Doe 1 et al v. POR Enterprises, Inc.

Filing 61

MEMORANDUM OPINION and ORDER granting in part 48 Amended MOTION to Amend/Correct MOTION to Certify Class filed by Jane Doe 2, Jane Doe 1; denying 55 MOTION to Strike Declaration of Stephanie Coleman filed by JAH, LLC; As stated within Miller's Amended Motion for Conditional Certification, 48 , is GRANTED in part, the motion to strike, 55 is DENIED, and Miller's proposed notice, as modified in doc 54 -2 is APPROVED; To facilitate the provis ions of notice, Jimmy's is ORDERED, within 14 days from the date of this order, to provide to Miller's counsel in a mutually agreeable format a list containing the names and addresses of all dancers who worked at Jimmy's Lounge at any time between 9/16/2013, and 9/16/2016. Signed by Judge Abdul K Kallon on 1/5/2018. (KBB)

FILED
2018 Jan-05 PM 01:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BREEANA MILLER, on behalf of
herself and all others similar
situated,
Plaintiffs,

v.
JAH, LLC d/b/a JIMMY’S
LOUNGE
Defendant.

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Civil Action Number
5:16-cv-01543-AKK

MEMORANDUM OPINION AND ORDER
Breeana Miller filed this lawsuit against Jimmy’s Lounge (“Jimmy’s”), on
behalf of herself and others similarly situated, alleging violations of the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq. 1 Doc. 1. Presently before the court is
Miller’s Amended Motion for Conditional Certification, doc. 48. The motion is
fully briefed, docs. 49, 52, 54, and ripe for review. For the reasons stated more
fully below, the motion is due to be granted in part.
I. FACTUAL BACKGROUND
Miller and the putative class members are dancers that worked at Jimmy’s
between September 16, 2013, and September 16, 2016. Docs. 47; 48 at 1. Jimmy’s
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A second Plaintiff referred to as “Jane Doe No. 2,” doc. 1, chose not to pursue her claims after
this court granted the Defendant’s Motion to Require Plaintiffs to Litigate in Their True Names,
doc. 47 at 1 n.1.
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allegedly misclassified Miller and the putative class members as independent
contractors, and does not pay them any wages. Doc. 47 at 5-6. Instead, the putative
class members’ sole income from their work is in the form of tips. Id. at 6. Miller
alleges that the putative class members are employees, rather than independent
contractors, because Jimmy’s promulgates a number of rules that the putative class
members must follow. These rules include requiring the dancers to pay “tip-out”
fees to Jimmy’s management and other non-tipped employees; requiring them to
report to work at specific times and attend a specific number of shifts each week;
setting the prices of private dances; and imposing monetary penalties for absences,
lateness, leaving shifts early, the dancers’ weight, and other aspects of their
physical appearance. Id. at 10-11.
II. CONDITIONAL CLASS CERTIFICATION STANDARD
Section 216(b) of the FLSA authorizes actions for unpaid overtime
compensation against an employer “by any one or more employees for and in
behalf of himself or themselves and other employees similarly situated.” 29 U.S.C.
§ 216(b). Thus, to maintain a collective action under the FLSA, plaintiffs must
demonstrate that they are “similarly situated.” Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1258 (11th Cir. 2008). Further, would-be plaintiffs in a
§ 216(b) collective action must affirmatively “opt in” to the suit. 29 U.S.C.
§ 216(b) (“No employee shall be a party plaintiff to any such action unless he gives
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his consent in writing to become such a party and such consent is filed in the court
in which such action is brought.”). “That is, once a plaintiff files a complaint
against an employer, any other similarly situated employees who want to join must
affirmatively consent to be a party and file written consent with the court.”
Morgan, 551 F.3d at 1259. The FLSA does not provide specific procedures by
which potential plaintiffs may opt in, but the Supreme Court has held that “district
courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) . . .
by facilitating notice to potential plaintiffs.” Hoffman-La Roche Inc. v. Sperling,
493 U.S. 165, 169 (1989); see also Haynes v. Singer Co., 696 F.2d 884, 886 (11th
Cir. 1983). Indeed, the Supreme Court has endorsed the practical benefits of FLSA
collective actions, as follows:
A collective action allows . . . plaintiffs the advantage of lower individual
costs to vindicate rights by the pooling of resources. The judicial system
benefits by efficient resolution in one proceeding of common issues of law
and fact arising from the same alleged discriminatory activity. These
benefits, however, depend on employees receiving accurate and timely
notice concerning the pendency of the collective action, so that they can
make informed decisions about whether to participate.
Hoffman-La Roche, 493 U.S. at 170.
The Eleventh Circuit has suggested a two-tiered process for district courts to
manage collective actions. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208,
1218-19 (11th Cir. 2001). At the first stage, called conditional certification or the
“notice” stage, the district court makes a determination, based on the pleadings and
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affidavits on file, of whether it should authorize notice of the action to potential
class members. Id. at 1218. Because the court has minimal evidence, the standard
is lenient. Id. The district court must merely ascertain whether there are other
employees who wish to opt in, and that they are similarly situated to the original
plaintiff “with respect to their job requirements and with regard to their pay
provisions.” Morgan, 551 F.3d at 1259 (quoting Dybach v. Fla. Dep’t of Corr.,
942 F.2d 1562, 1567-68 (11th Cir. 1991)). Indeed, this inquiry “typically results in
‘conditional certification’ of a representative class.” Hipp, 252 F.3d at 1218. If the
court conditionally certifies a class, court-supervised notice of the pendency of the
action is then given to the potential class members, and they are afforded an
opportunity to opt in to the action. Id.
The second stage of the process is activated by the defendant’s filing of a
decertification motion following the completion of discovery. Id. At this stage,
based on a fully-developed record, the court makes a determination of whether the
named plaintiffs and the opt-ins are similarly situated. Id. The plaintiff has a
heavier burden to show similarity at the second stage. Morgan, 551 F.3d at 1261. If
the court finds the plaintiffs are not similarly situated, it decertifies the action,
dismisses the opt-in plaintiffs without prejudice, and the named plaintiffs proceed
to trial on their individual overtime claims. Hipp, 252 F.3d at 1218. At all times,

