Biller v. Cafe Luna of Naples, Inc. et al
Filing
57
OPINION AND ORDER denying as moot 52 Plaintiff's Motion to Conditionally Certify Class and Facilitate Notice to Potential Class Members and dismissing without prejudice 1 Plaintiff's Complaint. See Opinion and Order for details. Signed by Judge John E. Steele on 2/2/2016. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KRISTEN BILLER, on her own
behalf and all similarly
situated individuals,
Plaintiff,
v.
Case No: 2:14-cv-659-FtM-29MRM
CAFE LUNA OF NAPLES, INC., a
Florida profit corporation,
CAFE LUNA EAST, a Florida
limited liability company,
EDWARD
J.
BARSAMIAN,
individually, and SHANNON
RADOSTI, individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiff's Motion to
Conditionally Certify Collective Action and Facilitate Notice to
Potential Class Members (Doc. #52) filed on November 18, 2015.
Defendants filed a Response in Opposition (Doc. #53) on December
2, 2015.
For the reasons set forth below, Plaintiff’s Motion is
denied without prejudice as moot.
I.
Kristen Biller (Plaintiff) initiated this action on November
12, 2014 by filing a Complaint (Doc. #1) on behalf of herself and
all other similarly-situated individuals against Defendants Café
Luna of Naples, Inc., Café Luna East, Edward J. Barsamian, and
Shannon
Overtime
Radosti
Claim)
(collectively,
and
II
(FLSA
Defendants).
Minimum
Wage
Counts
Claim)
I
(FLSA
allege,
respectively, violations of the overtime wage and minimum wage
provisions of the Fair Labor Standards Act of 1938 (FLSA), 29
U.S.C. § 201 et seq.
Count III (Florida Unpaid Wages Claim)
alleges violations of the Florida Constitution and the Florida
Minimum Wage Age (FMWA), Fla. Stat. § 448.110.
Specifically, Plaintiff alleges that, in October 2013, she
began working for Defendants as a restaurant “server” (Doc. #1, ¶
50); that she regularly worked in excess of forty (40) hours per
week (id. ¶ 51); that Defendants did not compensate her at a rate
of one and one-half times her regular rate for time worked in
excess of forty (40) hours per week (id. ¶ 52); and that Defendants
impermissibly took a “tip-credit,” by which they unjustly retained
a portion of her tips and thereby failed to pay her the applicable
minimum wage. (Id. ¶¶ 53-54.)
Plaintiff contends that these wage
violations were willful. (Id. ¶¶ 64-66.)
She also claims that
Defendants failed to maintain accurate time records.
(Id. ¶ 67.)
With respect to both the FLSA Minimum Wage and Overtime
Claims, the Complaint identifies only one group of similarlysituated individuals: “servers.”
(Id. ¶ 63.)
“Servers” are
further defined as “those who performed the same or similar job
duties as one another in that they served Defendants [sic] patrons
food and beverages.”
(Id. ¶ 57.)
Between May 11, 2015 and August
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20, 2015, five individuals (the Opt-ins) filed Consents to Join
this case (Docs. ##27, 32, 38, 39, 50).
No additional Consents
to Join have since been filed, and, in fact, one individual has
withdrawn his (Doc. #49).
Having waited more than one year since filing her Complaint,
Plaintiff now moves for conditional certification of this case as
a collective action under the FLSA. 1
According to the Motion to
Conditionally Certify Collective Action and Facilitate Notice to
Potential Class Members (Motion to Certify), Plaintiff seeks to
facilitate notice to two separate groups of “similarly-situated
individuals.”
With
respect
to
her
FLSA
Minimum
Wage
Claim,
Plaintiff wants to provide notice to “the limited class of Servers
who were not paid at least minimum wages as required by the [FLSA],
because they participated in Defendants’ tip pool with employees
who do not customarily and regularly receive tips, and/or were not
allowed by Defendants to retain all of their tips as required by
the FLSA.”
(Doc. #52, pp. 1-2.)
As for her FLSA Overtime Claim,
1
In addition to asking for conditional certification, Plaintiff
requests that the Court (i) approve her proposed Notice of Lawsuit
with Opportunity to Join (Proposed Notice) (Doc. #52-1); (ii)
permit posting of the approved Proposed Notice inside Café Luna
restaurant; (iii) determine that a three-year statute of
limitations period is appropriate for notice purposes; and (iv)
order Defendants to provide Plaintiff with the names and addresses
of all potential class members.
Although Plaintiff has not
specifically so requested, the Court presumes Plaintiff also seeks
judicial approval of her proposed Consent to Join Collective Action
and Be Represented by Morgan and Morgan P.A. (Doc. #52-2).
