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Velez v. Majik Cleaning Service, Inc.

United States District Court, S.D. New York
Jan 18, 2005
No. 03 Civ. 8698 (SAS) (S.D.N.Y. Jan. 18, 2005)


No. 03 Civ. 8698 (SAS).

January 18, 2005

Lloyd R. Ambinder, Esq., Barnes, Iaccarino, Virginia, Ambinder Shepherd, PLLC, New York, New York, for Plaintiffs.

Perry S. Heidecker, Esq., Milman Heidecker, Lake Success, New York, for Defendants.


Gladyz Velez and Nancy Mendez Leal bring this action individually, and on behalf of all other persons similarly situated, against their former employer Majik Cleaning Service, Inc. ("Majik") to recover unpaid overtime compensation. Their claims are based on violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law. Plaintiffs now move to certify their claims under the FLSA as a collective action and seek authorization to send a notice and "opt-in" form to all prospective members. Plaintiffs also move pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) for class certification of their state law overtime pay claims, defining the class as follows:

29 U.S.C. § 201 et seq. In particular, the FLSA requires overtime compensation be paid to non-exempt employees and states that

no employer shall employ any of [its] employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1).

N.Y. Comp. Codes R. Regs. Tit. 12, §§ 142-2.2, 142-2.4. Specifically, section 142-2.2 provides, in relevant part:

An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in and subject to the exemptions of section . . . 13 of . . . the [FLSA]. . . . In addition, an employer shall pay employees subject to the exemptions of section 13 of the [FLSA] . . . overtime at a wage rate of one and one-half times the basic minimum hourly rate.

In addition, section 142-2.4 provides that an employee shall receive one hour's pay at the basic minimum hourly wage rate for any day in which the spread of hours exceeds ten hours or there is a split shift, or both situations occur.

The FLSA provides:

An action to recover . . . liability . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b).

The plaintiffs and all individuals including past or present employees of Majik Cleaning Service, Inc., who performed janitorial, office cleaning, residential cleaning, corporate apartment cleaning and/or other general cleaning work, and all non-administrative work incidental thereto performed by Majik from 1997 through the present. Corporate officers, shareholders, directors, administrative and managerial employees will not be part of the defined class.

For the following reasons, plaintiffs' motions, which are unopposed, are granted but the above class is certified for liability purposes only. Furthermore, the law firm of Barnes, Iaccarino, Virginia, Ambinder Shepherd, PLLC ("BIVAS") is appointed class counsel.


Majik operates a residential and commercial janitorial service which primarily services Manhattan and Jersey City. Beginning in 1997, defendants employed plaintiffs and other members of the putative class to perform janitorial, cleaning and maintenance services to hundreds of residential and corporate apartments and offices in furtherance of its contractual obligations. Between 1997 and 2003, approximately five hundred individuals worked as cleaners and allegedly did not receive overtime compensation for hours worked in excess of forty hours per week, nor did they receive spread-of-hours compensation of an extra hour's pay for work days that exceeded ten hours.

Plaintiffs and members of the putative class are immigrant workers from South and Central America as well as certain West African and Eastern European countries. They do not speak, read or write in English. The named plaintiffs allege that they and the other workers typically worked between fifty and fifty-five hours each week for which they were not properly compensated.


A. Legal Standard

Rule 23 sets forth the requirements for bringing and maintaining a class action in federal court. "`In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.'" While this Circuit has "directed district courts to apply Rule 23 according to a liberal rather than a restrictive interpretation," a court may not grant certification unless it is satisfied, after "`rigorous analysis,'" that the criteria set forth in Rule 23 are met. Plaintiff bears the burden of establishing each requirement for class certification.

See Fed.R.Civ.P. 23.

In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 133 (2d Cir. 2001) (quoting Eisen v. Carlisle Jacquelin, 417 U.S. 156, 178 (1974)).

In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 504 (S.D.N.Y. 1996) (citing Korn v. Franchard Corp., 456 F.2d 1206, 1208-09 (2d Cir. 1972)).

Dodge v. County of Orange, 208 F.R.D. 79, 87 (S.D.N.Y. 2002) (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 (1982)).

See Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y. 2000).

