Compere v. Nusret Miami, LLC

391 F.Supp.3d 1197

Melissa COMPERE, on behalf of herself and all others similarly situated, Plaintiff,

v.NUSRET MIAMI, LLC, d/b/a Nusr-et Steakhouse, a Florida limited liability company, Nusret Gokce, an individual, Defendants.

Case No. 1:19-cv-20277-KMM

United States District Court, S.D. Florida.

Signed August 21, 2019

Robert William Brock, II, Law Office of Lowell J. Kuvin, Miami, FL, for Plaintiff.

Jonathan Alan Beckerman, Miguel Angel Morel, Littler Mendelson, PC, Miami, FL, for Defendants.

OMNIBUS ORDER

K. MICHAEL MOORE, UNITED STATES CHIEF DISTRICT JUDGE

THIS CAUSE came before the Court upon named Plaintiff Melissa Compere's ("Plaintiff" or "Compere") Motion to Certify 216(b) Collective Action ("Mot. to Certify") (ECF No. 19) and Defendant Nusret Miami, LLC's Partial Motion to Dismiss ("Mot. to Dismiss") (ECF No. 9). The Parties filed their respective responses and replies.¹ The matter is now ripe for review.

I. BACKGROUND

On January 18, 2019, Plaintiff filed a Collective Action Complaint on behalf of herself and all others similarly situated against Defendants Nusret Miami, LLC ("Nusret Miami") and Nusret Gokce ("Gokce") (collectively, "Defendants") seeking relief under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. and the Declaratory Judgment Act, 28 U.S.C. § 2201. See generally ("Compl.") (ECF No. 1). Plaintiff alleges that she and other front-of-the-house tipped employees were (1) forced to participate in a tip pool or tip-share, in which tips were shared with non-tipped employees and (2) paid below the minimum and overtime wage for tipped employees. See generally id. In Count I, Plaintiff asserts a claim for failure to pay minimum wage in violation of the FLSA. Id. at 7–8. In Count II, Plaintiff asserts a claim for failure to pay overtime wages in violation of the FLSA. Id. at 8–9. In Count III, Plaintiff requests a declaration that Defendants' acts, policies, practices, and procedures have violated the FLSA. Id. at 9–10.

Now, Plaintiff moves to conditionally certify a collective action with the following class definition:

All front-of-the-house tipped employees who worked at Nusr-et Steakhouse in Miami within the two years preceding this lawsuit and who, as a result of Defendants' policy of requiring Class Members to share tips with non-tipped employees and to work without being paid an hourly wage, earned less than the applicable minimum and/or overtime wage for one or more weeks.

Mot. to Certify at 1–2. Plaintiff also moves this Court to permit Plaintiff to notify potential class members of the pendency of this action and of their right to opt in to this action. Id. at 18–19.

Plaintiff and Opt-In Plaintiff Valdo Sulaj ("Sulaj") filed affidavits in support of the Motion to Certify.² See Affidavit of Melissa Compere ("Compere Aff.") (ECF No. 16); Affidavit of Valdo Sulaj ("Sulaj Aff.") (ECF No. 18). In their affidavits, Compere and Sulaj state that "to the best of [their] knowledge and belief [they] worked with approximately 200 other tipped employees who were subject to the same policies and procedures as [them]." See Compere Aff. ¶ 10; Sulaj Aff. ¶ 7. Compere and Sulaj add that "other tipped employees at Nusr-et Steakhouse will want to participate in this lawsuit," but that "many of them are unaware of their rights pertaining to minimum and overtime wages, or in fear of retaliation if they were to exercise their rights in an individual action." Compere Aff. ¶ 11; Sulaj Aff. ¶ 8. In addition to Compere and Sulaj, other employees have opted in to this lawsuit (collectively referred to herein as "Opt-In Plaintiffs"). See Notices of Consent to Join (ECF Nos. 39, 44, 54, 56).

Additionally, Defendant Nusret Miami moves to dismiss the declaratory relief claim (Count III) pursuant to Federal Rule of Civil Procedure 12(b)(6). See generally Mot. to Dismiss. Because the resolution of the Motion to Certify impacts the resolution of the Motion to Dismiss, the Court will first address the Motion to Certify. See Hart v. JPMorgan Chase Bank, N.A. , No. 8:12-CV-00470-T-27TBM, 2012 WL 12914660, at *2 (M.D. Fla. June 20, 2012) (denying motion to dismiss to allow the court to first address the plaintiff's motion to certify).

