Li v. Escape Nails & Spa, LLC et al
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/13/2023. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WEIDONG LI, on his own behalf
and on behalf of others
ESCAPE NAILS & SPA, LLC, et al.
Civil Action No. DKC 23-1487
Presently pending and ready for resolution in this Fair Labor
stipulation for conditional certification of an FLSA collective
and court-authorized notification filed by Plaintiff Weidong Li
and Defendants Escape Nails & Spa, LLC (“Escape Nails”) and Linh
Tuong Nguyen (“Nguyen”) (collectively, “Defendants”).
The issues have been briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
stipulation for conditional certification of an FLSA collective
and court-authorized notification will be denied.
The following facts are alleged in the Amended Complaint.
(ECF No. 11).
Beginning from approximately July 20, 2020 until
his 1 involuntary termination on December 1, 2020, Plaintiff was
employed as a nail technician at Escape Nails located in Waldorf,
(Id. ¶ 22).
While employed at Escape Nails, Plaintiff
was not exempt from federal and state laws requiring employers to
compensate employees for overtime work.
(Id. ¶ 19).
Plaintiff’s manager and Escape Nails’s officer, was responsible
for hiring, paying, and firing Plaintiff in addition to supervising
and controlling employee work schedules and employment conditions,
determining the rate and method of wage payments, and maintaining
(Id. ¶¶ 12-15).
Plaintiff’s regular work
schedule consisted of 12.5-hour workdays spanning seven days a
(Id. ¶ 23).
One day per week, Plaintiff was required to
work 12.75 hours.
Throughout his employment, Plaintiff was paid
In sum, Plaintiff worked 87.75 hours
on a commission-only basis and did not receive a flat compensation
or compensation for overtime work.
(Id. ¶¶ 25, 27).
failed to provide Plaintiff with any wage statements or a time of
(Id. ¶¶ 21, 29).
On June 22, 2023, Plaintiff filed
Plaintiff’s amended complaint, (ECF No. 11), and the
parties’ joint motion to approve stipulation for conditional
notification, (ECF No. 34), refer to Plaintiff using masculine
pronouns. The court-authorized notice, (ECF No. 34-1), attached
to the joint motion to approve stipulation for conditional
notification, (ECF No. 34), refers to Plaintiff using feminine
pronouns. The court refers to Plaintiff using masculine pronouns
in accordance with Plaintiff’s amended complaint. (ECF No. 11).
an amended complaint on behalf of himself and others similarly
violated section 207(a)(1) of the FLSA and sections 3-415(a) and
3-420 of the Maryland Wage and Hour Law (“MWHL”).
(Id. ¶¶ 41-51).
Plaintiff also alleges that Defendants’ failure to furnish a wage
notice at the time of his hiring violated section 3-504 of the
Maryland Wage Payment and Collection Law (“MWPCL”).
On October 16, 2023, the parties filed a joint motion to
collective and court authorized notification.
(Id. ¶¶ 52-
(ECF No. 34).
“Under the FLSA, plaintiffs may maintain a collective action
against their employer for violations under the act pursuant to 29
F.Supp.2d 762, 771 (D.Md. 2008).
Section 216(b) provides, in
relevant part, as follows:
An action . . . may be maintained against any
employer . . . in any Federal or State court
of competent jurisdiction by any one or more
employees for and in behalf of himself or
themselves and other employees similarly
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.
“This provision establishes an ‘opt-in’ scheme, whereby potential
plaintiffs must affirmatively notify the court of their intentions
to be a party to the suit.” Quinteros, 532 F.Supp.2d at 771 (citing
Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D.Md.
When deciding whether to certify a collective action pursuant
to the FLSA, courts generally follow a two-stage process.
v. Westat, Inc., 756 F.Supp.2d 682, 686 (D.Md. 2010).
In the first
stage, commonly referred to as the notice stage, the court makes
demonstrated that potential class members are similarly situated,’
such that court-facilitated notice to putative class members would
Id. (quoting Camper, 200 F.R.D. at 519).
second stage, following the close of discovery, the court conducts
a “more stringent inquiry” to determine whether the plaintiffs are
in fact “similarly situated,” as required by section 216(b). Rawls
v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D.Md.
At this later stage, referred to as the decertification
stage, the court makes a final decision about the propriety of
proceeding as a collective action.
Syrja, 756 F.Supp.2d at 686
(quoting Rawls, 244 F.R.D. at 300).
The parties here have jointly
stipulated to conditional certification of a collective action and
they have requested court-facilitated notice to potential opt-in
collective action certification . . . are left to the court’s
Id.; see also Hoffmann–La Roche, Inc. v. Sperling,
493 U.S. 165, 169 (1989).
The threshold issue in determining
whether to exercise such discretion is whether Plaintiffs have
situated.” Camper, 200 F.R.D. at 519 (quoting 29 U.S.C. § 216(b)).
“‘Similarly situated’ [does] not mean ‘identical.’”
DirectSAT USA, LLC, 876 F.Supp.2d 560, 566 (D.Md. 2012) (citing
Bouthner v. Cleveland Constr., Inc., No. RDB–11–0244, 2012 WL
738578, at *4 (D.Md. Mar. 5, 2012)).
Rather, a group of potential
demonstrate that they were victims of a common policy, scheme, or
plan that violated the law.
Quinteros, 532 F.Supp.2d at 772
(citing D’Anna v. M/A-COM, Inc., 903 F.Supp. 889, 894 (D.Md.
