Wilson v. GoWaiter Franchise Holdings LLC et al

Filing 30

ORDER AND OPINION granting plaintiffs Motion to Amend 17 , denying defendants Motion to Dismiss 15 , denying as moot defendants Motion to Stay 16 , granting in part plaintiffs Motion for Certification 14 , denying and defendants Request for Sanct ions 26 . The Court directs defendants to provide plaintiffs with the names, job titles, mailing addresses, email addresses, phone numbers, dates of employment, and dates of birth for all persons eligible to participate in the collective action by APRIL 7, 2014. The parties are further directed to submit a Joint Preliminary Report by April 21, 2014. Signed by Judge Julie E. Carnes on 3/18/14. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RANDALL WILSON and CHRIS MESSER,
on behalf of themselves and
others similarly situated,
Plaintiffs,
CIVIL CASE NO.
v.

1:13-cv-01054-JEC

GOWAITER FRANCHISE HOLDINGS, LLC
and MICHAEL HANDY,
Defendants.
ORDER & OPINION
This

case

is

before

the

Court

on

plaintiffs’

Motion

for

Conditional Certification of Collective Action and Issuance of CourtApproved Notice to the Collective Class Action Members [14] (“Motion
for Certification”) and Motion for Leave to Amend Their First Amended
Complaint [17] (“Motion to Amend”).

Also before the Court are

defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint [15]
(“Motion to Dismiss”), Motion to Stay Proceedings Pending Resolution
of Motion to Dismiss Amended Complaint [16] (“Motion to Stay”), and
Notice of Objection to Plaintiffs’ Unilateral Submission of Rule
26(f)

Report

and

Request

For

Sanctions

[26]

(“Request

for

Sanctions”).
The Court has reviewed the record and the arguments of the

AO 72A
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parties and, for the reasons that follow, concludes that plaintiffs’
Motion to Amend [17] should be GRANTED, defendants’ Motion to Dismiss
[15] should be DENIED, defendants’ Motion to Stay [16] should be
DENIED AS MOOT, plaintiffs’ Motion for Certification [14] should be
GRANTED IN PART, and defendants’ Request for Sanctions [26] should be
DENIED.
BACKGROUND
This case arises from alleged violations of the Fair Labor
Standards Act of 1938 (“FLSA”).

29 U.S.C. §§ 201 et seq.

Non-party

GoWaiter Business Holdings, LLC (“GoWaiter Business”) is a Florida
limited liability company that sells “a restaurant business marketing
model to franchisees.”
2.)

(Br. in Support of Mot. to Dismiss [15] at

The GoWaiter model facilitates the delivery of food from a

variety of local restaurants to customers through a common website.
(See Resp. [22] at 2-3.)

When a GoWaiter franchise receives an

order, it relays the information to one of its drivers via text
message.

(Am. Compl. [13] at ¶ 33.)

The driver then collects the

food from the chosen restaurant and delivers it to the customer, who
pays a small delivery fee for the service.

(Id. at ¶ 31; Resp. [22]

at 2-3.)
Whereas GoWaiter Business “operates corporate offices, sells
franchises, trains franchises, and collects royalties for ongoing

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business”, defendant GoWaiter Franchise Holdings, LLC (“GFH”) is a
distinct

entity

“whose

purpose

is

limited

to

taking

over

the

management and operations of franchises in a territory until that
territory can be sold or transferred to a new owner.”
Support of Mot. to Dismiss [15] at 2.)

(Br. in

When a GoWaiter franchisee

desires to sell its business, GFH purchases the franchise and
“assume[s]

operations

of

franchisee can take over.

[the]

.

.

.

territory”

(Resp. [22] at 5-6.)

until

a

new

It was in this

capacity that GFH owned and operated one GoWaiter franchise in
Gwinnett County, Georgia from October 1, 2012 through March 11, 2013
and one GoWaiter franchise in Alpharetta, Georgia from January 1,
2013 through March 22, 2013.1
3.)

(Mot. to Dismiss [15] at Ex. A, at ¶

Plaintiff Randall Wilson worked as a driver for GFH at both of

its Georgia locations from August 2012 until January 2013.
Compl. [13] at ¶¶ 24-25.)

(Am.

Plaintiff Chris Messer worked as a driver

at GFH’s Alpharetta location from April 2012 through February 2013.
(Id. at ¶¶ 26-27.)
GoWaiter drivers are paid a set fee for each delivery they
complete.

