DIDONI v. COLUMBUS RESTAURANT, LLC et al
Filing
31
ORDER granting 18 Motion to Certify Class. The parties shall confer and prepare a joint Notice of this lawsuit for distribution to putative class members by September 27, 2018. Signed by Judge Cecilia M. Altonaga on 9/20/2018. See attached document for full details. (ps1)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-22325-CIV-ALTONAGA/Goodman
ROBERTA DIDONI, et al.,
Plaintiffs,
v.
COLUMBUS RESTAURANT,
LLC, et al.,
Defendants.
___________________________/
ORDER
THIS CAUSE came before the Court on Plaintiffs, Roberta Didoni and Ximena Lara’s
Motion to Certify 216(b) Collective Action and Facilitate Notice to Potential 216(b) Class
Members [ECF No. 18], filed August 13, 2018. The Court has carefully reviewed the Motion;
Defendants, Columbus Restaurant, LLC, Cristian Azzariti, and Paolo Vandra’s Opposition [ECF
No. 26]; Plaintiffs’ Reply [ECF No. 28]; the Amended Complaint [ECF No. 9]; the parties’
supporting exhibits; and applicable law.
I.
BACKGROUND1
Plaintiffs, for themselves and on behalf of a collective class, have brought claims under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. section 216(b) for failure to pay minimum
wages and overtime wages, respectively (Counts I & II); and the Florida Minimum Wage Act,2
1
The facts are taken from the Amended Complaint and the declarations submitted by the parties. See
Davis v. Charoen Pokphand (USA), Inc., 303 F. Supp. 2d 1272, 1275 (M.D. Ala. 2004) (quoting Hipp v.
Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001) (stating district courts decide motions
for conditional certification “based only on the pleadings and any affidavits which have been submitted”
(citation omitted))).
The Amended Complaint alleges violations under the “FMWA” but fails to define this abbreviation.
(See Am. Compl. ¶¶ 2, 73). Although the Amended Complaint cites to the Florida Constitution as the
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section 448.110, Florida Statutes (Count III). (See id. 11–17). Plaintiffs separately seek a
declaration of rights under 29 U.S.C. sections 2201 and 2202 (Count IV). (See id. 18–19).
Didoni was an employee of Defendants at Columbus Restaurant from 2013 through 2016,
where she worked as a hostess and server. (See id. ¶ 26). The Complaint alleges Defendants
withheld a portion of the gratuities Didoni earned, failed to pay her for all hours worked, and
forced her to pay impermissible business expenses. (See id. ¶¶ 32–34). Specifically, Didoni
alleges she and other employees were required to share their tips with their employer (see id.
¶ 32); were not paid for hours worked (see id. ¶ 33), were required to pay for customer walkouts
and credit card chargebacks (see id. ¶ 34), and regularly worked in excess of 40 hours per week
(see id. ¶ 35).
Didoni alleges similarly situated employees at the restaurant endured the same treatment
she did, and seeks to certify the following class under 29 U.S.C. section 216(b):
All persons who worked for Defendants as servers during the three (3) years
preceding this lawsuit and who were required to share their tips with their
employer, to pay for impermissible business expenses, and were not paid for all
hours worked, for one or more weeks during the Relevant Time Period.
(Am. Compl. ¶ 1). Didoni also seeks to certify the following class under the Florida Minimum
Wage Act:
All persons who worked for Defendants as servers during the five (5) years
preceding this lawsuit and who were required to share their tips with their
employer, to pay for impermissible business expenses, and were not paid for all
hours worked, for one or more weeks during the Relevant Time Period.
(Am. Compl. ¶ 2).
Plaintiffs submitted two affidavits in support of their Motion. In the first, Didoni attests
basis of its “FMWA” claim, the Court assumes Plaintiffs intend to bring an action under the statutory
Florida Minimum Wage Act, which allows for collective actions (see Fla. Stat. § 448.110(9)), rather than
the Florida Constitution. Nevertheless, because neither party briefs the issue of FMWA certification (see
generally Mot.; Opp’n), the Court does not reach it.
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she is aware of approximately 40 other servers at the restaurant who were subject to the same
policies and procedures she was.
(See Affidavit of Roberta Didoni (“Didoni Affidavit”)
[ECF No. 20-1] ¶ 12). In the second, Ximena Lara attests to knowledge of approximately 30
other servers who were subject to the same policies and procedures. (See Affidavit of Ximena
Lara (“Lara Affidavit”) [ECF No. 20-2] ¶ 10).
