Amrhein v. Regency Management Services, LLC, et al.

Filing 56

MEMORANDUM. Signed by Magistrate Judge Susan K. Gauvey on 3/20/14. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DEBORAH AMRHEIN, et al.,

*

Plaintiffs

*

v.

*

REGENCY MANAGEMENT SERVICES,
LLC, et al.,

CIVIL NO.

SKG-13-1114

*
*

Defendants.
*
*

*

*

Now

pending

*
is

*

*

*

Plaintiffs’

*

*

motion

for

*

*

collective

status under the Fair Labor Standards Act (“FLSA”).
35).

action

(ECF No.

The Court has considered Plaintiffs’ motion, Defendants’

response

in

opposition

thereto (ECF No. 50).
(D. Md. 2011).

I.

*

(ECF

No.

40)

and

Plaintiffs’

No hearing is required.

reply

Local Rule 105.6

The motion is GRANTED.

Procedural Background
On April 14, 2013, Plaintiffs Deborah Amrhein and Oswald

Copeland filed a complaint, on behalf of themselves and those
similarly

situated,

against

Defendant

Regency

Management

Services, LLC asserting intentional and willful violations of
the

overtime

and

minimum

wage

provisions

of

Standards Act (“FLSA”), 29 U.S.C. §§ 206-207.
December

3,

2013,

this

Court
1

entered

the

Fair

Labor

(ECF No. 1).

Plaintiffs’

On

Amended

Complaint, which included a total of nine (9) named Plaintiffs,
Deborah

Amrhein,

Oswald

Copeland,

Brenda

O’Brien,

Michaela

Lintz, Timothy Mercer, George Haley, Mark Miley, Mark Mazzetta,
and

Julie

Management
Furniture,

Oden,

as

well

Services,
Inc.

as

LLC

(“Regency

four

named

(“Regency
Furniture”),

defendants,

Management”),
Regency

Regency
Regency

Furniture

of

Brandywine, Inc. (“Regency Furniture of Brandywine”), and Abdul
Ayyad.

(ECF No. 28).

Plaintiffs’ Amended Complaint also added

claims for unpaid wages under the Maryland Wage and Hour Law
(“MWHL”), Md. Code Ann., Lab. & Empl., §§ 3-403, 3-415(a), and
the Maryland Wage Payment and Collection Act (“MWPCL”), Md. Code
Ann., Lab. & Empl., § 3-505.

(Id. at ¶ 105-120).

On December 6, 2013, and December 21, 2013, Defendants sent
offers of judgment, pursuant to Fed. R. Civ. P. 68, to all nine
named

Plaintiffs.

(ECF

No.

40,

5-8).

Five

(5)

named

Plaintiffs, Deborah Amrhein, Oswald Copeland, Brenda O’Brien,
Michaela Lintz, and George Haley, have accepted Defendants’ Rule
68 offers of judgment.
Mazzetta,

Timothy

(Id.)

Mercer,

Four (4) named Plaintiffs, Mark

Mark

Miley,

and

Julie

rejected Defendants’ Rule 68 offers of judgment.

II.

Oden,

have

(Id.)

Factual Background
Defendant Regency Management, Abdul Ayyad sole member, owns

and

operates

nineteen

furniture

2

stores

located

throughout

Maryland and Virginia.
Regency

Furniture

shareholder,

owns

of
and

located

in

Regency

Management

(ECF No. 40-1, Ex. 1, ¶ 3).
Brandywine,
operates

Brandywine,
and

one

Maryland.
Regency

Abdul
retail
(Id.,

Furniture

Ayyad

majority

furniture

Ex.
of

Defendant

1,

¶¶

outlet
4,

Brandywine

6).
each

employ furniture sales associates and other staff to support
their

furniture

stores

or

outlets.

(Id.,

Ex.

1,

¶

3).

Defendant Regency Furniture does not operate any businesses and
has no employees.
were

employed

as

(Id., Ex. 1, ¶ 4).
“furniture

sales

All nine named Plaintiffs
associates”

by

Defendant

Regency Management between May, 2011, and September, 2013.
No. 36, 3; ECF No. 40, 5-6).
worked

at

one

of

three

(ECF

Additionally, each named Plaintiff

Regency

Management

store

locations,

either Bel Air, Rosedale, and/or Glen Burnie, Maryland.

(ECF

No. 40, 5-6).
Upon

hiring,

Defendant

Regency

Management

required

all

named Plaintiffs to attend centralized training sessions at one
of

Regency

Management’s

store

locations,

not

necessarily

location where any particular Plaintiff ultimately worked.

the
(ECF

No. 36-2, Ex. B, ¶¶ 9-10; ECF No. 36-3, Ex. C, ¶¶ 9-10; ECF No.
36-4, Ex. D, ¶¶ 9-10).

Each attendee received an identical

“employee handbook,” detailing employer policies and procedures,
regardless of which Regency Management location the individual
Plaintiff was assigned.

(ECF No. 36-1, Ex. A, ¶ 9; ECF No.
3

36-2, Ex. B, ¶ 11; ECF No. 36-3, Ex. C, ¶ 11, ECF No. 36-4, Ex.
D, ¶ 11).