(Id. at ¶¶ 34, 60.)

Drivers are permitted to keep any

tips that they receive, although, allegedly, they are not informed

1

During this time period, GFH operated only one other GoWaiter
franchise, which was located in Tallahassee, Florida.
(Mot. to
Dismiss [15] at Ex. A, ¶ 4.)
As of July 15, 2013, GFH does not
operate any GoWaiter franchises. (Id. at ¶¶ 4, 9.)
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that tips are claimed as wages.

(Id. at ¶ 57.)

Because the per-

delivery fee paid to drivers is less than the federally-mandated
minimum wage and because a driver is typically able to make only one
delivery

per

hour,

plaintiffs

claim

that

compensation structure violates the FLSA.

the

GoWaiter

driver

(Id. at ¶¶ 53-61.)

To that end, on April 1, 2013, Randall Wilson filed suit against
GFH and Handy on behalf of himself and all similarly situated
individuals to recover unpaid minimum wages, liquidated damages, and
costs and fees.

(Compl. [1].)

Wilson filed an amended complaint on

June 28, 2013, adding Chris Messer as a named plaintiff. (Am. Compl.
[13].)

Then, on July 3, 2013, plaintiffs filed their Motion for

Certification [14].

Soon after, on July 15, 2013, defendants filed

a Motion to Dismiss [15] for lack of subject matter jurisdiction on
the basis that GFH does not generate sufficient income to be governed
by the FLSA.
9.)

(Br. in Support of Mot. to Dismiss [15] at 2, 4-5, 7-

In response, plaintiffs filed their Motion to Amend [17] on

August 1, 2013 in order to assert a joint enterprise theory of
coverage which, if successful, would remedy the previous complaint’s
deficiency and pull GFH within the FLSA’s ambit.

(See Reply [24] at

2-3.) Then, on September 4, 2013, plaintiffs submitted a Notice [25]
to inform the Court why the parties had not yet submitted a Joint
Preliminary Report and Discovery Plan (“preliminary report”), to
which defendants responded with a Request for Sanctions [26].
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DISCUSSION
I.

PLAINTIFFS’ MOTION TO AMEND
A.

Standard For Granting Motion To Amend

The FLSA governs enterprises that annually generate more than
$500,000 in revenue.

29 U.S.C. § 203(s)(1)(A)(ii).

The parties

agree that GFH, alone, does not produce sufficient revenue to fall
under the FLSA’s governance.

(See Br. in Support of Mot. to Dismiss

[15] at 4-5; Reply [20] at Ex. A.)

Accordingly, plaintiffs filed

their Motion to Amend [17] in order to “remove the allegation that
Defendant GFH had revenues in excess of $500,000.00 per year and to
add

allegations

showing

enterprise

coverage

by

alleging

that

Defendant GFH was part of a ‘common enterprise’ with other entities
owned and/or operated by Defendant Handy.”

(Mot. to Amend [17] at

3.)
The Federal Rules of Civil Procedure provide that the Court is
to

“freely

give

leave

[to

amend

a

pleading]

when

justice

so

requires.” FED. R. CIV. P. 15(a)(2). “[U]nless a substantial reason
exists to deny leave to amend, the discretion of the District Court
is not broad enough to permit denial.”

Fla. Evergreen Foliage v.

E.I. DuPont De Nemours & Co., 470 F.3d 1036, 1041 (11th Cir.
2006)(quoting Shipner v. E. Air Lines, Inc., 868 F.2d 401, 407 (11th
Cir. 1989)). The Eleventh Circuit instructs that substantial reasons
for denying leave to amend a pleading include “undue delay, undue
5

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prejudice to the defendants, and futility of the amendment.”

Id.

(quoting Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284
(11th Cir. 2000), abrogated on other grounds by Reed Elsevier, Inc.
v. Muchnick, 559 U.S. 154 (2010)).
B.

Plaintiff’s Proposed Amendment Is Not Futile

Defendants oppose plaintiffs’ proposed amendment on the ground
that it is futile.

(See, e.g., Resp. [22] at 2.)

They claim that

franchise relationships cannot constitute joint enterprises under the
FLSA, and that even if they could, plaintiffs cannot establish that
one exists between GFH and GoWaiter Business.

(Id. at 10-21.)

For

the following reasons, the Court disagrees.
1.

