane Reade, Inc., 250 F.R.D. 152, 156 (S.D.N.Y. 2008)). Here,

defendant Moore testified that the putative class members were

subject to the same scheduling and timekeeping practices. (See

Pelton Decl., J. Moore Dep. 54:10-58:15 (describing schedules of

construction workers, laborers, carpenters).) Furthermore,

deposition testimony also confirms that the compensation

practices were similar for the potential class members. (See J.

Moore Dep. 89:3-90:19 (confirming that laborers and carpenters

are paid in the same manner); O. Vigil Dep. 60:7-22 (fire guards

were paid at the same time and manner as all other employees)).)

For example, during the relevant period, the employees were paid

primarily by checks from Mooregroup and occasionally from

defendant Baldwin Harbor. (See Pelton Aff., J. Porter Dep.

95:2-5, 240:18-23 (all checks paid from Mooregroup even when he

was assigned to work at different sites, as these assignments

came through Mooregroup); H. Martinez Dep. 139:6-23; E. Paz Dep.

110:7-19 (testifying that all work pay was received by check

with the name of the company); J. Guaman Dep. 117:22-118:15,

119:12-121:12 (paid by Baldwin Harbor on at least one occasion

for work for Mooregroup); J. Rogel Dep. 56:3-4 (paid by personal

check); O. Vigil Dep. 89:21-23, 120:14-122:8 (sometimes paid by

Baldwin Harbor checks, was told that the checks from Baldwin

Harbor were coming from Mooregroup); Ex. 13 (Photograph of

checks from Baldwin Harbor); Ex. 16 (checks from Mooregroup);

Ex. 18 (checks from Mooregroup).) Although defendants dispute

the existence of a common policy (see Def. Mem. at 24-26), as

discussed below, defendants’ contentions regarding variations in

work schedules and responsibilities are not sufficient to defeat

the finding of commonality.

In sum, plaintiffs identify three factual questions

common to the class: whether defendants (1) had a policy of not

paying wages at an overtime rate after an employee worked over

40 hours in a given work week; (2) had a policy of failing to

provide wage statements with payment of wages to employees; (3)

had a policy of failing to provide wage notices at hiring,

annually, and with each change in hourly rates. (Pls. Mem. at

21); see, e.g., Morris v. Alle Processing Corp., No. 08-cv-4874,

2013 WL 1880919, at *9 (E.D.N.Y. May 6, 2013) (commonality

satisfied where “[t]he named plaintiffs’ claims and the proposed

class members’ claims arise from the same course of conduct

(defendants’ practice and policy of failing to pay wages

and overtime), raise common issues of law and fact (inter

alia, whether defendants[ ] . . . failed to pay time and half

for all hours worked over forty . . .), and are based on the

same legal theories (violations of NYLL)”); Morris v. Affinity

Health Plan, Inc., 859 F. Supp. 2d 611, 615 (S.D.N.Y. 2012)

(commonality satisfied where “[a]ll Class Members raise common

issues: (1) whether Defendant had a policy of not paying

Marketing Representatives and Specialists overtime premium pay

for hours worked over 40 in a workweek; (2) whether Defendant

failed to pay Class Members premium overtime wages; and (3)

whether Defendant knew or should have known that Class Members

were working ‘off-the-clock’ ”) (citing cases); Solis v.

OrthoNet LLC, No. 19-cv-4678 (VSB), 2021 WL 1904984, at *4

(S.D.N.Y. May 11, 2021) (commonality satisfied where “class

members share common questions of fact or law, such as: 1)

whether Defendant failed to pay overtime wages; 2) whether

Defendant had a policy of misclassifying employee to avoid

paying them overtime wages pursuant to the NYLL; and 3) whether

Defendant provided deficient wage statements and wage and hour

notices”). Similarly, plaintiffs correctly assert that there

are common legal questions of whether these common practices

were unlawful under the NYLL. (Id. at 14.)

