Opinion

Luis Ruiz Gonzalez v. SBKU Services Inc.

Court: District Court, E.D. New York
Filed: Jan 22, 2025
Cited by: 0 cases
Authority: More cited than 33.7%

granting “authorization to issue a proposed notice to potential class members by mail and e-mail” and “authorization to re-mail notices that are returned as undeliverable”

How later courts described this case

granting “authorization to issue a proposed notice to potential class members by mail and e-mail” and “authorization to re-mail notices that are returned as undeliverable”
“The burden for demonstrating that potential plaintiffs are similarly situated is very low at the notice stage”
“[C]ourts in the Second Circuit routinely grant conditional certification for overtime claims based on the statements of the named plaintiff(s) and other supporting affidavits”
“The standard in this circuit is clear; the merits of plaintiffs’ claim are not at issue in a motion for conditional certification”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------------x

JOSE LUIS RUIZ GONZALEZ and

DANILO RUIZ, individually and on behalf of all

others similarly situated, MEMORANDUM

AND ORDER

Plaintiffs, 23-CV-08797

(SJB)(SIL)

-against-

SBKU SERVICES INC., doing business as

KUMO JAPANESE STEAKHOUSE, ROBERT

LAM and TONY LAM individually,

Defendants.

--------------------------------------------------------------------x

STEVEN I. LOCKE, United States Magistrate Judge:

Presently before the Court in this wage and hour action, on referral from the

Honorable Ramon E. Reyes, Jr.1 for decision, is Plaintiffs Jose Louis Ruiz Gonzalez’s

(“Gonzalez”) and Danilo Ruiz’s (“Ruiz”) (collectively the “Named Plaintiffs”) Motion

for Conditional Certification, Court-Facilitated Notice, Approval of the Proposed

Notice and Opt-In Form, Production of Contact Information, and Posting of Notice

pursuant to Section 216(b) of the Fair Labor Standards Act (“FLSA”) (“Plaintiffs’

Motion” or “Pls. Mot.”). See Docket Entry (“DE”) [10]. By way of Complaint dated

November 30, 2023, the Named Plaintiffs commenced this action against Defendants

SBKU Services Inc. d/b/a Kumo Japanese Steakhouse (“SBKU”), Robert Lam

1 Since Judge Reyes’s, Jr. referral of this motion, this action has been reassigned to the Honorable

Sanket J. Bulsara. See Elec. Entry dated Jan. 3, 2025.

(“Robert”) and Tony Lam (“Tony”) (collectively “Defendants”), alleging: (1) violations

of the FLSA, 29 U.S.C. § 201 et seq. concerning overtime pay; and (2) sections

191(1)(a), 195(1), 195(3), 650 et seq., and 663 et seq. of the New York Labor Law

(“NYLL”) concerning wage payment, notice, minimum wage, overtime pay, and

spread of hours requirements, on behalf of themselves and all others similarly

situated. See Complaint (“Compl.”), DE [1]. Defendants deny the Named Plaintiffs’

material allegations. See generally Answer, DE [9].

In the instant motion, the Named Plaintiffs seek conditional certification of

their FLSA collective and NYLL class claims for a collective class of “Kitchen Workers

and Service Workers - being those non-exempt employees who worked in the back of

the house and front of the house for Defendants for six years prior to the

commencement of this action”—November 30, 2017. See Plaintiffs’ Memorandum of

Law in Support of Plaintiffs’ Motion (“Pls. Mem.”), DE [13], at 4-5; Declaration of

Jacob Aronauer in Support of Plaintiffs’ Motion, (“Aronauer Decl.”), DE [14], Ex. A.

In their proposed notice, the Named Plaintiffs replace the term “Service Workers”

with “bussers.” See Aronauer Decl., Ex. A (the “Proposed Notice”); Ex. B (the “Opt-In

Form”). Notably, the Named Plaintiffs do not seek class certification pursuant to Fed.

R. Civ. P. 23. See generally Pls. Mem.

The Named Plaintiffs also seek: (i) Court-facilitated notice of this action to all

covered employees; (ii) approval of the Proposed Notice and Opt-In form; (iii) an order

directing Defendants to provide the Named Plaintiffs with the names, last known

mailing addresses, alternate addresses, email addresses, telephone numbers, Social

Security numbers and dates of employment of all covered employees; and (iv) posting

of the Proposed Notice and Opt-In Form at the Defendants’ current restaurant. See

Pls. Mot. Defendants oppose Plaintiffs’ Motion. See Memorandum in Opposition, DE

[15] (“Defs. Opp.”).