The FLSA Does Not Categorically Exclude Franchise
Relationships From Joint Enterprise Coverage

While it is true that franchise operations do not generally meet
the requirements for inclusion, the FLSA does not categorically
exclude franchise relationships from joint enterprise coverage.2
Indeed, Department of Labor regulations “make it clear that an
ordinary franchise arrangement does not create an enterprise”, but
that “some franchise . . . arrangements have the effect of creating
a larger enterprise and whether they do or do not depends on the

2

Under the FLSA, joint enterprise coverage and joint enterprise
liability are distinct concepts. Cornell v. CF Ctr., LLC, 410 Fed.
App’x 265, 267 (11th Cir. 2011).
6

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facts.”

Marshall v. Shan-An-Dan, Inc., 747 F.2d 1084, 1087 n.4 (6th

Cir. 1984)(emphasis supplied); 29 C.F.R. § 779.230(a).

For example,

where a franchise “vest[s] control over the operations of the
dealer’s business in the one granting the franchise, the result is to
place the dealer in a larger enterprise with the one granting the
franchise.”

29 C.F.R. § 779.232(a); see also 29 C.F.R. § 779.218

(permitting franchises to establish unified operation).
Defendants rely upon three cases for their argument that a
franchise relationship cannot support joint enterprise coverage under
the FLSA: Brennan v. Arnheim & Neely, Inc., 410 U.S. 512 (1973);
Marshall, 747 F.2d at 1087; and Abdelkhaleq v. Precision Door of
Akron,

No.

5:07CV03585,

2008)(O’Malley, J.).

2008

WL

3980339

(N.D.

Ohio

Aug.

21,

All three are distinguishable.

First, the exemption noted in Brennan requires “independent
ownership”

as

a

prerequisite,

GoWaiter Business lack.

which

plaintiffs

allege

GFH

and

410 U.S. at 517-18; 29 U.S.C. § 203(r)(1);

29 C.F.R. §§ 779.226-.227; (Mot. to Amend [17] at 9-11, Ex. 4, ¶¶ 25,
29-33).

Second,

the

Marshall

decision

rested

upon

the

Sixth

Circuit’s inability to “perceive . . . the existence of common
control” where the entities lacked the “‘practical and realistic’
factors”
managers,

of

common

auditors,

recordkeeping”.

“stockholders,
or

common

facilities

747 F.2d at 1086-87.

7

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directors,

officers,
for

and

storage

[]
or

Marshall did not exclude all

franchise

relationships

from

joint

enterprise

allegations of common control are not wanting here.

coverage,

and

(Mot. to Amend

[17] at 10-11, Ex. 4, ¶¶ 11-12, 15-17, 20, 24-25, 30-34.)
Finally, the plaintiff in Abdelkhaleq failed to allege that the
franchise arrangement at issue constituted a joint enterprise.
WL 3980339, at *1, 4.

2008

To the extent that she sought leave to amend

her complaint, the court held that she would be factually unable to
plead

joint

control

coverage requires.

or

shared

Id., at *5.

management,

as

joint

enterprise

Plaintiffs here have alleged that

these mechanisms of control exist.

In short, besides the fact that

neither Marshall nor Abdelkhaleq are binding upon the Court, their
factual differences from the present case erase any persuasive weight
that they may have otherwise carried.
2.

Plaintiffs’ Joint Enterprise Theory

To proceed on their theory that GFH and GoWaiter Business form
a joint enterprise, plaintiffs must show the existence of three
elements: (1) related activities; (2) unified operation or common
control; and (3) a common business purpose.

Donovan v. Easton Land

& Dev. Inc., 723 F.2d 1549, 1551 (11th Cir. 1984).

“All three

elements must be present for an ‘enterprise’ to exist.”

Id. (citing

Dunlop v. Ashy, 555 F.2d 1228, 1231 (5th Cir. 1977)).

8

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a.

Related Activities

The Eleventh Circuit holds that “[a]ctivities are related when
they are ‘the same or similar’ or when they are ‘auxiliary and
service activities.’” Id. at 1551 (citation omitted).

Auxiliary and

service activities are characterized as those “involving ‘operational
interdependence
activities

in

such

fact.’”

as

Id.

This

warehousing,

broad

bookkeeping,

category
and

includes

“all

other

activities which are performed for the common business purpose of the
enterprise.”

29

C.F.R.

§

779.206(a).

Accordingly,

whether

activities are related “will depend in each case upon whether [they]
serve

a

business

purpose

common

to

all

the

activities

of

the

enterprise, or whether they serve a separate and unrelated business
purpose.”

