VISCOMI et al v. CLUBHOUSE DINER et al

Filing 32

MEMORANDUM AND ORDER THAT PLAINTIFFS' MOTION FOR CLASS CERTIFICATION [#23] IS GRANTED IN PART AND DENIED IN PART. SIGNED BY HONORABLE JAN E. DUBOIS ON 3/30/16. 3/31/16 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CAROL VISCOMI,
PATRICIA HATCH, and
SUSAN KENNEDY, individually and on
behalf of all others similarly situated,
Plaintiffs,

CIVIL ACTION

NO. 13-4720
v.
CLUBHOUSE DINER,
CLUBHOUSE BENSALEM HOLDING,
INC.,
CLUBHOUSE BENSALEM, LLC,
ESAM SALAH, and
MEYLINDA ARDHYANI,
Defendants.
ORDER
AND NOW, this 30th day of March, 2016, upon consideration of plaintiffs’ Motion for
Class Certification (Document No. 23, filed October 22, 2015) and Defendants’ Reply to Plaintiffs’
Motion for Collective Action Certification (Document No. 28, filed January 5, 2016), for the
reasons stated in the accompanying Memorandum dated March 30, 2016, IT IS ORDERED as
follows:
1.

The Motion for Class Certification is GRANTED IN PART. The Court

conditionally certifies a collective action divided into three (3) subclasses, as follows:
(1) All current and former servers, waiters, and waitresses employed by defendants at
any time on or after November 7, 2010, who, during that period, were required to
contribute their tips to a “tip pool” from which defendants retained a share for
themselves, and/or paid employees not customarily entitled to tips.
(2) All current and former servers, waiters, and waitresses employed by defendants at
any time on or after November 7, 2010, who, during that period, were not paid
overtime wages for work performed in excess of forty (40) hours in a workweek at a
rate of not less than one and one-half (1.5) times the regular rate at which they
are/were employed.
(3) All current and former servers, waiters, and waitresses employed by defendants at
any time on or after November 7, 2010, who, during that period, were not paid for all

time worked, either because they were not permitted to clock in or earn tips when
waiting on large previously scheduled parties, or were docked thirty (30) minutes of
pay after clocking in more than two (2) minutes late.
2.

The Motion for Class Certification is DENIED in all other respects.

3.

Within three (3) weeks of the issuance of this Order, the parties, through counsel,

shall submit to the Court (Chambers, Room 12613) an agreed-upon form of notice to be sent to all
current and former servers, waiters, and waitresses employed by defendants at any time on or after
November 7, 2010. The notice shall reflect the proper scope of the potential classes, and shall be
consistent with the directives in the accompanying Memorandum dated March 30, 2016 and the
telephone conference held on February 17, 2016. The notice shall provide, inter alia, for a 60-day
period during which the noticed individuals may opt in to the collective action.
4.

Within three (3) weeks of the issuance of this Order, defendants shall produce to

plaintiffs a computer-readable data file containing the names, addresses, and telephone numbers of
all current and former servers, waiters, and waitresses employed by defendants at any time on or
after November 7, 2010 so that plaintiffs may implement notice once the Court approves the form
of notice.
5.

At the conclusion of the notice period, the parties, through counsel, shall jointly

report to the Court regarding the number of class members.
IT IS FURTHER ORDERED that the entry of this Order is WITHOUT PREJUDICE to
the right of the defendants involved in the criminal investigation to rely on the Fifth Amendment
until the criminal investigation and any related criminal proceedings against them are finally
resolved.
BY THE COURT:
/s/ Hon. Jan E. DuBois
DuBOIS, JAN E., J.
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