UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
A-1 International Courier Service, Inc., et al.,
ALISON J. NATHAN, District Judge:
This is a putative class and collective action for unpaid wages, brought by delivery
drivers who allege that they were misclassified as independent contractors by Defendants A-1
International, Inc. ("A-1 ") and Subcontracting Concepts, LLC ("SCI"). Before the Court are
Plaintiffs motion for class certification and appointment of class counsel pursuant to Federal
Rule of Civil Procedure 23, and renewed motion for conditional certification and court
authorized notice pursuant to FLSA § 216(b). Dkt. Nos. 136, 139. For the reasons that follow,
both motions are denied.
A. Factual Background
Defendant A-1 "provides distribution, logistics, and office services," and approximately
thirty-five to forty percent of its business consists of package delivery. Pl. Mem. (FLSA) 6. In
the past three years, A-1 has employed approximately 250 drivers, of whom approximately 177
worked in New York. Swartz Deel. ~ 10.
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 1 of 15
Plaintiff Moussa Ouedraogo 1 was a delivery driver based out of A-1 's Long Island City
facility from October 2007 until May 2011. Swartz Deel. Ex. N (Ouedraogo Deel.), 20:12-24.
During that time, Ouedraogo was required to work a twelve-hour shift, from 6:00 p.m until 6:00
a.m., seven days a week. Swartz Deel. Ex. N. 66:4-8, 74: 18-20. He was, moreover, paid a set
amount for this work, which he could not negotiate, and which did not include compensation for
overtime. Id. 66: 20-23; Second Amended Complaint ("SAC") ii 66.
In order to work at A-1, Ouedraogo was required to sign an Owner/Operator Agreement
("Agreement") with SCI, Swartz Deel. Ex. N 40:20-23, which expressly stated that "no
employer/employee relationship is created under the Agreement or otherwise as a result of its
relationship between it and SCI or its customers," see Swartz Deel. Ex. PP (Ouedraogo Agm't).
Among other things, the Agreement required Ouedraogo to maintain his own vehicle and
insurance, prohibited him from carrying passengers, and limited his ability to use information
learned during the course of his work. See id.
Indeed, all drivers who work for A-1 are required to sign substantially similar
Owner/Operator Agreements with SCI, which designate them as independent contractors. See
Swartz Deel. Ex. I (Bartholome Dep) 62:16-20. SCI bills itself as a "third party administrator
with two distinct client bases": delivery companies, which it refers to as "logistics companies,"
and delivery drivers, which it refers to as "independent contractors." SCI Opp. (Rule 23) 10.
Among others things, SCI acts as a broker, supplying delivery companies with delivery drivers.
See SCI Opp. (Rule 23) 12; Pl. Mem. (Rule 23) 4. In addition, SCI performs background checks
and manages payrolls. See id. SCI provides these services for other delivery companies, and
1 The second named Plaintiff, Kenneth Chow, has been dismissed from the case and compelled to arbitrate his
claims. See Dkt. No. 220.
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 2 of 15
classifies all delivery drivers under contract as independent contractors. See Swartz Deel. Ex. I
(Slack Dep.), 49:21-50:16.
B. Procedural History
Plaintiff Ouedraogo filed this as a putative class and collective action on July 24, 2012,
seeking to recover unpaid overtime wages under the NYLL and FLSA. Dkt. No. 1. Pursuant to
the Civil Case Management Plan, Dkt. No. 14, Plaintiff moved for conditional certification of a
nationwide collective on December 21, 2012, Dkt. No. 17. The Court initially granted
conditional certification and authorized notice to the nationwide collective on July 8, 2013. Dkt.
No. 45. On October 28, 2013, however, the Court granted Defendants' motion for
reconsideration and narrowed the collective to include only drivers who had worked at A-1 's
facility in Long Island City, due to the absence of any evidence from drivers outside that facility.
See Dkt. No. 105.
On October 4, 2013, during the pendency of the motion for reconsideration, Plaintiff
issued notice "to some drivers who did not work out of the Long Island City facility." Dkt. No.
101. The Court approved the parties' proposed plan to send a letter to the mistakenly notified
drivers stating that they had been "inadvertently" sent notice, and that they would "receive
another notice in the mail and have an opportunity to join the case" at a later date if they were
ultimately included in the certified collective. Dkt. No. 101, Ex. A. However, Plaintiff does not
dispute that this letter was never actually sent.
