Lopez v. Real Monarca Inc et al
Filing
55
OPINION AND ORDER re: 54 MOTION for miscellaneous relief. 1. The parties' Joint Stipulation regarding Motion for Order to Facilitate Notice to Potential Class Members 54 is GRANTED in part. 2. The Court conditionally certifies a collec tive of All servers and bartenders who worked for Defendants at the Monarca's Authentic Mexican Cuisine Bar & Grille location, from August 2, 2014, through the present, who worked over forty hours in one or more workweeks, but were not paid for his or her overtime hours, or who were not provided notice of Defendants' intention to claim the tip credit. 3. The Parties will have up to and until June 15, 2018 to submit amended notice and consent forms that reflect the definitions and deadl ines laid out in this Order. 4. Defendants will have up to and until June 27, 2018, to post the amended notice and consent forms at Real Monarca. The documents must be posted in a conspicuous location where they are likely to be seen by all potenti al plaintiffs and it must remain there until the deadline to submit consent forms has passed. 5. Defendants will have up to and until June 27, 2018, to produce to Lopez's Counsel a list of names, last known addresses, telephone numbers, the las t four digits of social security numbers, and email addresses of all individuals that worked as servers or bartenders at Real Monarca from August 2, 2014 through the present. 6. Plaintiff is AUTHORIZED to distribute the amended notice and consent for ms to all putative members of the collective until July 11, 2018 via first class U.S. mail and electronic mail. 7. To be valid, consent forms returned to Lopez's counsel must be post-marked, or delivered to a commercial carrier who provides a re ceipt, within sixty (60) days of the date they were originally mailed. 8. During the allowed period for response to this initial mailing, should the initial notice mailed to any individual be returned as un-deliverable, the parties shall promptly co operate and exchange such additional information in their custody or control, or in the custody or control of their agents, as may reasonably be available to identify a better address for each such individual, to assist in the search for better addre sses. To the extent it is feasible, but in no event later than the end of the allowed period for response to the initial mailing, plaintiffs' counsel shall, at the sole cost and expense of plaintiffs, re-mail one notice to each such individual. For each re-mailed notice it shall be in the form set forth above; shall be re-dated with the date of re-mailing, and shall give the individual up to the same deadline allowed for response to the initial mailing to return a consent. 9. Individuals w ho timely opt-in to this collective action under this Court's supervised notice procedure shall be deemed joined as opt-in plaintiffs for all purposes under the Federal Rules of Civil Procedure and under the orders of this Court through trial an d appeal, if any, subject to any motion for decertification or representative discovery, and may be represented at any settlement, mediation or trial by the named plaintiffs at the time, pending further orders of the Court. Signed by Judge Sheri Polster Chappell on 6/13/2018. (LMF)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDUARDO LOPEZ, for himself and on
behalf of those similarly situated
Plaintiff,
v.
Case No: 2:17-cv-442-FtM-38CM
REAL MONARCA INC and
GUILLERMO CUEVAS,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on the parties' Joint Stipulation and Motion to
Facilitate Notice (Doc. 54) filed on May 23, 2018. The matter is ripe for review.
Background
This is a Fair Labor Standards Act (“FLSA”) case. At this stage, the Court must
decide whether to conditionally certify a collective action and whether to authorize the
distribution of notice and consent forms. Defendant Guillermo Cuevas owns and operates
Defendant Real Monarca Inc. d/b/a Monarca’s Authentic Mexican Cuisine Bar & Grill
(“Real Monarca”), a restaurant in Lee County, Florida. (Doc. 23 at ¶¶ 6-7). Plaintiff
Eduardo Lopez was a server and bartender at Real Monarca from April 2014 until May
1
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Likewise, the Court has no agreements with any of these third parties or their websites.
The Court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the Court.
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2017. (Doc. 23 at ¶ 16). Lopez alleges he was paid the tipped minimum wage and
Defendants violated the FLSA by failing to inform him of their intent to claim a tip credit.
