McCoy v. RPM Management Group Inc et al

Filing 74

ORDER granting in part and denying in part 60 Motion to Certify Class; denying 62 Motion to Strike ; denying 71 Motion. Signed by Honorable Patrick Michael Duffy on October 19, 2015.(jmcg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Tyler McCoy,
on behalf of himself and all others
similarly situated,
Plaintiff,
v.
RP, Inc. d/b/a/ Kickin’ Chicken;
RPM Mt. Pleasant, Inc.; RPM West
Ashley, Inc.; RPM James Island, Inc.;
RPM Summerville, Inc.; R. David
Miller, individually; William G.
“Chip” Roberts, III, individually; and
Robert Perry, individually,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

C.A. No.: 2:14-cv-3171-PMD

ORDER

This matter is before the Court on Plaintiff Tyler McCoy’s Motion, on behalf of himself
and all others similarly situated (“Plaintiff”), for Conditional Class Certification (“Motion”)
pursuant to the collective action provision of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 216(b) (ECF No. 60). There are also two related motions before the Court: Defendants’
Motion to Strike (ECF No. 62) and Plaintiff’s Motion to Equitably Toll the Statute of Limitations
(ECF No. 71).
BACKGROUND
On August 7, 2014, Plaintiff commenced this action on behalf of himself and others
similarly situated, seeking unpaid minimum wages and unpaid overtime wages pursuant to the
FLSA. Plaintiff is a former employee of RP, Inc., and seeks recovery from all Defendants. 1

1. Defendants RP, Inc., RPM Mt. Pleasant, Inc., RPM West Ashley, Inc., RPM James Island, Inc., and RPM
Summerville, Inc. are restaurants that operate under the name Kickin’ Chicken, and are referenced collectively as
“Kickin’ Chicken.”

Plaintiff primarily alleges that Defendants used tip pools that violated the FLSA.
Specifically, Plaintiff asserts that Defendants paid some of their employees an hourly wage lower
than the statutory minimum wage using the FLSA’s Tip Credit provision, 29 U.S.C. § 203(m).
Plaintiff further asserts that while Defendants were paying less than the statutory minimum wage
using the Tip Credit provision, they required certain employees to contribute a portion of their
net sales to Kickin’ Chicken’s tip pools to compensate other employees. Finally, Plaintiff alleges
that some of the employees who received money from the tip pools were back-of-the-house
employees 2 who did not qualify to share in the tip pools because they did not customarily and
regularly receive tips. Because these back-of-the-house employees did not customarily and
regularly receive tips, as required by the Tip Credit provision, Plaintiff alleges that the tip pools
he and the other potential class members shared with the back-of-the-house employees violated
the FLSA.
Defendants assert that Plaintiff has not presented sufficient evidence to show that other
Kickin’ Chicken employees wish to opt-in to this suit or that Plaintiff is similarly situated to the
potential class members. To that end, Defendants moved to strike Plaintiff’s affidavit supporting
his Motion.
PROCEDURAL HISTORY
On May 22, 2015, Plaintiff filed a Motion for Conditional Certification. Defendants then
filed a Response in Opposition to Conditional Certification on June 8, 2015. That same day,
Defendants filed a Motion to Strike portions of Plaintiff’s affidavit. On June 22, 2015, Plaintiff
filed a Reply to Defendants’ Response in Opposition to Conditional Certification and a Response
in Opposition to Defendants’ Motion to Strike. Defendants then filed a Reply to Plaintiff’s

2. Among others, kitchen employees are usually an example of back-of-the-house staff. See Sorensen v. CHT
Corp., Nos. 03 C 1609, 03 C 7632, 2004 WL 442638, at *1 (N.D. Ill. Mar. 10, 2004).

2

Response in Opposition to Defendants’ Motion to Strike on July 7, 2015. Next, Plaintiff filed a
Motion for Equitable Tolling on July 23, 2015.

Finally, Defendants filed a Response in

Opposition to Plaintiff’s Motion for Equitable Tolling on August 8, 2015. Accordingly, these
matters are now ripe for consideration. The Court will address each pending motion in the order
in which it was filed.
Plaintiff’s Motion for Conditional Certification
LEGAL STANDARD
Under the FLSA, employees may institute a collective action against their employer on
behalf of themselves and similarly situated employees. The FLSA’s collective action provision
states that:
[a]n action to recover [unpaid overtime compensation] 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 in 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.
29 U.S.C. § 216(b). The mechanism outlined in § 216(b) is designed to facilitate the efficient
adjudication of similar claims by “similarly situated” employees, permitting the consolidation of
individual claims and the pooling of resources in prosecuting such actions against their
employers. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); LaFleur v.
Dollar Tree Stores, Inc., 30 F. Supp. 3d 463, 467 (E.D. Va. 2014), reconsideration denied, 2014
WL 2121563 (E.D. Va. May 20, 2014), and motion to certify appeal denied, 2014 WL 2121721
(E.D. Va. May 20, 2014); Lynch v. United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 367
(S.D.N.Y. 2007). In deciding whether the named plaintiffs in an FLSA action are “similarly