Meanwhile, beginning on July 31, 2014, Defendants filed a series of motions to dismiss
and compel arbitration with respect to opt-in plaintiffs who had signed versions of the
Owner/Operator Agreement containing an arbitration clause, see Dkt. Nos. 70, 118, 193, which
the Court granted in orders dated March 21, 2014, and May 13, 2014, Dkt. Nos. 220, 222. As a
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 3 of 15
result of these motions, named plaintiff Kenneth Chow was dismissed from this case and
compelled to arbitrate his claims. However, it is not disputed that Ouedraogo did not sign an
arbitration agreement. See Dkt. No. 227. Plaintiff further contends that putative class members
who worked for A-1 prior to 2012 likewise signed agreements containing no arbitration clause.
II. Rule 23 Certification
The Court first considers Plaintiffs motion for certification under Rule 23. Specifically,
Plaintiff seeks certification of the following two classes: (1) "all persons working as drivers for
A-1 in New York state at any time between July 24, 2006, and the date of final judgment in this
matter," and (2) "all persons who signed an owner/operator agreement with SCI and worked as
drivers in New York state between July 24, 2006, and the date of final judgment in this matter."
Pl. Mem. (Rule 23) 16. For the reasons that follow, the motion is denied.
A. Legal Standard
"The class action is 'an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only,"' and it is accordingly available only to those parties
who are able to "affirmatively demonstrate [their] compliance" with the requirements set forth in
Federal Rule of Civil Procedure 23. Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013)
(quoting Cal(fano v. Yamasaki, 442 U.S. 682, 700-01 (1979); Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541, 2551-52 (2011)). Pursuant to Rule 23(a), a party seeking class certification
must first establish that the "preconditions ... of numerosity, commonality, typicality, and
adequacy" have been met. Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc.,
546 F.3d 196, 201-02 (2d Cir. 2008). In addition to this threshold burden, the party must further
"show that at least one of the three criteria enumerated in Rule 23(b) is satisfied." Jacob v.
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 4 of 15
Duane Reade, Inc., 289 F.R.D. 408, 412 (S.D.N.Y. 2013). Here, Plaintiff invokes Rule 23(b)(3),
which requires a finding 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."
Rule 23 "does not set forth a mere pleading standard," Behrend, 133 S. Ct. at 1432, and a
party seeking ce1iification must be prepared to prove that its prerequisites are met by a
preponderance of the evidence, Teamsters Local 445, 546 F.3d at 202. A district court
evaluating a motion for class certification must accordingly "assess all of the relevant evidence
admitted at [that] stage" and "resolve factual disputes relevant to each Rule 23 requirement"-
notwithstanding an issue's overlap with the plaintiff's case on the merits. Id. at 204 (citing In re
Initial Pub. Offerings Sec. Litig., 471F.3d24, 41-42 (2d Cir. 2006)).
Rule 23(a)(2) requires a party seeking class certification to show that its claims "depend
upon a common contention ... [that is] of such a nature that it is capable of classwide
resolution-which means that determination of its truth or falsity will resolve an issue that is
central to the validity of each one of the claims in one stroke." Cuevas v. Citizens Fin. Grp.,
Inc., 526 F. App'x 19, 21 (2d Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.
2541, 25 51 (2011)) (alteration in original). In this context, what matters is not just the "raising
of common 'questions' -even in droves-but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation." Dukes, 131 S. Ct. at
2551 (quoting Richard Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.
L. Rev. 97, 132 (2009)).
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 5 of 15
1. Employee Status
Plaintiff first argues that the commonality requirement is met by his ability to prove,
"based on common classwide evidence," that "A-1 drivers were 'employees' (not independent
contractors) under the NYLL." Pl. Mem. (Rule 23) 17. Here, "proof of commonality necessarily
overlaps" with Plaintiffs merits-stage claim that Defendants misclassified the putative class of
employees as independent contractors. Dukes, 131 S. Ct. at 2552. It is not disputed that
Defendants had a blanket policy of classifying all drivers as independent contractors. Rather, it
is the drivers' common status as employees entitled to overtime wages that must be proven. Cf
Myers v. Hertz. Corp., 624 F.3d 537, 548 (2d Cir. 2010) (resolution of overtime claim not only
requires a showing that the plaintiffs were denied overtime, but also that they were "entitled to
overtime under FLSA"). Accordingly, in order to satisfy the commonality requirement, Plaintiff
must prove his ability to "generate common answers" to the common question of the putative
class members' employment status. Dukes, 131 S. Ct. at2551.