Both Plaintiffs state they have “personal
knowledge that other servers will want to participate in this lawsuit, however, many of them are
unaware of their rights pertaining to Florida minimum wages.” (Id. ¶ 11; Didoni Aff. ¶ 13).
Since the Motion was filed, one individual has filed a Notice of Consent [ECF No. 27-1] to join
Plaintiffs’ lawsuit. The three named Plaintiffs are now Roberta Didoni, Ximena Lara, and Yuliet
San Roman. (See id.; see generally Didoni Aff.; Lara Aff.).
Plaintiffs request the Court (1) grant conditional certification; (2) require Defendants to
post notice at their Miami-Dade headquarters; (3) require Defendants to provide identifying and
contact information for every server within the putative class; (4) permit Plaintiffs to serve a
proposed Notice [ECF 18-1] on members of the putative class whose information is supplied by
Defendants; and (5) award any other relief the Court deems appropriate. (See generally Mot.).
Defendants argue the Motion should be denied because (1) Plaintiffs do not meet their
burden to show members of the proposed class would “opt in;” and (2) Plaintiffs’ proposed class
definition is overbroad. (See generally Opp’n).
II.
LEGAL STANDARD
The FLSA permits a plaintiff to bring a collective action on behalf of similarly-situated
persons subject to the requirement that prospective plaintiffs file a written consent in the court
where the action is brought. See 29 U.S.C. § 216(b); see also Hipp v. Liberty Nat. Life Ins. Co.,
252 F.3d 1208, 1216 (11th Cir. 2001) (citations omitted). In the interest of judicial economy,
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district courts have discretionary power to authorize the sending of notice to potential class
members. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989). Notice should
only be authorized in appropriate cases. See Haynes v. Singer Co., 696 F.2d 884, 886 (11th Cir.
1983).
In order to grant conditional collective action certification, the Court must, at a
minimum, satisfy itself that there are other employees who (1) are similarly situated with regard
to their job requirements and pay provisions, and who (2) desire to opt into the case. See Dybach
v. Fla. Dep’t of Corr., 942 F.2d 1562, 1567–68 (11th Cir. 1991).
Regarding the first requirement, the named Plaintiffs bear the burden of proving they and
the class they seek to represent are similarly situated. See Grayson v. K Mart Corp., 79 F.3d
1086, 1097 (11th Cir. 1996). To evaluate whether a plaintiff has demonstrated the existence of a
similarly-situated class, courts in the Eleventh Circuit utilize a two-tiered procedure that
recognizes distinct burdens at different stages of the litigation process. See Cameron-Grant v.
Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 n.2 (11th Cir. 2003) (citing Hipp, 252 F.3d
at 1218) (other citations omitted). The first tier — the one at issue in the present Motion — is
referred to as the notice stage. See id. (quoting Hipp, 252 F.3d at 1218).
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.
Because the court has minimal evidence, this 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. (quoting Hipp, 252 F.3d at 1218).
The second tier of analysis, re-examining the question of certification after discovery is
complete, follows a motion for “decertification” by the defendant. Id.
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At this stage, the court has much more information on which to base its decision,
and makes a factual determination on the similarly situated question. If the
claimants are similarly situated, the district court allows the representative action
to proceed to trial. If the claimants are not similarly situated, the district court
decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The
class representatives — i.e. the original plaintiffs — proceed to trial on their
individual claims.
Id. (quoting Hipp, 252 F.3d at 1218).
Regarding the second requirement, a plaintiff must show there are employees who would
opt in if given notice. See Mackenzie v. Kindred Hosps. E., L.L.C., 276 F. Supp. 2d 1211, 1220–
21 (M.D. Fla. 2003) (“[A] showing that others desire to opt-in must be made before notice is
authorized.” (alteration added; footnote call number and citation omitted)).
Based on this
showing, a “district court should satisfy itself that there are other employees of the departmentemployer who desire to ‘opt-in’ . . . .” Dybach, 942 F.2d at 1567 (alteration added).