The district court must accept all of the allegations in the pleadings as true on a motion for class certification, and avoid conducting a preliminary inquiry into the merits. Nonetheless, the decision whether to certify a class "`may involve some considerations related to the factual and legal issues that comprise the plaintiff's cause of action.'" Additionally, the presence of an affirmative defense should be considered in determining whether class certification is appropriate.

See In re Indep. Energy Holdings PLC Sec. Litig., 210 F.R.D. 476, 478 n. 5 (S.D.N.Y. 2002).

Pecere, 194 F.R.D. at 69 (quoting D'Alauro v. GC Servs. Ltd., 168 F.R.D. 451, 454 (E.D.N.Y. 1996)). Accord Daniels v. City of New York, 198 F.R.D. 409, 413 n. 5 (S.D.N.Y. 2001) (noting that the court need not rely on bare allegations but "may consider the range of proof necessary to support class certification").

See Visa Check, 280 F.3d at 138; see also Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir. 2000); Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) (explaining that "a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues").

B. Requirements for Class Certification

To be certified as a class under Rule 23, the moving party must satisfy all four requirements of subsection (a). Additionally, the movant must demonstrate that the class is "maintainable" as defined in subsection (b).

1. Rule 23(a)

Rule 23(a) permits one or more members of a class to sue as representative parties 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.

a. Numerosity

Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." "Impracticability does not mean impossibility of joinder, but rather difficulty or inconvenience of joinder." Generally, a class composed of more than forty members satisfies the numerosity requirement. Although 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, the movant "`must show some evidence of or reasonably estimate the number of class members.'" "Where the plaintiff's assertion of numerosity is [based on] pure speculation or bare allegations, the motion for class certification fails."

In re Indep. Energy, 210 F.R.D. at 479.

See Trief v. Dun Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992).

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

See McNeill v. New York City Hous. Auth., 719 F. Supp. 233, 252 (S.D.N.Y. 1989).

Edge v. C. Tech Collections, Inc., 203 F.R.D. 85, 89 (E.D.N.Y. 2001) (quoting Pecere, 194 F.R.D. at 69).


b. Commonality

Commonality requires a showing that common issues of fact or law affect all class members. The commonality requirement may be met when individual circumstances of class members differ, but "their injuries derive from a unitary course of conduct." A single common question may be sufficient to satisfy the commonality requirement. "The critical inquiry is whether the common questions are at the `core' of the cause of action alleged."

See Fed.R.Civ.P. 23(a)(2); see also Trief, 144 F.R.D. at 198.

Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).

See German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537, 553 (S.D.N.Y. 1995).

D'Alauro, 168 F.R.D. at 456. Accord In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 145, 166-67 (2d Cir. 1987).

c. Typicality

A class representative's claims are "typical" under Rule 23(a)(3), where each class member's claims arise from the same course of events and each class member makes similar legal arguments to prove defendant's liability. "While it is settled that the mere existence of individualized factual questions with respect to the class representative's claim will not bar class certification, class certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation."

See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001).

Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990) (citation omitted).

d. Adequacy of Representation

The named plaintiffs must also show that the proposed action will fairly and adequately protect the interests of the class by demonstrating that the interests of the named plaintiffs are not antagonistic to the proposed class members. To do so, proposed class representatives must demonstrate that they have no interests that are antagonistic to the proposed class members. In addition, courts have considered other factors, such as whether the named plaintiffs are familiar with the action, whether they have abdicated control of the litigation to class counsel, and whether they are of sufficient moral character to represent a class.

See Fed.R.Civ.P. 23(a)(4); Banyai v. Mazur, 205 F.R.D. 160, 164 (S.D.N.Y. 2002).

See In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992); see also Robinson, 267 F.3d at 170 (noting Rule 23(a)(4) requires an "absence of conflict" between the named representatives and the class members, as well as "vigorous prosecution").

See 5 James Wm. Moore et al., Moore's Federal Practice § 23.21[4] (3d ed. 2003) (citing Baffa v. Donaldson, Lufkin Jenrette Sec. Corp., 185 F.R.D. 172, 175-76 (S.D.N.Y. 1999), aff'd in part, vacated in part, 222 F.3d 52, 59 (2d Cir. 2000)).

See, e.g., Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998).

2. Rule 23(b)(3)

a. Predominance

"[T]o meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole . . . predominate over those issues that are subject only to individualized proof." The predominance inquiry "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation."