This “employee handbook” identified the relevant

employers as “Regency Furniture Showrooms,” “Ashley Furniture
Homestore,” and “Marlo.”
also

included

a

(ECF No. 36-5, Ex. E).

welcome

letter

from

Abdul

The handbook

Ayyad,

stating

“[w]hether you work at Regency Furniture, Ashley Homestore, [or]
Marlo Furniture . . . this Employee Handbook has been developed
to help you become acquainted with our company and help answer
many of your initial questions.”

(Id.)

Additionally, Abdul

Ayyad regularly visits various of his stores to observe and
oversee operations.

(ECF No. 36-1, Ex. A, ¶ 10; ECF No. 36-2,

Ex. B, ¶ 15; ECF No. 36-3, Ex. C, ¶ 14; ECF No. 36-4, Ex. D, ¶
14).

Moreover, Regency Management pools sales associates from

multiple locations to a single location if they are needed for
special events, such as the Glen Burnie and Bel Air store’s
grand opening sales.

(ECF No. 36-3, Ex. C, ¶13; ECF No. 36-4,

Ex. D, ¶13).
Regency

Management

sales

associates

initially

earn

ten

dollars per hour ($10.00/hr) during a training period, except at
Regency Management’s Easton, Maryland, Woodbridge, Virginia, and
Fredricksburg, Virginia, locations, where sales associates earn
eight

dollars

per

hour

($8.000/hr)

plus

commission during the training period.

a

two

percent

(2%)

(ECF No. 36-2, Ex. B,

¶ 6; ECF No. 36-3, Ex. C, ¶ 6; ECF No. 36-4 Ex. D, ¶ 6; ECF No.
4

40,

4).

Each

training.

Plaintiff

Following

earned

ten

completion

dollars

of

the

per

hour

training

during
period,

Plaintiffs’ salaries were entirely based on sales commissions.
(ECF No. 36-1, Ex. A, ¶ 7; ECF No. 36-2, Ex. B, ¶¶ 7-8; ECF No.
36-3, Ex. C, ¶¶ 7-8; ECF No. 36-4, Ex. D, ¶¶ 7-8).

However,

after Plaintiffs became commission based employees, their pay
stubs still indicated the pay rate of ten dollars per hour even
if Plaintiffs commissions equaled less than ten dollars per hour
for that pay period.

(ECF No. 36-1, Ex. A, ¶

8; ECF No. 36-2,

Ex. B, ¶ 8; ECF No. 36-3, Ex. C, ¶ 8; ECF No. 36-4, Ex. D, ¶ 8).
Plaintiffs’ routinely worked more than forty hours per week,
yet,

received

no

overtime

pay

and

for

numerous

pay

periods

earned less than ten dollars and eighty eight cents per hour
($10.88/hr) as a result of their commission based salary.

(ECF

No. 36-1, Ex. A, ¶ 13; ECF No. 36-2, Ex. B, ¶¶ 17-18; ECF No.
36-3, Ex. C, ¶¶ 17-18; ECF No. 36-4, Ex. D, ¶¶ 17-18).

III.

Discussion

A. Rule 68 Offers of Judgment
Defendants’ opposition asserts that this Court should deny
Plaintiffs’

motion

for

conditional

certification

because

Defendants offered each named Plaintiff complete relief in the
form

of

Fed.

R.

Civ.

P

68

offers

mooting the Plaintiffs’ claims.
5

of

judgment,

effectively

(ECF No. 40, 10.)

Before,

however, the Court addresses the issue of mootness, the Court
shall examine the related – though not dispositive – issue of
whether Defendants’ offers to have judgment entered against them
constitute valid offers of judgment pursuant to Rule 68.

Rule

68 provides, in relevant part:
(a) Making an Offer; Judgment on an Accepted Offer. At
least 14 days before the date set for trial, a party
defending against a claim may serve on an opposing
party an offer to allow judgment on specified terms,
with the costs then accrued. If, within 14 days after
being served, the opposing party serves written notice
accepting the offer, either party may then file the
offer and notice of acceptance, plus proof of service.
The clerk must then enter judgment.
(b) Unaccepted Offer. An unaccepted offer is
considered withdrawn, but it does not preclude a later
offer. Evidence of an unaccepted offer is not
admissible except in a proceeding to determine costs.
. . .
(d) Paying Costs After an Unaccepted Offer. If the
judgment that the offeree finally obtains is not more
favorable than the unaccepted offer, the offeree must
pay the costs incurred after the offer was made.
Fed. R. Civ. P. 68.
“The plain purpose of Rule 68 is
and avoid litigation.”

to

encourage

settlement

Simmons v. United Mortgage & Loan, LLC,

634 F.3d 754, 764 (4th Cir. 2011) (quoting Marek v. Chesny, 473
U.S. 1, 5 (1985)).
offer

of

judgment

In order to effectuate that purpose, “an
made

pursuant
6

to

Rule

68

must

specify

a

definite sum or other relief for which judgment may be entered
and must be unconditional.”

Id. (citing 12 Charles Alan Wright,

Arthur R. Miller, & Richard L. Marcus, Federal Practice and
Procedure § 3002, p. 92 (2d ed. 1997)).
know

unequivocally

what

is

being

responsible for refusing such offer.”

