HARRINGTON v. FB HOSPITALITY, LLC et al

Filing 47

MEMORANDUM OPINION re: Plaintiff's 41 Motion for Conditional Certification and Notice; Defendants' 42 Motion to Dismiss Amended Complaint. Signed by Judge Tanya S. Chutkan on 09/26/2024. (lcc)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRENDAN HARRINGTON,
Plaintiff,
v.

Civil Action No. 22-689 (TSC)

DC WINERY, LLC d/b/a FIRST BATCH
HOSPITALITY, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Brendan Harrington sued DC Winery, LLC, along with two of its founders and
owners, Brian Leventhal and John Stires, for violations of the Fair Labor Standards Act
(“FLSA”) and the District of Columbia Minimum Wage Act (“DCMWA”). Before the court are
Defendants’ Motion to Dismiss Amended Complaint, ECF No. 42, and Plaintiff’s Renewed
Motion for Conditional Certification and Notice, ECF No. 41 (“Mot. for Certification”). For the
reasons set forth below, the court will DENY Defendants’ Motion, and will GRANT in part and
DENY in part Plaintiff’s Motion.
I.

BACKGROUND

The court summarized Plaintiff’s allegations and the relevant legal framework under
FLSA and DCMWA in its prior Memorandum Opinion in this case. Harrington v. DC Winery,
LLC, No. 22-689 (TSC), 2023 WL 5561604, at *1–2 (D.D.C. Aug. 29, 2023) (ECF No. 38).
Because Plaintiff’s Amended Complaint does not meaningfully change that summary, the court
will not rehash it in detail here. In short, Plaintiff alleges that while he was employed as a server
and bartender, Defendants violated FLSA and DCMWA by: (1) failing to provide notice of the
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statutes’ tip credits and the operation of the tip pool; (2) requiring contributions to a tip pool with
ineligible participants; (3) deducting more tips than necessary to cover credit card processing
fees; and (4) requiring performance of non-tipped duties beyond what the statutes permit. See
id.; Pl.’s Am. Collective Action Compl. ¶¶ 6–7, ECF No. 40 (“Am. Compl.”).
“Plaintiff brings this action as a collective action under the FLSA to recover unpaid
wages, misappropriated tips, liquidated damages, attorneys’ fees, and costs on behalf of himself
and all others similarly situated.” Am. Compl. ¶ 9. He asks the court to conditionally certify the
collective action class as:
All individuals who worked as bartenders or servers for Defendants in the District
of Columbia at any time during the three (3) year period preceding the filing of this
lawsuit, and who were paid a direct cash subminimum hourly wage.
Mot. for Certification at 5. Plaintiff proposes contacting potential collective members using
several court-authorized notices to be sent by mail, e-mail, and text message. Id. at 14–15; see
id. Exs. 5–7 at App. 015–20. And he asks for an order requiring Defendants to provide “an
Excel file (.xls) containing the names, addresses, e-mail addresses, phone numbers, dates of
employment, and position(s) held of all putative collective members.” Id. at 2.
Defendants raise two objections at this stage. First, they move for partial dismissal of the
Amended Complaint, arguing that it does not plausibly allege that Defendants made illegal credit
card fee deductions from the tip pool. See Defs.’ Mem. in Supp. of Their Mot. to Dismiss Pl.’s
Am. Compl. at 5–7, ECF No. 42-1 (“MTD”). Second, they contend that Plaintiff’s proposed
conditional certification of a FLSA collective action is premature, overbroad, and otherwise
inappropriate for several reasons. See Defs.’ Mem. in Opp’n to Pl.’s Second Mot. for
Conditional Certification and Notice, ECF No. 43 (“Defs.’ Opp’n to Certification”).

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II.