Visa Check, 280 F.3d at 36 (quotation marks and citation omitted).

Moore v. Painwebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002).

This requirement is far more demanding than the commonality requirement of Rule 23(a). Because Rule 23(b)(3) requires that common issues predominate, courts often deny certification where common issues of law are not present or where resolving the claims for relief would require individualized inquiries. To that end, a court evaluating whether a movant has satisfied the requirements of Rule 23(b)(3) must examine both the claims and the defenses. But the fact that a defense "`may arise and affect different class members differently does not compel a finding that individual issues predominate over common ones.'" The relevant inquiry is "not whether a defense exists, but whether the common issues will predominate over the individual questions raised by that defense."

See Amchem Prods Inc. v. Windsor, 521 U.S. 598, 623-624 (1997).

See, e.g., Lewis Tree Serv., Inc. v. Lucent Techs. Inc., 211 F.R.D. 228, 235 (S.D.N.Y. 2002); In re MTBE Prods. Liab. Litig., 209 F.R.D. 323, 350 (S.D.N.Y. 2002).

Visa Check, 280 F.3d at 138 (quoting Waste Mgmt., 208 F.3d at 296).


b. Superiority

The superiority question under Rule 23(b)(3) requires a court to consider whether a class action is superior to other methods of adjudication. The court should consider, inter alia, "the interest of the members of the class in individually controlling the prosecution or defense of separate actions" and "the difficulties likely to be encountered in the management of a class action." 3. Rule 23(g)

As noted in the Advisory Committee's Notes to the 2003 Amendments, "Rule 23(a)(4) will continue to call for scrutiny of the proposed class representative, while [Rule 23(g)] will guide the court in assessing proposed class counsel as part of the certification decision." Thus, adequacy of class counsel is now properly considered under Rule 23(g), rather than Rule 23(a)(4).

If certification is granted, Rule 23(g) provides that the court must appoint class counsel. To that end, the court must consider the following: "[(1)] the work counsel has done in identifying or investigating potential claims in the action, [(2)] counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, [(3)] counsel's knowledge of the applicable law, and [(4)] the resources counsel will commit to representing the class." The court may consider any "other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."

Rule 23(g)(1)(C)(i). See also Drexel Burnham Lambert Group, 960 F.2d at 291 ("[C]lass counsel must be qualified, experienced and generally able to conduct the litigation.") (quotation marks and citation omitted).

Rule 23(g)(1)(C)(ii).


1. Numerosity

A. Rule 23(a)

The size of the putative class is estimated to be approximately five hundred workers, the majority of which are unsophisticated and unaware of their statutory rights. The putative class is sufficiently large that joinder of all members is impracticable and would "make litigation needlessly complicated and inefficient."

See Declaration of Lloyd R. Ambinder, plaintiffs' counsel ("Ambinder Decl.") ¶ 3.

Saddle Rock Partners Ltd. v. Hiatt, No. 96 Civ. 9474, 2000 WL 1182793, at *2 (S.D.N.Y. Aug. 21, 2000).

2. Commonality

The claims of the named plaintiffs and those of the members of the putative class arise from a common wrong: Majik's failure to pay spread-of-hours compensation for work days exceeding ten hours and overtime compensation for work performed in excess of forty hours in any given week. Whether Majik failed to do so is a common question of fact. Furthermore, whether Majik complied with Federal and New York law governing the payment of overtime and spread-of-hours compensation is a common legal question that affects both named plaintiffs and the putative class members. Accordingly, the commonality requirement is satisfied.

3. Typicality

The named plaintiffs' claims are typical of the claims of the members of the putative class. The named plaintiffs and putative class members were employed by Majik to provide residential and commercial janitorial and cleaning services. The named plaintiffs, like members of the putative class, were injured by Majik in the same manner in that they were both underpaid, receiving less compensation than statutorily required. Thus, the claims of the named plaintiffs and the putative class members arise from the same conduct on the part of Majik and are based on the same legal theories. Typicality has therefore been satisfied.

See Ambinder Decl. ¶ 23.

See id.

4. Adequacy of Representation

There is no indication here that the named plaintiffs have any interests that are antagonistic to the potential class members — the named plaintiffs wish to represent their fellow co-workers in a collective attempt to receive the wages due them. As the named plaintiffs and putative class members share this common interest, there is no question as to the adequacy of representation in this matter.