Id. at § 779.206(b).

Plaintiffs’ theory is that GFH operates GoWaiter franchises to
maintain

continuity

of

service

during

a

lapse

in

ownership,

preserving the goodwill built up in a service area and facilitating
sale of the franchise to a new franchisee.

GFH, plaintiffs claim,

therefore shares with GoWaiter Business the ultimate business purpose
of selling GoWaiter franchises.

With respect to the activities

performed to further that business purpose, plaintiffs allege that
GFH “provides an auxiliary activity for [GoWaiter Business] by
‘taking over the management and operations of Go Waiter franchises in
a territory until that territory can be sold or transferred to a new

9

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owner.’” (Mot. to Amend [17] at Ex. 4, ¶ 22.)

They further claim

that GFH and GoWaiter Business share the same principal place of
business and central office facilities, and operate with many of the
same personnel.

(Id. at ¶¶ 24, 25, 34.)

In addition, plaintiffs

note that GoWaiter Business serves as the registered agent for GFH
and that “the operation of GFH’s franchises enhances the public image
of [GoWaiter Business] by providing services to customers [and by]
preventing

gaps

in

services.”

(Id.

at

¶¶

20,

26-27.)

Such

allegations are sufficient to support the claim that GFH and GoWaiter
Business

perform

related

activities.

Cf.

Brennan

v.

Veterans

Cleaning Serv., Inc., 482 F.2d 1362, 1367 (5th Cir. 1973)(finding
that businesses perform related activities, in part, because each
enhances the public image of the others) and Reich v. Priba Corp.,
890 F. Supp. 586, 589-90 (N.D. Tex. 1995)(finding that entities
perform related activities when neither would exist without the other
and each is used to enhance the other’s public image).
b.

Unified Operation or Common Control

When evaluating whether two organizations constitute a unified
operation or are controlled by a common authority, the “determinative
question is whether a common entity has the power to control the
related business operations.”

Donovan, 723 F.2d at 1552 (citing

Shultz v. Mack Farland & Sons Roofing Co., 413 F.2d 1296, 1301 (5th
Cir. 1969)). “A controlling ownership interest in a business, though

10

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not a prerequisite for ‘common control,’ establishes that the power
of control exists.

The right to control that is inherent in

ownership is determinative of the ‘common control’ test regardless of
the extent to which the right to control is exercised.”

Id.

(citations omitted); see also 29 C.F.R. § 779.221.
In support of their claim that GFH and GoWaiter Business are
under common control, plaintiffs note that the entities share the
same founder, owner, president, and two of three managing members.
(Mot. to Amend [17] at Ex. 4, ¶¶ 30-32.)

They further claim that

defendant Handy controls both GFH and GoWaiter Business.
33.)

(Id. at ¶

Finally, Handy and non-party Tony Ceppaluni retained ultimate

control over GFH, including the power to decide whether it would buy
and sell franchises and the obligation to ensure it satisfied its
contractual duties.

(Resp. [22] at Ex. A, ¶ 6.)

Defendants make much of the ability of lower-level managers to
direct the day-to-day operations at GFH’s GoWaiter franchises.

This

is not dispostive, however, for where sufficient ownership exists to
exercise control over an entity, “it is immaterial that some segments
of the related activities may operate on a semiautonomous basis,
superficially free of actual control, so long as the power to
exercise control exists through such ownership.”

(Resp. [22] at 18-

19); 29 C.F.R. § 779.222; see, e.g., Archie v. Grand Cent. P’ship,
Inc., 997 F. Supp. 504, 526-28 (S.D.N.Y. 1998).

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Defendants
maintain

also

separate

emphasize

“bank

that

accounts,

GFH

and

insurance,

GoWaiter

Business

payroll

systems,

contractual obligations, franchise disclosure documents, and tax
liability.”
enterprise

(Resp.

[22]

coverage,

the

at

18.)

Court

But

must

when

“look

considering
beyond

joint

formalistic

corporate separation to the actual pragmatic operation and control”.
Cornell, 410 Fed. App’x at 267 (quoting Donovan v. Grim Hotel Co.,
747

F.2d

966,

970

(5th

Cir.

1984)).

Defendants’

citation

to

superficial indications of separate corporate identities cannot
overcome plaintiffs’ sufficient allegations of common control.