Under the NYLL, "the critical inquiry in determining whether an employment
relationship exists pertains to the degree of control exercised by the purported employer over the
results produced or the means used to achieve the results." Bynog v. Cipriani Grp., 1 N.Y.3d
193, 198 (2003) (citations omitted). In conducting this inquiry, courts may consider a number of
factors, including whether "the worker (1) worked at his own convenience, (2) was free to
engage in other employment, (3) received fringe benefits, ( 4) was on the employer's payroll and
(5) was on a fixed schedule." Id.. (citing Lazo v. Mak's Trading Co., 84 N.Y.2d 896, 897
(1994); Bhanti v. Brookhaven Mem. Hosp. Med. Ctr., 260 A.D.2d 334, 335 (2d Dep't 1999)). In
the misclassification context, however, the third and fourth Bynog factors have only limited
impact-after all, it is the Defendants' refusal to pay fringe benefits or include the workers on
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 6 of 15
their payroll that is being challenged. See Hernandez v. Chefs Diet Delivery, LLC, 915 N.Y.S.2d
623, 626 (2d Dep't 2011) (citing Araneo v. Town Bd. of Clarkstown, 865 N.Y.S.2d 281, 283-84
(2d Dep't 2008)) (parties' own designation of their relationship as an independent contractor or
employer-employee relationship in internal documents and tax forms as may be considered but
"is not dispositive"); Ansoumana v. Gristede 's Operating Corp., 255 F. Supp. 2d 184, 190
(S.D.N.Y. 2003) ("An employer's characterization of an employee is not controlling, however,
for otherwise there could be no enforcement of any minimum wage or overtime law."). These
factors are nonexclusive, and the "[ c ]ontrol over the means [used to achieve the results] is the
more important factor to be considered." Hernandez, 915 N.Y.S.2d at 625 (citing In re Ted is
Back Corp., 64 N.Y.2d 725, 726 (1984)). With these principles in mind, the Court considers
Plaintiff's asse1iion that the putative class members' status as '"employees' (not independent
contractors) under the NYLL" is a common question capable of being answered through
classwide proof. Pl. Mem. (Rule 23) 17.
The first and fifth Bynog factors, concerning whether workers "worked at [their] own
convenience" or "on a fixed schedule," 1 N.Y.3d at 198, appear to be incapable of classwide
proof. There is, for instance, no evidence that the drivers' schedules were set according to a
"centrally derived" policy. Cf Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 159, 156
(S.D.N.Y. 2008) (finding commonality requirement met where "there [were] significant elements
of proof that [were] common across all class members," such as a central document "lay[ing] out
in some detail the duties of the [putative class members]"); Jacob, 289 F.R.D. at 415 (finding
commonality met where putative class members "carr[ied] out their duties ... pursuant to a
uniform policy, uniform training, uniform job description, and uniform procedures"). Nor is
there otherwise evidence that putative class members were subject to a uniform scheduling
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 7 of 15
policy. Instead, the Court has been presented with evidence that these factors will require
individualized proof, as the declarations submitted by the parties reveal that the degree of control
actually exercised over the class members' schedules varied from individual to individual, and
even from facility to facility. Compare Swartz Deel. Ex. 0 (Amuaku Deel.)~~ 23-24 (former
driver was "told ... to report to work at approximately 7:00 a.m., Monday through Friday" and
"was required to notify Robert at A-1" if he was going to be late); with Swartz Deel. Ex. X.
(Espinal Deel.) (former driver "was not initially given a schedule at the Manhattan distribution
center" and was never given a schedule "[a]t the other two distribution centers"). Indeed, it is
undisputed some drivers received a flat fee for working a set shift, see Swartz Deel. Ex. N
(Ouedraogo Dep.) 68: 12-17), while drivers are "paid per [delivery] job," Sevilla Deel. Ex. A
(Ouedraogo Dep.) 65:21-66:3, and have no set schedule, see Swartz Deel. Ex. X (Peter Espinal
Deel.)~ 19 (driver "was not initially given a schedule at the Manhattan distribution center" and
never received a schedule "[a]t the other two distribution centers").
The Court rejects Plaintiffs argument that these variations in the degree of control
exerted over the drivers' schedules "are not relevant to the underlying merits determination." Pl.
