United States District Court, M.D. Florida, Fort Myers Division
TAMERA GOERS and ASHLEY CRISTINE MULLIGAN, individually, and on behalf of all others similarly situated Plaintiffs,
L.A. ENTERTAINMENT GROUP, INC. and AMER SALAMEH, Defendants.
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on review of Plaintiffs'
Motion for Reconsideration of Rule 23 Class Certification
(Doc. #79) filed on October 5, 2016. Defendants
filed their Response in Opposition (Doc. #85) on
October 24, 2016. Then, pursuant to leave granted by the
Court, Plaintiffs filed their Reply (Doc. #95) on
December 14, 2016. This matter is now ripe for review.
are former exotic entertainers at Babe's, an adult
nightclub in Fort Myers, Florida, owned and operated by the
Defendants. (Doc. #1 at ¶¶ 1-33, 55-57).
Plaintiffs bring an employment action based on allegations
that Defendants have violated the wage and hour requirements
of the Fair Labor Standards Act (“FLSA”) and
Article X, Section 24 of the Florida Constitution
(“Section 24”). According to Plaintiffs,
Defendants misclassified them as independent contractors to
elude minimum wage and overtime requirements. (Doc. #1 at
¶ 2). Plaintiffs assert they worked more than forty
(40) hours per week for Defendants, but that they were paid
only in tips from patrons. (Doc. #1 at ¶ 3).
Additionally, Plaintiffs allege they were also forced to
share their tips with others working for Babe's.
(Doc. #1 at ¶¶ 2, 3, 27).
8, 2015, Plaintiffs filed their Complaint, styling it as a
Class/Collective Action. (Doc. #1). Substantively,
Plaintiffs defined their proposed FLSA class as “all of
Defendants' current and former exotic entertainers who
worked at L.A. Entertainment Group, Inc. d/b/a Babes at any
time during the three years before this Complaint was filed
up to the present.” (Doc. #1 at ¶ 122).
Similarly, Plaintiffs defined their proposed Section 24 class
as “[a]ll of Defendants' current and former exotic
entertainers who worked at a [sic] L.A. Entertainment Group,
Inc. d/b/a Babes at any time during the five (5) years before
this Complaint was filed up to the present.” (Doc.
#1 at ¶ 129). Importantly, Plaintiffs pursued their
FLSA claim as a collective action under 29 U.S.C. §
216(b), and their Section 24 claim as a class action under
Federal Rule of Civil Procedure 23.
months later, on December 9, 2015, Plaintiffs moved for
conditional class certification of their FLSA claim. (Docs.
#43, #44). In doing so, they made
alterations to their proposed class definitions. For their
FLSA claim, Plaintiffs proposed a class of “all current
or former entertainers and bartenders who worked for L.A.
Entertainment Group, Inc. d/b/a Babes at any time on [sic]
after July 8, 2010 through and including the date of entry of
judgment in this case.” (Doc. #43 at ¶
9). Regarding their Section 24 claim, Plaintiffs
proposed class definition was “all current or former
entertainers and bartenders who worked for L.A. Entertainment
Group, Inc. d/b/a Babes at any time on [sic] after July 8,
2012 through and including the date of entry of judgment in
this case.” (Doc. #43 at ¶ 8). Notably,
although Plaintiffs altered the proposed definition of their
putative Section 24 class, they did not substantively
advocate for certification of same pursuant to Rule 23.
then responded in opposition, (Doc. #47), to which
Plaintiffs filed a Reply on January 11, 2016. (Doc.
#51). Notably, in their Reply, Plaintiffs also moved to
certify their Section 24 claim, and for Court approval of a
proposed notice to the putative class associated with same.
(Doc. #51). Plaintiffs additionally used their Reply
to change their proposed class definitions for a third time.
As to their FLSA claim, they proposed to represent “all
current or former entertainers and massage girls who worked
for L.A. Entertainment Group, Inc. d/b/a Babe's at any
time on [sic] after July 8, 2012 through and including the
date of entry of judgment in this case[.]” (Doc.
#51 at 11). As to their Section 24 claim, they proposed
a class consisting of “all current or former
entertainers and massage girls who worked for L.A.
