Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Goers v. L.A. Entertainment Group, Inc.

United States District Court, M.D. Florida, Fort Myers Division

January 9, 2017

TAMERA GOERS and ASHLEY CRISTINE MULLIGAN, individually, and on behalf of all others similarly situated Plaintiffs,
v.
L.A. ENTERTAINMENT GROUP, INC. and AMER SALAMEH, Defendants.

          ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         Plaintiffs 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).

         On July 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.

         Five 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.

         Defendants 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 11).

         Because 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).

         On July 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).

         Plaintiffs' 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, #65).

         After 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).[2] 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.

         From 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 (Doc. #79).

         II. DISCUSSION

         The 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.

         1. RULE 60(b)

         Procedurally, 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).

         2. RULE 54(b)

         Though 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.