Miller v. Spence et al

Filing 38

ORDER GRANTING in part & DENYING in part Plf's 25 Motion to Amend Complaint as set out. Motion is GRANTED, in part, to add Mr. Boyett and Ms. Norwood as named plaintiffs & DENIED, in part, as to adding Ms. Bezerra, Mr. Franks, & Ms. Race. Signed by Judge Callie V. S. Granade on 3/10/2015. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JESSICA MILLER,

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) CIVIL NO. 14-00468-CG-B
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Plaintiff,
vs.
EDWIN J. SPENCE,
EDWIN J. SPENCE, JR.,
PORT II SEAFOOD OYSTER
BAR, INC.,
GULF COAST STEAMER, INC.,
and
THE SHRIMP BASKET, INC.,
Defendants.

ORDER
Before the court is Plaintiff’s Motion for Leave to Add Additional
Named Plaintiffs (Doc. 25). Plaintiff requests to convert five opt-in plaintiffs
to named plaintiffs. For the reasons explained below, the Court finds that
Plaintiff’s motion to amend is due to be granted in part and denied in part.
BACKGROUND
This case arises from a complaint which alleges that Defendants
violated the Fair Labor Standards Act (FLSA) by denying the plaintiff her
lawful wages.1 (Doc. 1). In their answer, Defendants deny any violation of the
FLSA. (Doc. 7 pp. 2 - 3). Defendants admit that Edwin J. Spence owned the
Port II Seafood & Oyster Bar, the Shrimp Basket, and Gulf Coast Steamer.
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FLSA, 29 U.S.C. §201 et seq.

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(Doc. 7, p. 1). Defendants also admit that the plaintiff was a server and
occasional bartender at Port II Seafood & Oyster Bar (operating as “Mikee’s
Seafood”) from March 2013 to December 2013. (Doc. 7, p. 2).
On November 19, 2014, Plaintiff filed a Motion for Conditional
Certification along with sworn declarations and consent forms of two opt-in
plaintiffs, Richard Boyett and Rebeka Norwood. (Doc. 11, Exh. 1). The filing
also included two opt-in consent forms, but no sworn declarations, from
James Franks and Darla Bezerra.(Doc. 11-5, Doc. 11-6).
On January 14, 2015, Plaintiff moved to amend the complaint to add
additional plaintiffs. (Doc. 25). Included in the motion were five signed
consent forms from the opt-in plaintiffs, Richard Boyett, Rebeka Norwood,
James Franks, Darla Bezerra and Amber Race. (Doc. 25, Exh. A). The
Plaintiff seeks to convert these five opt-in plaintiffs to named plaintiffs.
On January 22, 2015, Defendants filed a response opposing the motion
to amend. (Doc. 28). Defendants argue that the transactions and occurrences
amongst the Plaintiff and the five individuals are not substantially similar
because they all worked at different restaurants, at different times, with
different managers and job duties. (Doc. 28 p. 3). The Court now considers
Plaintiff’s motion to amend.

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DISCUSSION
A. FRCP Rule 15(a)
Federal Rule of Civil Procedure 15(a) provides that leave to amend
pleadings “shall be freely given when justice so requires.” See Fed. R. Civ. P.
15(a). The Eleventh Circuit recognized that Rule 15(a) “severely restricts” a
district court’s discretion to deny leave to amend. Sibley v. Lando, 437 F.3d
1067, 1073 (11th Cir. 2005). “Unless a substantial reason exists to deny leave
to amend, the discretion of the District Court is not broad enough to permit
denial.” Florida Evergreen Foliage v. E.I. DuPont De Nemours and Co., 470
F.3d 1036, 1041 (11th Cir. 2006) (citation omitted). That said, leave to
amend can be properly denied under circumstances of “undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of
amendment.” Equity Lifestyle Properties, Inc. v. Florida Mowing and
Landscape Service, Inc., 556 F.3d 1232, 1241 (11th Cir. 2009) (citation
omitted).
There is no indication of any bad faith or dilatory motive on the part of
the movants, and the amendment does not appear to be futile. In this case,
for the Court to deny the request, the amendment must result in undue
prejudice to the opposing party. Defendant asserts that allowing the
additional plaintiffs will result in “the same unmanageable situation that the

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Court should avoid by denying conditional certification.” (Doc. 28 p. 2). A
hypothetical unmanageable situation for the Court does not demonstrate any
type of undue burden to the Defendants themselves. However, in this case,
prejudice may arise from the joinder of some of these opt-in plaintiffs without
adequate evidence of how their case relates to the named plaintiff. Therefore,
the Court must also consider joinder rules.
B. FRCP 20 (a)(1)
Federal Rule of Civil Procedure 20 (a)(1) concerns the permissive
joinder of plaintiffs to an action. Although the plaintiff does not discuss this
rule in her motion (Doc. 25), Defendants argue that the addition of the
proposed plaintiffs violates joinder rules. (Doc. 28, pp. 2 -6). The relevant
language of Rule 20 is plain and unambiguous:
Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences;
and
(B) any question of law or fact common to all plaintiffs will arise in
the action.
Fed.R.Civ.P. 20(a)(1).
Courts are encouraged to entertain “…the broadest possible scope of action
consistent with fairness to the parties; joinder of claims, parties and remedies
is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
724, (1966). “Rule 20 permits ‘the joinder of a person who has some interest