Entertainment Group, Inc. d/b/a Babe's at any time on
[sic] after July 8, 2010 through and including the date of
entry of judgment in this case[.]” (Doc. #51 at
Plaintiffs' Reply included a separate motion, Defendants
responded in opposition. (Doc. #52). With leave of
court, Defendants also submitted supplemental briefing on the
issue of class certification. (Doc. #59). Plaintiffs
then responded in opposition. (Doc. #60).
8, 2016, United States Magistrate Judge Carol Mirando issued
a Report and Recommendation on Plaintiffs' Motion for
Class Certification. (Doc. #63). She recommended
denying certification of Plaintiffs' Section 24 claim as
a Rule 23 class, because the proposed class
definition was not adequately defined, and because
Plaintiffs' counsel was inadequate to represent the
class. (Doc. #63 at 19-22). The Report and
Recommendation also opined against certifying the class
because, pursuant to Calderone v. Scott, No.
2:14-CV-519-FTM-29CM, 2015 WL 4395623 (M.D. Fla. July 16,
2015), rev'd and remanded, 838 F.3d 1101 (11th
Cir. 2016), Plaintiffs' FLSA collective action and
Section 24 class action were mutually exclusive. (Doc.
#63 at 23-28).
attorneys then objected to the Report and Recommendation,
arguing they were adequate to litigate the Section 24 claim
in a Rule 23 class format, and that the concurrent
maintenance of class and collective actions was proper.
(Doc. #66). Plaintiffs' attorneys, John B.
Gallagher and Jack C. Morgan III, also filed declarations
detailing their professional experience. (Docs. #64,
review of the record, the Court accepted and adopted the
Report and Recommendation. (Doc. #72). The Court
denied class certification of Plaintiffs' Section 24
claim and followed Calderone to hold that Rule
23(b)(3) superiority interests were not served by
concurrent maintenance of a Rule 23 class action and
an FLSA collective action. (Doc. #72 at
6). Notably, because the Court found that the
lack of superiority was dispositive as to certification, it
did not render an opinion as to counsels' adequacy.
there, Plaintiffs moved the Court to dismiss their Section 24
claim so they could pursue a class action in state court.
(Doc. #73 at 1-4). Shortly thereafter, but prior to
any decision from the Court on Plaintiffs' Motion to
Dismiss, the Eleventh Circuit reversed Calderone,
holding that an FLSA collective action may be maintained
concurrently with a Rule 23 class action.
Calderone v. Scott, 838 F.3d 1101, 1104 (11th Cir.
2016). Subsequently, Plaintiffs moved to withdraw the earlier
Motion to Dismiss their Section 24 claim, (Doc.
#78), and filed the instant Motion for Reconsideration
Court's previous Order (Doc. #72) denied class
certification because it followed then-standing guidance
against the concurrent maintenance of a Rule 23
class action and an FLSA collective action. Now, in light of
the Eleventh Circuit's reversal in Calderone,
Plaintiffs move for reconsideration, and the Court will do
so. Therefore, against this backdrop, the two issues that
were previously presented for the Court to consider regarding
certification were the Rule 23 interests of superiority and
adequacy. Thus, although the Court may reconsider its Order
in light of the change in controlling law, reversal, and
therefore certification, requires both interests be met.
Plaintiffs ground their Motion in Federal Rule of Civil
Procedure 60(b)(6), which states “[o]n motion and
just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding
for . . . any other reason that justifies relief.”
Notably, Rule 60(b) motions may only relieve parties of
judgments, orders, and proceedings that are final.
See United States v. Real Prop. & Residence
Located at Route 1, Box 111, Firetower Rd., Semmes,
Mobile Cty., Ala., 920 F.2d 788, 791 (11th Cir. 1991);
see also 11 Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 2852 (2015).
The relevant inquiry for the applicability of Rule 60(b)
then, is whether a denial of class certification is a final
order. The Supreme Court has held that it is not.
See Deposit Guar. Nat. Bank, Jackson, Miss. v.
Roper, 445 U.S. 326, 336 (1980). Therefore, Plaintiffs
cannot obtain relief pursuant to Rule 60(b).
Rule 60(b) does not provide an avenue for reconsideration,
the District Court may still reconsider its prior decisions
pursuant to Rule 54(b). That Rule provides that “any
order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any
of the claims ...