3

situated” to other potential plaintiffs, courts generally employ a two-stage approach. 3 Purdham
v. Fairfax Cty. Pub. Sch., 629 F. Supp. 2d 544, 547 (E.D. Va. 2009) (quoting Parker v. Rowland
Express, Inc., 492 F. Supp. 2d 1159, 1164 (D. Minn. 2007)); see also Regan v. City of
Charleston, No. 2:13-cv-03046-PMD, 2014 WL 3530135, at *2 (D.S.C. July 16, 2014);
Pelczynski v. Orange Lake Country Club, Inc., 284 F.R.D. 364, 367 (D.S.C. 2012); Simons v.
Pryor’s, Inc., No. 3:11-cv-0792-CMC, 2011 WL 6012484, at *1 (D.S.C. Nov. 30, 2011);
MacGregor v. Farmers Ins. Exch., No. 2:10-cv-03088-DCN, 2011 WL 2981466, at *2 (D.S.C.
July 22, 2011).
The first step in this process, which is the subject of the instant Motion, is the “notice,” or
“conditional certification,” stage. Purdham, 629 F. Supp. 2d at 547. Here, “a plaintiff seeks
conditional certification by the district court in order to provide notice to similarly situated
plaintiffs” so that they can “opt-in” to the collective action. Pelczynski, 284 F.R.D. at 367–68.
With regard to this notice phase, “[t]he Supreme Court has held that, in order to expedite the
manner in which collective actions under the FLSA are assembled, ‘district courts have
discretion[,] in appropriate cases[,] to implement . . . § 216(b) . . . by facilitating notice to
potential plaintiffs.’” Purdham, 629 F. Supp. 2d at 547 (quoting Hoffman-La Roche, Inc., 493
U.S. at 169). At this stage, the court reviews the pleadings and affidavits to determine whether
the plaintiff has carried his burden of showing that he is similarly situated to the other putative
class members. Pelczynski, 284 F.R.D. at 368; Purdham, 629 F. Supp. 2d at 547–48. “Because
the court has minimal evidence, this determination is made using a fairly lenient standard,”
3. Although the Fourth Circuit has not yet enunciated a test for conditional certification of collective actions, district
courts in the Fourth Circuit, including this Court, typically follow the two-stage, or two-step, approach when
deciding whether named plaintiffs are similarly situated to potential plaintiffs. E.g., LaFleur, 30 F. Supp. 3d at 467
(“District courts within . . . the Fourth Circuit . . . have uniformly employed a two-step inquiry in deciding whether
to certify a collective action under the FLSA . . . .”); Curtis v. Time Warner Entm’t, No. 3:12-cv-2370-JFA, 2013
WL 1874848, at *2 (D.S.C. May 3, 2013) (“Although the Fourth Circuit has not directly addressed the appropriate
standard for certifying a collective action under § 216(b), district courts in this circuit, including this court, follow
the [two-stage] process . . . .”).

4

Steinberg v. TQ Logistics, Inc., No. 0:10-cv-2507-JFA, 2011 WL 1335191, at *1 (D.S.C. Apr. 7,
2011), requiring plaintiffs to make a “a modest factual showing sufficient to demonstrate that
they and potential plaintiffs together were victims of a common policy or plan that violated the
law,” Purdham, 629 F. Supp. 2d at 548. If the court determines that the proposed class members
are similarly situated, the court conditionally certifies the class. Steinberg, 2011 WL 1335191, at
*1. The putative class members are then notified and afforded the opportunity to “opt-in,” and
the case proceeds as a representative action throughout discovery. Id. (citing Scholtisek v. Eldre
Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005)); see also Genesis Healthcare Corp. v. Symczyk,
133 S. Ct. 1523, 1530 (2013) (citation omitted) (“‘[C]onditional certification’ does not produce a
class with an independent legal status, or join additional parties to the action.

The sole

consequence of conditional certification is the sending of court-approved written notice to
employees, who in turn become parties to a collective action only by filing written consent with
the court.” (citing § 216(b))).
Second, after the court has conditionally certified the class, the potential class members
have been identified and notified, and discovery has been completed, “a defendant may then
move to decertify the collective action, pointing to a more developed record to support its
contention that the plaintiffs are not similarly situated to the extent that a collective action would
be the appropriate vehicle for relief.”

Pelczynski, 284 F.R.D. at 368.