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in an action ..., even when that interest is not so strong as to require his
joinder’ under Rule 19.” Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009)
(citing Field v. Volkswagenwerk AG, 626 F.2d 293, 299 (3d Cir. 1980)).
Defendants assert that the additional plaintiffs are not similarly
situated because they did not work at the same restaurants. (Doc. 28 pp. 4 –
6). However, after reviewing the Defendants’ opposition to Plaintiff’s Motion
for Conditional Certification, it does appear that the restaurants are similar.
While the ambience of each location may vary, all three locations have the
same owner and at each of these locations servers were paid $2.13 per hour
plus tips with a requirement of donating between one and a half and two
percent to a tip pool. (Doc. 24 pp. 4 – 10). Furthermore, at each restaurant,
opt-in and named plaintiffs allege they performed tasks off-the-clock -- time
for which they were not paid. (Doc. 11).
This Court will allow the addition of the opt-in plaintiffs who are
clearly similarly situated to the named Plaintiff Jessica Miller. The Court
will deny the addition of opt-in plaintiffs for which there is not enough
evidence to indicate a similar series of events or transactions.
1. Richard Boyett
Included in the Motion for Certification (Doc. 11) is a sworn declaration
from Mr. Richard Boyett concerning his experience while working at Mikee’s
in Gulf Shores. (Doc. 11-2). Mr. Boyett and Ms. Miller both worked at the
Gulf Shores Mikee’s and their declarations about employment are very

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similar. Mr. Boyett worked as a server and later, a manager for about a year
and a half. (Doc. 11-2, p.1). Both Mr. Boyett and Ms. Miller were paid a
starting salary as servers of $2.13/hour plus tips. They also allege that the
Defendants required them to contribute a certain percentage of their tips to a
pool for non-tip employees. Finally, both Ms. Miller and Mr. Boyett claim the
Defendants required them to work without pay before they clocked in and
after they clocked out. The Court is not ruling on the merits of these
allegations, but rather noting the similarities between the parties’
allegations. Because the claims arise from similar transactions, Mr. Richard
Boyett may be named as a plaintiff.
2. Rebeka Norwood
Included in the Motion for Certification (Doc. 11) is a sworn declaration
from Ms. Rebeka Norwood concerning her experience while working the
Shrimp Basket. (Doc. 11-1). Ms. Norwood worked as a server at three Shrimp
Basket locations for about a year. (Doc. 11-1, p.1). While Ms. Norwood did not
work at Mikee’s like Ms. Miller and Mr. Boyett, her allegations against the
Defendants are extremely similar. Like Ms. Miller, she was paid $2.13 per
hour plus tips and claims the Defendants required her to contribute to a tip
pool with non-tipped employees and work unpaid time before she clocked-in
and after she clocked out. (Doc. 11-1, p. 2 – 4). Though Ms. Norwood worked
at a different restaurant, the allegations are substantially similar to those of
the named Plaintiff and therefore, Ms. Norwood may be named as a plaintiff

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in this action. Again, the Court is not ruling on the merits of these
allegations.
3. Darla Bezerra, James Franks and Amber Race
The claims of Darla Bezerra, James Franks and Amber Race are not as
clearly aligned with those of the Plaintiff. Rather than providing declared,
sworn statements, Plaintiff merely filed “opt-in” consent forms for Ms.
Bezerra, Mr. Franks and Ms. Race. (Doc. 25-5, Doc. 25-6, Doc. 25-7).
These forms are not sworn declarations and are not notarized. (Doc.
25-5, Doc. 25-6, Doc. 25-7). Mr. Franks’ and Ms. Race’s forms, though
completed in the entirety, do not provide enough information about their
shifts and required duties to indicate claims arising from a series of similar
transactions as required by FRCP 20(a)(1).
Furthermore, Ms. Bezerra’s form is not complete. (Doc. 25-5). Ms.
Bezerra wrote the Defendants paid her $2.13 per hour, but did not write at
what location(s) she worked for seven years. Ms. Bezerra also did not indicate
whether she was forced to participate in a tip pool with non-tipped
employees, a central element to the Plaintiff’s FLSA claims. (Doc. 25-5).
Even applying the “broadest scope of action” standard, there is not
enough information provided to indicate that these three opt-in plaintiffs’
claims arise from the similar series of facts as those of the Plaintiff, Ms.
Miller. United Mine Workers of Am. v. Gibbs, 383 U.S. at 724. Therefore, the

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Court DENIES the addition of opt-in plaintiffs Ms. Bezerra, Mr. Franks and
Ms. Race as named plaintiffs.
Accordingly, Plaintiff’s motion to amend the complaint (Doc. 25), is
GRANTED, in part, to add Mr. Boyett and Ms. Norwood as named plaintiffs
and DENIED, in part, as to adding Ms. Bezerra, Mr. Franks and Ms. Race.
DONE and ORDERED this 10th day of March, 2015.

/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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