For the reasons set forth herein, the Court grants Plaintiffs’ Motion in part and

denies it in part, as follows: (1) this matter is conditionally certified as an FLSA

collective action for a class defined as all individuals who were employed by

Defendants as non-tipped, non-exempt, overtime-eligible kitchen workers and/or

bussers at any point between March 26, 2021 and March 26, 2024, and who file a

consent form to join this action for unpaid overtime compensation and liquidated

damages; (2) a three-year statute of limitations applies to the FLSA claims; (3) the

Named Plaintiffs shall revise their Proposed Notice and Opt-In Form consistent with

this Memorandum and Order; (4) the Named Plaintiffs shall be permitted to send the

notice to potential FLSA collective members via first-class mail, email, and text

message, as well as to post it at Hirosaki Sushi and Hibachi (“Hirosaki”); and (5)

Defendants are directed to provide the Named Plaintiffs with a computer-readable

list of all non-tipped kitchen workers and bussers who were employed at Kumo

Japanese Steakhouse (“Kumo”) at any point in the three years prior to the filing of

Plaintiffs’ Motion, along with the following information: names, last known mailing

addresses, alternate addresses (if any), email addresses, cell phone numbers, and

dates of employment at Kumo.

I. BACKGROUND

A. The Parties

Unless otherwise indicated, the facts set forth herein are taken from the

Complaint, as well as the Named Plaintiffs’ declarations submitted in support of

Plaintiffs’ Motion, and are accepted as true for purposes of the instant motion. See

generally Compl.; Declaration of Jose Luis Ruiz Gonzalez (“Gonzalez Decl.”), DE [12];

Declaration of Danilo Ruiz (“Ruiz Decl.”), DE [11].

SBKU is a New York entity in the restaurant industry with its principal place

of business at 2548 Nesconset Highway, Stony Brook, New York 11790, see Compl. ¶

15, and “has (1) employees engaged in commerce or in the production of goods for

commerce and handling, selling, or otherwise working on goods or materials that

have been moved in or produced for commerce by any person; and (2) an annual gross

volume of sales in excess of $500,000.00.” Id., ¶ 17. SBKU did business as Kumo,

which was owned by Defendants Robert and Tony, who dictated the work schedules

and rates of pay for the Named Plaintiffs and other employees. See Gonzalez Decl.,

¶¶ 2-4; Ruiz Decl., ¶¶ 3-4. Kumo closed on or about September 9, 2023. Aronauer

Decl., ¶¶ 13-17. In December 2023, the restaurant Hirosaki, owned by Defendants

Robert and Tony, among others, opened at Kumo’s old location. Id., ¶¶ 18-23.

According to the Named Plaintiffs, some former Kumo employees were hired to work

at Hirosaki. Pls. Mem. at 4; see Gonzalez Decl., ¶ 40.

Plaintiff Gonzalez worked at Kumo from October 2014 through September

2022 as a dishwasher, and then as a cook until September 2023. See id., ¶¶ 10-12.

As a dishwasher, his duties included “washing dishes, utensils and kitchen

equipment,” “clean[ing] the kitchen and remov[ing] garbage.” Gonzalez Decl., ¶ 7.

As a cook, Gonzalez’s duties included “cutting vegetables, preparing food, and

following dish recipes.” Id., ¶ 9. From October 2014 to March 2020, he worked

Mondays through Thursdays from 11:00 a.m. to 10:00 p.m., and Fridays and

Saturdays from 11:00 a.m. to 11:00 p.m. Id., ¶ 13. From March 2020 to September

2023, Gonzalez worked Mondays through Thursdays from 11:00 a.m. to 9:00 p.m.,

and Fridays and Saturdays from 11:00 a.m. to 10:00 p.m. Id., ¶ 14. Until September

2022, he did not clock in or out. Id., ¶ 38. He was paid in cash biweekly, at a rate

that increased regularly between $876 and $1,615. Id., ¶¶ 16-31. Gonzalez was never

paid overtime, and Defendants provided him with neither a wage notice written in

English and Spanish, his native language, nor any wage statements. Compl., ¶¶ 61-

62.

Plaintiff Ruiz worked at Kumo from October 2020 to April 2023 as a busser.

See Compl., ¶¶ 13-14. His duties included “set[ting] up tables, help[ing] the hibachi

chefs, assist[ing] customers and help[ing] servers and kitchen staff.” Ruiz Decl., ¶ 6.