Defendants counter that because some members of the

class were union members and others were non-union, the

commonality requirement is not satisfied. (Defs. Mem. at 25.)

The court disagrees because defendants failed to produce any

evidence that an employee’s membership in a union “would produce

a different result concerning overtime unearned wages.” Padilla

v. Maersk Line, Ltd., 271 F.R.D. 444, 449 (S.D.N.Y. 2010).

Moreover, even if one class member was a non-union member,

“[t]he commonality requirement may be met when individual

circumstances of class members differ, but their injuries derive

from a unitary course of conduct.” Han v. Sterling Nat. Mortg.

Co., No. 09-cv-5589 (JFB) (AKT), 2011 WL 4344235, at *3

(E.D.N.Y. Sept. 14, 2011) (internal quotation marks omitted).2

Furthermore, even though defendants attempt to

distinguish the different job functions of each putative class

member (see Defs. Mem. at 7-13), defendants do not plausibly

contest plaintiffs’ allegation that the class members were

subjected to defendants’ common compensation practices. Indeed,

the fact that some workers may have had control or discretion

over their work hours and or performed different duties does not

negate commonality, but instead speaks to the individual

determination of damages. See, e.g., Spencer, 2013 WL 1040052,

at *16 (noting that even if employees “may have worked more

hours than others because they maintain complete control over

their own work schedule or keep track of their own hours does

not implicate the commonality determination, but rather goes to

damages” (internal quotation marks omitted)), report and

recommendation adopted, No. 12-cv-6323 (ALC) (AJP), 2013 WL

2473039 (S.D.N.Y. June 7, 2013); Noble, 224 F.R.D. at 343

(acknowledging that “[a]lthough there are some differences among

employees—i.e., responsibilities, hours worked, and salaries—

2 To the extent that an individual plaintiff’s membership in the union results

in individual determination of damages, “it is well-established that the need

for an individualized determination of damages suffered by each class member

generally does not defeat the [commonality] requirement.” Jensen v.

Cablevision Sys. Corp., 372 F. Supp. 3d 95, 121 (E.D.N.Y. 2019) (collecting

cases).

these differences are relatively minor and relate primarily to

the level of damages, if any, owing to each individual”);

Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81, 86

(S.D.N.Y. 2001) (“The differences among the Plaintiffs as to the

number of hours worked, the precise work they did, and the

amount of pay they received concern the amount of damages to

which any individual Plaintiff might be entitled if and when

liability is found.”).

Accordingly, the court concludes that “answers to the

common policy and legal questions undoubtedly will ‘drive the

resolution of the litigation’ with respect to all parties.”

Reyes v. City of Rye, No. 13-cv-9051 (NSR), 2016 WL 4064042, at

*5 (S.D.N.Y. July 28, 2016) (quoting Wal-Mart, 564 U.S. at 349-

50); see Shahriar, 659 F.3d at 252 (commonality requirement

satisfied where plaintiffs’ “NYLL class claims all derive from

the same compensation policies and tipping practices”); see also

Reid v. SuperShuttle Int’l, Inc., No. 08–CV–4854 (JG) (VVP),

2012 WL 3288816 (E.D.N.Y. Aug. 10, 2012) (Common questions

include “whether [defendant’s] compensation policies violated

the FLSA or the NYLL”); Poplawski v. Metroplex on the Atl., LLC,

No. 11–cv–3765, 2012 WL 1107711 (E.D.N.Y. Apr. 2, 2012) (“There

is sufficient proof for certification purposes of a uniform

policy of underpayment, presenting a common question that is

subject to classwide proof.”). For these foregoing reasons, the

commonality requirement is satisfied.

III. Typicality

Next, the court considers whether plaintiffs’ claims

are “typical” of the proposed class. Fed. R. Civ. P. 23(a)(3).

Typicality “is satisfied when each class member’s claim arises

from the same course of events, and each class member makes

similar legal arguments to prove the defendant’s liability.”

Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010) (quoting

Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997); Cent.

States Se. & Sw. Areas Health & Welfare Fund v. Merck–Medco

Managed Care, L.L.C., 504 F.3d 229, 245 (2d Cir. 2007) (same).

The typicality requirement is satisfied here, where the same

factual circumstances and legal arguments underlie each putative

class member’s claims. See, e.g., Morris, 859 F. Supp. 2d at

616 (typicality met where “[p]laintiff’s claims arose from the

same factual and legal circumstances that form the bases of the

[c]lass [m]embers' claims”); Willix v. Healthfirst, No. 07-cv-

1143, 2009 WL 6490087, at *2–3 (E.D.N.Y. Dec. 3, 2009)

(typicality satisfied where proposed class members suffered same

injury as a result of defendant’s overtime compensation

policies); Toure v. Cent. Parking Sys. of N.Y., No. 05-cv-5237,

2007 WL 2872455, at *7 (S.D.N.Y. Sept. 28, 2007) (typicality

satisfied where plaintiffs and class members had same unpaid

overtime claims)); Espinoza, 280 F.R.D. at 127–28 (typicality

satisfied where “the minimum wage and overtime claims alleged by

Plaintiffs are similar to those of the class members and arise

from the same allegedly unlawful practices and policies”).

In the instant case, for substantially similar reasons

discussed, supra, in connection with commonality, the court

concludes that the typicality requirement is satisfied because

the named plaintiffs’ claims arise from the same course of

conduct under the same legal theory as the rest of the class.

IV. Adequate Representation

The final requirement pursuant to Rule 23(a) is that

“the representative parties will fairly and adequately protect

the interests of the class.” Fed. R. Civ. P. 23(a)(4). To

satisfy this requirement, “the named plaintiff[] must ‘possess

the same interest[s] and suffer the same injur[ies] as the class

members.’” In re Literary Works in Elec. Databases Copyright

Litig., 654 F.3d 242, 249 (2d Cir. 2011) (quoting Amchem

Products, Inc. v. Windsor, 521 U.S. 591, 625-26 (1997)) (second

and third alterations in original).

“Determination of adequacy typically entails inquiry

as to whether: (1) plaintiff’s interests are antagonistic to the

interest of other members of the class and (2) plaintiff's

attorneys are qualified, experienced[,] and able to conduct the

litigation.” Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards &

Sons, Inc., 502 F.3d 91, 99 (2d Cir. 2007) (internal quotation

marks and citation omitted).

First, for the reasons previously discussed, the court

finds that the named plaintiffs have: provided evidence that

they were subject to a common illegal compensation practice as

the other putative class members; rely on similar legal theories

to prove their NYLL claims; and have the same interest in

maximizing the amount of class recovery. Further, there is no

indication that any named plaintiff has interests that are

antagonistic to or at odds with those of the putative class

members.

Second, defendants argue that the named plaintiffs do

not provide adequate representation because named plaintiffs

Simmons and Rivera maintain retaliation claims that are “highly

emotional” and will “undercut[] their ability to adequately

represent the class.” (Defs. Mem. at 26.) The court rejects

defendants’ assertion because there is no evidence that

Simmons’s and Rivera’s retaliation claims will impair their

ability to represent the interests of the class fairly and

adequately. Contrary to defendants’ assertions (see Defs. Mem.

at 26), courts have held that plaintiffs may serve as fair and

adequate class representatives despite the fact that plaintiffs

may maintain separate retaliation claims. See, e.g., Perez v.