II. LEGAL STANDARD

A. Certification of 216(b) Collective Action

The FLSA authorizes collective actions against employers for unpaid minimum wage and overtime compensation. 29 U.S.C. § 216(b). Section 216(b) provides that an action "may be maintained ... by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." Id. A plaintiff may bring a collective action on behalf of similarly-situated persons subject to the requirements that prospective plaintiffs file a written consent in the court where the action is brought. Id. ; Hipp v. Liberty Nat'l Life Ins. Co. , 252 F.3d 1208, 1216 (11th Cir. 2001). A collective action brought under the FLSA can include only those plaintiffs who affirmatively opt in to the action by filing their consent in writing. 29 U.S.C. § 216(b).

Courts in the Eleventh Circuit generally use a two-tiered procedure for certifying FLSA collective actions. See Cameron-Grant v. Maxim Healthcare Servs., Inc. , 347 F.3d 1240, 1243 n.2 (11th Cir. 2003) (citation omitted). The first tier—the one at issue in the present Motion to Certify—is referred to as the notice stage. See id. (quoting Hipp , 252 F.3d at 1218 ). At this stage, the burden is on the plaintiff to show that there is a "reasonable basis" for the claim that there are other similarly situated employees who desire to opt in to the case. Morgan v. Family Dollar Stores, Inc. , 551 F.3d 1233, 1259–61 (11th Cir. 2008). The standard by which a court determines whether plaintiffs are similarly situated at this stage has been described as "not particularly stringent," "fairly lenient," "flexible," and "not heavy." Id. (citations omitted).

At the second tier, upon a motion for decertification by the defendant, the Court re-examines the question of certification once discovery is complete. Cameron-Grant , 347 F.3d at 1243 n.2. Then, the Court determines whether there are similarly situated employees such that the action should proceed to trial as a representative action. Id.

B. Motion to Dismiss

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). This requirement "give[s] the defendant fair notice of what the claim is and the grounds upon which it rests." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. When considering a motion to dismiss, the court must accept plaintiff's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008).

III. DISCUSSION

A. Motion to Certify 216(b) Collective Action

To conditionally certify an FLSA collective action, the Court must determine that there are other employees who: (1) are similarly situated with regard to their job requirements and pay provisions, and (2) desire to opt in to the case. See Dybach v. Fla. Dep't of Corr. , 942 F.2d 1562, 1567–68 (11th Cir. 1991). The plaintiff bears the "fairly lenient" burden of satisfying these requirements. See Morgan , 551 F.3d at 1259–61. And, the decision to create an opt-in collective action and authorize notice to potential class members "remains soundly within the discretion of the district court." Hipp , 252 F.3d at 1219 (citations omitted).

i. Conditional Certification of a Collective Action

Plaintiff argues that certification of a collective action is appropriate because Plaintiff and potential class members are similarly situated. See Mot. to Certify at 5–8, 11–14. In response, Defendants argue that Plaintiff and other potential class members are not similarly situated because (1) the "common policy or plan" that Plaintiff alleges binds the class members does not violate the FLSA, and (2) Plaintiff's claims will require numerous individual inquiries to determine whether individual employees engaged in "sufficient non-tip producing side work to invalidate the tip pool." Resp. to Mot. to Certify at 11–18.

a) Similarly Situated

Courts commonly consider five factors at the conditional certification stage in determining whether members of a class are similarly situated: (1) whether plaintiffs held the same job title; (2) whether they worked in the same geographic location; (3) whether the alleged violations occurred during the same time period; (4) whether plaintiffs were subjected to the same policies and practices, and whether the policies and practices were established in the same manner and by the same decision maker; and (5) the degree to which the actions constituting the claims violations are similar. See Didoni v. Columbus Rest., LLC , 327 F.R.D. 475, 480 (S.D. Fla. 2018). No single factor is dispositive. Roman v. Burger King Corp. , No. 15-CV-20455-KMM, 2015 WL 12881153, at *2 (S.D. Fla. June 2, 2015).³

First, Plaintiff seeks to conditionally certify a collective action of front-of-the-house tipped employees with various job titles. Employees may be similarly situated despite different job titles where they share similar roles and job duties. See McClean v. On the Half Shell, Inc. , No. 3:17-CV-1434-J-20MCR, 2018 WL 8578016, at *3 (M.D. Fla. Oct. 24, 2018) (finding employees similarly situated despite different job titles where the defendants acknowledged that the employees contributed to the tip pool and were subject to the same policies); Longcrier v. HL-A Co. , 595 F. Supp. 2d 1218, 1239 (S.D. Ala. 2008) ("If ... [plaintiffs] are all harmed by the same company pay policies, then it is of no consequence whether their job duties are similar, what kind of work they performed, why they worked off the clock, and the like. What...