Ruiz usually worked Mondays, Tuesdays, Thursdays and Sundays from 11:00 a.m. to

9:00 p.m., and Fridays and Saturdays from 11:00 a.m. to 10:00 p.m. Id., ¶ 10. Like

Gonzalez, until September 2022, he did not clock in or out. Id., ¶ 21. Ruiz was paid

in cash biweekly, at a rate that increased regularly between $1,153 and $1,615. Id.,

¶¶ 13-17. Ruiz was never paid overtime, and Defendants provided him with neither

a wage notice written in English and Spanish, his native language, nor any wage

statements. Compl., ¶¶ 75-78.

B. FLSA Collective Plaintiffs’ Allegations

The Named Plaintiffs seek to certify a collective of “current and former ‘Kitchen

Workers’ and ‘Service Workers,’” defined as “those non-exempt employees who

worked in the back of the house and front of the house for Defendants for six years

prior to the commencement of this action.” Compl., ¶ 32; Pls. Mem. at 4-5. In their

Proposed Notice, the Named Plaintiffs replace the term “Service Workers” with

“bussers.” See Aronauer Decl., Ex. A. According to the Named Plaintiffs, these

putative class members “have been victims of Defendants’ common policy and

practices that have violated . . . the FLSA by, among other things, willfully denying

them wages.” Compl., ¶ 32. Specifically, the Complaint alleges that “Defendants

willfully failed to pay Plaintiffs and the FLSA Collective the appropriate overtime

premiums for all hours worked in excess of forty hours per work week.” Id., ¶ 96; see

Gonzalez Decl., ¶ 41; Ruiz Decl., ¶¶ 23-25. Gonzalez also points to three other

employees—a cook and two dishwashers—whom he alleges “worked in the kitchen

and worked a similar schedule” to him in terms of “both days and hours.” See

Gonzalez Decl., ¶¶ 39-41. Ruiz identifies by name two bussers he worked with who

had “similar schedules” to him and “did not receive extra pay for working overtime.”

See Ruiz Decl., ¶¶ 22-24.

The Named Plaintiffs allege that at all relevant points, Defendants’ overtime

premium violations were willful. Complaint at ¶¶ 96-97.

C. Procedural History

By way of Complaint dated November 30, 2023, the Named Plaintiffs

commenced this action against Defendants SBKU and Robert and Tony Lam,

alleging: (1) violations of the FLSA, 29 U.S.C. § 201 et seq. concerning overtime pay;

and (2) sections 191(1)(a), 195(1), 195(3), 650 et seq., and 663 et seq. of the New York

Labor Law (“NYLL”) concerning wage payment, notice, minimum wage, overtime

pay, and spread of hours requirements, on behalf of themselves and all others

similarly situated. See Complaint (“Compl.”), DE [1]. Defendants deny the Named

Plaintiffs’ material allegations. See generally Answer, DE [9].

In the instant motion, the Named Plaintiffs seek conditional certification of

their FLSA collective and NYLL class claims for a collective class of “Kitchen Workers

and Service Workers - being those non-exempt2 employees who worked in the back of

the house and front of the house for Defendants for six years prior to the

commencement of this action”—November 30, 2017. See Plaintiffs’ Memorandum of

2 No party disputes Named Plaintiffs’ or opt-in plaintiffs’ status as non-exempt employees.

Law in Support of Plaintiffs’ Motion (“Pls. Mem.”), DE [13], at 4-5; Declaration of

Jacob Aronauer in Support of Plaintiffs’ Motion, (“Aronauer Decl.”), DE [14], Ex. A.

Notably, the Named Plaintiffs do not seek class certification pursuant to Fed. R. Civ.

P. 23. See generally Pls. Mem.

The Named Plaintiffs also seek: (i) Court-facilitated notice of this action to all

covered employees; (ii) approval of the Proposed Notice and Opt-In Form; (iii) an order

directing Defendants to provide the Named Plaintiffs with the names, last known

mailing addresses, alternate addresses, telephone numbers, Social Security numbers

and dates of employment of all covered employees; and (iv) posting of the Proposed

Notice and Opt-In Form at the Defendants’ current restaurant. See Pls. Mot. On

October 1, 2024, Judge Reyes referred Plaintiffs’ Motion to the undersigned for

decision. See Elec. Order dated Oct. 1, 2024.