“[T]he plaintiff must

offered

in

order

to

be

Id.

The Fourth Circuit, in Simmons, found that a settlement
offer did not constitute a Rule 68 offer of judgment due to four
shortcomings.

First, the offer only provided the plaintiffs

with a five-day window to accept rather than the fourteen-day
window required by Rule 68.

Id.

Second, the offer was not an

unconditional offer of judgment on specified terms, rather, the
offer

required

the

plaintiffs

to

submit

affidavits

stating,

among other things, dates on which overtime was worked and the
total amount of back pay owed.

Id.

Third, the defendants did

not offer to have judgment entered against them.

Id.

Fourth,

unlike the public nature of an unsealed judgment, the offer
required

plaintiffs

to

settlement confidential.

keep

the

facts

and

terms

of

the

Id.

Here, Defendants made offers that purported to be Rule 68
offers

of

judgment

to

all

nine

named

Plaintiffs.

All

nine

offers are identical in the following respects: (1) each offer
stipulated that the offer would “remain open for fourteen days
after being served, and may be accepted by written notice as set
7

forth in Federal Rule 68;” (2) each offer was made “for the
purpose of offering judgment only;” and (3) each offered “to pay
Plaintiff’s share of reasonable attorneys’ fees and costs to be
determined by the Court in accordance with federal principles
governing payment of attorneys’ fees and costs.”

(ECF No. 36-9,

Ex. I; ECF No. 36-11, Ex. K; ECF No. 36-13, Ex. M; ECF No 40-2,
Ex. 2; ECF No. 40-4, Ex. 4; ECF No. 40-6, Ex. 6; ECF No. 40-8,
Ex. 8; ECF No. 40-10, Ex. 10; ECF No. 40-12, Ex. 12).

Finally,

each offer specified a definite sum of monetary relief, based on
Defendants’

“comprehensive

(Id.)(same).

payroll

review

and

analysis.”

Although each Plaintiff was offered a unique and

specific sum of money, all nine offers calculated the sum of
monetary relief “by multiplying the past due overtime wages []
times two (liquidated damages), and the past due commissions []
times

three

(treble

damages),

together, plus one dollar.”

and

then

adding

these

amounts

(Id.)(same).

Having considered each of the purported offers of judgment,
the Court finds that all nine offers constitute valid offers of
judgment pursuant to Rule 68.

Each offer specified a definite

sum that was unconditional and unequivocal, offered entry of
judgment,

allowed

Plaintiffs

14

days

after

accept, and provided for costs then accrued.
notes

that

certain

the

with

fact

regard

that
to

the

offers

attorneys’
8

did

fees

being

served

to

Further, the court
not

does

specify
not

a

sum

render

the

offers “equivocal” or otherwise problematic.

See Simmons 634

F.3d at 766 n.8 (finding that where “the defendants have offered
to

pay

the

determined

plaintiffs

by

the

their

district

reasonable

court,

the

attorney’s
plaintiffs

fees
have

as

been

offered full relief with regard to attorney’s fees under the
FLSA,” 29 U.S.C. § 216(b)).
Five
offers

named

and

Plaintiffs

four

named

have

accepted

Plaintiffs

Defendants’

declined.

Rule

68

Accordingly,

Defendants Rule 68 offers to those named plaintiffs who chose
not to accept are deemed withdrawn.

Fed. R. Civ. P. 68(b).

Further, if the remaining Plaintiffs fail to obtain judgment
that is more favorable than the unaccepted offers, they will be
liable to defendants for costs incurred after the offer was
made, not to include attorney’s fees.

Id. at 68(c); Champion

Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1028
(9th Cir. 2003).

Also, if Plaintiffs fail to obtain judgment

that is more favorable than the unaccepted offers, they will not
be entitled to recover attorney’s fees incurred after the offer
was

made,

FLSA,

notwithstanding

MWHL,

and

MWPCL.

provisions
Marek

v.

to

the

Chesny,

contrary
473

U.S.

in
1,

the
10

(1985)(“Civil rights plaintiffs – along with other plaintiffs –
who

reject

an

offer

more

favorable

than

what

is

thereafter

recovered at trial will not recover attorney’s fees for services
performed after the offer is rejected.”).
9

The

Court

Plaintiffs’

now

FLSA

turns

claims

offers of judgment.

to

were

the

Defendants’

mooted

by

assertion

Defendants’

that

Rule

68

Under Rule 12(b)(1), if Plaintiffs’ case is

moot, the Court lacks subject-matter jurisdiction and the case
must be dismissed.

See DeFunis v. Odegaard, 416 U.S. 312, 316

(1974) (“[t]he inability of the federal judiciary ‘to review
moot

cases

derives

from

the

requirement

of

Art.

III

of

the

Constitution under which the exercise of judicial power depends
upon

the

existence

of

a

case

or

controversy’”)

(internal

quotation omitted); see also Arbaugh v. Y&H Corp., 546 U.S. 500,
506 (2006)(“The objection that a federal court lacks subjectmatter jurisdiction, see Fed. R. Civ. P. 12(b)(1), may be raised
by a party, or by a court on its own initiative, at any stage in
the litigation, even after trial and the entry of judgment.”).
A case becomes moot “when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the
outcome.”

Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d

754, 763 (4th Cir. 2011) (internal quotation omitted).

A change

in the law or a change in factual circumstances can render a
case moot, for instance, “when a claimant receives the relief he
or she sought to obtain through the claim,” his or her case
becomes moot.

Id. (quoting Friedman’s Inc. v. Dunlap, 290 F.3d

191, 197 (4th Cir. 2002)).

10

The Fourth Circuit has held that where an offer of judgment
unequivocally offers a plaintiff all of the relief he sought to
obtain, in other words complete relief, the offer renders the
plaintiff’s action moot.

Warren v. Sessoms & Rogers, P.A., 676

F.3d 365, 370-71 (4th Cir. 2012).

Even an offer of judgment

that fails to satisfy the formalities of Rule 68 can still moot
a

plaintiff’s

action,

constitutional

in

because

nature.

the

doctrine

Simmons,

of

634

mootness

F.3d

at

is
764.

Accordingly, where a defendant has offered a plaintiff the full
amount

of

damages

to

which

he

claimed

individually

to

entitled, there is no longer any “case or controversy,”

be
Id.

(quoting Zimmerman v. Bell, 800 F.2d 386, 390 (4th Cir. 1986)).
Indeed,

the

actually

case

obtained

becomes
the

full

moot,

not

amount

of

because

the

damages,

plaintiff

but

rather,

because the plaintiff “could have obtained through acceptance of
the

offer

all

litigation.”

that

he

could

have

hoped

to

obtain

through

Mould v. NJG Food Services, Inc., No. JKB-13-1305,

2013 WL 6331286, at *12 (D. Md. Dec. 4, 2013) (quoting Bradford
v. HSBC Mortg. Corp., 280 F.R.D. 257, 263 (E.D. Va. 2012)).
The

mootness

collective actions.

doctrine

applies

in

the

context

of

FLSA

The Supreme Court recently addressed the

issue of whether an FLSA collective action could be maintained
if the lone plaintiff’s individual claims were mooted.

Genesis

Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1529 (2013)(holding
11

that

“[i]n

individual

the

absence

plaintiff’s]

of
suit

any

claimant’s

became

moot

opting

when

her

in,

[the

individual

claim became moot, because she lacked any personal interest in
representing

the

others

in

this

action”).

Thus,

“if

an

intervening circumstance deprives the plaintiff of a ‘personal
stake in the outcome of the lawsuit,’ at any point during the
litigation,

that

action

dismissed as moot.”

can

no

longer

proceed

and

must

be

Id. at 1528 (quoting Lewis v. Continental

Bank Corp., 494 U.S. 472, 477-78 (1990)).
Application
collective
unsettled.

of

actions

the

mootness

prior

to

class

doctrine

in

the

certification,

context

of

however,

is

Four circuits have held that an offer of complete

relief does not moot a putative class action as long as the
plaintiff moves for class certification within a reasonable time
after completion of discovery.

See Mould, 2013 WL 6331286 at

*13 (citing Kensington Physical Therapy, Inc. v. Jackson Therapy
Partners, LLC, No. 11-cv-02467, 2013 WL 5476979, at *5 (D. Md.
Oct. 2, 2013)).
complete

The Seventh Circuit, however, has held that a

settlement

offer

made

before

a

plaintiff

moves

for

class certification moots the plaintiff’s putative class action.
Damasco v. Clearwire, Corp., 662 F.3d 891, 895-96 (7th Cir.
2011).

This Court is not aware of any Fourth Circuit ruling on

this issue.

However, the present motion does not require the

Court to reach this issue.
12

The

question

of

mootness

turns

on

whether

Defendants’

offers offered to Plaintiffs all that they could have hoped to
obtain, or in other words, offered complete relief.
remaining
Miley,

named

and

Plaintiffs,

Timothy

Mark

Mercer,

Mazzetta,

each

allege

a

Julie

Oden,

right

to

pursuant to the FLSA, the MWHL, and the MWPCL.
therefore,

will

consider

the

remedies

The four
Mark

relief

The Court,

available

to

these

Plaintiffs pursuant to these causes of action.
The Fourth Circuit, in Warren, considered whether an offer
of judgment mooted a plaintiff’s Fair Debt Collection Practices
Act (“FDCPA”) claim.

676 F.3d at 370.

At issue was whether the

plaintiff could possibly recover more than the $250 award for
actual damages proposed by the defendants’ Rule 68 offer.
at

371-72.

statutory

The

cap

on

court
a

remarked

plaintiff’s

that
actual

the

FDCPA

damages

contains
and

that

Id.
no
the

plaintiff in that case sought an unspecified award of actual
damages.

Id. at 371.

Ultimately, the Court found that the

defendants’ offer of judgment did not moot the plaintiff’s case
because at such an early “stage of the proceedings, before any
evidentiary hearing or judicial fact finding in the district
court,” the Court “simply cannot hold that [plaintiff] could not
possibly recover more than $250 if her case proceeded to a jury
trial.”

Id. at 372.