At this optional

“decertification stage,” the court applies a heightened fact-specific standard to the “similarly
situated” analysis. Steinberg, 2011 WL 1335191, at *2; see Pelczynski, 284 F.R.D. at 368.
“Courts have identified a number of factors to consider at this stage, including (1) disparate
factual and employment settings of the individual plaintiffs; (2) the various defenses available to
defendants that appear to be individual to each plaintiff; and (3) fairness and procedural

5

considerations.” Curtis, 2013 WL 1874848, at *3 (internal quotation marks omitted). If the
court determines that the plaintiffs are not, in fact, similarly situated, it may decertify the class,
dismiss the opt-in plaintiffs’ claims without prejudice, and permit the named plaintiffs to proceed
on their individual claims. Id.
ANALYSIS
Plaintiff specifically requests that this Court enter an order: (1) conditionally certifying a
class of individual restaurant employees (“Proposed Class”), as detailed further herein; (2)
requiring Defendants to produce the names, addresses, telephone numbers, email addresses, and
dates of employment for all members of the Proposed Class; (3) authorizing Plaintiff to send a
court-approved notice to members of the Proposed Class by both U.S. Mail and email; (4)
authorizing Plaintiff to send a text message containing a reduced notice to any member of the
Proposed Class whose notice sent by U.S. Mail is returned as undeliverable; and (5) authorizing
Plaintiff to post a laminated notice, with an adjacent envelope containing consents, in a
communal area within each Kickin’ Chicken location. The Court will address each request in
turn, along with Defendants’ objections thereto.
I.

Conditional Certification

Plaintiff moves to conditionally certify the following Proposed Class:
Any individual employed at Kickin’ Chicken (Downtown Charleston; James
Island; Mt. Pleasant; West Ashley; or Summerville) at any time since [DATE] 4
who at any time was paid an hourly rate less than the statutory minimum wage of
Seven and 25/100 dollars ($7.25) per hour and either contributed money to a tip
pool or received money from a tip pool.
(Pl’s. Mem. Supp. Mot. Conditional Class Certification, ECF No. 60-1, at 4.)
Defendants first assert that Plaintiff cannot meet his burden for conditional certification
because he has failed to show that “other employees exist who wish to opt in to this lawsuit.”
4. Plaintiff requests that the date be the date three years prior to the entry of this order.

6

(Defs.’ Mem. Opp’n. Pl’s. Mot. Conditional Class Certification, ECF No. 61, at 4.) Defendants
cite to the Eleventh Circuit and to district courts throughout the country that impose such a
requirement. See, e.g., Dybach v. Fla. Dep’t of Corr., 942 F.2d 1562 (11th Cir. 1991); O’Donnell
v. Robert Half Int’l, Inc., 534 F. Supp. 2d 173 (D. Mass. 2008); Simmons v. T-Mobile USA, Inc.,
No. H-06-1820, 2007 WL 210008 (S.D. Tex. Jan. 24, 2007); Davis v. Charoen Pokphand (USA),
Inc., 303 F. Supp. 2d 1271 (M.D. Ala. 2004). The Fourth Circuit has not ruled on this specific
issue, but this Court has stated that “[a]bsent authority requiring consideration of the actual
interest level of potential opt-ins, this court is not inclined to impose such a burden.” Simons v.
Pryor’s, Inc., No. 3:11-cv-0792-CMC, 2011 WL 3158724, at *2 (D.S.C. July 26, 2011).
Additionally, “such a requirement seems at odds with, or at least duplicative of, the special opt-in
procedures applied under the FLSA.” Id. Therefore, the Court declines to require that Plaintiff
show interest from potential opt-ins in order to conditionally certify a class.
Next, Defendants assert that Plaintiff has not produced sufficient evidence to meet the
burden of class certification because Plaintiff is not similarly situated to other Kickin’ Chicken
employees. As also raised in their Motion to Strike, Defendants contend that Plaintiff must
present “admissible evidence to support a finding that the proposed class is similarly situated.”
(Defs.’ Mem. Opp’n Pl’s. Mot. Conditional Certification, ECF No. 61, at 15.) As discussed
further in the section of this order denying Defendants’ Motion to Strike, courts in the Fourth
Circuit that have addressed the issue have held that hearsay evidence in an affidavit supporting a
motion for conditional certification may be considered so long as it is based on personal
knowledge. See, e.g., Robinson v. Empire Equity Grp., No. WDQ–09–1603, 2009 WL 4018560,
at *3 (D. Md. Nov. 18, 2009). Therefore, the Court will consider the evidence presented in
Plaintiff’s affidavit.

7

Plaintiff has produced factual evidence in the form of his affidavit. The Court finds that
the affidavit is sufficient factual evidence to support Plaintiff’s allegation that the Proposed Class
is similarly situated. Plaintiff’s affidavit states that he worked at the downtown Kickin’ Chicken
location, and Plaintiff never asserts that he worked at any other Kickin’ Chicken location.
However, Plaintiff’s affidavit also states that servers from other Kickin’ Chicken locations told
him that they also had a mandatory tip out policy. Additionally, his affidavit states that a
member of management told him that the tip out policies were the same at the other Kickin’
Chicken locations. Plaintiff has produced evidence that Kickin’ Chicken employed a common
scheme or policy of requiring servers to participate in tip pools with allegedly ineligible
employees.