Reply (Rule 23) 4. To the contrary, the degree of control actually exerted over a workers'
schedule is a major factor in determining whether he is an employee under the NYLL. In In re
12 Cornelia St., 56. N. Y.2d 895 (1982), for example, the New York Court of Appeals
emphasized that the workers were "permitted to work whatever hours they cho[se]" in finding
that "substantial evidence exist[ed]" to conclude that they were not "employees." Id. at 897-98;
see also Barak v. Chen, 929 N.Y.S.2d 315, 318 (2d Dep't 2011) (finding that workers were not
employees where they "scheduled their own working hours" and "had discretion to reject
dispatches"). Conversely, the requirement that workers comply with a particular schedule is a
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 8 of 15
factor frequently cited in support of a finding of employee status under the NYLL. See, e.g. Hart
v. Rick's Cabaret, 967 F. Supp. 2d 901, 924-26 (S.D.N.Y. 2013) (finding that workers were
employees under NYLL where central guidelines governed the workers' schedules); In re Enjoy
the Show Mgmt., 731 N.Y.S.2d 287, 288 (3d Dep't 2001) (finding that substantial evidence
supported the conclusion that dancers were employee where putative employer "schedule[ d] the
dancers' hours pursuant to its scheduling needs" and "provide[d] time sheets that must be filled
out weekly"); Murphy v. ERA United Realty, 674 N.Y.S.2d 415, 416 (2d Dep't 1998) (finding
that workers had raised a question of fact as to employee status where they were required to
"work at least 40 hours per week"). As these cases demonstrate, the amount of control actually
exerted over the drivers' work schedule is likely to be "significant-and could even be outcome
determinative" with respect to the existence or not of an employment relationship, Saleem v.
Corporate Transp. Grp., Ltd., No. 12-cv-8450 (JMF), 2013 WL 6061340, at *5 (S.D.N.Y. Nov.
15, 2013), and therefore weighs strongly against the conclusion that this issue "is capable of
classwide resolution," Dukes, 131 S. Ct. at 2551.
The second factor, whether the worker was permitted to take up other employment, also
appears unsuited for classwide proof. While Plaintiff has presented some evidence that
provisions in the Owner/Operator Agreement limiting the use of classified information
effectively prevented drivers from "solicit[ing] [the] particular shipping client[s] of the SCI
logistic company client," Swartz Deel. Ex. B (Slack Dep.) 94: 18-23, it is also undisputed that
some A-1 and SCI drivers did work for competitor delivery companies, see Sevilla Deel. Ex. C
(Holguin Dep.) (indicating that he delivered packages for both A-1 and UPS). This too weighs
against a finding that employment status may be proven on a classwide basis.
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 9 of 15
The third and fourth factors, which concern the payment of fringe benefits and payroll
inclusion, do appear to be suited for classwide resolution. The evidence shows that all A-1
drivers and SCI drivers sign substantially similar Owner/Operator Agreements, pursuant to
which they are designated independent contractors and paid as such. See Swartz Deel. Ex. I
(Bartholome Dep) 62:16-20. However, it is the putative class members' designation as
independent contractors that is the subject of this very litigation, and, in this context, these
factors must be assigned only "modest weight." Hart, 967 F. Supp. 2d at 925; see also In re
Erijoy the Show Mgmt. Inc, 731 N.Y.S.2d at 288 (finding that control over schedules, rate of pay,
and equipment was sufficient to support finding of employer-employee relationship,
"notwithstanding the fact that [plaintiffs] [were] required to sign a contract designating them as
independent contractors"). In Murphy v. ERA United Realty, for example, the Second
Department found that plaintiff had raised "a question of fact as to whether [she] was an
independent contractor or an employee," notwithstanding that it was "undisputed that [she]
signed an agreement stating that she was an independent contractor and the company did not
withhold taxes from her commissions or provide employment benefits." 674 N.Y.S.2d at 416.