For the reasons set forth herein, the Court grants Plaintiffs’ Motion in part and

denies it in part, as follows: (1) this matter is conditionally certified as an FLSA

collective action for a class defined as all individuals who were employed by

Defendants as non-tipped, non-exempt, overtime-eligible kitchen workers and/or

bussers at any point between March 26, 2021 and March 26, 2024 and who file a

consent form to join this action for unpaid overtime compensation and liquidated

damages; (2) a three-year statute of limitations applies to the FLSA claims; (3) the

Named Plaintiffs shall revise their Proposed Notice and Opt-In Form consistent with

this Memorandum and Order; (4) the Named Plaintiffs are permitted to send the

notice to potential FLSA collective members via first-class mail, email, and text

message, as well as to post it at Hirosaki Sushi and Hibachi (“Hirosaki”); and (5)

Defendants are directed to provide the Named Plaintiffs with a computer-readable

list of all non-tipped kitchen workers and bussers who were employed at Kumo at any

point in the three years prior to the filing of Plaintiffs’ Motion along with the following

information: name, last known mailing addresses, alternate addresses (if any), email

addresses, cell phone numbers, and dates of employment at Kumo.

II. LEGAL STANDARDS

A. Conditional Certification Pursuant to Section 216(b) of the FLSA

The FLSA permits employees to maintain a collective action “for and [o]n

behalf of . . . themselves and other employees similarly situated.” 29 U.S.C. § 216(b).

Courts in the Second Circuit apply a two-step analysis to determine whether a

collective action under Section 216(b) of the FLSA should be certified. Myers v. Hertz

Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). First, the Court evaluates whether the

proposed class members are “similarly situated” to the Named Plaintiff. See Rodolico

v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y. 2001). If the Court finds that the

putative class is sufficiently similarly situated, the action will be conditionally

certified, and each class member may then consent in writing to “opt-in” to the

litigation. Id. (citing 29 U.S.C. § 216(b)). In determining whether the putative class

is similarly situated, the critical inquiry is “not whether [Named P]laintiff’s [sic] job

duties are identical to other potential opt-in plaintiffs, but rather, whether the

proposed plaintiffs are similarly situated under 29 U.S.C. § 216(b) with respect to

their allegations that the law has been violated.” Knox v. John Varvatos Enters. Inc.,

282 F. Supp. 3d 644, 656 (S.D.N.Y. 2017) (internal quotation marks and citation

omitted). The second step generally occurs following completion of discovery and

requires examination of the evidentiary record to ascertain whether the opt-in and

Named Plaintiffs are, in fact, similarly situated. See Bifulco v. Mortg. Zone, Inc., 262

F.R.D. 209, 212 (E.D.N.Y. 2009). The present motion concerns only the first step of

the certification process – whether the proposed class members are similarly situated

such that conditional certification is appropriate.

At the conditional certification stage, “the evidentiary standard is lenient.”

Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 58 (E.D.N.Y. 2011); see Lynch v. United

Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007) (“The burden for

demonstrating that potential plaintiffs are similarly situated is very low at the notice

stage”) (internal quotation and citation omitted). A Named Plaintiff seeking

conditional certification “need only make 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.” Doucoure v. Matlyn Food, Inc., 554 F. Supp. 2d

369, 372 (E.D.N.Y. 2008) (internal quotation and citation omitted). “This low burden

is consistent with the broad remedial purpose of the FLSA.” Hamadou v. Hess Corp.,

915 F. Supp. 2d 651, 661 (S.D.N.Y. 2013) (internal quotation and citation omitted).

A movant seeking conditional certification is not required to establish an

actual FLSA violation, “but rather that a ‘factual nexus’ exists between the [Named

Plaintiffs’] situation and the situation of other potential plaintiffs.” Sobczak v. AWL

Indus., Inc., 540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007) (citation omitted); Sexton v.

Franklin First Fin., Ltd., No. 08-CV-4950 (JFB)(ARL), 2009 WL 1706535, at *3

(E.D.N.Y. June 16, 2009) (“‘[N]othing more than substantial allegations that the

putative class members were together the victims of a single decision, policy or plan’

is required.”) (quoting Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y.

2005)). “It is not necessary for the purposes of conditional certification that the

prospective class members all performed the same duties, or worked during the same

time periods, or worked at the same locations as the named plaintiffs.” Ruiz v. Truffa

Pizzeria & Wine Room Corp., No. 20-CV-8645 (LJL), 2021 WL 568249, at *5 (S.D.N.Y.