Additionally, Kickin’ Chicken’s policy applied to Plaintiff personally.

While

Defendants correctly point out that Plaintiff has not produced any evidence from employees of
the other Kickin’ Chicken locations, nor has he identified the declarants who told him about the
policies at those locations, those arguments are better suited for the optional de-certification
stage. See Pelczynski, 284 F.R.D. at 368. Thus, the Court finds that Plaintiff’s affidavit is
sufficient evidence to demonstrate that the Proposed Class is similarly situated to Plaintiff. As a
result, Plaintiff has met his lenient burden for conditional certification.
Defendants also object to the definition of the Proposed Class, stating that the class
should be limited to servers from the downtown Charleston Kickin’ Chicken owned by RP, Inc.
The Court agrees that the class should be narrowed. 5

5. To have a private right of action under §216(b), back-of-the-house employees must have been paid less than the
minimum wage. Trejo v. Ryman Hosp. Props., Inc., 795 F.3d 442, 446 (4th Cir. 2015) (citing Monahan v. County of
Chesterfield, 95 F.3d 1263, 1284 (4th Cir. 1996)). The only evidence submitted about back-of-the-house
employees’ wages were affidavits prepared by various Kickin’ Chicken managers, which state that back-of-thehouse employees were paid at least minimum wage. Plaintiff’s affidavit contains conclusory statements that
bartenders and other support staff members were paid less than minimum wage. However, unlike his claims about
servers, Plaintiff’s claims about bartenders and back-of-the-house employees are not supported by any additional
evidence. Therefore, Plaintiff’s statements are insufficient evidence to warrant the inclusion of back-of-the-house
employees and bartenders in the class.

8

Therefore, the Court conditionally certifies Plaintiff’s Proposed Class with some of the
modifications requested by Defendants. The class is hereby defined as follows:
All Kickin’ Chicken servers at each location who were paid an hourly rate less
than the statutory minimum wage of Seven and 25/100 dollars ($7.25) per hour at
any time since October 19, 2012.
II.

Contact Information for the Proposed Class

Plaintiff also requests an order requiring Defendants to produce the names, addresses,
telephone numbers, email addresses, and dates of employment for all Kickin’ Chicken
employees belonging to the class. Defendants object to disclosing the telephone numbers and
email addresses of their current and former employees.
District courts have taken conflicting positions and approaches as to what information
regarding potential plaintiffs may or must be disclosed to named plaintiffs at the notice stage of
FLSA actions. 6 Although email addresses are more routinely disclosed, district courts in this
circuit have required a showing of a “special need” before requiring the disclosure of telephone
numbers. See Ruiz v. Monterey of Lusby, Inc., No. DKC 13-3792, 2014 WL 1793786, at *3 n.1
(D. Md. May 5, 2014) (quoting Calderon v. Geico Gen. Ins. Co., No. RWT 10cv1958, 2011 WL
98197, at *9 (D. Md. Jan. 12, 2011) (“Defendants will not . . . be required to provide phone
numbers for potential opt-in plaintiffs at this time because Plaintiffs have made no showing of
any ‘special need’ for the disclosure of this information.”).
Plaintiff argues for email notice in addition to U.S. Mail notice because “email addresses
tend to last for a long time” and “email notice has been found by courts to be a safe, reliable, and

6. Compare Velasquez v. Digital Page, Inc., No. 11-3892 LDW AKT, 2014 WL 2048425, at *15 (E.D.N.Y. May
19, 2014) (“In general, it is appropriate for courts in collective actions to order the discovery of names, addresses,
telephone numbers, email addresses, and dates of employment of potential collective members.”), with Amrhein v.
Regency Mgmt. Servs., LLC, No. SKG-13-1114, 2014 WL 1155356, at *10 (D. Md. Mar. 20, 2014) (“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.”).

9

very unobtrusive method of delivering notice.” (Pls.’ Mem. Supp. Mot. Conditional
Certification, ECF No. 60-1, at 11.) As for telephone numbers, Plaintiff desires to use a text
message form of notice if a class member’s U.S. Mail notice is returned as undeliverable.
Plaintiff asserts that he has shown the requisite special need because the Kickin’ Chicken servers
are “migratory in nature.” Id. Plaintiff claims that “[t]he one constant contact that these putative
members have is their cell phone number.”

Id.