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the decision to certify an opt-in class under section 216(b) “remains soundly within
the discretion of the district court.” Id. at 1219.
III. ANALYSIS
Miller’s burden for conditional certification hinges on her ability to show
that she and the prospective opt-in plaintiffs are “similarly situated.” Morgan, 551
F.3d at 1259 (citation omitted). The FLSA does not define “similarly situated,” see
29 U.S.C. § 216(b), and while the Eleventh Circuit has refused to adopt a precise
definition, see Morgan, 551 F.3d at 1259, it has provided some guidance. It is clear
that to maintain a FLSA collective action, the named plaintiff or plaintiffs “need
only show that their positions are similar, not identical, to the positions held by the
putative class members.” Grayson v. K-Mart, 79 F.3d 1086, 1096 (11th Cir. 1996).
Yet, the “similarities necessary to maintain a collective action under § 216(b) must
extend ‘beyond the mere facts of job duties and pay provisions.’” Anderson v.
Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007). “Otherwise, ‘it is doubtful that
§ 216(b) would further the interests of judicial economy, and it would undoubtedly
present a ready opportunity for abuse.’” Id. (citation omitted). Essentially, a
plaintiff must demonstrate a “reasonable basis” for her claim of class-wide
discrimination. Grayson, 79 F.3d at 1097. This burden, “which is not heavy, [is
met] by making substantial allegations of class-wide discrimination, that is,
detailed allegations supported by affidavits which successfully engage defendants’
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affidavits to the contrary.” Id. (citation omitted); see also Morgan, 551 F.3d at
1261 (“The district court’s broad discretion at the notice stage is thus constrained,
to some extent, by the leniency of the standard for the exercise of that discretion.
Nonetheless, there must be more than ‘only counsel’s unsupported assertions that
FLSA violations [are] widespread and that additional plaintiffs would come from
other stores.’”) (citation omitted).
Miller contends that she is similarly situated with the putative class, as they
are all dancers that Jimmy’s treats identically in terms of work hours, pay, and
policies. Doc. 49 at 7-9. Jimmy’s does not dispute this. See doc. 52. Rather,
Jimmy’s contends that Miller has failed to produce sufficient evidence that there
are other employees that desire to opt in. Id. at 6-12. Miller counters by attaching
with her reply the affidavit of a putative class member who states that she would
opt in if given the opportunity. 2 Doc. 54-1.