Feb. 15, 2021) (citing Cano v. Four M Food Corp., No. 08-CV-3005 (JFB)(AKT), 2009

WL 5710143, at *7 (E.D.N.Y. Feb. 3, 2009)). “Accordingly, in deciding whether to

grant the Plaintiffs’ motion, the Court must merely find some identifiable factual

nexus which binds the named plaintiffs and potential class members together as

victims of a particular practice.” Ting Qiu Qiu v. Shanghai Cuisine, Inc., No. 18-CV-

5448 (ER), 2019 WL 6002371, at *2 (S.D.N.Y. Nov. 14, 2019) (citation omitted).

Moreover, at this stage, “the Court does not resolve factual disputes, decide

substantive issues going to the ultimate merits or make credibility determinations.”

Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 385 (E.D.N.Y. 2010) (quoting Francis

v. A & E Stores, Inc., No. 06-cv-1638 (CLB) (GAY), 2008 WL 2588851, at *2 (S.D.N.Y.

June 26, 2008), report and recommendation adopted as modified, 2008 WL 4619858

(S.D.N.Y. Oct. 16, 2008)); see Laroque v. Domino’s Pizza, LLC, 557 F. Supp. 2d 346,

354 (E.D.N.Y. 2008) (“The standard in this circuit is clear; the merits of plaintiffs’

claim are not at issue in a motion for conditional certification”). The determination

is typically based on the pleadings and declarations submitted in support of the

motion. See Sharma v. Burberry Ltd., 52 F. Supp. 3d 443, 452 (E.D.N.Y. 2014)

(“[C]ourts in the Second Circuit routinely grant conditional certification for overtime

claims based on the statements of the named plaintiff(s) and other supporting

affidavits”); Garcia Ramos v. DNC Food Serv. Corp., No. 19-CV-2967 (VSB), 2020 WL

2832776, at *2 (S.D.N.Y. June 1, 2020) (“Plaintiffs may satisfy [the] requirement[s of

conditional certification] by relying on their own pleadings, affidavits, declarations,

or the affidavits and declarations of other potential class members.”) (citation

omitted).

B. Conditional Certification Under the New York Labor Law

The NYLL does not “contain a provision for collective action.” Jackson v.

Bloomberg, L.P., 298 F.R.D. 152, 162 (S.D.N.Y. 2014). A plaintiff seeking to certify a

class based on NYLL violations must do so pursuant to Fed. R. Civ. P. 23, which the

Named Plaintiffs have not invoked, and which the Court will not consider. See

Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 123 (S.D.N.Y. 2011).

III. DISCUSSION

Applying the standards set forth above, and for the reasons set forth below, the

Court grants the Named Plaintiffs’ motion for conditional certification under the

FLSA and the NYLL in part and denies it in part.

A. The Named Plaintiffs’ Motion for Conditional Certification of an

FLSA Collective Action

Initially, the Named Plaintiffs move to conditionally certify the following class

as an FLSA collective action: all “Kitchen Workers and Service Workers - being those

non-exempt employees who worked in the back of the house and front of the house

for Defendants for six years prior to the commencement of this action,” or November

30, 2017. See Pls. Mem. at 4-5; Aronauer Decl., Ex. A. In their proposed notice, the

Named Plaintiffs replace the term “Service Workers” with “bussers.” See Aronauer

Decl., Ex. A; Ex. B. Further, in the reply papers, the Named Plaintiffs clarify that

they do not seek to represent tipped employees.3 See Plaintiffs’ Reply (“Pls. Reply”),

DE [18], at 1. In this case, the Named Plaintiffs have made a sufficient factual

showing that they and the potential FLSA collective action members – other non-

tipped kitchen workers and bussers at Kumo who were purportedly denied overtime

pay by Defendants – were together victims of a common compensation policy that

violated the FLSA.

3 As explained above, the Named Plaintiffs’ declarations include descriptions of their rate of pay and

make no reference to tipped income. See Gonzalez Decl., ¶¶ 16-31; Ruiz Decl., ¶¶ 13-17.

The Named Plaintiffs allege that they and similarly situated Kumo employees

regularly worked at least 40 hours per week. According to the Complaint, Gonzalez

worked between eleven and twelve hours a day, six days a week, from October 2014

to March 2020, and between ten and eleven hours per day, six days a week, from

March 2020 to September 2023. See Compl., ¶¶ 37-39. Similarly, from October 2020

to April 10, 2023, Ruiz worked six days a week for ten hours per day. Id., ¶¶ 66-67.