Allstate Ins. Co., No. 11-cv-1812 (JFB) (AKT), 2014 WL 4635745,

at *18 (E.D.N.Y. Sept. 16, 2014) (rejecting defendants’

assertion that plaintiffs’ separate retaliation claim would

impair their ability to represent the interests of the class

fairly and adequately); Spencer, 2013 WL 1040052, at *22

(holding that plaintiff’s “individual retaliation claim is not

relevant to determining whether [plaintiff's] interests are

aligned with the class members' interests for purposes of

establishing his adequacy as a class representative under Rule

23”), report and recommendation adopted, No. 12-cv-6323 (ALC)

(AJP), 2013 WL 2473039 (S.D.N.Y. June 7, 2013); Duarte v. Tri–

State Physical Med. & Rehab., P.C., No. 11–cv–3765 (NRB), 2012

WL 2847741, at *9 (S.D.N.Y. July 11, 2012) (holding that “no

authority” supports the argument that a plaintiff could not

adequately represent a class because of a separate retaliation

claim).3

Finally, plaintiffs also assert that Pelton Graham

LLC, counsel for the plaintiffs, is an experienced law firm

specializing in labor and employment matters and has represented

other classes and/or collective actions in other cases before

3 Similarly, the court rejects defendants’ contention that certain named

plaintiffs cannot adequately represent the proposed class due to the named

plaintiff’s unrelated criminal history. (Defs’ Mem. at 27-28.) The fact

that some named plaintiffs “may have criminal pasts . . . does not affect

their ability to represent other class members.” Torres v. Gristede's

Operating Corp., No. 04-cv-3316 (PAC), 2006 WL 2819730, at *15 (S.D.N.Y.

Sept. 29, 2006) (internal quotation marks omitted). “The past conduct of

some of the representative plaintiffs does not touch upon the subject of the

lawsuit or affect the adequacy of their representation for other class

members.” Id.

this court. (See Pelton Aff. ¶¶ 2-9.) Defendants do not

dispute the qualifications of plaintiffs’ lawyers. For these

reasons, the court concludes that plaintiffs have met the

adequacy requirement of Rule 23(a)(4).

V. Ascertainability

The Second Circuit has established a fifth

prerequisite to class certification, “the implied

ascertainability requirement,” which demands that a class be

“sufficiently definite so that it is administratively feasible

for the court to determine whether a particular individual is a

member.” In re Petrobas Sec. Lit., 862 F.3d 250, 260 (2d Cir.

2017) (quoting Brecher v. Republic of Argentina, 806 F.3d 22, 24

(2d Cir. 2015)). “A class is ascertainable when defined by

objective criteria . . . and when identifying its members would

not require a mini-hearing on the merits of each case.”

Brecher, 806 F.3d at 24-25. The court must be able to determine

who is in the class “without having to answer numerous

individualized fact-intensive questions.” Fogarazzo v. Lehman

Bros., 232 F.R.D 176, 181 (S.D.N.Y. 2005) (quotation and

alteration omitted).

Here, the court concludes that the proposed class is

ascertainable. The proposed NYLL class is defined by objective

criteria: the period in which the employees worked for

defendants and the names, titles, and nature of work of the NYLL

class members. (See Pls. Mem. at 1-2, 19); see Jie Zhang, 2017

WL 8813132, at *18 (“Whether employees have been paid the wages

owed to them is an objective question that turns on the number

of hours they worked and the wages they were paid.”); Gucciardo

v. Titanium Constr. Servs., Inc., 2017 WL 3738777, at *6

(S.D.N.Y. 2017) (certifying overtime class where class could

“clearly be ascertained by objective documentation, such as

Defendants' employee payroll records and wage statements.”);

Lizondro-Garcia v. Kefi LLC, 300 F.R.D. 169, 176 (S.D.N.Y. 2014)

(concluding that a class was ascertainable where “defendants'

payroll records will likely contain the names, titles, pay rates

and dates of employment of the NYLL class members”).