LEGAL STANDARDS

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court
does not assess the truth of what is asserted nor “whether a plaintiff has any evidence to back up
what is in the complaint.” Id. (citation omitted). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (citation omitted). The court therefore
construes the complaint “in favor of the plaintiff, who must be granted the benefit of all
inferences that can be derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471,
476 (D.C. Cir. 2012) (internal quotation marks omitted). This presumption does not apply,
however, to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678
(quotation omitted). Accordingly, a complaint must offer more than “labels and conclusions” or
a “formulaic recitation of the elements of a cause of action.” Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
A plaintiff asserting violations of FLSA and DCMWRA’s minimum-wage provisions
may seek to bring a “collective action” on behalf of themself and other “similarly situated”
employees. 29 U.S.C. § 216(b); D.C. Code § 32-1308(a)(1)(C). Such collective actions are “not
subject to the numerosity, commonality, and typicality rules of a class action under Federal Rule
of Civil Procedure 23.” Thompson v. Linda & A., Inc., 779 F. Supp. 2d 139, 143 (D.D.C. 2011)
(quotation omitted). “Instead, a collective action has only two threshold requirements: The
plaintiff must show that she is similarly situated to the other members of the proposed class, and
those other members must ‘opt in’ to the proposed class.” Id. (quotation omitted). “This
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showing ‘has been described as not particularly stringent, fairly lenient, flexible, and not
heavy,’” and may “be satisfied based on pleadings and affidavits.” Rivera v. Power Design, Inc.,
172 F. Supp. 3d 321, 325 (D.D.C. 2016) (first quoting Dinkel v. MedStar Health, Inc., 880 F.
Supp. 2d 49, 53 (D.D.C .2012); then quoting Blount v. U.S. Sec. Assocs., 945 F. Supp. 2d 88, 93
(D.D.C. 2013)).
“To determine whether a class should be certified under the FLSA, a court will usually
proceed in two steps.” Thompson, 779 F. Supp. 2d at 143. First, the plaintiff “must make a
modest factual showing sufficient to demonstrate that they and potential plaintiffs together were
victims of a common policy or plan that violated the law.” Id. (quotation omitted). If they do,
“the class is ‘conditionally certified’ and the members of the class are given notice of the
collective action and an opportunity to ‘opt in’ to the litigation.” Id. (quotation omitted). Then,
after discovery concludes, the defendant(s) “may move to decertify the class in light of the
record that was developed during the discovery period,” and the court determines whether the
proposed class members are in fact similarly situated. Id. (quotation omitted).
III.

DISCUSSION

A. Motion to Dismiss
Defendants move to “dismiss the Amended Complaint with prejudice insofar as it alleges
Defendants illegally withheld credit card tips.” MTD at 2. Plaintiff originally alleged only that
the credit card tip deduction was “in violation of the amount permitted to be deducted under the
FLSA,” Compl. ¶ 55, ECF No. 1, which the court considered a “legal conclusion couched as a
factual allegation,” Harrington, 2023 WL 5561604, at *5 (quotation omitted). Accordingly, the
court dismissed that part of the Complaint, but granted Plaintiff leave to amend it “to provide
greater specificity (even if estimated) about the amount of tips withheld to cover credit card fees,
or at the very least to allege a basis for his contention that they were excessive.” Id. Plaintiff
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now alleges that “upon information and belief, Defendants unlawfully retained a portion of . . .
tips in excess of the actual credit card processing fees Defendants paid and incurred in their
transactions and with credit card processer.” Am. Compl. ¶ 76.
The amended allegations, while relatively generic, are enough to survive a motion to
dismiss. To be sure, they still do not “show what percentage of tips Defendants allegedly
withheld to offset credit card fees,” such as by detailing “the value of gross tips earned, amount
or percentage of tips Defendants allegedly withheld, or amounts of credit card fees allegedly
incurred.” MTD at 6. But as Plaintiff notes, “the employer is obviously in the best position to
know the terms of its own credit card agreements,” so it makes little sense at the pleadings stage
to require him to guess at “information . . . exclusively in Defendants’ possession.” Pl.’s Opp’n
to Second Mot. to Dismiss at 12, ECF. No. 45 (first quotation citing Widjaja v. Kang Yue USA
Corp., No. 09–CV–2089 (RRM) (CLP), 2011 WL 4460642, at *7 (E.D.N.Y. Sept. 26, 2011)).
More importantly, however, Plaintiff has replaced a legal conclusion about the tip deduction’s
legality with a factual assertion about the deduction’s quantity exceeding the processing fees.
That provides at least some “basis for his contention that [the deductions] were excessive” under
the law. Harrington, 2023 WL 5561604, at *5. The court will therefore deny Defendants’
Motion to Dismiss these allegations.
B. Motion for conditional certification
Plaintiff has met the requirements for conditionally certifying a collective action by
demonstrating that he is similarly situated to the members of the proposed class. Thompson, 779
F. Supp. 2d at 143. That class would include “[a]ll individuals who worked as bartenders or
servers for Defendants in the District of Columbia at any time during the three (3) year period
preceding the filing of this lawsuit, and who were paid a direct cash subminimum hourly wage.”
Mot. for Certification at 5. Plaintiff brought this suit in March 2022, and worked for Defendants
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during that preceding three-year period—from “approximately February 2020 until December
2021.” Am. Compl. ¶ 28. He alleges that Defendants also employed “other individuals as
bartenders and servers” during that three-year period “and paid them all a subminimum wage per
hour.” Id. ¶ 29. He also proffers declarations to that effect from himself and two other
employees. See Pl.’s App’x in Supp. of Mot. for Conditional Certification and Notice, Exs. 1–3
at App. 001–09, ECF No. 41-1. These submissions readily constitute the “modest factual
showing sufficient to demonstrate” that Plaintiff and the other proposed class members “were
victims of a common policy or plan that violated the law.” Thompson, 779 F. Supp. 2d at at
143(quotation omitted).
Defendants’ arguments against certification are unpersuasive. Their contention that it
should wait until the court resolves their Motion to Dismiss is now moot; as explained in the
previous section, the court is denying that motion. See Defs.’ Opp’n to Certification at 4–6. And
there is “no authority” for their claim that “the named plaintiff in a collective action must have
been employed throughout the entire putative class period.” Stephens v. Farmers Rest. Grp., 291
F. Supp. 3d 95, 120 (D.D.C. 2018); see Defs.’ Opp’n to Certification at 6–9. The allegations that
Defendants maintained unlawful policies during the employment of Plaintiff and the other two
declarants means that it is not “pure speculation” that the same policies affected other similarly
situated employees around the same time. Stephens, 291 F. Supp. 3d at 116 (quotation omitted).
That is enough to satisfy Plaintiff’s relatively lenient burden for conditional certification. The
three-year period preceding the filing of this case appropriately bounds the proposed class.
Defendants’ arguments regarding the statute of limitations do not bar certification—at
least at this stage. For starters, they assert that the statute of limitations should be two years
rather than three because Plaintiff has not demonstrated that the allegedly unlawful practices