B. Rule 23(b)(3)

1. Predominance

Although the amount of damages for each class member will necessarily differ, common liability issues otherwise predominate. Here, Majik's breach of its statutory duties to pay overtime and spread-of-hours compensation at statutorily required rates is the most significant issue in this litigation. Both the named plaintiffs and putative class members will present evident that they were not paid overtime compensation for hours worked in excess of forty per week or spread-of-hours compensation for work days exceeding ten hours. Thus, whether Majik and the individual defendants breached their legal duties under the FLSA and New York Labor Law are issues that predominate in this case. Accordingly, although individualized damages inquires will become necessary, they do not, at present, bar certification. However, it seems sensible to limit class certification at this stage solely to liability issues.

See Bresson v. Thomson McKinnon Sec., 118 F.R.D. 339, 343 (S.D.N.Y. 1988) (noting, in a case premised on defendant's course of conduct, that although "defendant claims that individual issues predominate because each class member's damages will differ. . . . given the fact that issues pertaining to liability are predominantly common, rather than individual, the fact of individual issues as to damages will not defeat the class. If necessary, the Court can order separate trials on the question of damages.").

See 5 James Wm. Moore et al., Moore's Federal Practice § 23.21[4] (3d ed. 2003) § 23.46[2][a] ("[I]f common questions predominate over individual questions as to liability, courts generally find the predominance standard of Rule 23(b)(3) to be satisfied even if individual damages issues remain. Courts often bifurcate trials into liability and damages phases in order to sever common liability questions from individual damages issues.").

2. Superiority

A class action is superior to other available methods of fairly and efficiently adjudicating the unpaid overtime claims at issue. First, the proposed class members are "sufficiently numerous" and seem to possess relatively small claims "unworthy of individual adjudication due to the amount at issue." Second, there is reason to believe that class members may lack familiarity with the legal system, discouraging them from pursuing individual claims. Thus, the superiority requirement is easily satisfied by the facts in this case.

Dornberger v. Metropolitan Life Ins. Co., 182 F.R.D. 72, 83 (S.D.N.Y. 1999).

There is no indication that the state law overtime claims are unmanageable as a class action under the specific factors set forth under Rule 23(b)(3). That is, class members do not appear to have a strong interest in controlling their own litigation and no other putative class members have filed lawsuits alleging violations of state law.

C. Rule 23(g)

Pursuant to Rule 23(g), a court must determine that appointed counsel will fairly and adequately represent the interests of the class. Here, class counsel are experienced commercial litigators who have successfully represented classes in numerous class actions and have considerable experience in labor law cases similar to the case at bar. Furthermore, BIVAS has dutifully investigated plaintiffs' claims and has presented them in a coherent Class Action Complaint. Finally, BIVAS has agreed to advance all costs of this litigation with the proviso that plaintiffs reimburse class counsel for all expenses should the litigation prove unsuccessful. Thus, I find BIVAS to be adequate and hereby appoint them class counsel.

See Ambinder Decl. ¶ 24 (listing some of the class actions and labor law cases in which BIVAS has represented plaintiffs).

See id. ¶ 28.


For the foregoing reasons, plaintiffs' motions are granted. Plaintiffs' claims under the FLSA are hereby certified as a collective action and class counsel is authorized to send a notice and opt-in form to all class members. The class proposed by class counsel is certified, but for liability issues only. Finally, the law firm of Barnes, Iaccarino, Virginia, Ambinder Shepherd, PLLC is appointed class counsel. The Clerk of the Court is directed to close this motion [Documents # 20 and 24]. A status conference is scheduled for January 24, 2005, at 3:00 p.m. in Courtroom 15C.


Summaries of

Velez v. Majik Cleaning Service, Inc.

United States District Court, S.D. New York
Jan 18, 2005
No. 03 Civ. 8698 (SAS) (S.D.N.Y. Jan. 18, 2005)
Case details for

Velez v. Majik Cleaning Service, Inc.

Case Details

Full title:GLADYS VELEZ and NANCY MENDEZ LEAL, individually and on behalf of all…

Court:United States District Court, S.D. New York

Date published: Jan 18, 2005


No. 03 Civ. 8698 (SAS) (S.D.N.Y. Jan. 18, 2005)

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