Biller v. Cafe Luna of Naples, Inc. et al

Filing 79

OPINION AND ORDER denying 62 Plaintiff's Renewed Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members. Signed by Judge John E. Steele on 7/12/2016. (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 Renewed
Motion to Conditionally Certify Collective Action and Facilitate
Notice to Potential Class Members (Doc. #62) filed on February 23,
2016.

Defendants filed a Response (Doc. #65) in Opposition on

March 8, 2016.

For the reasons set forth below, the Renewed Motion

is denied.
I.
Kristen Biller (Plaintiff) initiated this action on November
12, 2014 by filing a three-count Complaint (Doc. #1) on behalf of
herself

and

other

similarly-situated

individuals

against

Defendants Café Luna of Naples, Inc., Café Luna East, Edward J.

Barsamian, and Shannon Radosti (collectively, Defendants).

The

Complaint alleged violations of Section 216(b) of the Fair Labor
Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., and of
Article X, Section 24 of the Florida Constitution, as implemented
by the “Florida Minimum Wage Age” (FMWA), Fla. Stat. § 448.110.
The Court dismissed the Complaint sua sponte because it was a
shotgun pleading.

(Doc. #57.)

Having dismissed the Complaint,

the Court also denied without prejudice as moot Plaintiff’s pending
Motion to Conditionally Certify Collective Action and Facilitate
Notice to Potential Class Members (Doc. #52).

Without addressing

the arguments raised in Defendants’ Response in Opposition (Doc.
#53), the Court noted that it would have denied the Motion anyway:
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.
(Doc.

#57,

p.

incongruities
Certify.”

9.)

The

w[ould]

Court

prove

also

fatal

observed

for

any

that

future

“[s]imilar
Motion

to

(Id.)

Plaintiff filed an Amended Complaint (Doc. #58) on February
5, 2016.

Like the original Complaint, the Amended Complaint

alleges violations of the FLSA and the FMWA and is filed on behalf
of

Plaintiff

and

those

similarly-situated.

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Specifically,

Plaintiff contends that, in October 2013, she began working for
Defendants as a restaurant “server” (Doc. #58, ¶ 63); that she
regularly worked in excess of forty (40) hours per week (id. ¶
64); and 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 (the Minimum Wage Claim). (Id. ¶ 65.)
Plaintiff also claims that Defendants failed to pay her the correct
“tipped” minimum wage by requiring her to contribute a portion of
her tips to a tip pool and then both illegally retaining a portion
of the tips for themselves and distributing a portion to employees
who were ineligible to participate in the pool (the Overtime Wage
Claim). 1

(Id. at ¶¶ 71-75.)

Plaintiff thereafter filed the at-issue Renewed Motion to
Conditionally Certify Collective Action and Facilitate Notice to
Potential Class Members (Renewed Motion to Certify or Renewed
Motion).

Attached to the Renewed Motion is a Proposed Notice of

Lawsuit which states, under the heading “COMPOSITION OF THE CLASS”:
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
1

She also contends Defendants were not entitled to take a “tip
credit” because they did not “give adequate notice of their
intention to do so as required by 29 U.S.C. § 203(m).” (Doc. #58,
¶ 74.)

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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. #62-1, p. 2.)

As before, Defendants argue that conditional

certification should be denied because the proposed number of optin plaintiffs is too small.

In the alternative, Defendants oppose

certification of a collective action on the Minimum Wage Claim
because Plaintiff has not articulated the basis for her “knowledge”
of an allegedly-illegal tip-sharing practice, and they request
that the proposed Overtime Wage Claim class be limited to only
those employees who worked at both Café Luna locations in the same
workweek.
Resolution of the Renewed Motion to Certify does not require
the Court to address these arguments.

Plaintiff’s second bite at

the conditional-certification apple fails for the same reason as
the first: the class definitions in the Proposed Notice of Lawsuit
do not match the allegations in the Amended Complaint.

The Amended

Complaint states that the Minimum Wage Claim class is “properly
defined as: All ‘Servers’ who worked for Defendants within the
last three years who were required to participate in Defendants’
mandatory tip pools(s).”