Gonzalez also points to three other employees—a cook and two dishwashers—whom

he states “worked in the kitchen and worked a similar schedule” to him in terms of

“both days and hours.” See Gonzalez Decl., ¶¶ 39-41. Ruiz identifies by name two

bussers he worked with who had “similar schedules” to him. See Ruiz Decl., ¶¶ 22-

24. Moreover, the Complaint alleges, and the Named Plaintiffs’ declarations support,

that “Defendants willfully failed to pay Plaintiffs and the FLSA Collective the

appropriate overtime premiums for all hours worked in excess of forty hours per work

week.” Id., ¶ 96; see Gonzalez Decl., ¶ 41 (putative collective members “did not receive

extra pay for working overtime”); Ruiz Decl., ¶¶ 23-25 (same). The Named Plaintiffs

have therefore satisfied the lenient standard applicable at this stage by submitting

evidence of an “identifiable factual nexus which binds the named plaintiffs and

potential class members together as victims of a particular practice” sufficient to

warrant conditional certification. Ting Qiu Qiu, 2019 WL 6002371, at *2; see Garcia

Ramos, 2020 WL 2832776, at *2 (“Plaintiffs may satisfy this requirement by relying

on their own pleadings, affidavits, declarations, or the affidavits and declarations of

other potential class members.”).

Defendants counter that “Plaintiffs are not representative of the vast majority

of Defendants’ employees who work as waiters, waitresses, bartenders, etc.,” who

Defendants contend are tipped employees. See Defs. Opp. at 2. It is apparent to the

Court, however, that the Named Plaintiffs use the term “Service Workers” to refer

only to former Kumo bussers, like Ruiz, and not to tipped employees, such as waiters,

waitresses and bartenders. See Pls. Reply at 1, 6; Aronauer Decl., Ex. A. Accordingly,

notwithstanding Defendants’ opposition, the Court conditionally certifies the

proposed FLSA collective action.

As explained above, however, the NYLL does not “contain a provision for

collective action.” Jackson, 298 F.R.D. at 162. If the Named Plaintiffs seek to certify

a class based on NYLL violations, they must do so pursuant to Fed. R. Civ. P. 23. See

Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 123 (S.D.N.Y. 2011). Accordingly, to

the extent the Named Plaintiffs seek to conditionally certify this collective under the

NYLL, the motion is denied.

B. Notice Period

After granting certification, the Court must determine the applicable notice

period for the Named Plaintiffs’ proposed FLSA collective action. In this regard, the

Court concludes that the FLSA’s three-year statute of limitations applies.

1. Applicable Notice Periods

The Named Plaintiffs seek permission to include as potential FLSA collective

members all non-tipped kitchen workers and bussers who were employed at Kumo

during the six years prior to the filing of this lawsuit. See Pls. Mem. at 4-5; Aronauer

Decl., Ex. A. The Named Plaintiffs, however, do not explain why the six-year notice

period they seek is appropriate. To the extent they rely on the six-year statute of

limitations in the NYLL, see NYLL § 663(3), as explained above, a collective action is

not the appropriate vehicle for NYLL claims. See McPherson v. Look Ent. Ltd., No.

23-CV-04273 (JMA)(JMW), 2024 WL 4265844, at *7 (E.D.N.Y. Sept. 23, 2024) (“‘[T]he

growing trend in this Circuit is to use a three-year rather than a six-year notice period

when the motion before the court seeks certification under the FLSA rather than

under Federal Rule[ ] of Civil Procedure Rule 23 in connection with NYLL claims.’”)

(citing Franze v. Bimbo Foods Bakeries Distrib., LLC, No. 17-CV-3556 (NSR)(JCM),

2019 WL 1417125, at *4 (S.D.N.Y. Mar. 29, 2019) and collecting cases).

The FLSA has a two-year statute of limitations except in the case of willful

violations, for which the statute of limitations is three years. See 29 U.S.C. § 255(a).

“At the conditional certification stage, allegations of willful conduct are sufficient to

apply the three-year statute of limitations for purposes of certifying the class.” Wilson

v. Jamaica Serv. Program for Older Adults, Inc., No. 21-CV-1263 (BMC), 2021 WL

4750098, at *4 (E.D.N.Y. Oct. 12, 2021) (citation omitted); see Alvarez v. IBM

Restaurants, Inc., 839 F. Supp. 2d 580, 587-88 (E.D.N.Y. 2012) (“The [Named]

Plaintiffs have alleged willfulness in their Complaint . . . and the Defendants deny

these allegations. Courts in this circuit have generally held that where willfulness is

in dispute, a three-year statute of limitations applies at the conditional certification

stage.”); Patton v. Thomson Corp., 364 F. Supp. 2d 263, 268, n.2 (E.D.N.Y. 2005)

(finding allegation of willful violation justified notice based on a three-year statute of

limitations period).

