Goers et al v. L.A. Entertainment Group, Inc. et al

Filing 72

ORDER adopting 63 REPORT AND RECOMMENDATIONS re 43 MOTION to Certify Class and Authorization to Send Notice to the Class filed by Tamera Goers, Ashley Cristine Mulligan, 51 Memorandum in support filed by Tamera Goers, Ashle y Cristine Mulligan. The Report and Recommendation of United States Magistrate Judge Carol Mirando 63 is ACCEPTED and ADOPTED to the extent stated herein. Plaintiffs' Motion for Conditional Class Certification and Authorization to Send Notice to the Class 43 is GRANTED in part, Plaintiffs are granted conditional certification under 29 U.S.C. § 216(b) consisting of a class of current and former entertainers that have worked for Babe's in Fort Myers, Florida over the past three years. Plaintiffs' Reply Memorandum of Law in Support of Plaintiffs' Motion to Conditionally Certify a Collective Action Pursuant to 29 U.S.C. § 216(b) and Motion for Declaration of a Class Action as to Minimum Wage Claims Pursuant to Rule 23(b)(3) and Motion for Authorization to Send Notice to the Class (Doc. #51) is DENIED. Plaintiffs must file an amended proposed Notice consistent with this Order, and Judge Mirando's Report and Recommendation, for the Court's consider ation and approval on or before September 19, 2016. On or before September 5, 2016, Defendants will produce, in an electronic readable format to Plaintiffs' counsel, a list containing the full names, stage names, job titles, last known addresses , personal email addresses, telephone numbers, dates of birth, and dates of employment for all putative class members who worked as entertainers for Defendants during the three years preceding the date of compliance. Signed by Judge Sheri Polster Chappell on 8/25/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TAMERA GOERS and ASHLEY
CRISTINE MULLIGAN, individually, and
on behalf of all others similarly situated
Plaintiffs,
v.

Case No: 2:15-cv-412-FtM-99CM

L.A. ENTERTAINMENT GROUP,
INC. and AMER SALAMEH,
Defendants.
/
ORDER1
This matter comes before the Court on consideration of the Honorable Carol
Mirando’s Report and Recommendation (Doc. #63) filed on July 8, 2016. Judge Mirando
recommends that (i) Plaintiffs’ Motion for Conditional Class Certification and Authorization
to Send Notice to the Class (Doc. #43) be granted in part; (ii) that the Court grant
conditional certification of a collective action under 29 U.S.C. § 216(b) to a class of current
and former entertainers who have worked at Defendants’ adult entertainment cabaret
(“Babe’s”) over the past three (3) years; (iii) that Plaintiffs’ Reply Memorandum of Law in
Support of Plaintiffs’ Motion to Conditionally Certify a Collective Action Pursuant to 29
U.S.C 216(b) and Motion for Declaration of a Class Action as to Minimum Wage Claims
Pursuant to Rule 23(b)(3) and Motion for Authorization to Send Notice to the Class (“Reply

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Motion”) (Doc. #51) be denied; (iv) that Plaintiffs should submit an amended proposed
notice for putative collective action members consistent with the Report and
Recommendation; and (v) that Defendants should produce a list containing the full names
and pertinent information of all entertainers that have worked for Babe’s during the last
three (3) years.

Thereafter, Plaintiffs filed their Objections to the Report and

Recommendation (Doc. #66) on July 22, 2016. This matter is ripe for review.
BACKGROUND
This is a wage and hour suit under the Fair Labor Standards Act (“FLSA”), and
Article X, Section 24 of the Florida Constitution. Plaintiffs are entertainers that have
worked at Babe’s, where they allege that they received tips from patrons as their sole
compensation. (Doc. #1, ¶ 3). Plaintiffs further allege that their employment statuses
have been deliberately misclassified, allowing Defendants to avoid minimum wage and
overtime requirements, and that they were forced to share tips with coworkers, such as
disc jockeys, managers, and bouncers. (Doc. #1, ¶¶ 2, 3, 27). Regarding their FLSA
claims, Plaintiffs seek conditional certification as a collective action pursuant to 29 U.S.C.
§ 216(b), and request the Court facilitate notice to potential Plaintiffs. (Doc. #43, ¶ 8). As
to their Article X, Section 24 claim, Plaintiffs seek certification as a class action pursuant
to Rule 23(b)(3) of the Federal Rules of Civil Procedure. (Doc. #51, 4).
LEGAL STANDARD
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate judge’s
report and recommendation. 28 U.S.C. § 636(b)(1); see also United States v. Powell,
A district judge “shall make a de novo

628 F.3d 1254, 1256 (11th Cir. 2010).

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determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also United
States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1 (11th Cir. 2009). The district judge
reviews legal conclusions de novo, even in the absence of an objection. See CooperHouston v. So. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). A district court may not reject
the credibility determination of a magistrate judge without personally rehearing disputed
testimony from the witness. See Powell, 628 F.3d at 1256-58.
DISCUSSION
Plaintiffs object to several conclusions of the Report and Recommendation.
Specifically, Plaintiffs’ counsel argues that they are capable of adequately representing
the interests of the putative class pursuant to Federal Rule of Civil Procedure 23(b)(3);
that the superiority interests of Rule 23(b)(3) are satisfied by adjudicating Plaintiffs’ state
law claims in a class action concurrently with their FLSA claims; and that the Report and
Recommendation does not address whether, or by which methods, Plaintiffs may publish
a notice once amended and approved by the Court.