The Court finds that Plaintiff has not

demonstrated a special need for the use of text message notice, but approves sending notice by
both U.S. Mail and email. 7 Plaintiff’s assertion that the Kickin’ Chicken servers are migratory in
nature does not rise to the level of a “special need.” Accordingly, Plaintiff’s request that the
Court order Defendants to produce the email addresses of potential plaintiffs is granted, while
Plaintiff’s request for text message notice is denied. Defendants are hereby ordered to produce
the names, last known addresses, email addresses, and dates of employment of all potential
plaintiffs to the third-party administrator within ten days of this Order.
Finally, Plaintiff and Defendants disagree over the subject line to be used for the email
Notice. Plaintiff requests “Kickin’ Chicken Lawsuit—Please Read.” (Pl’s. Mem. Supp. Mot.
Conditional Certification, ECF No. 60-1, at 11.) In contrast, Defendants request “Notice of Fair
Labor Standards Lawsuit.” (Defs.’ Mem. Opp’n Pl’s. Mot. Conditional Certification, ECF No.
61, at 27.) In accordance with the goals of a court-authorized notice discussed below in section
III, the Court approves Plaintiff’s requested subject line.

7. “‘[C]ommunication through email is [now] the norm.’” Butler v. DirectSAT USA, LLC, 876 F. Supp. 2d 560, 575
(D. Md. 2012) (quoting In re Deloitte & Touche, LLP Overtime Litig., No. 11 Civ. 2461(RMB)(THK), 2012 WL
340114, at *2 (S.D.N.Y. Jan. 17, 2012)).

10

III.

Form and Manner of Court-Facilitated Notice

The Court next turns to Plaintiff’s various requests regarding the court-facilitated notice
to potential opt-in plaintiffs, as well as Defendants’ objections to the form and manner of such
notice.
A.

Proposed Initial Notice

Contemporaneously with his filing of the instant Motion, Plaintiff has provided the Court
with a proposed notice, titled “Notice of Collective (Class) Action Lawsuit” (“Proposed
Notice”).

Plaintiff seeks the Court’s approval of the Proposed Notice and the Court’s

authorization to send it to prospective plaintiffs.

Defendants, in addition to requesting

modification of the Proposed Notice to account for the various objections outlined above, also
ask that the language of the Proposed Notice be amended in several other respects. The Court
will address all of Defendants’ objections to Plaintiff’s Proposed Notice in turn.
Again, it is important to note that “district courts have discretion, in appropriate cases, to
implement . . . § 216(b) . . . by facilitating notice to potential plaintiffs.” Hoffmann-La Roche,
Inc., 493 U.S. at 169. In facilitating such notice under the FLSA, courts also have “broad
discretion regarding the ‘details’ of the notice sent to potential opt-in plaintiffs.” Butler v.
DirectSAT USA, LLC, 876 F. Supp. 2d 560, 574 (D. Md. 2012) (quoting Lee v. ABC Carpet &
Home, 236 F.R.D. 193, 202 (S.D.N.Y. 2006)). “Neither the [FLSA], nor other courts, have
specifically outlined what form court-authorized notice should take nor what provisions the
notice should contain.” Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 60 (E.D.N.Y. 2011)
(quoting Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007)
(internal quotation marks omitted)). Moreover, the Supreme Court has expressly abstained from
reviewing the contents of a proposed notice under § 216(b), instead “confirm[ing] the existence

11

of the trial court’s discretion, not the details of its exercise.” Hoffman-La Roche, Inc., 493 U.S.
at 170. Nevertheless, “[w]hen exercising its broad discretion to craft appropriate notices in
individual cases, District Courts [should] consider the overarching policies of [the FLSA’s]
collective suit provisions.” Velasquez, 2014 WL 2048425, at *9 (quoting Fasanelli, 516 F.
Supp. 2d at 323 (internal quotation marks omitted)). “The[se] overarching policies . . . require
that the proposed notice provide accurate and timely notice concerning the pendency of the
collective action, so that potential plaintiffs can make informed decisions about whether to
participate.” Butler, 876 F. Supp. 2d at 574–75 (quoting Whitehorn v. Wolfgang’s Steakhouse,
Inc., 767 F. Supp. 2d 445, 450 (S.D.N.Y. 2011)). “Absent reasonable objections by either the
defendant or the Court, plaintiffs should be allowed to use the language of their choice in
drafting the notice.” Sylvester v. Wintrust Fin. Corp., No. 12 C 01899, 2013 WL 5433593, at *6
(N.D. Ill. Sept. 30, 2013) (quoting Kelly v. Bank of Am., N.A., No. 10 C 5332, 2011 WL
7718421, at *1 (N.D. Ill. Sept. 23, 2011) (internal quotation marks omitted)).
Defendants’ objections are addressed under the headings used in their Memorandum in
Opposition to Plaintiff’s Motion for Conditional Class Certification.

The third-party

administrator shall modify Plaintiff’s amended notice, found in Exhibit 2 to his Reply, in
accordance with the Court’s rulings below.
1.