(Doc. 23 at ¶¶ 18-20). He also alleges Defendants violated the FLSA by failing to pay
him overtime wages when he worked over forty hours per week. (Doc. 23 at ¶ 26). Other
bartenders and servers at Real Monarca allegedly experienced the same circumstances.
(Doc. 23 at ¶¶ 32, 48).
Based on these allegations, Lopez filed a Complaint on behalf of himself and other
similarly situated individuals. (Doc. 1). After Defendants moved to dismiss, Lopez filed
an Amended Complaint. (Docs. 19; 23). In February 2018, Lopez moved for conditional
certification of an FLSA collective action.
(Doc. 34).
Lopez proposed a collective
definition that included
[A]ll [s]ervers and [b]artenders who worked for Defendant at
the Monarca’s Authentic Mexican Cuisine Bar & Grille
location, from August 2, 2014 through the date the notice is
sent, who worked over forty hours in one or more workweeks,
but [were] not paid for his/her overtime hours[] or who were
not provided notice of Defendant[s’] intention to claim the tip
credit.
(Doc. 34 at ¶ 11). Two months later, the parties informed the Court they were stipulating
to conditional certification. (Doc. 52). A month after that, the parties filed their Joint
Stipulation and Motion to Facilitate Notice, a proposed notice, and a proposed consent
form. (Docs. 54; 54-1; 54-2).
Legal Standard
Under 29 U.S.C. § 216(b), plaintiffs can pursue FLSA violations in their individual
capacity and on behalf of “similarly situated” individuals. 29 U.S.C. § 216(b). Where
plaintiffs sue on behalf of themselves and other similarly situated individuals, the suit is a
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“collective action.” See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).
Collective actions benefit the judicial system “by efficient resolution in one proceeding of
common issues of law and fact arising from the same alleged . . . activity.” Id.
But plaintiffs represent themselves only until a collective action is certified. See
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). For
certification to be proper, plaintiffs bear the burden of showing a “reasonable basis” there
are other “similarly situated” individuals.
Id.
They may present “affidavits of other
employees, consents to join the lawsuit filed by other employees, or expert evidence on
the existence of other similarly situated employees.” Hart v. JPMorgan Chase Bank, N.A.,
No. 8:12-CV-00470-T-27, 2012 WL 6196035, at *4 (M.D. Fla. Dec. 12, 2012).
The Eleventh Circuit has encouraged the use of a two-tiered approach to
certification. Morgan, 551 F.3d at 1260. The first tier, known as the notice stage, is
relevant here. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001).
“At the notice stage, the district court makes a decision–usually based only on the
pleadings and any affidavits which have been submitted—whether notice of the action
should be given to potential class members.” Id. “[T]his determination is made using a
fairly lenient standard, and typically results in conditional certification of a representative
class. If the district court conditionally certifies the class, putative class members are
given notice and the opportunity to opt-in. The action proceeds as a representative action
throughout discovery.” Id. (internal quotations omitted).
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Discussion
A.
Conditional Certification
When deciding whether conditional certification is proper at the notice stage, courts
must determine whether: (1) there are other employees who desire to opt-in to the action;
and (2) the employees who desire to opt-in are “similarly situated.” Dybach v. State of
Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991). Both factors weigh in favor
of conditional certification here.
First, courts in this district have found § 216(b) to be satisfied by the possible
inclusion of only one or two other potential plaintiffs. Lemming v. Sec. Forces, Inc., No.
8:10-CV-1469-RAL-AEP, 2010 WL 5058532, at *1 (M.D. Fla. Dec. 6, 2010); Brooks v. A
Rainaldi Plumbing, Inc., No. 6:06-CV-631-GAP-DAB, 2006 WL 3544737, at *2 (M.D. Fla.
Dec. 8, 2006). Lopez has exceeded this threshold by providing three declarations from
Real Monarca employees. (Docs. 34-5; 34-6; 34-7). Each indicates an interest in optingin to this case. (Docs. 34-5 at ¶ 14; 34-6 at ¶ 13; 34-7 at ¶ 12). Consequently, he has
shown a sufficient basis of interest in proceeding as a collective action.
