Perez v. Escobar Construction, Inc.
- Laura Swain
- 1:20-cv-08010
- U.S. District Court · Southern District of New York
- 2
In Perez v. Escobar Construction, Inc., Judge Gorenstein gave plaintiffs one final chance to oppose decertification after finding their filing deficient.
The order directly affected the plaintiffs, who were required to redo their opposition papers and submit supporting evidence. It also affected the defendants by setting a deadline for a reply to the revised filing. The underlying decertification motion remained undecided.
What happened
In Perez v. Escobar Construction, Inc., plaintiffs sued under the Fair Labor Standards Act and several state labor laws. Defendants asked the court to remove plaintiffs from the conditionally approved group lawsuit under the federal law. The court found plaintiffs’ opposition deficient because it filed no supporting evidence, made factual assertions without proper citations, and lacked a required fact section.
The court did not decide the decertification motion. Instead, it ordered plaintiffs to file a revised brief and a declaration attaching admissible evidence by April 7, 2023. Defendants could file a reply by April 14, 2023. The court also stated that plaintiffs’ filing problems would be addressed in a separate order about possible sanctions.
Judge Gorenstein issued the April 4, 2023 order. He declined to treat the decertification motion as unopposed and gave plaintiffs one final opportunity to correct their filings.
The detailed version
- Perez v. Escobar Construction, Inc. · No. 1:20-cv-08010
- Laura Swain
- Apr. 4, 2023
Background
Plaintiffs brought claims under the Fair Labor Standards Act, a federal wage-and-hour law, and the labor laws of New York, Ohio, Kansas, and Indiana. Defendants moved to “decertify” the conditionally approved FLSA collective action. Decertification is the process of removing opt-in plaintiffs from the collective action when they are not sufficiently similarly situated.
Court’s Reasons
The court explained that the decertification motion had to be considered after discovery had produced additional facts, and that plaintiffs had the burden of showing that the opt-in plaintiffs were similarly situated. The court did not reach that question because plaintiffs’ opposition papers were inadequate in three ways:
- Plaintiffs filed no evidence developed in discovery or otherwise.
- The brief made many factual assertions without citations, and some cited materials were inadmissible, including pleadings and a proposed pleading.
- The brief did not include the fact section required by the court’s Individual Rules.
The court noted that plaintiffs had previously been warned about similar failures to comply with the court’s filing rules. It stated that the current deficiencies had needlessly delayed the case and would be addressed in a separate order to show cause concerning possible sanctions. An order to show cause requires a party to explain why a particular action should not be taken.
Order
The court declined to sanction plaintiffs immediately by treating the decertification motion as unopposed. Instead, it ordered plaintiffs to file, by midnight on April 7, 2023, a revised brief and a declaration attaching the evidence cited in the brief. The evidence had to be admissible and could not consist merely of allegations in a pleading. Defendants were permitted to file a reply by April 14, 2023. The order did not grant or deny the decertification motion.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.