See

Gonzalez v. Old Lisbon Rest. & Bar L.L.C., 820 F. Supp. 2d 1365, 1369
(S.D. Fla. 2011)(allegations that two companies share the same
managing member are “sufficient to satisfy the second prong of the
joint enterprise test.”).
c.

A Common Business Purpose

The common business purpose element is the toughest of the three
to pin down, partly because the FLSA fails to define the phrase and
partly because “[m]any of the considerations relevant in determining
the existence of related activities are pertinent to determine the
existence of a ‘common business purpose.’”
1553.

Donovan, 723 F.2d at

Department of Labor regulations indicate that a common

business purpose is not “a narrow concept and is not intended to be
limited to a single business establishment or a single type of

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business.”

29 C.F.R. § 779.212.

The regulations go on to state that

“the term ‘common business purpose’ will encompass activities . . .
which are directed to the same business objective or to similar
objectives in which the group has an interest.” Id. at § 779.213.

As

with the other elements, whether a common business purpose exists
depends upon the particular circumstances of the relationship at
issue.

Id.

Here, plaintiffs claim that “GFH would not have a purpose
without [GoWaiter Business’s] existence.” (Mot. to Amend [17] at Ex.
4, ¶ 28.)
three

Plaintiffs allege that GFH and GoWaiter Business share

business

goals:

“expanding

and

supporting

the

GoWaiter

franchise model”; “ensuring continuous provision of delivery services
by GoWaiter in the relevant community when a franchisee either
chooses

to

or

must

cease

providing

those

services”;

and

“implement[ing] efficient [restaurant delivery service] operations
and profitable business practices from Coast to Coast, while building
a national brand”.

(Id. at ¶¶ 36-38.)

And as noted supra, even

though the entities use different means to achieve it, plaintiffs
claim that the end-game for GFH is the same as it is for GoWaiter
Business: the sale of GoWaiter franchises.
Citing differences in product and clientele, defendants argue
that the ultimate objective of GFH is the delivery of food, whereas
that of GoWaiter Business is to sell franchises.

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(Resp. [22] at 20-

21.) Handy further declares that the business purpose of GFH “is the
same as any other GoWaiter franchise–-to profit from the successful
implementation of the RDS business marketing concept it purchased.”
(Id. at Ex. A, ¶ 12.)

At least at the motion to dismiss stage, the

Court is unconvinced.

Plaintiffs note that Handy previously swore

that GFH’s “purpose [is] limited to taking over the management and
operations of GoWaiter franchises in a territory until that territory
can be sold or transferred to a new owner.”

(Mot. to Amend [17] at

Ex. 4, ¶ 22 (citing Mot. to Dismiss [15] at Ex. A, ¶ 3).)

Moreover,

GFH does not operate GoWaiter franchises continuously, but rather
does so only for short, sporadic periods of time until a new
franchisee takes over.

Thus, profit and the delivery of food appear

to be incidental benefits to GFH, rather than its ultimate business
objective.
For the foregoing reasons, plaintiffs have adequately alleged
that GFH and GoWaiter Business form a joint enterprise for coverage
under the FLSA, and they are therefore entitled to amend their First
Amended Complaint.

Accordingly, plaintiffs’ Motion to Amend [17] is

GRANTED and defendants’ Motion to Dismiss [15] is DENIED.
II.

DEFENDANTS’ MOTION TO STAY
Defendants filed their Motion to Stay [16] with the aim of

suspending “certain pretrial and discovery deadlines of the Federal
Rules of Civil Procedure and applicable Local Rules until the Court

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has ruled upon [d]efendants’ potentially case-dispositive Motion to
Dismiss.”

(Mot. to Stay [16] at 1.)

Because the Court now denies

defendants’ Motion to Dismiss [15], it also DENIES defendants’ Motion
to Stay [16] AS MOOT.
III. PLAINTIFFS’ MOTION FOR CERTIFICATION
The FLSA explicitly permits plaintiffs to proceed on behalf of
all similarly situated employees.

29 U.S.C. § 216(b).

Unlike class

actions arising under Federal Rule 23, which presume class member
participation and demand that individuals opt-out if they do not wish
to be bound by an action’s outcome, collective actions under the FLSA
require potential class members to opt in to the class if they desire
representation.

