Bifulco v. Mortgage Zone, Inc.

262 F.R.D. 209, 15 Wage & Hour Cas.2d (BNA) 973, 2009 U.S. Dist. LEXIS 103979, 2009 WL 3761829
CourtDistrict Court, E.D. New York
DecidedNovember 9, 2009
DocketNo. 09-CV-00260 (JFB)(ETB)
StatusPublished
Cited by47 cases

This text of 262 F.R.D. 209 (Bifulco v. Mortgage Zone, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bifulco v. Mortgage Zone, Inc., 262 F.R.D. 209, 15 Wage & Hour Cas.2d (BNA) 973, 2009 U.S. Dist. LEXIS 103979, 2009 WL 3761829 (E.D.N.Y. 2009).

Opinion

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

Plaintiffs Frank Bifulco and Sam Miller1 (hereinafter, “plaintiffs”) commenced this action on behalf of themselves and others similarly situated on January 22, 2009, seeking unpaid minimum wages and overtime compensation from defendants The Mortgage Zone, Inc.; Alan Breecker; and Jonathan Evans (collectively, “defendants”), pursuant to the Fair Labor Standards Act of 1938, as amended, (“FLSA”), 29 U.S.C. § 201, et seq., as well as New York Labor Law.2 Plaintiffs now move, with respect to Count Three of the complaint, for conditional certification as an FLSA collective action pursuant to 29 U.S.C. § 216(b) (“Section 216(b)”). Plaintiffs [211]*211also move for court authorized notice to all individuals who are similarly situated in this potential collective action and, to facilitate such notice, the production by defendants of a computer-readable data file containing the names, addresses, and telephone numbers of certain of defendants’ former and current employees. For the reasons set forth below, plaintiffs’ motion for conditional certification under Section 216(b) of the FLSA, as well as court authorized notice and the production by defendants of a data file of potential opt-in plaintiffs’ contact information, is granted. However, the scope of such notice shall be limited to only those individuals who are “similarly situated” to the named plaintiffs, as set forth in this Memorandum and Order. The Court further orders that the parties jointly submit a modified notice in accordance with this Memorandum and Order for approval by the Court within thirty (30) days of the date of this Order.

I. Background

A. Facts

Plaintiff Frank Bifulco was formerly employed as a loan officer by defendants from January 2006 to January 2008 and worked at defendants’ office located in Rockville Cen-tre, New York. (Complaint (“Compl.”) ¶ 5; Plaintiffs’ Ex. C at 1.) Plaintiff Sam Miller was formerly employed as a loan officer by defendants and worked at defendants’ office in Hauppauge, New York. Defendant The Mortgage Zone, Inc. (“Mortgage Zone”) is a mortgage bank that provides mortgage banking services to consumers in New York State. (Compl.f 9.) Its headquarters are located in Hauppauge, New York and its offices are located in Long Island, New York. (Id.) Defendant Alan Breecker is the President, Owner, Chairman, and Chief Executive Officer of Mortgage Zone, and has been at all times relevant to the allegations in the complaint. (ComplA 10.) Defendant Jonathan Evans has, at all times relevant, been the Vice President of Mortgage Zone. (Compl. ¶ 11.) The individual defendants are alleged to have exercised operational control and control over significant business functions of Mortgage Zone and to have determined employee compensation, made hiring decisions, and acted on behalf of and in the interest of the company in devising, directing, implementing, and supervising the challenged wage and hour practices and policies relating to loan officers. (Compl.OT 10-11.)

Plaintiffs allege that defendants dictated, controlled, and ratified the wage and hour policies and all related employee compensation policies for their loan officers located in New York. (ComplA 14.) In particular, per defendants’ company-wide policies, plaintiffs and all similarly situated loan officers allegedly did not receive a guaranteed salary or hourly rate for the hours they worked, and they regularly worked more than forty (40) hours per week, including evenings, early mornings, and weekends, without overtime compensation. (Compl. ¶¶ 14-17; Plaintiffs Exs. C-K ¶¶ 7.) Furthermore, according to plaintiffs and similarly situated loan officers, “[defendants did not record the time [they] worked or the time worked by other loan officers. While [they were] employed, [defendants did not have a time keeping system for their loan officers.” (Plaintiffs’ Exs. C-K ¶¶ 10.) Plaintiffs also allege that all loan officers had essentially the same job titles, compensation plans, job descriptions, and job requirements. (Comply 13.) These employees’ primary duty was to “sell home loans by calling prospective customers from [defendants’ office over the telephone, inputting their information into the Mortgage Zone computer database and closing a deal.” (Plaintiffs’ Exs. C-K ¶¶ 5.)

B. Procedural History

Plaintiffs filed this action on January 22, 2009. On July 9, 2009, plaintiffs submitted the instant motion for conditional certification as an FLSA collective action. On October 9, 2009, defendants filed their opposition, and plaintiffs submitted a reply on October 13, 2009. Oral argument was heard on the pending motion on October 30, 2009. The Court has fully considered the submissions of the parties.

II. Discussion

A. Conditional Certification

1. Legal Standard

Section 216(b) of Title 29 provides, in relevant part:

[212]*212Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages .... An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) 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). Section 216(b) of the FLSA provides an employee with a private right of action to recover unpaid overtime compensation and/or minimum wages. See id,.; see also Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F.Supp.2d 101, 103 (S.D.N.Y.2003). “Although the FLSA does not contain a class certification requirement, such orders are often referred to in terms of ‘certifying a class.’ ” Parks v. Dick’s Sporting Goods, Inc., No. 05 Civ. 6590(CJS), 2007 WL 913927, at *3 (W.D.N.Y. Mar. 23, 2007) (quoting Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y.2005)).

To determine whether an action should be certified as an FLSA collective action, a two-step analysis is used. Rubery v. Buth-Na-Bodhaige, Inc., 569 F.Supp.2d 334, 336 (W.D.N.Y.2008) (“Courts utilize a two-step process when analyzing motions to certify a collective action under the FLSA.”). The first step is to determine whether the proposed class members are “similarly situated.” Id.; see also Gjurovich, 282 F.Supp.2d at 105 (“Once the [pjlaintiff makes a colorable claim for relief, the only inquiry necessary is whether the potential plaintiffs to be notified are similarly situated to the named plaintiff.”). At this stage, “the evidentiary standard is lenient,” Rubery,

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262 F.R.D. 209, 15 Wage & Hour Cas.2d (BNA) 973, 2009 U.S. Dist. LEXIS 103979, 2009 WL 3761829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bifulco-v-mortgage-zone-inc-nyed-2009.