To otherwise assign great significance to such conduct "would effectively allow any employer to
control, under New York law, a worker's status simply by labeling [him] an independent
contractor and denying [him] employee benefits." Hart, 967 F. Supp. 2d at 925. Thus, the
ability to prove these factors on a classwide basis weighs only slightly in favor of a finding of
Based on the foregoing, the Court finds that Plaintiff has failed to prove by a
preponderance of the evidence that the drivers' status as employees is sufficiently capable of
classwide proof to satisfy the requirement of commonality under Rule 23(a)(2). For while there
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 10 of 15
is evidence that A-1 exerted significant control over the schedules and work days of many
drivers, see, e.g. Swartz Deel. Ex. N. (Ouedraogo Dep.) 66:4-8, 74: 18-20, there is also evidence
that the amount of control varied from individual to individual, and from distribution center to
distribution center, see Swartz Deel. Ex. X (Espinal Deel.)~ 19 (indicating that driver "was not
initially given a schedule at the Manhattan distribution center" and was never given a schedule
"[a]t the other two distribution centers" where he worked). Nor has Plaintiff otherwise proved
that there is potentially dispositive classwide evidence regarding the degree of control exerted by
Defendants, such as evidence of uniform policies regarding reimbursement, mandatory meetings,
vacation policies, training, or other indications of central control over the delivery process. See
Hernandez, 915 N.Y.S.2d at 625 (finding employment relationship to be sufficiently alleged
where "plaintiffs alleged that the defendants ... provided daily delivery manifests ....
reimbursed the drivers for mileage, and required plaintiffs to obtain mandatory meetings, to
obtain approval for vacation time, to undergo approximately one to two weeks of training, and to
refrain from playing loud music while making deliveries); Hart, 967 F. Supp. 2d at 926 (finding
that "written Entertainer Guidelines," which included "detailed and wide-ranging standards of
dancer conduct and dress and performance style," as well as "control of minimum prices charged
to customers for performances" and "threat of disciplinary action" were non-Bynog factors
sufficient to "establish employee status under the NYLL").
These deficiencies cannot be overcome by the common issues that have been identified
by Plaintiff, which are insufficiently "dispositive ... of the degree of control that [Defendants]
actually exercised over each of the putative class members" to demonstrate that employer status
is provable on a classwide basis. Edwards v. Publishers Circulation Fulfillment, Inc., 268
F.R.D. 181, 184 (S.D.N.Y. 2010) (finding that commonality was not established where there was
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 11 of 15
no classwide evidence regarding "the degree of control that [the purported employer] actually
exercised over each of the putative class members," notwithstanding the existence of"forms of
agreement and other standardized documents ... surely pertinent to the analysis"). For even if
common questions regarding the Owner/Operator Agreement, Pl. Reply 5-6, and the requirement
that drivers wear uniforms, Pl. Reply 8, could be resolved on a classwide basis, those classwide
answers would be insufficient to determine the validity of each class members' claim to
employee status "in one stroke," as is necessary in order to establish commonality, a prerequisite
to certification. Cuevas, 526 F. App'x at 21 (quoting Dukes, 131 S. Ct. at 2551). Accordingly,
the Court concludes that the common question of the putative class members' employment status
cannot be answered by classwide evidence, and therefore does not satisfy the requirement of
commonality set forth by Rule 23(a)(2). See Dukes, 131 S. Ct. at 2551.
2. Joint Employer
Plaintiff further argues that he will be able to provide a common answer to the question
of whether "SCI jointly employed its drivers along with their delivery company clients." Pl.
Mem. (Rule 23) 17. In particular, Plaintiff argues that "SCI's joint employer liability will not
vary from driver to driver because SCI admits that it has the same relationship with each driver
and each delivery company in all material ways." Pl. Mem. (Rule 23) 18. SCI counters that "it
had nothing to do with the terms and conditions of work and had no control over such terms and
conditions," SCI. Opp. (Rule 23) 2-3, and had no responsibility for "whether the
Owner/Operators and courier service companies correctly adhered to that Agreement was not
controlled by SCI," SCI. Opp. (Rule 23) 3-4, but does not dispute that it used substantially the
same contract to govern its relationships with each delivery company and driver, see SCI Opp.
13 n.5 (referring to the "pertinent provision" of the Agreement it used with delivery services).
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 12 of 15
While the Court agrees that the central Agreement does provide one piece of common
evidence regarding SCI's status as a joint employer, cf Jacob, 289 F.R.D at 415 (finding that
impact of uniform policies governing job duties on putative class members' status as employees
was suited for classwide resolution), it must nevertheless conclude that Plaintiff has not shown
that the question of SCI' s status as a joint employer can be answered through classwide proof,
see Dukes, 131 S. Ct. at 2551. Under the NYLL, an "employer" is defined to mean any person
or entity "employing any individual in any occupation." N.Y. Lab. Law§ 190(3); see also id.