The court concludes that “because defendants were able

to provide plaintiffs with list of individuals who were members

of the conditionally certified FLSA collective action,

defendants would also be able to create a list of individuals

who are potential members” of the certified NYLL class.4

Atakhanova v. Home Fam. Care, Inc., No. 16-cv-6707 (KAM)(RML),

2020 WL 4207437, at *7 (E.D.N.Y. July 22, 2020) (citing Marin v.

Apple-Metro, Inc., No. 12-cv-5274 (ENV)(CLP), 2017 WL 4950009,

4 Contrary to defendants’ assertion, the fact that the § 216(b) list produced

for the FLSA Collective Action included “administrative staff, estimators,

and working foremen who are salaried” and are not included in the Collective

Action, supports the court’s conclusion that defendants’ records contain

objective criteria that make feasible the ability to ascertain the NYLL

certified class members. (Defs’ Mem. at 22.)

at *48 (E.D.N.Y. Oct. 4, 2017)). Accordingly, the court finds

that plaintiffs have met the ascertainability requirement.

VI. Rule 23(b) Requirements

After satisfying the Rule 23(a) prerequisites, the

proposed class must qualify under one of the three categories

set forth in Rule 23(b). Plaintiffs seek to certify the class

under Rule 23(b)(3), with requires that “the court find[] that

the questions of law or fact common to class members predominate

over any questions affecting only individual members, and that a

class action is superior to other available methods for fairly

and efficiently adjudicating the controversy.” Fed. R. Civ. P.

23(b)(3); (see Pls. Mem. at 23-24).

“Rule 23(b)(3) includes a non-exhaustive list of

factors pertinent to a court’s ‘close look’ at the predominance

and superiority criteria:

(A) the interest of members of the class in

individually controlling the prosecution or

defense of separate actions; (B) the extent

and nature of any litigation concerning the

controversy already commenced by or against

members of the class; (C) the desirability

or undesirability of concentrating the

litigation of the claims in the particular

forum; (D) the difficulties likely to be

encountered in the management of

a class action.”

Amchem, 521 U.S. at 615–16 (quoting Fed. R. Civ. P. 23 (b)(3)).

A. Predominance

The “predominance inquiry tests whether [the] proposed

[c]lass[] [is] sufficiently cohesive to warrant adjudication by

representation.” Id. at 623. The predominance requirement is

“satisfied ‘if resolution of some of the legal or factual

questions that qualify each class member’s case as a genuine

controversy can be achieved through generalized proof, and if

these particular issues are more substantial than the issues

subject only to individualized proof.’” In re Payment Card

Interchange Fee & Merch. Disc. Antitrust Litig., 330 F.R.D. 11,

55 (E.D.N.Y. 2019) (quoting Roach v. T.L. Cannon Corp., 778 F.3d

401, 405 (2d Cir. 2015)). “Typically, common issues predominate

when liability is determinable on a class-wide basis, even where

class members have individualized damages.” Id.; see also

Haseman v. Gerber Products Co., 331 F.R.D. 239, 275-76 (E.D.N.Y.

2019) (“A class can be certified under Rule 23(b)(3) even if

damages require individualized determination.”).

In the majority of wage cases, “if plaintiffs

establish that defendant had a practice or policy of failing to

pay prevailing wages, defendant’s liability to all class members

will be established.” Lewis v. Alert Ambulette Serv. Corp., No.

11-cv-442, 2012 WL 170049, at *13 (E.D.N.Y. Jan. 19, 2012)

(citing Ramos v. SimplexGrinnell LP, 796 F. Supp. 2d 346, 359

(E.D.N.Y. 2011)). “[N]umerous courts have found that wage

claims are especially suited to class litigation—perhaps the

most perfect questions for class treatment—despite differences

in hours worked, wages paid, and wages due.” Id.; see, e.g.,

Alleyne v. Time Moving & Storage Inc., 264 F.R.D. 41, 49

(E.D.N.Y. 2010) (concluding that “differences among class

members as to the number of hours worked, the precise work they

did and the amount of pay they received concern the amount of

damages to which any individual class member might be entitled,

not the amenability of their claims to Rule 23 certification”);

Gortat v. Capala Bros., 257 F.R.D. 353, 362 (E.D.N.Y. 2009)

(certifying class of employees who served different functions

and were paid differently because question of whether they were

paid for fewer hours than worked predominated).