Having reviewed the underlying

record, the parties’ arguments, and applicable law, the Court finds that the Report and
Recommendation will be adopted to the extent stated herein.
1. How this Action Should Proceed Toward Adjudication
Federal Rule of Civil Procedure 23(b)(3) exists to determine the propriety of bringing
a matter as a class action, and requires that such an action be superior to other methods
for adjudication of a controversy. Fed. R. Civ. P. 26(b)(3); Sacred Heart Health Sys., Inc.
v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1184 (11th Cir. 2010). Courts
throughout the country have examined this requirement, often reaching conflicting

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conclusions in the context of bringing Rule 23 class action suits concurrently with
collective actions brought pursuant to 29 U.S.C. § 216(b). This conflict exists because
Rule 23 provides for a class action mechanism that automatically incorporates members
of the putative class, forcing unwilling participants to opt out; while conversely, the FLSA
does not automatically incorporate members of the putative class, and requires desiring
participants to opt in. LaChapelle v. Owens-Illinois, Inc., 513 F. 2d 286, 289 (5th. Cir.
1975).
Two recently decided cases from district courts in the Eleventh Circuit have
determined that collective action suits brought pursuant to 29 U.S.C § 216(b) are capable
of traveling together with state minimum class action claims brought under Rule 23. See
Kubiak v. S.W. Cowboy, Inc., No. 312-CV-1306-J-34JRK, 2014 WL 2625181, at *1 n.4
(M.D. Fla. June 12, 2014); Espinoza v. Galardi S. Enterprises, Inc., No. 14-21244-CIV,
2016 WL 127586, at *1 (S.D. Fla. Jan. 11, 2016). Others, including this Court, have
determined that such an action is impermissible. See Calderone v. Scott, No. 2:14-cv519-FtM-29CM, 2015 WL 4395623, at *5 (M.D. Fla. July 19, 2015) (citing LaChapelle,
513 F.2d at 289); see also Nadreau v. Lush Cosmetics NY, LLC, No. 2:10-CV-298-FtM99SPC, 2012 WL 3852231 (M.D. Fla. Aug. 13, 2012), report and recommendation
adopted, No. 2:10-CV-00298-FtM, 2012 WL 3853443 (M.D. Fla. Sept. 5, 2012).
Here, Plaintiffs urge the Court to sustain their objection and follow the chorus of other
courts that have determined it is permissible to certify both a collective action under the
FLSA and a class action under Rule 23. In support, Plaintiffs argue that the Supreme
Court has recently provided guidance on the issue in Tyson Foods, Inc. v. Bouaphakeo,
136 S.Ct. 1036 (2016).

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In Tyson Foods, a district court in the Northern District of Iowa certified dual classes
stemming from FLSA claims brought under 29 U.S.C. § 216(b), and state wage claims
under Rule 23. Tyson Foods, 136 S. Ct. at 1041, 1043. Based upon an objection and
appeal from the defendant, who argued that the plaintiffs’ claims were not sufficiently
similar, the matter eventually appeared before the Supreme Court. Id. at 1041. In ruling
on the issue, the Supreme Court addressed both Rule 23 and Section 216(b), but tactfully
limited its decision to the predominance requirement of Rule 23(b)(3). Id. at 1043. That
much was highlighted when the Court stated,
The parties do not dispute that the standard for certifying a
collective action under the FLSA is no more stringent than the
standard for certifying a class under the Federal Rules of Civil
Procedure. This opinion assumes, without deciding, that this
is correct. For purposes of this case then, if certification of
respondents' class action under the Federal Rules was
proper, certification of the collective action was proper as well.
Id. at 1045.
Like Tyson Foods, this case also involves a Plaintiff that has moved to certify
dueling classes. Tyson Foods, 136 S. Ct. at 1043. But the similarity stops there. The
Court is not convinced that dicta in Tyson that merely addresses case-specific facts
underlying class certification is enough to make these cases truly similar.
That said, a similar case does exist. In Calderone the district court was called to decide
whether a plaintiff could conditionally certify an FLSA collective action pursuant to 29
U.S.C. § 216(b), as well as certify Florida wage claims brought pursuant to Rule 23(b)(3)
of the Federal Rules of Civil Procedure. Calderone, 2015 WL 4395623, at *1. Channeling
Lachapelle,2 where the court held that FMWA class actions and FLSA collective actions

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Notably, the Eleventh Circuit has not repudiated LaChappelle, which remains binding precedent on this
Court pursuant to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).