Second, when deciding whether parties are “similarly situated,” the Eleventh
Circuit has looked to the similarity of job duties and pay provisions among potential
plaintiffs. Dybach, 942 F.2d at 1567-68. According to the declarations on the record,
Lopez’s job duties were like the other potential plaintiffs because they were all bartenders
and servers, and were all tasked with serving food and drinks to customers. (Docs. 34-4
at ¶ 4; 34-5 at ¶ 4; 34-6 at ¶ 4; 34-7 at ¶ 4). The declarations reflect that Lopez had the
same pay provisions as the other potential plaintiffs because they were all paid the tipped
minimum wage without receiving notice of Defendants’ intent to claim a tip credit. (Docs.
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34-4 at ¶¶ 5-6; 34-5 at ¶¶ 5-6; 34-6 at ¶¶ 5-6; 34-7 at ¶¶ 5-6). Likewise, the declarations
indicate Lopez and the other potential plaintiffs all worked overtime hours for which
Defendants intentionally avoiding paying them appropriate wages. (Docs. 34-4 at ¶¶ 710; 34-5 at ¶¶ 7-10; 34-6 at ¶¶ 7-10; 34-7 at ¶¶ 7-10). Read through the lenient lens
applied at this stage, the Court finds Lopez has provided a reasonable basis to believe
there are other similarly situated employees in this case. Consequently, the Court will
conditionally certify a collective action consisting of all servers and bartenders who
worked for Defendants at the Monarca’s Authentic Mexican Cuisine Bar & Grille location,
from August 2, 2014, through the present, who worked over forty hours in one or more
workweeks, but were not paid for his or her overtime hours, or who were not provided
notice of Defendants’ intention to claim the tip credit.2
B.
Notice
Once a collective is conditionally certified, individuals can only join by affirmatively
opting-in. See Morgan, 551 F.3d at 1259; see also 29 U.S.C. § 216(b). The benefits of
the collective action vehicle “depend on employees receiving accurate and timely notice
concerning the pendency of the collective action, so that they can make informed
decisions about whether to participate.” Hoffmann-La Roche Inc., 493 U.S. at 170. To
ensure these interests are met, the Court exercises discretionary authority over the
notice-giving process. Id. at 174. Wielding this authority, the Court examines the scope,
manner of distribution, and content of the proposed notice and consent forms, and directs
the parties to make multiple changes.
2
To promote the interests of clarity, the Court has marginally modified the proposed
collective’s temporal scope from “from August 2, 2014 through the date the notice is sent”
(Doc. 34 at ¶ 11), to “from August 2, 2014 through the present.”
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1. Scope
The Court first considers whether the notice conforms with the scope of the defined
collective.
Upon review, the Court finds it does not because the first and fourth
paragraphs on page one imply that the collective is governed by marginally different
temporal ranges. While paragraph one implies that the collective consists of individuals
that worked at Real Monarca “at any time from August 2, 2014, to the present,” paragraph
four implies it consists of individuals that worked at Real Monarca from “August 2, 2014
through [the date the notice is sent].” (Doc. 54-1 at 2). The definition accepted by the
Court ranges from August 2, 2014, through the present. And to alleviate any uncertainty,
the Court directs the parties to amend the notice to uniformly depict its temporal
application to workers at Real Monarca from “August 2, 2014, through the present.”
2. Manner
Next, the Court determines whether the parties have sufficiently laid out how they
will distribute the proposed notice and consent forms. To reach the potential plaintiffs,
the parties stipulate to an Order requiring Defendants to produce a list containing names,
last known addresses, telephone numbers, social security numbers, and emails of the
putative members of the collective. (Doc. 54 at 3). They also stipulate to an Order
requiring Defendants to post the notice and consent forms at Real Monarca, and allowing
the notice to be sent to individuals in the putative collective. (Doc. 54 at 3). Finally, they
ask the Court to enter an Order providing all individuals who receive the notice sixty days
to respond. (Doc. 54 at 3). The Court will grant these requests subject to two required
changes. First, the Court will limit Defendants’ required disclosure of social security
information to only the last four digits of each individual’s social security number. See
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Miller v. FleetCor Techs. Operating Co., LLC., No. 1:13-CV-2403-SCJ, 2014 WL
12543337, at *5 (N.D. Ga. Apr. 8, 2014) (restricting disclosure of information to the last
four digits of putative collective members’ social security numbers).