The plaintiff bears the burden of producing evidence demonstrating aggrieved individuals
exist within the proposed class. See Haynes, 696 F.2d at 887–88 (holding the court properly
declined to authorize notice to a prospective class where the only evidence presented was
counsel’s assertions that FLSA violations were widespread and additional plaintiffs would come
from other stores). If the plaintiff does not satisfy this burden, the court should decline the
certification of a collective action “to avoid the ‘stirring up’ of litigation through unwarranted
solicitation.” White v. Osmose, Inc., 204 F. Supp. 2d 1309, 1318 (M.D. Ala. 2002) (quoting
Brooks v. BellSouth Telecomms., Inc., 164 F.R.D. 561, 567 (N.D. Ala. 1995)).
III.
ANALYSIS
To conditionally certify an FLSA class, the Court must determine “(1) there are other
employees of the Defendant[s] who desire to opt-in and (2) that these other employees are
‘similarly situated’ with respect to their job requirements and with regard to their pay
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provisions.” Bennett v. Hayes Robertson Grp., Inc., 880 F. Supp. 2d 1270, 1282–83 (S.D. Fla.
2012) (alteration added) (quoting Dybach, 942 F.2d at 1567–68). As noted, the Court applies a
“fairly lenient standard” at the notice stage in determining whether the class should be
conditionally certified. Hipp, 252 F.3d at 1218. The rationale for this is that “at the early stages
of litigation, plaintiffs have not had time to conduct discovery and marshal their best evidence.”
Davis v. Charoen Pokphand (USA), Inc., 303 F. Supp. 2d 1272, 1276 (M.D. Ala. 2004) (citing
Hipp, 252 F.3d at 1218).
A. Whether Other Employees Desire to Opt In
“Under Dybach’s first requirement, a plaintiff must show that there are other employees
who desire to opt-in before a court can conditionally certify a class.” Kemar Fung Chung v.
Affordable Battery, Inc., No. 12-60612-CIV, 2012 WL 3759029, at *1 (S.D. Fla. Aug. 29, 2012)
(citing Dybach, 942 F.2d at 1567–68). “In making this showing, a plaintiff cannot rely on
speculative, vague, or conclusory allegations.” Id. (citations omitted). Although Plaintiffs attest
they have dozens of coworkers who would join (see Didoni Aff. ¶ 12; Lara Aff. ¶ 10),
Defendants argue Plaintiffs fail to make the requisite showing because they have not “identified
who these additional employees are, any specific identifying facts that would show they exist
and/or [are] still alive and able to join, how many additional employees there are, whether they
still work for Columbus, or anything to show that this nothing more than a vague bluff.” (Opp’n
5 (alteration added)).
Defendants cite a number of cases in which courts denied conditional certification
because the named plaintiffs failed to demonstrate other employees desired to opt in. (See Opp’n
3–6 (collecting cases)). In most of these cases, the plaintiffs either failed to provide affidavits or
provided affidavits that failed to identify “any additional employees, other than themselves, who
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desire to opt-in.” Manzi v. Hartman & Tyner, Inc., No. 11-60426-CIV, 2011 WL 2672343, at *3
(S.D. Fla. July 8, 2011). By contrast, Plaintiffs attest to personal knowledge of 30 to 40
individuals who “will want to participate in this lawsuit.” (Didoni Aff. ¶ 13; Lara Aff. ¶ 11)
Moreover, since the filing of the Motion, a third named Plaintiff has joined the two
Plaintiffs whose affidavits accompany the Motion. (See Notice of Consent). “Courts in this
district have held that the existence of just one other co-worker who desires to join in is
sufficient to ‘raise the Plaintiff’s contention beyond one of pure speculation.’” Bennett, 880 F.
Supp. 2d at 1283 (alteration and citation omitted). The addition of a named Plaintiff since the
filing of the Motion belies Defendants’ contention this is “nothing more than a fishing
expedition” (Opp’n 10), and distinguishes this case from cases in which “[t]he last ‘consent to
join’ was signed . . . nearly one year ago” Kubiak v. S.W. Cowboy, Inc., No. 312-CV-1306-J34JRK, 2014 WL 2625181, at *10 (M.D. Fla. June 12, 2014) (alteration added); see also Webber
v. Coast Dental, P.A., No. 8:12-CV-1505-T-33AEP, 2013 WL 935772, at *2 (M.D. Fla. Mar. 11,
2013) (“Months have transpired since the submission of these affidavits, and none of the
individuals mentioned, or anyone else for that matter, have filed a notice of consent to join.”).
