Perez v. Sixth Avenue Restaurant Management LLC ( 2020 )

Jackson lewis. MEMO ENDORSED □□ ee: Page 2 Attorneys at Law Charles v. Nationwide Mut. Ins. Co., No. 09 CV 94 (ARR), 2010 U.S. Dist. LEXIS 143487, at *23 (E.D.N.Y. May 27, 2010) (“the Court follows the prevailing view in this district and ‘refuse[s] to allow discovery of class members’ identities at the pre-certification stage”) (internal citation omitted); Klimchak v. Cardrona, Inc., No. CV 09-4311 (SJF)(ARL), 2010 U.S. Dist. LEXIS 112328, at *4 (E.D.N.Y. Oct. 21, 2010) ) (‘[T]he discovery sought by the plaintiffs is improper because the class has not been conditionally certified, and thus, the plaintiffs' motion to compel is denied.”); Palman v. CVS Caremark, No. CV 10-2075 (JFB)(ARL), 2011 U.S. Dist. LEXIS 102338, at *3 (E.D.N.Y. Sep. 12, 2011) (denying plaintiffs request to compel the production of documents relating to putative class members because a class had not yet been certified and the court’s discretion to order class discovery is limited prior to certification). Given the split in the case law, Defendants submit that the Court should look to the allegations and facts of this particular case to assess the appropriateness of Plaintiffs requests. Plaintiff was employed as an hourly kitchen employee, earning the applicable minimum wage at all times. (DKT 32, § 29). Plaintiff's First Amended Complaint (“FAC”) alleges that multiple corporate entities were her “employer,” an issue which Defendants have raised in their pending Motion to Dismiss Plaintiffs FAC in Part (DKT 39) (“Motion to Dismiss”). Plaintiff's sweeping discovery across all Corporate Defendants is inappropriate at this juncture where the identity of the Defendants in the case has not even been resolved. Additionally, there is no allegation that Plaintiff's wages were ever reduced by a tip credit or that she received tips as a part of her compensation. Yet, she seeks to proceed with class and collective action wage-hour claims on behalf of all non-exempt employees (tipped and non-tipped) allegedly employed by Defendants during the last six years. This is not in dispute as Plaintiff's Opposition to Defendants’ pending Motion to Dismiss states, “Plaintiff never argues that her wage was below minimum wage” and that “Plaintiff never made a claim that her hourly wage rate fell below the minimum wage at all.” DKT 44, at 10-11. This admission 1s significant because it underscores the overbreadth of the pre-certification discovery Plaintiff is seeking. At this pre-certification stage of the case, before the scope of the Defendants in the case is known, or written or documentary discovery as to Plaintiff individually even has been completed, and before any witnesses have been produced by either party for deposition, Plaintiff seeks pre-certification class discovery concerning all non-exempt persons allegedly employed by Defendants in the last six years. By way of example only, Plaintiff's Interrogatory No. 1 seeks “the names, addresses, emails and telephone numbers of all non-exempt persons employed by Defendants (“Covered Employees”), former and current, who worked for Defendants during the last six (6) years.” Similarly, Plaintiff's Interrogatory No. 8 seeks identification of “all documents and spreadsheets that contain the name, title, employment period, compensation rate and weekly work schedules of all Covered Employees that Defendants have employed during the last six years.” However, by Plaintiff's own admission, she is not asserting a minimum wage claim. Further, her FAC does not set forth any specific allegations regarding any other non-tipped or tipped employee. As Plaintiff has conceded that she is not similarly situated to any tipped non- exempt employee allegedly suffered a minimum wage underpayment Plaintiff has no basis to seek discovery on behalf of individuals who Plaintiff admits she is dissimilar to. Ss ee nape Page 3 Attorneys at Law Clearly, Plaintiff seeks pre-certification classwide discovery in order to conduct a fishing expedition from which to pursue claims on behalf of others. This is an improper use of discovery. Pre-certification discovery, when it is granted, is intended to provide the Plaintiff an opportunity to further explore facts of which she 1s already aware; it is not an opportunity to assert baseless allegations of classwide improprieties with the hope that Court will permit Plaintiff discovery to support her allegations. To grant Plaintiff pre-certification class discovery on this record would put the cart before the horse. If nothing else, Plaintiff should be compelled to complete discovery as to her individuals claims so the Court can evaluate what basis, if any, Plaintiff actually has for the collective and class claims she seeks to pursue. This is especially true where Plaintiff is seeking discovery regarding a claim she admits she is not asserting on behalf of a group of individuals to which she admits she is not similarly situated. See Charles v. Nationwide Mut. Ins. Co., No. 09 CV 94 (ARR), 2010 U.S. Dist. LEXIS 143487, at *23 (E.D.N.Y. May 27, 2010) (denying pre-certification Rule 23 discovery because the plaintiff failed to make a showing of "a legitimate need for the requested information”). Here, because Plaintiff admits she is dissimilar to individuals she seeks to represent, the Court should deny her expansive pre- certification discovery requests. We thank the Court for its attention to this matter. Respectfully submitted, JACKSON LEWIS P.C. S/Douglas J. Klein Douglas J. Klein ce: All Counsel (via ECF Plaintiff's motion to compel Defendants to produce class discovery (ECF 55) is DENIED. Given the broad scope of discovery sought, the burden on Defendants, and that Plaintiffs have yet to file a motion for collective certification, such discovery is premature. Plaintiffs’ cited classes do not support such broad pre-certification discovery. See, e.g., Salazar v. Spectrum of Creations, No. 16-cv-653 (VSB), ECF 52 (S.D.N.Y. Sept. 9, 2016) (pre- certification discovery was for only 78 pages). The parties are directed to submit a status letter on September 31, 2020. The parties are also directed to appear for a status conference on January 7, 2021 at 11:00 am; a status letter is due December 31, 2020. The Court will inform parties closer to the conference as to whether it will be telephonic or in-person. The Clerk of Court is respectfully directed to close ECF 55. Ona T. Wang August 3, 2020 US.MJ.