Lujan v. Cabana Mgmt.

Opinion

 [*56]  MEMORANDUM AND ORDER

ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:

Plaintiff Gerardo Valdez Lujan ("Lujan") and several "opt-in" plaintiffs (collectively, "plaintiffs") bring this lawsuit against defendants Cabana Management, Inc. ("Cabana") and Glenn Frechter (collectively, "defendants") to recover minimum wage and overtime payments allegedly due to Lujan and other current and former employees of defendants, who operate three New York City-area restaurants.

Previously, this Court conditionally certified Lujan's Fair Labor Standards Act ("FLSA") claims as a collective action. See Memorandum and Order (Feb. 1, 2011) ("2/1/11 M&O"), Electronic Case Filing Document Entry ("DE") #55. At the conclusion of discovery, defendants filed a motion to decertify the FLSA collective action. The same day, plaintiffs moved pursuant to Rule 23 of the Federal Rules of Civil Procedure ("FRCP"), to certify as a class action their state law claims arising out of New York's Labor Law ("NYLL").

In support of and in opposition to these motions, both parties submitted copious evidence, including, inter alia, time records,  [**3] deposition testimony, and numerous declarations from current and former Cabana employees and managers. Currently pending before this Court are three motions to strike various portions of this evidence. See Order (Dec. 8, 2011), DE #184; Order (May 16, 2012), DE #193.

First, defendants move to strike thirteen declarations filed by plaintiffs in support of their Rule 23 motion, on the grounds that (1) plaintiffs failed to provide the declarations prior to the close of discovery; and (2) the declarations are cookie-cutter, contain inadmissible hearsay and are not based on personal knowledge. Second, defendants seek to strike nine other declarations, submitted by plaintiffs in opposition to defendants' motion to decertify the FLSA collective action, citing numerous evidentiary deficiencies, including hearsay and lack of foundation. Finally, plaintiffs cross-move to strike certain evidence relied on by defendants in opposing  [*57] plaintiffs' Rule 23 motion to certify. In particular, pursuant to Rule 37 of the FRCP, plaintiffs move to strike exhibits that rely on documents and evidence that defendants allegedly failed to disclose during discovery. In addition, plaintiffs move to preclude thirty-five  [**4] declarations from individuals not previously identified under Rule 26 of the FRCP, some of whom plaintiffs allege are improperly testifying as experts.

For the reasons detailed below, the Court grants in part and denies in part defendants' two motions to strike, and grants in substantial part plaintiffs' cross-motion to strike.

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