Chime v. Peak Sec. Plus, Inc.

• Decision Date: 28 September 2015
• Docket Number: No. 13–cv–470 (WFK)(VVP).,13–cv–470 (WFK)(VVP).
• Citation: 137 F.Supp.3d 183
• Parties: Paul CHIME, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, v. PEAK SECURITY PLUS, INC. and Emmanuel Osula, Jointly and Severally, Defendants.
• Court: U.S. District Court — Eastern District of New York

137 F.Supp.3d 183

Paul CHIME, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff,

v.PEAK SECURITY PLUS, INC. and Emmanuel Osula, Jointly and Severally, Defendants.

No. 13–cv–470 (WFK)(VVP).

United States District Court, E.D. New York.

Signed Sept. 28, 2015.

Filed Sept. 29, 2015.

Dana Lauren Gottlieb, Jeffrey M. Gottlieb, Gottlieb & Associates, Douglas Brian Lipsky, Bronson Lipsky LLP, New York, NY, for Plaintiff.

Randolph E. White, White & Wolnerman, PLLC, New York, NY, Raymond Nardo, Attorney at Law, Mineola, NY, for Defendants.

ORDER

WILLIAM F. KUNTZ, II, District Judge:

Plaintiff Paul Chime ("Plaintiff") brought this action on behalf of himself and others similarly situated alleging Defendants Peak Security Plus, Inc. ("Peak Security") and Emmanuel Osula ("Osula") (collectively, "Defendants") violated the Fair Labor Standards Act of 1938 ("FLSA") and New York Labor Law ("NYLL") by failing to pay Plaintiff, as well as others similarly situated, overtime wages for hours worked in of forty per week and compensation for work performed "off-the-clock." Dkt. 61 ("Compl."). On September 9, 2013, Plaintiff filed a motion for conditional certification of a collective action. Dkt. 23 ("Motion to Certify"). On September 5, 2014, Defendants filed a Motion to Dismiss. Dkt. 67 ("Motion to Dismiss").

On September 9, 2015, Magistrate Judge Viktor V. Pohorelsky filed a Report and Recommendation ("Report and Recommendation") recommending the Court conditionally certify Plaintiff's proposed collective action, authorize notice to be issued to putative collective members, approve Plaintiff's proposed Notice and Consent forms, and grant Plaintiff's motion for class certification and appoint Plaintiff's current counsel as class counsel. Dkt. 84 ("R & R") at 213–14. Magistrate Judge Pohorelsky further recommended that the Court deny Defendants' motion to dismiss in its entirety. Id. at 213. Objections to the Report and Recommendation were required to be filed within fourteen days of the Report and Recommendation. Id. at 214; Fed.R.Civ.P. 72(b)(2). On September 23, 2015, Defendants filed objections to the Report and Recommendation on two grounds. Dkt. 85 ("Defendants' Objections to the R & R"). On September 24, 2015, Plaintiff filed objections to the Report and Recommendation on one ground. Dkt. 87 ("Plaintiff's Objections to the R & R").

DISCUSSION

In reviewing a Report and Recommendation, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "When objections to a magistrate judge's report and recommendation are lodged, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error." Praileau v. Cnty. of Schenectady, 09–CV–0924, 2010 WL 3761902, at *1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.) (adopting Report and Recommendation of Magistrate Judge George H. Lowe) (internal quotations marks and citations omitted).

Here, Defendants filed objections to the portions of the Report and Recommendation which did not dismiss Plaintiff's class action claims and which granted Plaintiff's motion for equitable tolling of the statute of limitations. Defendants' Objections to the R & R. However, because Defendants' objections "merely recite the same arguments presented to [Magistrate Judge Pohorelsky]," the Court need only review the Report and Recommendation for clear error. Praileau, 2010 WL 3761902, at *1 ; compare Defendants' Objections to the R & R with Dkt. 28 ("Memorandum in Opposition to Certification") at 12–13 and Dkt. 83 ("Supplemental Submission in Opposition to Certification") at 1–2.

Plaintiff filed one objection to the Report and Recommendation, arguing the statute of limitations should have been tolled from September 9, 2013, the date Plaintiff filed the Motion to Certify, and not July 23, 2015, the date Plaintiff submitted a request for equitable tolling. Plaintiff's Objections to the R & R at 3–8. As this objection was not previously presented to the Magistrate Judge, the Court reviews Plaintiff's objection under the de novo standard. Praileau, 2010 WL 3761902, at *1.