Plaintiff’s Requested Notice

Defendants have agreed to use a third-party administrator, Simpluris, to “send out any
Court approved notices.” (Defs.’ Mem. Opp’n. Pls.’ Mot. Conditional Certification, ECF No.
61, at 27.) Defendants have further agreed to produce the potential class members’ information
to Simpluris within ten business days of this Order. Plaintiff has agreed to the use of a thirdparty administrator. Accordingly, it is so ordered.

12

Plaintiff’s counsel also requested that he be provided with the contact information of
potential class members. Plaintiff’s counsel’s request is denied in the interest of a neutral notice
and the potential class members’ privacy. See Robinson, 2009 WL 4018560, at *5. Should
Plaintiff’s counsel need the potential class member as a non-party witness, Plaintiff may use all
the normal methods available for contacting such a witness.
2.

U.S. Mail

Plaintiff argues that the Proposed Notice should be sent to each physical address and
email address that Defendants have on file because the potential class members are migratory in
nature. Defendants agree to mail a Court-approved notice to the last known address of all
members of the potential class, but do not agree to mail notice to all addresses they may have for
potential class members. Defendants assert that they would know if the last known addresses of
former employees were incorrect since their last W-2 forms were sent there. Additionally,
Defendants assert that searching all records of each potential class member to determine if he or
she provided more than one physical or email address would be extremely burdensome and
unnecessary unless the letter was returned and the email was undeliverable. Finally, Defendants
assert, “sending multiple copies of the Notice could be confusing to the recipients.” (Defs.’
Mem. Opp’n. Pls.’ Mot. Conditional Certification, ECF No. 61, at 26.) The Court agrees with
Defendants that such notice is unnecessary and overly burdensome.

Plaintiff may request

additional address information for any potential class member whose U.S. Mail Notice was
returned and whose email Notice was undeliverable.
3.

E-mail And Text Message Via Cell Phone

Next, Defendants state that they would allow the third-party administrator to send a
Notice by email only if a U.S. Mail Notice sent by the third-party administrator was returned.

13

Additionally, Defendants state that they do not agree to authorize the third-party administrator to
send text messages via cell phone.

As discussed above, the third-party administrator is

authorized to send out a Notice to each potential class member by both U.S. Mail and email, but
is not authorized to send a Notice by text message.
4.

Definition Of Class

Plaintiff’s Proposed Class is limited in accordance with the discussion above.
Defendants’ objection is therefore sustained in part and overruled in part.
5.

Opt-In Period Notification “Over Kill”

Plaintiff agreed to the modifications requested by Defendants. Defendants’ objection is
therefore sustained.
6.

Class Versus Collective Action

Plaintiff agreed to the modifications requested by Defendants. Defendants’ objection is
therefore sustained.
7.

Other Objections

Defendants object to the use of “Kickin’ Chicken” in Plaintiff’s initial Proposed Notice
and request that Plaintiff use Defendants’ corporate names. In light of the goals of a courtauthorized notice, the Court overrules Defendants’ objection and permits the use of Kickin’
Chicken in place of Defendants’ corporate names.
Defendants’ second objection is to the first bold paragraph of the Proposed Notice.
Defendants assert that it is unnecessary and redundant of language in the next paragraph and
should therefore be deleted. That paragraph does not appear in Plaintiff’s amended notice
attached as Exhibit 2 of Plaintiff’s Reply. Additionally, Plaintiff did not object to changing that

14

paragraph in his Reply. Thus, it appears that Plaintiff does not oppose Defendants’ objection,
and it is therefore sustained.
Defendants’ third objection is a suggestion on how to restructure Plaintiff’s initial
Proposed Notice for clarity. Again, Plaintiff incorporated those changes in his amended notice
and did not object to them in his Reply. Thus, Defendants’ objection is sustained.
Defendants’ fourth objection is to language in Plaintiff’s initial Proposed Notice about
the effect of joining and not joining. As with previous sections, Plaintiff has incorporated these
changes in his amended notice and did not oppose these changes in his Reply. Thus, Defendants’
objection is sustained.
Defendants’ fifth objection is to a stray reference to Hyman’s Seafood in Plaintiff’s initial
Proposed Notice. Plaintiff has deleted the reference to Hyman’s Seafood and Defendants’
objection is sustained.
Defendants’ sixth objection is to language in Plaintiff’s initial Proposed Notice stating
that tips were “taken” by Kickin’ Chicken and to parenthetical information about liquidated
damages. Defendant has made suggested changes to that language. Plaintiff has incorporated
those changes in his amended notice and did not oppose those changes in his Reply. Thus,
Defendants’ objection is sustained.
Defendants’ seventh objection requests the deletion of the paragraph numbered 5 in
Plaintiff’s initial Proposed Notice. Plaintiff deleted the paragraph in his amended notice and did
not oppose that change in his Reply. Thus, Defendants’ objection is sustained.
Defendants’ eighth objection is to the paragraph numbered 6 in Plaintiff’s initial
Proposed Notice. Defendants request that Plaintiff substitute their sentence about compensating
other counsel. Plaintiff amended the paragraph in his amended notice and did not oppose that

15

change in his Reply. Thus, Defendants’ objection to that sentence is sustained. Defendants also
assert that Plaintiff’s statement about costs is inaccurate because “employees may be responsible
for costs should they not prevail.”