Here, the Complaint alleges that Defendants willfully violated the FLSA. See,

e.g., Compl. ¶¶ 32, 33, 96. Accordingly, the Named Plaintiffs have sufficiently alleged

willful conduct, such that the FLSA collective notice period shall run for three years,

see 29 U.S.C. § 255(a), from March 26, 2021 and March 26, 2024, the date that the

Named Plaintiffs filed Plaintiffs’ Motion. See Pls. Mot., Finnigan v. Metro.

Transportation Auth., No. 19-CV-00516 (PKC) (RER), 2020 WL 1493597, at *4

(E.D.N.Y. Mar. 26, 2020) (imposing a three-year notice period in an FLSA action,

ending on the date plaintiffs moved for conditional certification); Kemper v. Westbury

Operating Corp., No. 12-CV-0895 (ADS) (ETB), 2012 WL 4976122, at *3 (E.D.N.Y.

Oct. 17, 2012) (same).

C. The Named Plaintiffs’ Motions with Respect to the Proposed Notice

The Named Plaintiffs also move for: (i) Court-facilitated notice of this action

to all covered employees, including an opt-in form; (ii) approval of the Proposed Notice

and Opt-In Form; (iii) an order directing Defendants to provide the Named Plaintiffs

with the names, last known mailing addresses, alternate addresses, telephone

numbers, Social Security numbers and dates of employment of all covered employees;

and (iv) posting of the Proposed Notice and Opt-In Form, see Aronauer Decl., Exs. A

and B, at the Defendants’ current restaurant, Hirosaki. See Pls. Mot; Pls. Mem. at

11-13.

1. Form of the Notice

With respect to the Proposed Notice’s content, the Named Plaintiffs contend

that it is “timely, accurate and informative” and “may help alleviate the

understandable fear current employees have of losing their jobs[.]” Id. at 11.

“Neither the FLSA statute, nor the courts, specifically outline what form court-

authorized notice should take, nor what provisions the notice should contain.” Hong

v. Haiku @ WP Inc., 582 F. Supp. 3d 117, 132 (S.D.N.Y. 2022) (citation omitted).

Indeed, it is well-settled that “[t]he form of a court-authorized notice and provisions

contained in it are left to the broad discretion of the trial court.” Sobczak, 540 F.

Supp. at 364; Hernandez v. Immortal Rise, Inc., No. 11-CV-4360 (RRM) (LB), 2012

WL 4369746, at *6 (E.D.N.Y. Sept. 24, 2012) (internal citation omitted).

Consistent with this discretion, the Court concludes that the Proposed Notice

adequately explains the criteria to join the FLSA collective action, and directs that it

be disseminated to all individuals who were employed by Defendants at Kumo as non-

tipped, non-exempt, overtime-eligible kitchen workers and/or bussers at any point

between March 26, 2021 and March 26, 2024. See Carollo v. United Cap. Corp., 528

F. Supp. 3d 37, 64 (N.D.N.Y. 2021). Moreover, the Court directs that the Proposed

Notice and Opt-In Form be revised to reflect the rulings in this Memorandum and

Order with respect to the notice period and the exclusion of the Named Plaintiffs’

NYLL claims. In addition, the Proposed Notice should explain that this case – and

any party’s participation in it – is a matter of public record.

2. Distribution of the Notice

With respect to the manner of distribution, the Named Plaintiffs seek

permission to send the Proposed Notice and Opt-In Form via mail and email, as well

as to post it at Hirosaki. See Pls. Mem. at 12-13. The Named Plaintiffs also imply

that they seek leave to send notice to potential collective members using their

telephone numbers, but do not explain for what form of telephonic notice they seek

the Court’s approval. See id. at 13. The Court construes the Named Plaintiffs’

request as a request to contact potential collective members by text message.

Defendants do not address these forms or their distribution in their opposition.

The Court orders that the Named Plaintiffs be permitted to send the notice

and opt-in form to potential opt-in members via first-class mail, email, and text

message and post it at the restaurant. See Rosario v. Valentine Ave. Disc. Store, Co.,

828 F. Supp. 2d 508, 521 (E.D.N.Y. 2011) (“Courts routinely approve requests to post

notice on employee bulletin boards and in other common areas, even where potential

members will also be notified by mail”) (internal quotations and citations omitted);

Sanchez v. Salse Con Fuego, Inc., No. 16-CV-473 (RJS) (BCM), 2016 WL 4533574, at

*7 (S.D.N.Y. Aug. 24, 2016) (“[F]irst class mail and email may both serve as efficient

means of ensuring that potential opt-in plaintiffs receive timely notice, and are

therefore approved”); Jackson, 298 F.R.D. at 170 (granting “authorization to issue a

proposed notice to potential class members by mail and e-mail” and “authorization to

re-mail notices that are returned as undeliverable”); Aleman-Valdivia v. Top Dog

Plumbing & Heating Corp., No. 20-CV-421 (LDH) (MMH), 2021 WL 4502479, at *11

(E.D.N.Y. Sept. 30, 2021) (describing text message notice as a “traditional” method of

notice of an FLSA collective action and permitting its use) (citation omitted).