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Plaintiff
seeks
to
provide
notice
to
“the
class
of
Servers,
Bussers, Food Runners, and Hostess employees” who were not paid
overtime in accordance with the FLSA.
(Id. p. 2.)
Plaintiff’s
Proposed Notice defines the two classes even more broadly:
Plaintiff seeks to sue on behalf of any and
all Servers employees who have worked for Café
Luna at any time within the past three years
(or who are currently employed by Defendants),
for whom Defendants’ [sic] took the “tip
credit” or paid the Servers wage rather than
the regular minimum wage. The Plaintiff also
seeks to sue on behalf of all hourly-paid
employees who worked in excess of 40 hours in
a workweek in one or more workweeks, but whom
Defendants failed to pay overtime premiums to
for such overtime hours worked.
(Doc. #52-1, p. 2 (emphases added).)
Plaintiff contends that conditional class certification is
warranted because the sum of the “Complaint [sic] allegations,
Defendants’ Answer thereto, Plaintiff’s sworn Declaration, and
those of [the Opt-ins] easily exceeds the applicable burden of
persuasion that a colorable basis exists for determining that
others similarly situated to plaintiff exist.”
(Doc. #52, pp. 11-
12.)
Defendants oppose the Motion to Certify on several grounds.
First, they contend that the proposed number of opt-in plaintiffs
is too small for conditional certification of a class. (Doc. #53,
p. 1.)
any
Second, they highlight Plaintiff’s “fail[ure] to submit
proof
based
upon
personal
knowledge
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that
the
tip
share
arrangement was in violation of [the] FLSA.”
(Id.)
Third, they
disagree with the breadth of the proposed class for the FLSA
Overtime Claim, 2 arguing that “it is clear from the declarations
submitted
that
this
claim
only
involves
employees
simultaneously worked at two Café Luna locations.”
who
(Id. p. 3.)
Finally, Defendants object to Plaintiff’s request to post the
Proposed Notice at Café Luna, as well as to certain substantive
aspects of the Proposed Notice. 3
(Id. p. 4.)
II.
Although Plaintiff’s Motion to Certify is ripe for review, an
obstacle prevents the Court from so doing: Plaintiff’s Complaint
is a shotgun pleading and must, therefore, be dismissed.
The war against shotgun pleadings has been waging in this
Circuit for more than thirty years, and there is “no ceasefire in
sight.”
Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d
1313, 1321 (11th Cir. 2015).
The Eleventh Circuit Court of Appeals
2
It is unclear whether Defendants refer to the Overtime Claim
class that is proposed in the Motion to Certify (“Servers, Bussers,
Food Runners, and Hostess employees” who were not paid overtime in
accordance with the FLSA (Doc. #52, p. 2)), or to the class
described in the Proposed Notice (“all hourly-paid employees” to
whom Defendants failed to pay proper overtime (Doc. #52-1, p. 2)).
3
Defendants incorporate these objections into a “redline” version
of Plaintiff’s Proposed Notice.
The “redline” and a “clean,”
final version are attached to Defendants’ Response as Exhibits B
and C (Docs. ##53-2, 53-3), respectively.
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recently delineated the “four rough types or categories of shotgun
pleadings” that have been filed since 1985:
The most common type — by a long shot — is a
complaint containing multiple counts where
each count adopts the allegations of all
preceding counts, causing each successive
count to carry all that came before and the
last count to be a combination of the entire
complaint.
The next most common type, at
least as far as our published opinions on the
subject reflect, is a complaint that does not
commit the mortal sin of re-alleging all
preceding counts but is guilty of the venial
sin of being replete with conclusory, vague,
and immaterial facts not obviously connected
to any particular cause of action. The third
type of shotgun pleading is one that commits
the sin of not separating into a different
count each cause of action or claim for
relief. Fourth, and finally, there is the
relatively rare sin of asserting multiple
claims against multiple Defendants without
specifying which of the Defendants are
responsible for which acts or omissions, or
which of the Defendants the claim is brought
against.
Id. at 1321-23.
The Eleventh Circuit has also noted that, “[w]hile plaintiffs
have
the
responsibility
of
drafting
complaints
[that
do
not
constitute shotgun pleadings], defendants are not without a duty
of their own in this area. . . . [A] defendant faced with a shotgun
pleading should move the court, pursuant to Rule 12(e), to require
the plaintiff to file a more definite statement.”
n.10.
Id. at 1321
Given the longstanding and unwavering nature of this war,
parties are on notice of, and are expected to comply with, their
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respective duties.
However, where the parties fail to so comply,
the Court has a sua sponte obligation to identify and dismiss a
shotgun pleading.