§ 190(2) (defining "[ e ]mployee" as "any person "employed for hire by an employer"). That is,
an entity's status as an "employer" is inextricably tied with its workers' status as "employees":
as the New York Court of Appeals put it in Bynog, the degree of control test that determines
whether a worker is an employee is "the critical inquiry in determining whether an employment
relationship exists." 1 N.Y.3d at 198 (emphasis added); see also Hart, 967 F. Supp. 2d at 938-
39 (reaching the question of the defendants' status as joint employers only after the plaintiffs'
status as employees had been determined). Cf Irizarry v. Catsimatidis, 722 F.3d 99, 105 (2d
Cir. 2013) (reaching question of whether individual executive was an "employer" under the
FLSA where it was "undisputed" that the "company employ[ ed]" the plaintiff). As previously
discussed, Plaintiff has failed to prove that common questions regarding the putative class
members' status as employees are answerable on a classwide basis, see supra § II, and this
failure forecloses him from providing a classwide answer to the common questions regarding
Defendants' status as employers as well.
Accordingly, the Court finds that SCI's status as a joint employer cannot be demonstrated
through classwide proof, and that it therefore cannot satisfy the requirement of commonality for
purposes of certification under Rule 23. Plaintiff having thus failed to prove the necessary
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 13 of 15
prerequisite of commonality by a preponderance of the evidence, the motion for certification of a
Rule 23 class is denied. The Court does not reach the remaining issues raised in relation to this
Ill. FLSA § 216(b) Certification
The Court turns to Plaintiffs request for conditional certification of a nationwide
collective under the FLSA. Dkt. No. 139. Defendants contend that this "renewed" motion for
conditional certification is procedurally improper. See A-1 Opp. 39; SCI Opp. (FLSA) 13. For
the reasons that follow, the Court agrees with Defendants, and the request is accordingly denied.
As an initial matter, the motion is untimely. At the outset of this case, the parties agreed
and the Court ordered that any motion for conditional certification of a collective action would
be filed "on or before [December 21, 2012]." Dkt. No. 14 i! 6(b). The instant motion was not
filed until November 25, 2013, long after the time permitted for such a motion had elapsed. See
Dkt. No. 139. This is, furthermore, Plaintiffs second motion for conditional certification of a
nationwide class: as previously discussed, on October 28, 2014, the Court certified a narrower
collective including only drivers who had worked at A-1 's facility in Long Island City, and in
doing so expressly declined to certify a broader nationwide class due to Plaintiffs failure to
provide any evidence from drivers outside the Long Island City facility. See Dkt. No. 105.
Unlike the cases cited by Plaintiff, the order denying their request for certification of a
nationwide collective was not issued "without prejudice" to renewal, see, e.g., Guan Ming Lin v.
Benihana Nat'! Corp., 275 F.R.D. 165, 170 (S.D.N.Y. 2011) (addressing renewed motion for
conditional certification of a nationwide collective where previous request had been denied
without prejudice), nor did Plaintiff make such a request for leave to renew following discovery,
see Dkt. No. 78. To the contrary, Plaintiff argued that the evidence then before the Court
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 14 of 15
provided a sufficient basis for the certification of a nationwide collective, see Dkt. No. 78, at 2-8,
an argument that was expressly rejected in the order limiting the collective to the Long Island
City facility, see Dkt. No. 105, at 2 (finding that the proffered evidence "was not sufficient to
support certification of a nationwide collective"). The Court finds that a second motion for
conditional certification is inappropriate under these circumstances, and Plaintiffs renewed
request for conditional certification of a nationwide collective is therefore denied. The Comi
does not reach Defendants other arguments in opposition to this request.
For the foregoing reasons, the Court finds that Plaintiff has failed to meet his burden of
proving that "there are questions of law or fact common to the class" within the meaning of Rule
23(a)(2), and his motion for class certification under Rule 23 is accordingly denied. The Court
further finds that Plaintiffs "renewed" motion for conditional certification is improper, and it is
denied as well. As previously discussed, the parties shall submit a joint letter proposing a
briefing schedule for a motion for decertification within one week of the date of this order. See
Dkt. No. 214.
This resolves Dkt. Nos. 136, 139.
Dated: September \ '& , 2014
New York, New York
nited States District Judge
Case 1:12-cv-05651-AJN Document 228 Filed 09/18/14 Page 15 of 15