WRIGHT v. RISTORANTE LA BUCA INC. et al

Filing 39

ORDER THAT PLAINTIFF'S MOTION FOR CLASS CERTIFICATION IS GRANTED IN PART AND DENIED IN PART. PLAINTIFF MAY MOVE FOR CLASS CERTIFICATION BY 11/30/18;ETC.. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/26/18. 10/26/18 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NICHOLAS J. WRIGHT

v.

CIVIL ACTION
NO. 18-2207

RISTORANTE LA BUCA INC., et al

ORDER
AND NOW, this 26th day of October 2018, following discovery on conditional
certification and class certification under our July 6, 2018 Order (ECF Doc. No. 8) and after
considering Plaintiffs Motion (ECF Doc. No. 22) to conditionally certify a Fair Labor Standards
Act collective action and a rigorous factual analysis necessary to certify a class action under
Fed.R.Civ.P. 23, Defendant's Response (ECF Doc. No. 34), Plaintiffs Reply (ECF Doc. No. 37)
and for reasons in the accompanying Memorandum, it is ORDERED Plaintiffs Motion (ECF
Doc. No. 22) is GRANTED on the collective action but DENIED on class certification under
Fed.R.Civ.P. 23 upon our findings:
I.

We conditionally certify a collective action under the Fair Labor Standards Act.
1.

We conditionally certify this action to proceed as a collective action under the

Fair Labor Standards Act on behalf of: All tipped employees who worked for Defendants
during the last three years.
2.

Collective Findings. Plaintiff makes a modest factual showing Ristorante La

Buca's tipped employees are "similarly situated." Plaintiff adduced evidence Ristorante La Buca
failed to provide him sufficient notice of its utilization of the tip credit.

This evidence is

sufficient to satisfy our first-tier review of Plaintiffs "modest factual showing" all tipped

employees are "similarly situated" for purposes of receiving tip credit notification from
Ristorante La Buca.
3.

List of persons in the collective. Defendants, no later than November 2, 2018,

shall produce a list, in electronic and importable format, of all persons they employed at
Ristorante La Buca utilizing a tip credit during the last three years, including their name, job
title, address, email address, telephone number, dates of employment, date of birth, and last four
digits of their Social Security number.
4.

Draft Notice to the collective. Plaintiff shall provide Defendants' counsel with a

draft court-facilitated notice and protocol no later than November 2, 2018. Defendants shall
offer comments upon the draft and protocol to Plaintiffs counsel by November 6, 2018, and
Plaintiff shall move for approval of his proposed Court-facilitated notice with a memorandum
not exceeding ten (10) pages identifying all areas of disagreement on the notice in an attached
black-lined version of the proposed Notice on or before November 9, 2018. Defendants may
file memoranda not exceeding ten (10) pages explaining their dispute with the proposed protocol
or proposed black-lined notice on or before November 13, 2018.

II.

We deny the motion to certify a Rule 23(b)(3) class action under Pennsylvania Law.
5.

Plaintiff has not, by a preponderance of the evidence, shown joinder of twenty or

twenty-two employees known to him and who already enjoy the right to opt into the Federal Law
claims and be represented by the same counsel cannot practically join into his Pennsylvania state
law claims.
6.

Plaintiff may move for class certification with additional evidence meeting his

burden under Rule 23(b)(3) consistent with our Policies and July 6, 2018 Order (ECF Doc. No.

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8) no later than November 30, 2018 with a response, if warranted by the Law, no later than
December 10, 2018.

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