(Defs.’ Mem. in Opp’n to Pl’s. Mot. Conditional

Certification, ECF No. 61, at 33.) Plaintiff’s counsel responds that he “knows of no court within
the Fourth Circuit that has required this type of language.” (Pl’s. Reply to Mot. Conditional
Certification, ECF No. 63, at 8.) The District Court for the Northern District of West Virginia
addressed this issue in Byard v. Verizon West Virginia, Inc., 287 F.R.D. 365 (N.D. W. Va. 2012).
In Byard, the court included a sentence in the authorized notice that stated, “If you do not prevail
on your claim, court costs and expenses may possibly be assessed against you.” 287 F.R.D. at
375. Therefore, the Court finds Defendants’ request to include similar language in Plaintiff’s
initial Proposed Notice reasonable. Thus, Defendants’ objection is sustained.
Defendants’ ninth objection is to the paragraph numbered 7 in Plaintiff’s initial Proposed
Notice. Defendants request that the word “class” be removed and replaced with “collective” to
accurately reflect this type of case. Plaintiff’s amended notice reflects that change and Plaintiff
did not oppose it in his Reply. Thus, Defendants’ objection is sustained.
Defendants’ tenth objection is to the provision in Plaintiff’s initial Proposed Notice about
contacting the Court.

Defendants request that this provision be removed because it “is

unnecessary and also implies that the Court is commenting on an employee’s ‘rights’ rather than
merely authorizing that a Notice be sent out.” (Defs.’ Mem. in Opp’n Pl’s. Mot. Conditional
Certification, ECF No. 61, at 33.) Plaintiff’s amended notice reflects that change and Plaintiff
did not oppose it in his Reply. Thus, Defendants’ objection is sustained.
Defendants’ final objection is to the paragraph numbered 8 in Plaintiff’s initial Proposed
Notice. Defendants contend that both sentences belong elsewhere in the Proposed Notice.

16

Plaintiff’s amended notice reflects that change and Plaintiff did not object to this change in his
Reply. Thus, Defendants’ objection is sustained.
B.

Posting of the Authorized Notice

Finally, Defendants argue against posting a laminated notice in each Kickin’ Chicken
location, as requested by Plaintiff. Defendants cite to this Court’s order in Regan v. City of
Charleston, stating that the current employees who would see the laminated notice are the very
employees whose contact information is most likely to be up to date. 2014 WL 3530135, at *11
(D.S.C. July 16, 2014).

Additionally, Defendants contend that posting the notice in the

workplace is likely to increase tension in the work environment. The Court finds Defendants’
arguments persuasive. No laminated notice shall be posted in any of the Kickin’ Chicken
locations.
Defendants’ Motion to Strike
Defendants allege that the fifth, ninth, and tenth paragraphs of Plaintiff’s affidavit
supporting his Motion for Conditional Certification are not based on personal knowledge and
contain inadmissible hearsay. Therefore, Defendants argue, those portions should be stricken.
The Fourth Circuit has not addressed whether a court should consider hearsay in supporting
affidavits at the conditional certification stage.

However, “[j]udges deciding motions for

conditional certification in this district have considered hearsay in supporting affidavits.”
Robinson v. Empire Equity Grp., Inc., No. WDQ-09-1603, 2009 WL 4018560, at *3 (D. Md.
Nov. 18, 2009) (citing Mancia v. Mayflower Textile Servs. Co., No. CCB-08-273, 2008 WL
4735344, at *3 (D. Md. Oct. 14, 2008); Montoya v. S.C.C.P. Painting Contractors, Inc., No.
CCB-07-455, 2008 WL 554114, at *2 (D. Md. Feb. 26, 2008); Marroquin v. Canales, 236
F.R.D. 257, 260 (D. Md. 2006)).

“This is appropriate given the ‘modest factual support’

17

required at this stage.” Id. (quoting D’Anna v. M/A-COM, Inc., 903 F. Supp. 889, 894 (D. Md.
1995)). Nonetheless, “[a]ffidavits ‘submitted at the notice stage must be based on the personal
knowledge of the affiant.’” Id. (quoting White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 369
(E.D. Tenn. 2006)). Without the personal knowledge requirement, “‘affidavits submitted would
not be any more probative than the bare allegations in the complaint, and the requirement of
factual support would be superfluous.’” Id. (quoting White, 236 F.R.D. at 369).
Defendants assert that Plaintiff’s statements in the ninth and tenth paragraphs of his
affidavit are hearsay.