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were “mutually exclusive and irreconcilable,” Calderone held that “an FMWA class action
is not superior to other available methods for adjudication” where there are overlapping
FLSA and FMWA claims. Id., at *5.
This case is akin to Caldarone. Both involve the same causes of action and the same
underlying considerations. As a result, the Court is faced with the same circumstances,
where, if the Court would allow dual certification to proceed, a likelihood of confusion
would present itself to the layman seeking to have his claims administered.
Nevertheless, Plaintiffs attempt to undermine the Court’s reliance on Calderone by
arguing that the Honorable John E. Steele, who authored that decision, later weighed in
that the Eleventh Circuit was one day likely to reverse course and “follow its sister circuits
in permitting state law wage claims to proceed under Rule 23, together with FLSA claims
under the opt-in procedure of the FLSA.” Calderone v. Scott, No. 2:14-CV-519-FTM29CM, 2016 WL 2586658, at *2 (M.D. Fla. May 5, 2016). That day has not yet come.
Absent binding authority to the contrary, and in consideration of the inherent differences
between a Rule 23 class action and the procedures provided for under the FLSA, the
Court echoes both Calderone and LaChapelle, and holds that Plaintiffs’ overlapping FLSA
and state minimum wage actions are “mutually exclusive and irreconcilable.” LaChapelle,
513 F.2d at 289. As such, the Court denies Plaintiffs’ request for Rule 23 certification.3

Plaintiffs also raise an objection as to the Report and Recommendation’s finding that Plaintiffs’ counsel is
inadequate to represent the interests of a Rule 23 class. Because the Court holds that overlapping FLSA
and state minimum wage claims are mutually exclusive and irreconcilable, the issue of the ability to maintain
a Rule 23 class action is moot, and the Court need not address the issue of counsel’s adequacy.
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2. Plaintiffs’ Requested Methods of Providing Notice to Potential Class
Members
Plaintiffs also argue that the Report and Recommendation does not address whether,
or by which methods, Plaintiffs may publish notice to the class once the notice is amended
and accepted by the Court. (Doc. #66, 12). As stated, a person is not a member of an
FLSA “collective action” unless that person files written consent “opting in” to the
lawsuit. 29 U.S.C. § 216(b). Upon a finding that other, similarly situated employees
desire to opt in, “the Court will be empowered to supervise notice to these potential
plaintiffs of their ability to ‘opt in.’” Franco v. Bank of Am. Corp., 691 F. Supp. 2d 1324,
1326 (M.D. Fla. 2010) (citing Dybach v. State of Florida Dept. of Corrections, 942 F.2d
1562, 1567–68 (11th Cir.1991)).
The Court is satisfied that there are other similarly situated persons who wish to
opt in for a collective action on Plaintiffs FLSA claims. That said, the Court agrees with
the Report and Recommendation and adopts the recommendations contained therein,
which were not objected to by Plaintiffs. At this time there is no need to issue additional
guidance regarding Plaintiffs’ notice to potential FLSA action members. Plaintiffs are
directed to submit an Amended Proposed Notice, at which time the Court will evaluate its
efficacy.
Accordingly, it is now
ORDERED:
1. The Report and Recommendation of United States Magistrate Judge Carol
Mirando (Doc. #63) is ACCEPTED and ADOPTED to the extent stated herein.
a. Plaintiffs’ Motion for Conditional Class Certification and Authorization to
Send Notice to the Class (Doc. #43) is GRANTED in part, Plaintiffs are

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granted conditional certification under 29 U.S.C. § 216(b) consisting of
a class of current and former entertainers that have worked for Babe’s
in Fort Myers, Florida over the past three years.
b. Plaintiffs’ Reply Memorandum of Law in Support of Plaintiffs’ Motion to
Conditionally Certify a Collective Action Pursuant to 29 U.S.C. § 216(b)
and Motion for Declaration of a Class Action as to Minimum Wage
Claims Pursuant to Rule 23(b)(3) and Motion for Authorization to Send
Notice to the Class (Doc. #51) is DENIED.
2. Plaintiffs must file an amended proposed Notice consistent with this Order, and
Judge Mirando’s Report and Recommendation, for the Court’s consideration
and approval on or before September 19, 2016.
3. On or before September 5, 2016, Defendants will produce, in an electronic
readable format to Plaintiffs’ counsel, a list containing the full names, stage
names, job titles, last known addresses, personal email addresses, telephone
numbers, dates of birth, and dates of employment for all putative class
members who worked as entertainers for Defendants during the three years
preceding the date of compliance.
DONE and ORDERED in Fort Myers, Florida this 25th day of August, 2016.

Copies: All Parties of Record

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