Moreover, because the Named Plaintiffs have produced evidence via

Gonzalez’s declaration that some potential collective members are currently working

at Hirosaki, which is owned by Defendants, see Gonzalez Decl., ¶ 40, the Court

concludes that posting the Proposed Notice and Opt-In Form at the restaurant is

appropriate. See Chhab v. Darden Restaurants, Inc., No. 11-CV-8345 (NRB), 2013

WL 5308004, at *16 (S.D.N.Y. Sept. 20, 2013) (“notice under the FLSA is intended to

inform as many potential plaintiffs as possible of the collective action and their right

to opt-in.”); Khamsiri v. George & Frank's Japanese Noodle Rest. Inc., No. 12-CV-265

(PAE), 2012 WL 1981507, at *2 (S.D.N.Y. June 1, 2012) (“[P]osting at the place of

employment of potential opt-in plaintiffs is regularly approved by Courts.”).

3. Production of Contact Information

Consistent with the relief discussed above, the Named Plaintiffs seek an order

directing Defendants to provide Plaintiffs’ counsel with:

a computer-readable list of all [non-tipped] Kitchen Workers and Service

Workers who were employed at Kumo Japanese Steakhouse owned by

Defendants at any point in the six years prior to the filing of this lawsuit

along with the following information: name, last known mailing

address[es], alternate address[es] (if any), all known telephone

numbers, email address[es], cell phone number[s] and dates of

employment at Kumo Japanese Steakhouse.

See Pls. Mem. at 12-13. In their Motion, the Named Plaintiffs also request the

production of potential collective members’ Social Security numbers, see Pls. Mot.,

but they do not address this request in their Memorandum. See Pls. Mem.

It is typically appropriate for courts in wage and hour actions to order the

discovery of contact information of potential opt-in plaintiffs. See, e.g., Douglas v.

Anthem Productions, LLC, No. 18-CV-5789 (VEC), 2019 WL 78988, at *5 (S.D.N.Y.

Jan. 2, 2019) (ordering “Defendants [to] produce contact information for all potential

members of the collective”); Fa Ting Wang v. Empire State Auto Corp., No. 14-CV-

1491 (WFK)(VMS), 2015 WL 4603117, at *14 (E.D.N.Y. July 29, 2015) (“Disclosure of

the names, addresses, telephone numbers, and email addresses of putative class

members is commonplace in this district”); Jackson, 298 F.R.D. at 170 (citing Lynch,

491 F. Supp. 2d at 371-72) (ordering defendant to produce class members’ contact

information, and noting that such a request “is common in wage and hour actions to

facilitate the notice process.”). As to Social Security numbers, however, “[c]ourts are

reluctant to authorize disclosure of private information, such as social security

numbers, in the first instance and without a showing that the information is

necessary for the plaintiff to notify potential opt-ins of the collective action.” Cooke

v. Frank Brunckhorst Co., LLC, 722 F. Supp. 3d 127, 145 (E.D.N.Y. 2024), on

reconsideration in part, No. 23-CV-6333, 2024 WL 2263087 (E.D.N.Y. May 18, 2024).

Here, because the Named Plaintiffs do not address their request for potential

collective members’ Social Security numbers at all in their argument, the Court

denies that portion of their request.

In light of the above caselaw, the Court grants the Named Plaintiffs’ request

in part, as the information they seek will not be unduly burdensome or disruptive to

Defendants’ business operations. See Sexton, 2009 WL 1706535, at *13. Consistent

with the Court’s rulings above, however, Defendants need only produce the names,

addresses, alternate addresses (if any), email addresses and cell phone numbers of

kitchen workers and bussers who worked at Kumo between March 26, 2021 and

March 26, 2024. Accordingly, the Court directs Defendants to provide the Named

Plaintiffs with the above requested computer-readable data file no later than 14 days

after the entry of this Memorandum and Order.

IV. CONCLUSION