Thus, Defendants contend, those statements must be stricken from

Plaintiff’s affidavit. In paragraph nine, Plaintiff states “I have been told by servers at other
Kickin’ Chicken locations that the tip out policy was mandatory at these locations.” (Pl.’s Aff.,
ECF No. 60-5, at 2.) Then, in paragraph ten, he states, “I have been told by a member of
management that the tip out policies were the same at the other Kickin’ Chicken locations.” Id.
As discussed above, courts in the Fourth Circuit have held that it is appropriate to consider
hearsay at the conditional certification stage. Accordingly, Defendants’ argument as to hearsay
is rejected.
Defendants also assert that Plaintiff’s statements in the fifth, ninth, and tenth paragraphs
of his affidavit are not based on personal knowledge and should therefore be stricken.
Paragraphs nine and ten are quoted above.

Paragraph five of Plaintiff’s affidavit states,

“[a]dditional support staff was paid less than $7.25 an hour.” (Pl.’s Aff., ECF No. 60-5, at 1.)
However, Plaintiff correctly asserts that the statements considered by the court in Robinson are
precisely the same kind of statements that Plaintiff made in this case. In Robinson, two of the
opt-in plaintiffs submitted affidavits discussing how employee compensation and hours were
determined for employees in other branches of their mortgage broker employer. 2009 WL

18

4018560, at *3. The affiants in Robinson did not work at those branches, but had a working
knowledge of operations in the other branches as a result of conversations they had with other
employees of their common employer. Id. The court in Robinson treated that type of hearsay
information as within the affiants’ personal knowledge and ultimately certified the class. Id. at
*3, *5.
Although Plaintiff’s affidavit does not identify the declarant or declarants who told him
about tip pools at other Kickin’ Chicken locations, that information is nonetheless within his
personal knowledge. As a result of his conversations with other servers and with a member of
management, Plaintiff has personal knowledge, whether accurate or not, of the tip pooling
practices at other Kickin’ Chicken locations. Additionally, Plaintiff has personal knowledge that
additional support staff was paid less than $7.25 an hour because he worked with those
employees. Under Robinson, that knowledge may be considered by the Court at the notice stage.
Therefore, Defendants’ argument as to personal knowledge fails.
Plaintiff’s Motion to Equitably Toll the Statute of Limitations
Finally, the Court addresses Plaintiff’s Motion to Equitably Toll the Statute of
Limitations (ECF No. 71) from June 25, 2015 through the end of the notice period. The Court
denies Plaintiff’s motion.
“Equitable tolling is available when 1) the plaintiffs were prevented from asserting their
claims by some kind of wrongful conduct on the part of the defendant, or 2) extraordinary
circumstances beyond plaintiffs’ control made it impossible to file the claims on time.” Cruz v.
Maypa, 773 F.3d 138, 146 (4th Cir. 2014) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th
Cir. 2000) (internal quotation marks omitted)). “Equitable tolling is a rare remedy available only
where the plaintiff has ‘exercise[d] due diligence in preserving [his] legal rights.’” Id. at 145–46

19

(quoting Chao v. Va. Dep’t Transp., 291 F.3d 276, 283 (4th Cir. 2002) (first alteration in
original)). Additionally, “equitable tolling for unspecified potential plaintiffs should not be
permitted without extraordinary justification.” LaFleur v. Dollar Tree Stores, Inc., No. 2:12-cv00363, 2012 WL 4739534, at *7 (E.D. Va. Oct. 2, 2012) (citing Longcrier v. HL-A Co., Inc., 595
F.2d 1218, 1244 (S.D. Ala. 2008) (“To hold otherwise would be to opine that equitable tolling
should be granted in every § 216(b) case as a matter of course during the pendency of the
conditional class certification request, thereby transforming this extraordinary remedy into a
routine, automatic one.”).
Plaintiff has not alleged that he was prevented from asserting his claims by any wrongful
conduct on the part of any defendant. Accordingly, in order to prevail, Plaintiff must show the
existence of some extraordinary circumstance beyond his control. After carefully considering
Plaintiff’s motion and the arguments asserted therein, the Court concludes that equitable tolling
is not warranted in this instance.

Plaintiff has made no showing of an extraordinary

circumstance that would justify equitable tolling. Therefore, Plaintiff’s Motion to Equitably Toll
the Statute of Limitations is denied.

20

CONCLUSION
For the foregoing reasons, it is ORDERED that Plaintiff’s Motion to Conditionally
Certify a class is GRANTED IN PART AND DENIED IN PART, subject to the modifications
and limitations outlined above.
It is further ORDERED that Defendants’ Motion to Strike is DENIED.
It is further ORDERED that Plaintiff’s Motion to Equitably Toll the Statute of
Limitations is DENIED.
AND IT IS SO ORDERED.

October 19, 2015
Charleston, South Carolina

21