(Doc. #58, ¶ 78.)

The language in the

Proposed Notice of Lawsuit is substantially broader and seeks to
sue on behalf of both servers “for whom Defendants’ [sic] took the
tip credit” – which itself is not necessarily the same group of

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servers who were required to participate in a tip pool 2 - but also
on behalf of servers who were paid “wage rather than the regular
minimum wage.”

(Doc. #62-1, p. 2.)

The Amended Complaint neither

alleges that Defendants paid certain servers “wage rather than the
regular minimum wage” nor claims that such a practice violates the
FLSA’s minimum wage provisions - let alone explains what it means
to “pay wage” and not “regular minimum wage.” 3
The same incongruity exists for the Overtime Wage Claim.
According to the Amended Complaint, the class is “properly defined
as: All hourly-paid employees who worked for Defendants at both of
Defendants’ restaurant locations within the same workweek, in one
or more workweeks within the last three years, who worked in excess
of 40 hours per week when the hours worked at both restaurants are
taken together.” (Doc. #58, ¶ 88 (emphasis added).)

Were the

Court to grant Plaintiff’s Renewed Motion to Certify and approve
the Proposed Notice of Lawsuit, however, it is not just those who
worked at both Café Luna locations for a total of more than 40

2

Moreover, whereas a former or current server would certainly know
whether she was/is required to participate in Defendants’ tip pool,
it is not clear to this Court that she would similarly know whether
she is someone for whom Defendants took a tip credit.

3

The class definitions in the Amended Complaint and the Proposed
Notice also differ from that in the Renewed Motion, which includes
not just servers who had to participate in the tip pool, but also
servers who – for whatever reason – “were not allowed by Defendants
to retain all of their tips as required by the FLSA.” (Doc. #62,
pp. 1-2.)

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hours in the same workweek who would be eligible class members,
but rather, “all hourly-paid employees who worked in excess of 40
hours in a workweek” and who were not paid overtime.
1, p. 2 (emphasis added).)
problematic,

since

the

(Doc. #62-

This discrepancy is particularly

Complaint

specifically

alleges

that

“Defendants’ failure to pay proper overtime . . . resulted from a
common policy whereby Defendants failed to combine all hours worked
each workweek at both restaurants . . . and instead only paid . .
. overtime premiums when [employees] . . . worked over 40 hours at
a

single

location.”

4

(Doc.

#58,

¶

86

(emphasis

added).)

Plaintiff’s proposed Overtime Wage Claim class thus not only
exceeds the scope of the Amended Complaint’s allegations, it
contradicts those allegations. 5
The Court previously advised that continued incongruities
would prove fatal to future attempts at conditional certification.
Because

the

discrepancies

Plaintiff’s Renewed Motion.

have

persisted,

the

Court

denies

See Herrera v. U.S. Serv. Indus., No.

2:12-cv-258-FtM-29DNF, 2013 WL 1610414, at *2-3 (M.D. Fla. Apr.

4

The Renewed Motion to Certify, in contrast, contains the
significantly broader allegation that the overtime-wage violations
resulted from “Defendants’ common policy whereby they failed to
pay proper overtime wages to their hourly-paid employees.” (Doc.
#62, p. 2.)
5

Whether the Overtime Wage Claim class is limited to hourly-paid
employees who worked at both Café Luna locations will likely impact
the potential class size, since, according to the Renewed Motion
to Certify, one Café Luna location has ceased operating.

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15, 2013); Pimentel v. HGA Quest, Inc., No. 2:12-cv-176, 2013 WL
1464273, at *2 (M.D. Fla. Apr. 11, 2013).

Should Plaintiff again

seek conditional certification, she should ensure that the class
or classes discussed in the Motion for Conditional Certification
and proposed in the Notice of Lawsuit match the allegations in her
Amended Complaint.
Accordingly, it is hereby
ORDERED:
Plaintiff's

Renewed

Motion

to

Conditionally

Certify

Collective Action and Facilitate Notice to Potential Class Members
(Doc. #62) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 12th day of
July, 2016.

Copies:
Counsel of Record

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