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Jimmy’s seeks to strike this affidavit because it was not served with the Motion for Conditional
Certification, contrary to Federal Rule of Civil Procedure 6(c)(2). Doc. 55. Miller contends that
the affidavit is proper as it rebuts the argument Jimmy’s advanced in its response. Doc. 56.
“Reply affidavits and declarations may contain facts not previously mentioned in the opening
brief, as long as the facts rebut elements of the opposition memorandum and do not raise wholly
new factual issues.” Giglio Sub s.n.c. v. Carnival Corp., No. 12-21680-CIV, 2012 WL 4477504,
at *2 (S.D. Fla. Sept. 26, 2012), aff’d, 523 F. App’x 651 (11th Cir. 2013) (citing Burger King
Corp. v. Ashland Equities, Inc., 217 F. Supp. 2d, 1266, 1280-81 (S.D. Fla. 2002)). The affidavit
is clearly put forward to rebut the argument Jimmy’s raises. Moreover, the affidavit does not
raise wholly new factual issues, as Miller supported her initial motion with three affidavits
asserting that there were other dancers who would opt in to the case if given the opportunity. See
docs. 49-1 at 7; 49-2 at 5; 49-3 at 6. Accordingly, the motion to strike, doc. 55, is due to be
denied.

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“The number of plaintiffs necessary to demonstrate a desire to opt in is not
many, sometimes as few as two, three, or four.” Lemming v. Sec. Forces, Inc., No.
8:10-CV-1469-T-23AEP, 2010 WL 5058532, at *1 (M.D. Fla. Dec. 6, 2010)
(citing Brooks v. A. Rainaldi Plumbing, Inc., 2006 WL 3544737 (M.D. Fla. Dec. 8,
2006); Tyler v. Payless Shoe Source, Inc., No. 2:05-CV-33F(WO), 2005 WL
3133763, at *1 (M.D. Ala. Nov. 23, 2005)). “Even a single affidavit or consent to
join submitted by another individual stating that they are similarly situated and
wish to join the suit is enough to bring the Plaintiff’s contentions above pure
speculation.” Brooks, 2006 WL 3544737, at *2 (citing Guerra v. Big Johnson
Concrete Pumping, Inc., No. 05-14237-CIV, 2006 WL 2290512 (S.D. Fla. May
17, 2006)). Accordingly, the evidence Miller has presented satisfies her lenient
burden at this juncture of the proceedings, and as such, Miller’s motion for
conditional certification of a class of all exotic dancers who worked at Jimmy’s
Lounge during the relevant three year period is due to be granted.
As for notice to the proposed class, Miller eschews the traditional methods
and seeks notice instead electronically. In that respect, Miller requests that
Jimmy’s produce the names, addresses, email addresses, and cellular telephone
numbers of putative class members. 3 According to Miller, electronic notice is