Given the sworn statements made by Didoni and Lara, as well as the subsequent Notice
of Consent filed by Yuliet San Roman, “[i]t is [] clear for purposes of a conditional certification
analysis that a reasonable basis exists to believe there are other employees who desire to opt-in.”
Bennett, 880 F. Supp. 2d at 1283 (alterations added; citations omitted). Accordingly, the Court
finds Plaintiffs have met their burden of demonstrating it is likely other employees exist who will
opt into the proposed class. See id.
B. Evidence the Named Plaintiffs Are Similarly Situated to the Proposed Class
Regarding the “similarly-situated” requirement, courts commonly consider five factors at
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the conditional-certification stage: (1) whether the plaintiffs held the same job title; (2) whether
they worked in the same geographic location; (3) whether the alleged violations occurred during
the same time period; (4) whether plaintiffs were subjected to the same policies and practices,
and whether the policies and practices were established in the same manner and by the same
decision maker; and (5) the degree to which the actions constituting the claimed violations are
similar. See, e.g., Smith v. Tradesmen Int’l, Inc., 289 F. Supp. 2d 1369, 1372 (S.D. Fla. 2003)
(citation and internal quotation marks omitted).
Plaintiffs explain “there is no requirement of ‘strict symmetry’ or ‘absolute identity’”
between the named Plaintiffs and potential class members. (Mot. 9). Defendants insist Plaintiffs
cannot show they are similarly situated to the proposed class members because Didoni “admits
she was a hostess and a server, yet is requesting in the Motion to Certify to limit the actions to
‘servers.’” (Opp’n 7). Defendants also argue Plaintiffs “ha[ve] failed to proffer any evidence in
relation to ‘similarly situated’ employees other than job title and pay provisions.” (Id. (alteration
added)).
Disappointingly, neither party addresses the five factors relevant to determining whether
a named plaintiff is similarly situated to the proposed class. (See generally Mot.; Opp’n; Reply).
Nevertheless, the Court examines the similarities between the proposed class and Plaintiffs using
the five factors identified in Smith.
The proposed class includes servers who worked at
Defendants’ Miami Beach restaurant during the last three years and were subjected to violations
of the FLSA. (See Am. Compl. ¶ 1). Plaintiffs attest: (1) they held the same job title (server)3 as
the proposed class members (see Didoni Aff. ¶¶ 1, 12; Lara Aff. ¶¶ 1, 10); (2) they worked at the
Defendants’ contention Plaintiffs are not similarly situated to the class because one named Plaintiff was
a hostess in addition to being a server (see Opp’n 7) fails to persuade. The relevant inquiry is whether
“Plaintiffs in this case all held the same job title” during their employment, not whether Plaintiffs at some
point held a different job title from each other. Hipp, 252 F.3d at1219.
3
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same geographic location — Defendants’ restaurant (see Didoni Aff. ¶ 1; Lara Aff. ¶ 1); (3) the
events occurred at generally the same time, between 2013 and 2017 (see Didoni Aff. ¶ 1; Lara
Aff. ¶ 1); (4) the decision maker and policies were the same (see Didoni Aff. ¶ 14; Lara Aff. ¶
12); and (5) the FLSA violations they endured are substantially similar to those experienced by
the proposed class (see Didoni Aff. ¶¶ 5–12; Lara Aff. ¶¶ 4–10, 12). Clearly, all five factors
weigh in favor of Plaintiffs. Accordingly, the Court finds Plaintiffs are similarly situated to the
proposed class. See Smith, 289 F. Supp. 2d at 1372.
C. Sufficiency of Proposed Notice
Plaintiffs request the Court’s approval to send a proposed Notice of Opportunity to Join a
Lawsuit . . . (“Notice”) [ECF No. 18-1] to similarly situated employees of Defendants who could
be class members. (See Mot. 16). The Court finds the Notice prepared unilaterally by Plaintiffs
is deficient. It is lengthy and verbose — and, more importantly, does not advise potential class
members of all potential consequences of joining the litigation, including “liability for
indemnification, attorney’s fees and costs.” White v. Subcontracting Concepts, Inc., No. 8:08CV-620-T30TGW, 2008 WL 4925629, at *2 (M.D. Fla. Nov. 14, 2008); see also Mayer v. Wall
St. Equity Grp., Inc., 514 F. App’x 929, 932 (11th Cir. 2013) (citing Turlington v. Atlanta Gas
Light Co., 135 F.3d 1428, 1437 (11th Cir. 1998)) (noting the FLSA entitles a prevailing
defendant to attorney’s fees and costs if the district court finds the plaintiff litigated in bad faith).