If, for example, the plaintiff “made a

specific demand in the amended complaint for actual damages and
13

the defendants offered that amount or more” or the plaintiff
“quantified

her

alleged

damages

in

response

to

a

discovery

request and the defendants offered that amount,” the defendants
offer would have mooted the plaintiff’s case.

Id.

Here, as in Warren, Plaintiffs’ amended complaint does not
make

a

specific

therefore,

for

actual

consider

will

demand

the

scope

damages.
of

The

Plaintiff’s

Court,
possible

recovery under the FLSA, MWHL, and MWPLC.
The

FLSA

provides

that

“any

employer

who

violates

the

provisions of section 206 or 207 of this title shall be liable
to the employee or employees affected in the amount of their
unpaid minimum wages, or their unpaid overtime compensation, as
the case may be, and in an additional equal amount as liquidated
damages.”

29 U.S.C. § 216(b).

Here, Plaintiffs allege “willful

violation,” which would entitle them to a three-year statute of
limitations period, if proven.
101-04).

Id. § 255(a); (ECF No. 19-1, ¶¶

If Plaintiffs cannot prove “willful violation,” they

would only be entitled to a two-year statute of limitations
period.

Id.

Additionally, the court notes that prejudgment

interest is not within the scope of Plaintiffs’ recovery.
Hamilton

v.

1st

Source

Bank,

895

F.2d

159,

166

(4th

See
Cir.

1990)(noting that “liquidated damages were provided in lieu of
calculating

the

cost

of

delay

–

which

is

the

function

of

prejudgment interest – and therefore [] a claimant could not
14

recover

both

prejudgment

interest

and

liquidated

damages.”)

Moreover, postjudgment interest should not be considered within
the scope of recovery for purposes of a mootness analysis.
Mould,

2013

WL

6331286

at

*15

(observing

that,

while

See
FLSA

jurisprudence does not prohibit awarding postjudgment interest,
a

defendant

could

easily

avoid

such

interest

through

prompt

payment when judgment is entered).
Next,

the

MWHL

provides

that

“if

an

employer

pays

an

employee less than the wage required under this subtitle, the
employee may bring an action against the employer to recover the
difference between the wage paid to the employee and the wage
required under this subtitle” and “the court may allow against
the employer reasonable counsel fees and other costs.”

Md. Code

Ann., Lab. & Empl., §§ 3-427(a),(d).

Plaintiffs, however, can

only

damages

obtain

a

single

recovery

for

resulting

from

Defendants’ failure to pay wages as required by law, even upon a
successful showing of liability under both the FLSA and MWHL.
Mould, 2013 WL 6331286 at *15; U.S. v. Rachel, 289 F.Supp.2d
688, 697 (D. Md. 2003) (noting that “the one wrong, one recovery
rule

precludes

a

party

from

double

recovery

for

a

single

injury”) (internal citations omitted).
Finally,
employer’s

the

failure

MWPLC
to

provides
“pay

an

for

treble

employee

or

damages
the

for

an

authorized

representative of an employee all wages due for work that the
15

employee performed before the termination of employment, on or
before the day on which the employee would have been paid the
wages if the employment had not been terminated.”
Ann.,

Lab.

&

Empl.,

§§

3-505(a),

3-507.2.

Md. Code

Claims

brought

pursuant to the MWPCL, unlike the MWHL, are limited to actions
challenging

the

timing

or

mechanisms

of

wage

payment,

not

actions where the core dispute is establishing entitlement to
unpaid

minimum

wages

or

overtime

wages.

See

McLaughlin

v.

Murphy, 372 F.Supp.2d 465, 474-75 (D. Md. 2004) (discussing the
distinction between the MWHL and the MWPCL).

However, claimants

may maintain MWPCL claims alongside FLSA and MWHL claims where
the MWPCL claims are expressly limited to wages withheld upon
termination.

See Butler v. directsat USA, LLC, 800 F.Supp.2d

662, 669-71 (D. Md. 2011); Hoffman v. First Student, Inc., No.
AMD-06-1182, 2009 WL 1785356, at *9-10 (D. Md. June 23, 2009);
Reed v. Code 3 Security and Protection Services, Inc., No. AW09-1162, 2009 WL 5177283, at * (D. Md. Dec. 18, 2009).
Thus, the scope of Plaintiffs’ possible recovery consists
of (1) unpaid wages plus damages equal in amount to the unpaid
wages (liquidated damages), both being subject to a three-year
statute

of

limitations

at

most;

(2)

Plaintiffs’

reasonable

attorney’s fees and costs; and (3) Plaintiffs’ wages withheld
upon termination times three (treble damages).

16

Having considered Defendants’ Rule 68 offers of judgment,
the Court concludes that, as was the case in Warren, the Rule 68
offers

do

claims.

not

moot

any

of

the

remaining

named

Plaintiffs’

Plaintiffs’ amended complaint does not make a specific

demand for actual damages as to any of the named Plaintiffs’
FLSA,

MWHL,

or

remaining

named

Mazzetta,

or

MWPCL

claims.