Plaintiff’s
Id.
Complaint
falls
into
the
first
and
categories of offending pleadings set forth in Weiland.
fourth
Each of
the three Counts incorporate nearly all of the prior allegations,
when incorporation should have been limited to those previous
allegations relevant to that particular claim. 4
See Parker v.
Sonic-FM, Inc., No. 2:10-CV-453-FTM-29, 2010 WL 5477281, at *2
(M.D. Fla. Dec. 30, 2010).
The second problem is that the Complaint treats all Defendants
indiscriminately,
rather
than
attributes
specific
actions
and
allegations to particular Defendants.
The Court acknowledges
Plaintiff’s
operated
argument
that
Defendants
as
“a
joint
enterprise,” but the Complaint never specifies the nature of
Plaintiff’s employment with one or more of the Defendants; rather,
Plaintiff alleges, generally, that “Defendants hired Plaintiff to
work as a non-exempt ‘Server’” (Doc. #1, ¶ 50); that “Plaintiff
worked for Defendants in excess of forty (40) hours within a work
week” (id. ¶ 51); that “Defendants failed to compensate Plaintiff”
4
Plaintiff’s incorporation of paragraphs 1-84 into Count III,
which purports only to state a claim for Defendants’ failure to
pay minimum wages under Florida law, is particularly problematic,
since many of those paragraphs contain allegations relevant to
Plaintiff’s claim for overtime wages under the FLSA (e.g., ¶¶ 51,
52, 55, 60, 79-86).
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for overtime, as the FLSA requires (id. ¶ 52); and that “Defendants
failed to pay Plaintiff at least the applicable minimum wage for
all weeks or hours worked.”
(Id. ¶ 53.)
These vague allegations
do not provide the necessary information to determine, in essence,
who did what.
“Head-scratching about holes left by the shotgun —
which facts support which claim against which Defendant — should
not be the job of the court: the complaint should clearly and
plausibly say so.”
Dubose v. City of Hueytown, No. CV-15-BE-852-
S, 2015 WL 5011383, at *6 (N.D. Ala. Aug. 24, 2015).
Plaintiff’s
Complaint does not.
Rather than identifying the issue and moving to require
Plaintiff to correct these problems, Defendants filed an Answer
(Doc. #15) containing sixteen affirmative defenses, six of which
this Court struck with leave to amend (Doc. #22).
The Court must
nevertheless dismiss the Complaint but will provide Plaintiff the
opportunity
to
replead.
Weiland,
792
F.3d
at
1321
n.10.
Plaintiff has seven (7) days from the date of entry of this Opinion
and Order to file an Amended Complaint, should she so choose.
Defendants have seven (7) days from the date Plaintiff files her
Amended Complaint to respond thereto.
replead,
the
Plaintiff’s
Amended
employment
Complaint
should
relationship
If Plaintiff chooses to
clarify
with
one
the
or
nature
more
of
of
the
Defendants, and each Count should incorporate only those previous
allegations relevant to that particular claim.
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Having dismissed the Complaint, the Court denies Plaintiff’s
Motion to Certify as moot.
However, anticipating that Plaintiff
will file another Motion to Certify once the parties have submitted
their amended pleadings, the Court finds it prudent to note that
it would have denied Plaintiff’s Motion.
The two classes proposed
and the offending activity alleged in the Motion to Certify far
exceed the scope of the one class proposed and the violations
alleged in the Complaint.
Further, the class descriptions and
FLSA violations alleged in Plaintiff’s Proposed Notice are broader
than those in both the Motion to Certify and the Complaint.
Similar incongruities will prove fatal for any future Motion to
Certify.
See Herrera v. U.S. Serv. Indus., No. 2:12-cv-258-FtM-
29DNF, 2013 WL 1610414, at *2-3 (M.D. Fla. Apr. 15, 2013); Pimentel
v. HGA Quest, Inc., No. 2:12-cv-176, 2013 WL 1464273, at *2 (M.D.
Fla. Apr. 11, 2013).
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
Plaintiff’s Complaint (Doc. #1) is DISMISSED without
prejudice.
2.
Plaintiff may file an Amended Complaint within seven (7)
days of the entry of this Opinion and Order.
3.
Defendants have seven (7) days from the date Plaintiff
files an Amended Complaint to respond thereto.
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4.
Plaintiff's Motion to Conditionally Certify Collective
Action and Facilitate Notice to Potential Class Members (Doc. #52)
is DENIED without prejudice as moot.
DONE and ORDERED at Fort Myers, Florida, this 2nd day of
February, 2016.
Copies:
Counsel of Record
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