Based on the evidence discussed above, the court

concludes that common questions of fact and law will predominate

with respect to plaintiffs’ NYLL claims. Specifically,

plaintiffs’ claims are all based on defendants’ allegedly

unlawful compensation practices that applied to all class

members -- i.e. that defendants did not pay overtime premiums

for hours worked in excess of forty (40) per week and failed to

pay workers for all hours worked; did not provide wage

statements with the payment of wages; and did not provide wage

notices at any time. See Garcia v. Pancho Villa's of Huntington

Vill., Inc., 281 F.R.D. 100, 108 (E.D.N.Y. 2011) (holding that

predominance is satisfied where “the central issue is whether

the defendants had a uniform policy or practice of denying

overtime and spread-of-hours compensation to its employees.”).

The evidence supports plaintiffs’ contention that

defendants did not provide wage statements or wage notices to

employees as required under New York law. (See Pelton Aff., J.

Moore Dep. 60:19-62:5; E. Paz Dep. 110:20-24 (“Q: Did you

receive any wage notices? A: No. Q: Did you receive any wage

statements? A: No.”); S. Simmons Dep. 192:5-19 (asked J. Moore

for a paystub when he received his first paycheck, was told

“this is how we do it” and never received the paystub).)

Defendant Moore testified that employees can ask their foreman

about their hourly rate and the hours for which they are paid

and can request documents showing their rate, but that these

materials were not given to employees in the regular course of

business. (See Pelton Aff., J. Moore Dep. 60:19-62:5, 73:16-19

(workers could get a print-out of tax withholdings upon

request), 107:11-20.)

Moreover, the named plaintiffs have testified that

they worked over forty hours per week and were not paid

additional wages. (See Pelton Aff., E. Colajay Dep. 81:18-25,

166:2-22; J. Porter Dep. 271:18-273:6, 277:19-25; S. Simmons

Dep. 294:12-17, 330:12-18 (when Simmons complained to J. Moore

about not receiving overtime, was told he could “go kick

rocks”).) Plaintiffs also discovered that they were missing

hours from their weekly pay, and consequently were paid for

fewer hours than they actually worked. (See Pelton Aff., E.

Colajay Dep. 79:22-80:7; J. Porter Dep. 186:19-23, 189:2-8; S.

Simmons Depo. 174:11-175:3, 240:11-17, 260:7-25.) When

plaintiffs questioned defendant Moore or the foreman about

missing compensation, their complaints were frequently

dismissed. (See Pelton Aff., E. Colajay Dep. 79:15-80:9, 82:22-

83:12, 84:12-25; J. Porter Dep. 220:13-221:3, 223:7-23.) At

times, plaintiffs’ and class members’ paychecks bounced,

resulting in their wages being paid several weeks late. (Pelton

Aff., E. Colajay Dep. 123:5-14, 127:2-129:7; J. Porter Dep.

184:5-185:6; H. Martinez Dep. 9:10-16; E. Paz Dep. 86:16-88:3;

O. Vigil Dep. 95:7-96:16.)

Based on the current record, the court finds that the

plaintiffs have submitted sufficient evidence at this stage in

the litigation that the defendants had a common practice of

failing to pay their employees overtime and failing to provide

wage notice and statements to their employees. Although each

class member may “have different damage claims depending on the

length and time of employment, such individualized questions are

easily manageable [and] . . . do not defeat predominance.”