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were willful. Defs.’ Opp’n to Certification at 9 (citing 29 U.S.C. § 255). But the Amended
Complaint alleges that willfulness, see Am. Compl. ¶ 61, and “when willfulness is disputed,
courts typically apply the three-year limitations period in defining the scope of a collective
action.” Meyer v. Panera Bread Co., 344 F. Supp. 3d 193, 209 (D.D.C. 2018) (quotation
omitted). At the summary judgment stage, Defendants may revisit this issue and seek to prove
that any violations of FLSA or DCMWA were not willful. Similarly, the issue of whether the
statute of limitations should be equitably tolled for any opt-in plaintiffs is best resolved later.
Even assuming that “the statute of limitations continues to run until [opt-in plaintiffs]
affirmatively join the action,” Stephens, 291 F. Supp. 3d at 120, that potentially three-year period
has not yet elapsed for opt-in plaintiffs from the months leading up to this case being filed in
March 2022. And in any event, the court is not well positioned to decide whether equitable
tolling is warranted for any additional plaintiffs until they materialize and show cause for it.
Accordingly, the court will defer consideration of the need for equitable tolling until after the
opt-in period and discovery are complete.
Defendants’ objections to the proposed notice period and method do not prevail either.
First, they seek a “60-day or shorter opt-in period rather than the requested 90 days.” Defs.’
Opp’n to Certification at 12. The cases cited by the parties suggest that opt-in periods between
60 and 90 days are both regularly granted. See id. at 11–12; Pl.’s Reply in Supp. of Renewed
Mot. for Conditional Certification and Notice at 13–14, ECF No. 44 (“Pl.’s Reply for
Certification”). Because Defendants have not articulated any prejudice that would result from
the additional 30 days, the court will grant the full 90 days requested. Second, Defendants
protest the request for employees’ phone numbers and the proposal to notify potential collective
members via text message. Defs.’ Opp’n to Certification at 12–13. Text message notifications

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are especially appropriate for employees with high rates of turnover and address changes, as in
the restaurant industry, and any privacy intrusion can be minimized by limiting the number of
messages sent. See Pl.’s Reply for Certification at 11–13 (collecting cases). Plaintiff’s proposal
of one initial notice and one reminder notice by text message is reasonable.
Finally, the court will grant Defendants’ request for an opportunity to meet and confer
with Plaintiffs regarding the proposed notices. Defendants point out that the notices “contain
several allegations that Plaintiff never made in his Complaint, nor in any pleadings to date:
specifically, the allegations that Defendants required employees to ‘(2) pay for mandatory
uniforms [and] (3) pay for business-related items or expenses (check presenters, pens, or wine
keys).’” Defs.’ Opp’n to Certification at 13 (citing Pl.’s Mot. for Certification, Exs. 5, 6 at App.
015–19). Plaintiff did not respond to that point. Accordingly, the court will order the parties to
meet, confer, and report back with respect to those terms in the notices. Defendants may raise
other concerns with the notices during that conferral, and Plaintiff must consider them in good
faith. But if the parties cannot come to agreement on certain points, the court will look with
disfavor on further substantive objections from Defendants that could have been raised in this
round of briefing.
IV.

CONCLUSION

For these reasons, the court will DENY Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint, ECF No. 42, and will GRANT in part and DENY in part Plaintiff’s
Renewed Motion for Conditional Certification and Notice, ECF No. 41. Specifically, the court
will (1) conditionally certify the collective action class proposed by Plaintiff, (2) approve
Plaintiff’s proposed timing and method of notice, (3) order Defendants to produce contact
information for putative collective action class members within 14 days, and (4) order the parties
to meet and confer regarding the language and formatting of the notices to be sent to potential
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collective action class members, then file a motion proposing the renewed notices and any
objections within 21 days. A corresponding order will accompany this Memorandum Opinion.

Date: September 26, 2024

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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