The Notice also fails to provide a deadline for potential class members to return the Notice to
Plaintiffs’ counsel.
The best course is for the parties “to work together in good faith to resolve any
objections, so that if at all possible, a proposed notice to which all parties have agreed may be
submitted to the court.” Barron v. Henry Cty. Sch. Sys., 242 F. Supp. 2d 1096, 1106 (M.D. Ala.
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2003). The Court therefore directs Plaintiffs’ counsel to “confer with defense counsel regarding
the form of the notice . . . in an attempt to reach agreement” before submitting a revised Notice
to the Court for approval. Vondriska v. Premier Mortg. Funding, Inc., 564 F. Supp. 2d 1330,
1336 (M.D. Fla. 2007) (alteration added).
D. Defendants’ Notice Obligations
Plaintiffs request the Court (1) require Defendants to post the Notice in the Restaurant;
and (2) provide Plaintiffs with the names and addresses of putative class members. (See Mot.
16–17). Defendants complain this request is “unreasonable” and “could potentially cripple their
ability to successfully operate the business,” but cite to no case law or other authority holding
such requirements are impermissible. (Opp’n 10). Defendants also note Plaintiffs “failed to
properly define who would be considered a potential class member” when requesting names and
addresses. (Id.).
It is not unusual for a court to require an FLSA defendant “to post the Notice and
Consent in its break/lunch room” or another place where employees regularly gather. Dean v. W.
Aviation, LLC, No. 17-CV-62282, 2018 WL 1083497, at *6 (S.D. Fla. Feb. 28, 2018); see also
Smitherman v. Iguana Grill, Inc., No. 7:14-CV-01781-JHE, 2015 WL 4112103, at *2 (N.D. Ala.
June 12, 2015), report and recommendation adopted, No. 7:14-CV-01781-JHE, 2015 WL
4112408 (N.D. Ala. July 7, 2015) (finding “the notice would be posted by the time clock in the []
restaurant” (alteration added)). Defendants’ business will not be “crippled” by the posting of the
Notice in an area where no customers can see it, such as the employee break room or in the back
of the restaurant. The Court finds Plaintiffs’ request to post the Notice at Defendants’ restaurant
reasonable.
Defendants are correct, however, that Plaintiffs’ Motion fails to provide a proper
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description of the persons whose names and addresses Plaintiffs seek to obtain. (See Opp’n 10).
The putative class definition suggests Plaintiffs may seek the contact information of “[a]ll
persons who worked for Defendants as servers during the three (3) years preceding this lawsuit
and who were required to share their tips with their employer.” (Am. Compl. ¶ 1 (alteration
added)). On the basis of that definition, the Court will require Defendants to provide contact
information only for individuals employed as servers at Columbus Restaurant during the last
three years. See Kirk v. Dr. Goodroof, Inc., No. 2:14-CV-639-FTM-29CM, 2015 WL 1138445,
at *4 (M.D. Fla. Mar. 13, 2015) (“To the extent Defendants are in possession of such
information, they must provide Plaintiff[s] with a list of putative class members’ names,
addresses, and e-mail addresses.” (alteration added)).
IV.
CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that the Motion [ECF
No. 18] is GRANTED as follows:
1. Conditional certification for the putative class identified in paragraph one of the
Amended Complaint [ECF No. 9] is GRANTED.
2. The parties shall confer and prepare a joint Notice of this lawsuit for distribution to
putative class members by September 27, 2018.
3. Following Court approval of the Notice, Defendants shall post the Notice at the
Columbus Restaurant in a location regularly seen by servers at the restaurant by October
8, 2018.
4. Defendants shall provide the names and contact information of all individuals employed
as servers at Columbus Restaurant during the time period between June 1, 2015 and the
date of this Order by October 8, 2018.
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5. The parties shall file a proposed amended scheduling order with proposed class-related
deadlines, including deadlines for the addition of class members and a deadline to file
class decertification motions, by September 27, 2018.
DONE AND ORDERED in Miami, Florida, this 20th day of September, 2018.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
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