Poplawski, 2012 WL 1107711, at *11. Furthermore, “[a] motion

for class certification should not become a mini-trial on the

merits . . . [and] [t]he issue is not whether the plaintiffs

will ultimately prevail on the merits, but whether the

requirements of Rule 23 have been met.” All Star Carts &

Vehicles, Inc. v. BFI Canada Income Fund, 280 F.R.D. 78, 83

(E.D.N.Y. 2012) (citations omitted). For the foregoing reasons,

the court concludes that common questions of law and fact will

predominate with respect to plaintiffs’ NYLL claims.5

B. Superiority

Plaintiff must also establish “that a class action is

superior to other available methods for fairly and efficiently

adjudicating the controversy.” Fed. R. Civ. P. 23 (b)(3). “At

bottom, the superiority analysis requires (1) consideration of the

alternative methods of adjudication available for the claims, (2)

a comparison of the fairness to all whose interests are implicated

between any alternative methods and a class action, and (3) a

comparison of the efficiency of each method in adjudicating the

claims.” 1 Joseph M. McLaughlin, McLaughlin on Class Actions §

5:63 (16th ed. 2019).

5 Defendants’ contention that the individual factual determination preclude

class certification because the proposed class includes individuals who are

independent contractors is rebutted by the record. (Defs’ Mem. at 15-17.)

Indeed, defendant Moore testified that Mooregroup “seldom” contracts with

independent contractors. (Pelton Aff., J. Moore Dep. 41:4-44:12 (“Q. Does

the MooreGroup also contract with independent contractors? A. Seldom.”).)

Defendants have not produced any documentary evidence, other than some

references to the deposition testimony, showing that Mooregroup viewed any

class members as independent contractors.

In this case, “a class action is superior to other

available methods, since that the New York Labor Law claims are

nearly identical to the FLSA claims, which will be tried

collectively in this Court.” Garcia, 281 F.R.D. at 108 (citing

Alonso v. Uncle Jack's Steakhouse, Inc., No. 08-cv-7813, 2011 WL

4389636, at *13 (S.D.N.Y. Sept 21, 2011)). Moreover, “[t]rying

this action collectively ‘allows for a more cost-efficient and

fair litigation of common disputes' than requiring each plaintiff

to prosecute his or her own individual action.” Id. (citing

Damassia, 250 F.R.D. at 164)). There is no identifiable interest

in single plaintiffs commencing multiple lawsuits to prosecute

these claims, and no evidence in the record of any other pending

litigation regarding these claims or parties in any other court.

Given the relatively small return, the court finds that

it is unlikely that the class members would be able to bear the

considerable expense of bringing individual lawsuits. See

Whitehorn v. Wolfgang’s Steakhouse, Inc., 275 F.R.D. 193, 200

(S.D.N.Y. 2011) (“Courts routinely hold that a class action is

superior where . . . the damages suffered are small in relation to

the expense and burden of individual litigation . . .”); Torres,

2006 WL 2819730, at *16 (“Because litigation costs would likely

exceed any gains from overtime wage recovery, class members would

be unlikely to litigate individually”). Moreover, “the opt-out

nature of a class action is a valuable feature lacking in an FLSA

collective action” where employees may be “reluctant to

participate in the action due to fears of retaliation,” thus,

rendering the class action superior. Guzman v. VLM, Inc., No. 07-

cv-1126 (JG) (RER), 2008 WL 597186, at *8 (E.D.N.Y. Mar. 2, 2008).

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for

class certification is GRANTED. The named plaintiffs are

appointed as class representatives, and Pelton Graham LLC is

appointed as counsel for the class.

Defendants shall provide plaintiffs with the names and

last known addresses of the potential plaintiffs within thirty

(30) days of the date of this Memorandum and Order. Plaintiffs

are directed to work with defendants to draft for the court’s

review a mutually acceptable notice to be sent to potential

plaintiffs to inform them of the lawsuit and their right to opt-

out of the suit. Plaintiffs shall submit the proposed notice to

defendants for their approval within thirty (30) days of the

date of this Memorandum and Order. Any objections by defendants

to the form of the notice and consent that cannot be resolved

with plaintiffs shall be made to the court within fifteen (15)

days of receipt of plaintiffs’ proposed notice.

SO ORDERED.

___ /s/ __

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

Dated: August 11, 2021

Brooklyn, New York