Plaintiffs,

Timothy

Additionally,

Mark

Mercer,

have

Miley,

none

Julie

quantified

Oden,

their

damages in response to a formal discovery request.

of

the
Mark

alleged

In fact, all

of Defendants’ Rule 68 offers were accompanied by identical sets
of

interrogatories,

which

sought,

among

other

things,

information pertaining to each Plaintiff’s damage calculations,
overdue

commissions,

and

pay

regular time wages are owed.

periods

in

which

overtime

and

(ECF No. 50, 5-6; Id., Ex. 1, 6-7;

Id., Ex. 2, 6-7).
Defendants’ opposition relies on Simmons to argue that this
Court should find that the Plaintiffs’ claims were mooted by
Defendants

Rule

68

offers

(ECF

No.

40,

12-15).

The

Fourth

Circuit’s decision in Simmons, however, is of no support to
Defendants.

As discussed supra, the Fourth Circuit in Simmons

found four defects in the defendants’ purported Rule 68 offers,
but,

went

on

to

explain

that

“the

doctrine

of

mootness

is

constitutional in nature, and therefore, [is] not constrained by
the formalities of Rule 68.”

634 F.3d at 764.
17

The Court,

however, declined to moot the plaintiffs’ claims because at the
time the defendants made their offers of judgment, “the parties
had

yet

to

agree

upon

the

scope

of

the

plaintiffs’

alleged

damages under the FLSA,” i.e., “the parties still had work to do
in

order

to

figure

out

what

amounts

allegedly owed under the FLSA.”

the

plaintiffs

Id. at 765.

were

Here, as in

Simmons, the parties have yet to agree upon the scope of the
Plaintiffs’ alleged damages under the FLSA, MWHL, and MWPCL.
Defendants’
Defendants’
analysis.”

Rule
own

68

offers

unilateral

Moreover,

calculated

“comprehensive

Defendants

have

not

damages
payroll

based

on

review

and

provided

evidence

supporting the factual basis or methodology used in calculating
the amount of damages owed to each Plaintiff.

This form of

unilateral damage calculation is not the sort that allows a
court to determine that a claimant is offered all he or she
could

have

hoped

to

obtain

through

litigation.

See,

e.g.,

Mould, 2013 WL 6331286, at *16-18 (finding three Rule 68 offers,
each

calculated

by

an

independent

CPA

using

payroll

records

provided by the defendants and supported by the affidavit of the
CPA, did not moot the plaintiffs’ FLSA and MWHL claims because,
absent a specific demand or quantified damage calculation in
response to a discovery request, the court could not be certain
that

the

plaintiffs

could

not

offered).
18

possibly

recover

more

than

Consequently,

at

this

stage

in

the

proceedings,

particularly before any formal discovery has taken place or the
parties

have

agreed

upon

the

scope

of

Plaintiffs’

alleged

damages, the Court simply cannot hold that the remaining named
Plaintiffs could not possibly recover more than Defendants’ Rule
68 offers.

This Court, therefore, finds that the remaining

named Plaintiffs’ claims are not moot.

The Court shall proceed

to consider Plaintiffs’ motion for conditional certification.
B. Conditional Certification
The Court now addresses Plaintiffs’ motion for conditional
certification pursuant to the FLSA, 29 U.S.C. § 216(b).

That

provision states that:
An action . . . may be maintained against any employer
(including a public agency) in any Federal or State
court of competent jurisdiction by any one or more
employees for and on behalf of himself or themselves
and other employees similarly situated.
No employee
shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party
and such consent is filed in the court in which such
action is brought.
Id.

Section 216(b) established an “opt-in” scheme whereby no

claimant shall be a member of or bound by the action unless he
or she affirmatively “opts-in.”

Quinteros v. Sparkle Cleaning,

Inc., 532 F. Supp.2d 762, 771 (D. Md. 2008); Yeibyo v. E-Park of
DC, Inc., No. DKC-07-1919, 2008 WL 182502, at *6 (D. Md. Jan.
18,

2008).

It

is

well

settled
19

that

district

courts

have

discretion to allow such claims to proceed as collective actions
and to facilitate notice to potential plaintiffs.

The relevant

inquiry,

hand

therefore,

is

whether

the

case

at

appropriate case in which to exercise such discretion.

is

an

See Id.

(citing Camper v. Home Quality Management, Inc., 200 F.R.D. 516,
159 (D. Md. 2000)).
Courts determine whether collective treatment is warranted
in two stages.

Robinson v. Empire Equity Group, Inc., WDQ-09-

1603, 2009 WL 4018560, at *2 (D. Md. Nov. 18, 2009).

The first

stage, conditional certification, the stage which is relevant to
the present motion, requires plaintiffs to make a “preliminary
factual showing,” typically by pleadings and affidavits, “that a
similarly situated group of potential plaintiffs exists.”
Yeibyo, 2008 WL 182505, at *7.
evidence,

this

determination

Id.;

“Because the court has minimal

is

made

using

a

fairly

lenient

standard, and typically results in ‘conditional certification’
of

a

representative

(citations

omitted).

class.”
The

Yeibyo,

mere

2008

allegations

WL
of

182505,
the

at

*7

complaint,

however, will not suffice to meet the plaintiffs’ modest factual
burden.