Anderson v. Cagle’s, Inc., 488 F.3d 945, 950 n.3

(11th Cir. 2007). Plaintiffs, who brought their claims “on behalf of
themselves and others similarly situated”, now seek the conditional
certification of a class comprised of “[d]rivers who were classified
as ‘independent contractors’ at establishments owned and operated by
[d]efendants”. (Br. in Support of Mot. for Certification [14] at 2.)
They additionally request that the Court (1) order defendants to
provide

the

contact

information

for

all

drivers

employed

by

defendants since April 1, 2010, (2) facilitate notice of conditional
certification to putative class members, and (3) allow putative class
members sixty days from the mailing of the notice to join the action.
(Mot. for Certification [14] at ¶¶ 2-5.)

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Other than requesting that the Court refrain from ruling until
it

issues

an

opinion

on

the

pending

Motion

to

Dismiss

[15],

defendants do not oppose plaintiffs’ Motion for Certification. (Mot.
to Stay [16] at 2-3.)

Defendants have, however, in their motion to

dismiss, noted that the relevant class action timeframe asserted by
plaintiffs is too broad.
at 4 n.2.)

(Br. in Support of Mot. to Dismiss [15-1]

Accordingly, subject to the following limitations, the

Court GRANTS IN PART plaintiffs’ Motion for Certification [14].

LR

7.1(B), NDGa.
A.

Plaintiffs Have Not Proffered Sufficient Support For
Inclusion Of Drivers From GFH’s Tallahassee Location, Nor
Have They Adequately Supported Their Temporal Claim

While plaintiffs have adequately shown that they are similarly
situated to the class for which they seek conditional certification
and that sufficient interest in joining the collective action exists
among other GFH drivers, their Motion for Certification requires
correction in two respects: geographic scope and time.

First,

plaintiffs seek certification of a class of drivers employed at GFHowned GoWaiter franchises from April 1, 2010 to the present. (Br. in
Support of Mot. for Certification [14] at 12.)

During that time

period, GFH owned three GoWaiter locations: Gwinnett County, Georgia;
Alpharetta, Georgia; and Tallahassee, Florida. (Mot. to Dismiss [15]
at Ex. A, ¶¶ 3-4.)

Yet, plaintiffs have offered nothing to support

the inclusion of drivers from GFH’s Tallahassee location in their

16

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collective action.
GFH’s

Tallahassee

The Court could not find a single mention of
location

in

plaintiffs’

filings,

let

alone

evidentiary support for that position.3
Second, plaintiffs have failed to support their claim for
extension of the relevant time period for the conditional class to
April 1, 2010.

(Br. in Support of Mot. for Certification [14] at

12.) Plaintiffs have emphasized that they seek to certify a class of
drivers who were employed at GFH-owned franchises; they repeatedly
emphasize that they do not seek to represent drivers “who were
employees of independently owned franchises.”

(Id.)

Yet, although

plaintiffs suggest a date of April 1, 2010 as the earliest date of
employment for inclusion within the collective action, GFH owned the
Gwinnett County GoWaiter location for only six months, from October
1, 2012 through March 11, 2013, and the Alpharetta location for only
three months, from January 1, 2013 through March 22, 2013.

(Mot. to

Dismiss [15] at Ex. A, ¶¶ 3-4.) Thus, plaintiffs’ request to certify
a class of drivers who only worked at GFH-owned franchises, but who
were employed as early as April 1, 2010, creates an empty set for
this earlier time period.
Plaintiffs’ initial burden for conditional certification is low,

3

To the extent that the Court may have missed a reference to
that location or if plaintiffs can offer a sound reason to include
Tallahassee, plaintiffs may file a motion for reconsideration.
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but they have failed to meet it with respect to inclusion of drivers
from GFH’s Tallahassee location and extension of the class’s temporal
scope to April 1, 2010.4
plaintiffs’

Motion

for

Accordingly, while the Court GRANTS IN PART
Certification

[14],

the

class

that

it

conditionally certifies is limited to drivers employed by defendants
at GFH’s Gwinnett County location from October 1, 2012 through March
11, 2013 and drivers employed by defendants at GFH’s Alpharetta
location from January 1, 2013 through March 22, 2013.

Within

fourteen days of entry of this Order and Opinion, defendants are
ORDERED to provide plaintiffs with the names, job titles, mailing
addresses, email addresses, phone numbers, dates of employment, and
dates of birth for all persons eligible to participate in the
collective action.
B.

Plaintiffs’ Request For Judicially-Facilitated Notice

In conjunction with the decision to certify a conditional
collective action, the Court authorizes the issuance of notice to the
putative class members.