To satisfy this standard, plaintiffs have the burden to
make a “relatively modest factual showing” that such a common
policy, scheme, or plan exists, Marroquin v. Canales, 236 F.R.D.
257, 259 (D.Md. 2006), even when both parties have stipulated to
conditional certification, Alloways v. Cruise Web, Inc., No. CV
PJM 17-2811, 2018 WL 11471878, at *2 (D.Md. Feb. 22, 2018) (quoting
Draper v. Captel, Inc., No. 11-cv-535-wmc, 2011 WL 6888524, at *2
(W.D.Wis. Dec. 29, 2011)).
This is because “courts . . . have a
responsibility to avoid the ‘stirring up’ of litigation through
D’Anna, 903 F.Supp. at 894 (quoting
Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266-67 (D.Minn.
A plaintiff must set forth more than “vague allegations”
in a complaint with “meager factual support” regarding a common
policy to violate the FLSA. D’Anna, 903 F.Supp. at 894; Bouthner,
2012 WL 738578, at *4.
A plaintiff’s evidence need not, however,
enable the court to determine conclusively whether a class of
Const., Inc., 7 F.Supp.3d 561, 576 (D.Md. 2014) (quoting Mancia v.
Mayflower Textile Servs. Co., No. 08-0273-CCB, 2008 WL 4735344, at
*2 (D.Md. Oct. 14, 2008)), and it need not include evidence that
the company has a formal policy of refusing to pay overtime,
Quinteros, 532 F.Supp.2d at 772 (quoting Marroquin, 236 F.R.D. at
260–61). A plaintiff may rely on “[a]ffidavits or other means,”
such as declarations and deposition testimony, to make the required
Williams v. Long, 585 F.Supp.2d 679, 684–85 (D.Md. 2008)
(quoting Montoya v. S.C.C.P. Painting Contractors, Inc., No. 07cv-00455-CCB, 2008 WL 554114, at *2 (D.Md. Feb. 26, 2008)); Essame
v. SSC Laurel Operating Co. LLC, 847 F.Supp.2d 821, 825 (D.Md.
2012) (quoting Quinteros, 532 F.Supp.2d at 772).
The parties seek conditional certification of the following
FLSA collective: “All current and former non-managerial employees
of Defendant Escape Nails & Spa, LLC who worked at 3039 Waldorf
Market Place, Waldorf, Maryland from June 1, 2020 to the present,
who worked over forty (40) hours in any workweek during the
foregoing time period.”
(ECF No. 34 ¶ 5).
In his complaint,
Plaintiff alleges that he and similarly situated members of the
putative class were victims of Escape Nails’s common policy of not
compensating overtime work in violation of the FLSA.
(ECF No. 11
Plaintiff has not provided any affidavit, deposition
testimony, or other supporting evidence in support of conditional
In Butler v. DirectSAT USA, LLC, this court conditionally
showing that the members of the putative class were similarly
plaintiffs’ evidence showed that in addition to receiving the same
instructions from company management to avoid recording more than
forty hours per week on their timesheets, the plaintiffs and other
compensation plan, and performed the same general tasks such as
“preparing satellite dishes at home, pre-calling customers, and
attending weekly warehouse meetings[.]” 2
In contrast, this
Butler is a representative case amongst a series of cases
where this court has conditionally certified an FLSA collective in
the face of evidence that the putative class members were directed
to work uncompensated overtime, performed similar duties, and were
subject to the same compensation policy.
See, e.g., Baylor v.
Homefix Custom Remodeling Corp., 443 F. Supp. 3d 598, 607–08 (D.Md.
court in D’Anna v. M/A-COM, Inc. declined conditionally to certify
an Age Discrimination in Employment Act collective because the
only supporting evidence offered by the plaintiff, apart from the
allegations in the complaint, was a list of eleven potential
D’Anna, 903 F.Supp. at 894.
plaintiffs are ‘similarly situated.’”
The D’Anna court
Here, Plaintiff has provided even less evidence than the
plaintiff in D’Anna and instead relies solely on the allegations
in his amended complaint to show that he and the other putative
allegation that Defendants implemented a common policy of not
compensating overtime work because he does not describe, with
minimal requisite particularity and factual support, the types of
duties shared by the putative class members, as well as the
2020)(holding that employees subject to the same pay provisions
who were required to work unpaid overtime by attending trainings,
meetings, and trade shows were similarly situated for the purposes
of conditional certification); Essame, 847 F. Supp. 2d at 825–26
(holding that hourly nurse employees who were required to continue
performing their duties during their unpaid meal breaks were
similarly situated for the purposes of conditional certification);
Quinteros, 532 F.Supp.2d at 766, 772 (holding that hourly
janitorial employees who were directed to perform cleaning duties
for more than forty hours per week without overtime pay were
similarly situated for the purposes of conditional certification).
applicable timekeeping and compensation plan.
See Rivera v. Jet
Auto. Servs., LLC, No. CV JKB-20-1037, 2021 WL 3056224, at *3
(D.Md. July 20, 2021) (holding that evidence suggesting that other
putative class members may be similarly situated to the plaintiffs
in terms of the work they did is insufficient to establish that
the putative class members were victims of a common policy for the
purposes of conditional certification because it did not show that
they were similarly situated in the manner in which they were
Because Plaintiff has not provided any
evidence to establish the “modest factual showing” that the members
of the proposed FLSA collective are similarly situated, the court
will not grant conditional certification and court-facilitated
For the foregoing reasons, the parties’ joint motion to
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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