Quinteros, 532 F. Supp.2d at 772 (citing Camper, 200

F.R.D. at 519).
A group of potential plaintiffs are “similarly situated”
when “they together were victims of a common policy or scheme or
plan that violated the law.”

Id. (citations omitted).
20

Put

another way, plaintiffs are similarly situated when they “raise
a similar legal issue as to coverage, exemption, or nonpayment
of minimum wages or overtime arising from . . . similar . . .
job

requirements

and

pay

provisions.”

Robinson,

2009

4018560, at *2 (quoting Yeibyo, 2008 WL 182502, at *7).
members

need

not

be

identical,

only

similar.

Id.

WL

Class
At

the

conditional certification stage, the court does not conclusively
determine

whether

a

class

of

similarly

situated

plaintiffs

exists, rather, the court merely determines whether plaintiffs
have made the “modest factual showing” of a similar situation
sufficient to justify notifying other potential plaintiffs of
the action.
Here,
should

Id.
Plaintiffs

include

Defendants

who

all
were

contend
current
or

are

that
and

“[t]he

collective

former

employed

in

employees
all

of

action
of

the

Defendants’

furniture stores located in Maryland, Virginia, and D.C. from
April 15, 2010 to present.”
Plaintiffs
documents
overtime

and
and

have

(ECF No. 36, 13).

put

forth

affidavits,
minimum

evidence,

suggesting

wage

in

the

violations

provisions:

in

of

form

of

the

FLSA

particular,

that

Plaintiffs’ commission based salaries routinely result in pay
below minimum wage and that Plaintiffs’ frequently worked in
excess of forty hours per week without receiving overtime pay.
Additionally,

Plaintiffs’

evidence
21

indicates

that

Defendants,

although managing numerous stores and operating under multiple
trade names, manage all furniture sales locations as a single
“company.”
employee

This

includes

handbooks,

providing

centralized

centralized

oversight

by

training

Abdul

Ayyad,

and
as

well as moving sales associates between stores when necessary,
for

example,

at

new

location

grand

opening

sales

events.

Defendants cite D’Anna v. M/A-COM, Inc., 903 F. Supp. 889, 894
(D. Md. 1995), asserting that Plaintiffs have merely made “broad
and

vague”

therefore,

class-wide
have

not

allegations

sufficiently

of

discrimination,

presented

a

factual

that potential plaintiffs are similarly situated.
18).

and

showing

(ECF No. 40,

The Court, however, finds that D’Anna is distinguishable

from the present case.

In D’Anna, a case brought pursuant to

the Age Discrimination in Employment Act (“ADEA”), the plaintiff
sought conditional certification of a collective action, yet,
did nothing more than identify eleven individuals over the age
of forty who may have been terminated during the company vice
president’s tenure.

D’Anna, 903 F. Supp. at 894.

The court in

D’Anna found that the “mere listing of names, without more, is
insufficient

absent

a

factual

showing

plaintiffs are ‘similarly situated.’”
discussed

supra,

Plaintiffs

have

listing of names.”

22

Id.

shown

that

the

potential

Here, conversely, as
more

than

the

“mere

The

Court

does,

however,

find

that

Plaintiffs’

proposed

class should be limited to “all current and former commissioned
furniture sales associates,” rather than “all current and former
employees.”

All nine named Plaintiffs were “sales associates”

and all of the evidence offered by Plaintiffs pertains to the
hiring,

training,

associates.

duties,

and

payment

scheme

of

sales

Plaintiffs have raised no evidence regarding the

duties or payment structure of non-sales staff employed by any
named Defendants.

Defendants also assert that if Plaintiffs are

granted conditional certification, the class should not include
any “current” employees nor any employees outside of Maryland,
because

all

named

Plaintiffs

are

located

in

Maryland

and

Plaintiffs have not submitted any evidence concerning current
employees

of

Defendants.

considering

Plaintiffs’

conditional

certification

(ECF

No.

minimal
stage,

40,

16,

factual
the

23).
burden

Court

However,
at

finds

the
that

Defendants’ current sales associates, in both Maryland, Virginia
and the District of Columbia,1 are similarly situated with regard
to

FLSA

offered

minimum
evidence

wage
of

and
a

overtime

company-wide

1

claims.

Plaintiffs

commission

based

have

payment

Although Plaintiffs’ motion suggests that Defendants’ maintain stores in
Maryland, Virginia, and Washington D.C., evidence indicates that Defendants’
only maintain store locations in Maryland and Virginia. (ECF NO. 40, Ex. 1,
¶¶ 3-4).
Defendants are silent on this point.
Accordingly, if Defendants
maintain or have maintained store locations in the District of Columbia
during the relevant time period, names of employees at these stores should be
provided.

23

structure

and

no

evidence

suggests

that

only

Maryland

based

sales associates or only former sales associates were employed
under that scheme.