Morgan v. Family Dollar Stores, Inc., 551

F.3d 1233, 1261 n.40 (11th Cir. 2008).

While defendants do not

oppose plaintiffs’ proposed notice, the Court has identified several
defects contained within it.

(Mot. for Certification [14] at

4

Again, can plaintiffs clarify their basis for use of a time
period that presently appears not to be apt, they may file a motion
for reconsideration.
18

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Proposed Notice.)
First, the Court sees no need for the undersigned’s name to be
included in the notice so long as the putative plaintiffs are aware
that it has been authorized by the United States District Court for
the Northern District of Georgia.

Accordingly, plaintiffs shall

modify the first paragraph of their proposed notice to read “THIS
NOTICE AND ITS CONTENT HAVE BEEN AUTHORIZED BY THE U.S. DISTRICT
COURT, NORTHERN DISTRICT OF GEORGIA.”

Second, the proposed notice

improperly defines the scope of the conditional class.

Plaintiffs

must amend all references to the April 1, 2010 date to reflect the
geographic and temporal restrictions of the conditional class, in
accordance with the Court’s discussion supra.

Third, the occurrence

of the word “Programmer” within the second paragraph of section one
should be changed to “Driver”.

Fourth, it is important for putative

class

that

members

to

understand

certain

time

commitments

activities may be required if they join plaintiffs’ lawsuit.

and
For

that reason, plaintiffs must add the following language to the second
paragraph of section six: “While this suit is pending, you may be
required to participate in it by, among other things, responding to
written questions, sitting for depositions, and sitting in court.”
Finally, the Court agrees that an appropriate opt-in period is
sixty

days

from

the

date

upon

which

notice

plaintiffs should reflect in the notice.
19

AO 72A
(Rev.8/82)

is

mailed,

which

Once plaintiffs have

complied with these directives and allowed defendants an opportunity
to review the revised notice, they are authorized to (1) mail the
proposed notice to all potential opt-in plaintiffs and (2) post a
laminated copy of the proposed notice, in a size similar to other
required notices, in the Gwinnett County and Alpharetta GoWaiter
locations.
IV.

DEFENDANTS’ MOTION FOR SANCTIONS
In response to plaintiffs’ “Notice Regarding Joint Preliminary

Report” [25], defendants filed their own Notice of Objection to
plaintiffs’

unilateral

submission

of

a

Rule

26(f)

defendants also filed a request for sanctions.

Report

and

The Court DENIES

defendants’ request for sanctions [26].
V.

PROCEEDINGS GOING FORWARD
The Court has denied defendants’ motion to dismiss.

This

resolution of the current motion does not preclude defendants from
renewing this argument in a motion for summary judgment.

Indeed,

envisioning the possibility that the Court might permit plaintiffs’
amendment of their complaint to allege that GoWaiter Franchise
(“GFH”) and GoWaiter Business were a joint enterprise, defendants
requested an additional stay for limited discovery to determine
definitively

whether

enterprise coverage.

the

two

entities

were

subject

(Defs.’ Reply [21] at 3 n.1.)

to

joint

Given the delay

that the case has already experienced and the absence of any showing
20

AO 72A
(Rev.8/82)

of a likelihood that more discovery would alter a conclusion that the
complaint states a claim as to this issue, the Court declines to
authorize bifurcated discovery.
Accordingly, the parties shall submit a Joint Preliminary Report
pursuant to Local Rule 16.2 by APRIL 21, 2014.
CONCLUSION
For the above reasons, plaintiffs’ Motion to Amend [17] is
GRANTED, defendants’ Motion to Dismiss [15] is DENIED, defendants’
Motion to Stay [16] is DENIED AS MOOT, plaintiffs’ Motion for
Certification [14] is GRANTED IN PART, and defendants’ Request for
Sanctions [26] is DENIED.
The Clerk of Court is directed to file plaintiffs’ proposed
Second Amended Complaint as plaintiffs’ Second Amended Complaint.
The Court DIRECTS defendants to provide plaintiffs with the names,
job titles, mailing addresses, email addresses, phone numbers, dates
of employment, and dates of birth for all persons eligible to
participate in the collective action by APRIL 7, 2014.
The parties are ORDERED to submit a Joint Preliminary Report by
APRIL 21, 2014.
SO ORDERED, this 18th day of MARCH, 2014.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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AO 72A
(Rev.8/82)