Second, though the parties stipulate to distributing the notice and consent forms,
they do not specify the manner of dissemination. (Doc. 54 at 3). This lack of certainty
will not do. Besides Ordering Defendants to conspicuously post the notice and consent
forms at Real Monarca, the Court directs Lopez to use the information provided by
Defendants or otherwise independently acquired to distribute the forms to the potential
plaintiffs via first class U.S. mail and electronic mail.
3. Content
Last, the Court reviews the content of the proposed notice and consent forms.
Aside from the required change regarding the scope of the collective, the Court finds the
only substantive insufficiency to be that the documents list diverging time frames for the
potential plaintiff to return the consent form. While the notice requires the potential plaintiff
to opt-in within sixty days of a Court Order (Doc. 54-1), the consent form requires action
within sixty days of the notice being mailed (Doc. 54-2). To alleviate any uncertainty, the
Court will allow Lopez to distribute amended notice and consent forms until July 11, 2018.
The Court will then allow potential plaintiffs sixty days from the date the notice is mailed
to return their consent forms.
Accordingly, it is now
ORDERED:
1. The parties' Joint Stipulation regarding Motion for Order to Facilitate Notice to
Potential Class Members (Doc. 54) is GRANTED in part.
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2. The Court conditionally certifies a collective of
All servers and bartenders who worked for Defendants at the
Monarca’s Authentic Mexican Cuisine Bar & Grille location,
from August 2, 2014, through the present, who worked over
forty hours in one or more workweeks, but were not paid for
his or her overtime hours, or who were not provided notice of
Defendants’ intention to claim the tip credit.
3. The Parties will have up to and until June 15, 2018 to submit amended notice
and consent forms that reflect the definitions and deadlines laid out in this
Order.
4. Defendants will have up to and until June 27, 2018, to post the amended
notice and consent forms at Real Monarca. The documents must be posted in
a conspicuous location where they are likely to be seen by all potential plaintiffs
and it must remain there until the deadline to submit consent forms has passed.
5. Defendants will have up to and until June 27, 2018, to produce to Lopez’s
Counsel a list of names, last known addresses, telephone numbers, the last
four digits of social security numbers, and email addresses of all individuals
that worked as servers or bartenders at Real Monarca from August 2, 2014
through the present.
6. Plaintiff is AUTHORIZED to distribute the amended notice and consent forms
to all putative members of the collective until July 11, 2018 via first class U.S.
mail and electronic mail.
7. To be valid, consent forms returned to Lopez’s counsel must be post-marked,
or delivered to a commercial carrier who provides a receipt, within sixty (60)
days of the date they were originally mailed.
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8. During the allowed period for response to this initial mailing, should the initial
notice mailed to any individual be returned as un-deliverable, the parties shall
promptly cooperate and exchange such additional information in their custody
or control, or in the custody or control of their agents, as may reasonably be
available to identify a better address for each such individual, to assist in the
search for better addresses. To the extent it is feasible, but in no event later
than the end of the allowed period for response to the initial mailing, plaintiffs'
counsel shall, at the sole cost and expense of plaintiffs, re-mail one notice to
each such individual. For each re-mailed notice it shall be in the form set forth
above; shall be re-dated with the date of re-mailing, and shall give the individual
up to the same deadline allowed for response to the initial mailing to return a
consent.
9. Individuals who timely opt-in to this collective action under this Court's
supervised notice procedure shall be deemed joined as opt-in plaintiffs for all
purposes under the Federal Rules of Civil Procedure and under the orders of
this Court through trial and appeal, if any, subject to any motion for
decertification or representative discovery, and may be represented at any
settlement, mediation or trial by the named plaintiffs at the time, pending further
orders of the Court.
DONE and ORDERED in Fort Myers, Florida this 13th day of June, 2018.
Copies: All Parties of Record
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