Moreover, Maryland and Virginia constitute a

relatively small geographical area which could easily be managed
under a uniform payment scheme by Defendants Regency Management
and Abdul Ayyad.
Having

considered

Plaintiffs’

motion

for

conditional

certification, because the potential class members, “current and
former commissioned furniture sales associates,” have similar
wage and overtime claims, job duties, and pay, this Court finds
that they are similarly situated for purposes of conditional
certification.
Finally, the Court acknowledges Defendants’ challenges to
conditional

certification

on

the

bases

of

(1)

Plaintiffs’

unequal entitlement to damages and (2) that any potential opt-in
plaintiffs
agreements.

are

subject

to

valid

(ECF No. 40, 20-22).

and

binding

arbitration

First, Plaintiffs’ potential

for unequal entitlement to damages does not prevent conditional
certification.

“Plaintiffs

do

not

have

to

show

that

the

potential class members have identical positions for conditional
certification; plaintiffs can be similarly situated even though
there are distinctions in their job titles, functions, or pay.”
Robinson, 2009 WL 4018560, at *3 (internal quotations omitted)
(emphasis

added);

see

also

Yeibyo,
24

2008

WL

182502,

at

*7

(“similarly

situated”

requirements

and

pay

requires

persons

provisions,

identical, only similar”).

“the

have

similar

positions

need

job

not

be

Second, the Court finds that the

potential opt-in plaintiffs’ potential duty to arbitrate does
not prevent conditional certification.

Defendants’ arbitration

agreements state that “except for exclusively monetary claims of
less than $5,000,” any dispute or controversy shall be submitted
to

and

determined

Arbitration

Act

by

binding

(“FAA”).

arbitration

(ECF

No.

under

40-14,

the

Ex.

Federal

14).

Yet,

Defendants have not filed any motion to compel arbitration nor
have

they

identified

any

potential

opt-in

plaintiffs

whose

claims would be subject to valid and binding arbitration.

See

Nesselrodte v. Underground Casino & Lounge, LLC, No. JES-11-092,
2012 WL 4378163, at *4 (N.D. W.Va. Sept. 25, 2012)(granting
conditional certification where the defendants had not yet filed
any motion to compel arbitration).

Moreover, even if the court

were to address the merits of Defendants’ arbitration agreement,
the

“sample

($5,000).
of

in

claims

to

offered

Plaintiffs
only

by

excess

(ECF No. 40, Ex. 14).

judgment

example,

submitted

of

arbitration

agreement”

of

five

only

thousand

mandates
dollars

Defendants’ own Rule 68 offers

Julie

$2,395.10

Defendants

Oden
and

and

Mark

$2,898.79,

(ECF No. 40-8, Ex. 8; ECF No. 40-10, Ex. 10).

Miley,

for

respectively.

Accordingly, this

Court cannot determine at this stage of the proceeding what
25

potential opt-in plaintiffs, if any, would be subject to valid
and binding arbitration.

Thus, the potential for arbitration

will not forestall the Plaintiffs’ entitlement to conditional
certification.
C. Notice Method
Plaintiffs

request

that

this

Court

order

Defendants

“to

produce to Plaintiffs, within fourteen (14) days of the date of
this

Court’s

Order,

a

list

of

all

current

and

former

commissioned furniture sales associates employed by Defendants
at

any

of

Defendants’

furniture

stores

located

in

Maryland,

Virginia, or D.C., at any time since April 15, 2010, including
the employees’ full name, last known residential address, last
known work address, last known phone number(s), and last known
e-mail

address.”

Plaintiffs’

request,

(ECF

No.

35,

asserting

that

2).
the

Defendants
request

contest

over-reaches

with regard to potential opt-in plaintiffs’ last known telephone
numbers and email addresses.

(ECF No. 40, 24).

agrees, as to telephone numbers.

The Court

Courts in this district hold

that absent a showing by plaintiffs of a “special need” for
disclosure of class members’ telephone numbers or other personal
information, such as social security numbers or dates of birth,
ordering

such

disclosure

is

inappropriate.

See

Calderon

v.

Geico General Ins., No. RWT-10-1958, 2011 WL 98197, at *9 (D.
Md. Jan. 12, 2011); Arevalo v. D.J.’s Underground, Inc., No.
26

DKC-09-3199, 2010 WL 4026112, at *2 (D. Md. Oct. 12, 2010).
Because email is not “interactive,” as is a telephone call, and
that the plaintiffs’ counsel’s use of the email addresses shall
be

regulated,

addresses.

the

Here,

Court

shall

however,

require

Plaintiffs

production
have

made

of
no

email

showing

whatsoever of a “special need” for potential opt-in plaintiffs’
telephone numbers.

As such, the Court finds that Defendants

need not produce that information to Plaintiffs, at this time.
However, as suggested in Arevalo, Plaintiffs’ counsel may be
able to demonstrate the ineffectiveness of notice by mail and
email,

and

if

so,

telephone

numbers.

telephone

call

this
But

entails

Court
given
and

will
the

the

consider

greater
open–ended

production

intrusion
nature

of

that
of

a

the

resultant communication, initial production of information of
putative class members shall be limited to postal addresses and
email addresses.

IV.

Conclusion
For

the

conditional

foregoing

certification

reasons,
of

an

Plaintiffs

FLSA

collective

motion
action

for
is

GRANTED. A separate order shall issue.

Date: March 20, 2014

______________/s/_______________
Susan K. Gauvey
United States Magistrate Judge
27