The Court finds there was no clear error in the Report and Recommendation's determination that Defendants' motion to dismiss be denied. The Court further finds that there was no clear error in the Report and Recommendation's determination that the Court "conditionally certify [P]laintiff's proposed collection action under 29 U.S.C. § 216(b), authorize notice to be issued to putative collective members, and subject to the revisions set forth in Section III.D [of the Report and Recommendation], approve [Plaintiff's] proposed Notice and Consent forms[,]" and "grant the [P]laintiff's motion for class certification and appoint [P]laintiff's counsel as class counsel." R & R at 40–41.

With respect to the equitable tolling issue, the Court, notes that while the Report and Recommendation of Magistrate Judge Pohorelsky addresses this relatively open area of the law with a perfectly appropriate approach, this Court considers it a slightly closer call. Given Plaintiff's overall steadfast due diligence during the pendency of these motions, the balance of equities requires granting equitable tolling from September 9, 2013, the date Plaintiff filed the Motion to Certify. See Kassman v. KPMG LLP, 11–CV–3743, 2015 WL 5178400, at *8 (S.D.N.Y. Sept. 4, 2015) (Schofield, J.) (there is no bright line rule for equitable tolling as to length of tolling)

The Court therefore adopts the conclusions of Magistrate Judge Pohorelsky's Report and Recommendation with the exception that Plaintiff's statute of limitations shall toll as of the date of the filing of the Motion to Certify—September 9, 2013. See Motion to Certify.

SO ORDERED.

REPORT AND RECOMMENDATION

POHORELSKY, United States Magistrate Judge:

Currently pending before the court are motions by both the plaintiff and the defendants concerning the Second Amended Class Action Complaint ("SACAC"). The SACAC's principal allegations are that the defendants failed to provide the plaintiff (as well as other similarly situated employees of the defendants) overtime premiums for hours worked in excess of forty per week, and did not compensate him for work performed "off-the-clock," in violation of the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). The defendants have moved to dismiss the SACAC, pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiff, on the other hand, has moved for conditional certification of a collective action with respect to the FLSA claims, and for class certification with respect to the NYLL claims. The Honorable William F. Kuntz has referred all of the motions to me for a report and recommendation. For the reasons that follow, I recommend that the defendants' motion be denied, and that the plaintiff's motions be granted.

I. BACKGROUND

Plaintiff Paul Chime ("Chime") initiated this action by filing his initial complaint on January 28, 2013. An amended complaint was filed on April 12, 2013, which the defendants then moved to dismiss. Several months thereafter, the plaintiff moved for conditional collective and class certification. The plaintiff then sought, and was granted, leave to file a second amended complaint, which he did in June 2014. The defendants now move to dismiss the Second Amended Class Action Complaint ("SACAC") for failure to state a claim.

According to the SACAC, Chime was employed as a security guard by defendant Peak Security—of which defendant Emmanuel Osula is President and Chief Executive Officer—from September 2009 through November 2011. During this time, Chime's regular work schedule consisted of five eight-hour shifts per week, for a total of forty hours per week. The plaintiff alleges, however, that he (and the class and collective action members) often worked in excess of forty hours per week. This primarily occurred as a result of three discrete conditions. First, security guards were asked to cover a co-worker's shift, resulting in that guard working six to eight hours beyond his regular weekly schedule. Second, pursuant to the defendants' policy that guards must arrive at their posts at least fifteen minutes before their shifts began, Chime worked approximately fifteen extra minutes for each shift. Finally, Chime allegedly worked extra hours when his co-workers failed to arrive in time for their scheduled shifts. This occurred as a result of the defendants' policy that guards were not permitted to leave their post until they were relieved.¹

The crux of the plaintiff's allegations is that, despite knowing that Chime and similarly situated employees were working in excess of forty hours per week, the defendants did not compensate them accordingly. The claim has several components: (1) that defendants did not pay Chime (and upon information and belief, the class and collective action members) the overtime premium of one-and-a-half times their regular hourly rate; (2) that the defendants did not compensate its workers at all for hours worked beyond forty per week; and (3) that the defendants paid for hours worked in excess of forty, but paid only $9.00 per hour for overtime work, as opposed to $12.00 per hour for work during regularly scheduled shifts. The plaintiff also alleges that the defendants failed to provide adequate wage statements.

Chime has brought five claims against the defendants. The first two are brought pursuant to the FLSA, one for unpaid overtime (which appears to correspond with the allegations that the defendants failed to pay overtime premiums or paid less than the normal rate of $12.00 per hour) and the other for unpaid "off-the-clock" work (which presumably relates to the allegations that the defendants did not...