Marquina v. Stout NYC Hospitality Group

Background

The opinion states that the defendants are alleged to operate approximately 15 restaurants as a single enterprise. Marquina began working for the defendants at The Half Pint in June 2011 as a barback, busboy, and food runner, according to his allegations. He transferred to Amity Hall Uptown in or around 2014 and worked there until May 2024. The opinion does not state what his job was at Amity Hall Uptown; the defendants reported that he worked only as a barback there.

Marquina alleges violations of the Fair Labor Standards Act (FLSA) and the New York Labor Law. The alleged violations include use of an invalid tip credit, failure to pay a spread-of-hours premium, and statutory wage-notice violations. He intends to seek conditional certification of an FLSA collective action involving non-exempt front-of-house employees employed by the defendants during the specified period. He also intends to seek certification of a New York Labor Law class involving non-exempt front-of-house and back-of-house employees.

Discovery Dispute

After the initial case-management conference, the parties began exchanging discovery demands. Marquina sought pre-certification discovery for 20% of all prospective class members across half of the defendants’ 15 restaurants. He planned to seek certification of an FLSA collective action before filing a New York Labor Law class motion under Federal Rule of Civil Procedure 23.

The defendants opposed broad discovery. They argued that discovery should be limited to Amity Hall Uptown and to barbacks because Marquina worked at only one restaurant and in one position during the relevant period.

Court’s Analysis

The court explained that courts in the Second Circuit use a two-step process for FLSA collective actions. The first step is conditional certification, an initial decision about whether notice should be sent to potential opt-in plaintiffs who may be similarly situated to the named plaintiff regarding an alleged FLSA violation. At that stage, the plaintiff generally has a modest burden to show that the workers were victims of a common unlawful policy or plan.

The court found that Marquina had not yet met the minimum threshold for discovery covering the other restaurants. Although he alleged in passing that he had worked at a second restaurant more than ten years earlier and alleged that Individual Defendant Martin Whelan owned and operated all 15 restaurants, the court found that these allegations did not establish that Marquina and employees at the other restaurants had the same employment terms and conditions during the relevant period.

The court also found that Marquina had not shown that his employment as a barback was similar to that of all front-of-house employees, such as servers, bussers, food runners, hostesses, and delivery persons. The court noted that he described performing more than 20% non-tipped work but did not allege what tipped work he performed during most of his shifts or what the other employees did. The court therefore declined to authorize broad discovery without factual allegations supporting that the other employees were similarly situated.

Order

The court ordered the defendants, within two weeks, to produce:

The court further ordered the parties to meet and confer about appropriate electronic-discovery searches. Marquina may choose to depose a corporate representative about pay and employment practices at Amity Hall Uptown and may generally ask whether those practices applied to other tipped workers.

Separately, the court directed Marquina to file a letter on November 14, 2025, proposing a schedule for any FLSA conditional-certification motion. The Clerk of Court was requested to terminate the motion at ECF No. 19. The opinion does not state that the motion was granted or denied; it specifies the limited discovery and related next steps described above.