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Miller initially sought the disclosure of social security numbers as well, doc. 49 at 23, but
correctly withdrew this request, doc. 54 at 10.
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appropriate because the putative class members “tend to move [between addresses]
fairly often” and “use [their] cell phones as [their] primary contact, and access text
messages and emails much more than [they] would get regular mail at an address
that may change.” 4 Doc. 49 at 20. Jimmy’s opposes Miller’s request on the
grounds that this information will be used to “stir up litigation” by sending notice
through “serial and redundant” channels of communication. Doc. 52 at 12-13. The
court sides with Jimmy’s at this juncture because it has no basis yet to find that the
traditional method of notice will not reach the prospective class members. For
those prospective class members whose notice the Post Office returns, the court
will consider email communication as an alternative means to reach them.
Although the court will not fully foreclose it yet, the court has serious reservations
about sanctioning text messages as a way to reach the potential class. As counsel
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Miller cites numerous out-of-circuit cases in support of electronic notice. See Landry v. Swire
Oilfield Servs., L.L.C., 252 F. Supp. 3d 1079, 1129 (D.N.M. 2017) (approving class notice by
email and text message to putative class of oilfield equipment operators who may be “dispersed
to various wellsites around the country and may be away from their homes and addresses of
record for weeks or months at a time”); Lynch v. Dining Concepts Grp., LLC, No. 2:15-CV-580PMD, 2015 WL 5916212, at *6 (D.S.C. Oct. 8, 2015) (approving class notice by email to
putative class that included “many seasonal employees,” and by text message where both mail
and email notices were returned as undeliverable); Irvine v. Destination Wild Dunes Mgmt., Inc.,
132 F. Supp. 3d 707, 711 (D.S.C. 2015) (approving class notice by email and text message);
Bhumithanarn v. 22 Noodle Mkt. Corp., No. 14-CV-2625 RJS, 2015 WL 4240985, at *5
(S.D.N.Y. July 13, 2015) (approving class notice by text message to putative class of restaurant
employees due to “high turnover characteristic of the restaurant industry”); Calder v. GGCBaltimore, LLC, No. CIV. BPG-12-2350, 2013 WL 3441178, at *3 (D. Md. July 8, 2013)
(approving class notice by email to putative class of exotic dancers); Butler v. DirectSAT USA,
LLC, 876 F. Supp. 2d 560, 575 (D. Md. 2012) (approving class notice by email); McKinzie v.
Westlake Hardware, Inc., No. 09-0796-CV-W-FJG, 2010 WL 2426310, at *5 (W.D. Mo. June
11, 2010) (ordering defendant to turn over email addresses and cellular phone numbers of
putative class members to class counsel).
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for Miller know, some individuals have limited phone plans, and unwarranted text
messages may cause these individuals to incur monetary charges. Moreover,
sending potential class members text messages will subject them to the annoyance
of unsolicited messages that Congress passed the Telephone Consumer Protection
Act, in part, to address. In any event, Miller has leave to raise the issue of
electronic notice again in a later motion, if warranted, to address notices that are
undeliverable.
Finally, Jimmy’s challenges the text of the proposed notice. According to
Jimmy’s, the proposed notice is inadequate to properly inform the putative
collective class members of the posture of the case. Doc. 52 at 14-16. However,
Miller contends that, as to the proposed changes made by Jimmy’s which she
objected to, these changes are either inconsequential or aimed at chilling the
response rate of putative class members. Doc. 54 at 14-15. After considering the
suggested modifications, the court sides with Miller.
IV. CONCLUSION AND ORDER
For the reasons stated above, Miller’s Amended Motion for Conditional
Certification, doc. 48, is GRANTED in part, the motion to strike, doc. 55, is
DENIED, and Miller’s proposed notice, as modified in doc. 54-2, is APPROVED.
To facilitate the provision of notice, Jimmy’s is ORDERED, within fourteen days
from the date of this order, to provide to Miller’s counsel in a mutually agreeable
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format a list containing the names and addresses of all dancers who worked at
Jimmy’s Lounge at any time between September 16, 2013, and September 16,
2016.
DONE the 5th day of January, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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