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Alvarez v. Uno Restaurant Associates Inc.

United States District Court, S.D. Florida

May 21, 2018

Jose Santos Alvarez, Plaintiff,
v.
Uno Restaurant Associates, Inc. d/b/a Prime Italian and Myles Chefetz, Defendants.

          OMNIBUS ORDER ON MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION AND MOTION FOR CLASS CERTIFICATION

          Robert N. Scola, Jr. United States District Judge

         This matter is before the Court on Plaintiff Jose Santos Alvarez's motions to conditionally certify a collective action under 29 U.S.C. § 216(b) and facilitate notice to those class members (ECF No. 8), and for Federal Rule of Civil Procedure 23 class certification (ECF No. 13). Upon review of the record, the parties' briefs, and the relevant legal authorities, Alvarez's motions are denied (ECF Nos. 8, 13).

         1. Background

         Alvarez filed suit against his former employers, Defendants Uno Restaurant Associates, Inc., d/b/a Prime Italian, and Myles Chefetz, claiming violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and Florida's fair minimum wage laws, Article X, § 24 of the Florida Constitution and Fla. Stat. § 448.110. (Complaint, ECF No. 1.) Alvarez worked as a busser for the Defendants in a restaurant called Prime Italian in Miami Beach, Florida, from approximately February 2012 to October 2017. (Compl. ¶¶ 19-20.) As a busser, Alvarez was an hourly-paid, tipped employee. (Id. at ¶¶ 9, 20.) Alvarez claims that during the relevant period, he and other tipped employees, and in particular, other bussers and servers, were forced to share their tips with non-tipped employees such as stockers and sweepers, denied minimum and overtime wages, and forced to perform non-tip-producing side work. (Id. at ¶¶ 23, 26-31.)

         Alvarez seeks, on behalf of himself and others similarly situated, unpaid minimum wages and overtime wages, liquidated damages, and a declaration of rights. Alvarez brings certain claims on behalf of a proposed FLSA collective action and others on behalf of a purported Rule 23 class. He also seeks relief for retaliatory discharge under 29 U.S.C. § 215(A)(3), which is not at issue here.

         2. Analysis

         The Eleventh Circuit recently clarified that although an “FLSA collective action and a Rule 23(b)(3) class action may be fundamentally different creatures . . . they are not ‘irreconcilable, '” so a plaintiff can attempt to bring both types of actions in the same lawsuit. Calderone v. Scott, 838 F.3d 1101, 1104, 1107 (11th Cir. 2016). Now before the Court are Alvarez's two class motions. In his first motion, Alvarez asks the Court to conditionally certify an FLSA collective action under § 216(b). (Section 216(b) Motion, ECF No. 8). In his second motion, Alvarez asks the Court to certify a Rule 23 class. The Court evaluates each motion in turn. (Rule 23 Motion, ECF No. 13.)

         A. FLSA Collective Action under Section 216(b)

         The FLSA allows a plaintiff to bring an action, which has become known as a collective action, for unpaid minimum wages, or unpaid overtime compensation (and an additional equal amount as liquidated damages) on behalf of himself and other similarly situated employees. 29 U.S.C. § 216(b). Unlike a Rule 23 class action, participants in a § 216(b) collective action must affirmatively opt-in, and the Court evaluates a plaintiff's motion for collective action certification using a different, more lenient standard. See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259, 1261 (11th Cir. 2008).

         The Eleventh Circuit has endorsed a two-stage process to determine whether it is appropriate to maintain an FLSA case as a collective action. Id. at 1260. The two stages have become known as the “notice” or “conditional certification stage” and the “decertification stage.” Id. at 1260-61. “The second stage is triggered by an employer's motion for decertification.” Id. at 1261.

         Alvarez presently asks the Court to conditionally certify his proposed class and to facilitate notice to those class members. At this first stage, the Court must determine whether similarly situated employees should be notified that they can opt into the class. Id. at 1260-61. “[B]efore facilitating notice, a district court should satisfy itself that there are other employees . . . who desire to ‘opt-in' and who are ‘similarly situated' with respect to their job requirements and with regard to their pay provisions.” Id. at 1259 (quoting Dybach v. State of Fla. Dep't of Corr., 942 F.2d 1562, 1567-58 (11th Cir. 1991)); see also Bennett v. Hayes Robertson Grp., Inc., 880 F.Supp.2d 1270, 1282-83 (S.D. Fla. 2012) (King, J.) (stating that a court “may grant conditional certification if a plaintiff demonstrates a reasonable basis to believe that: (1) there are other employees of the Defendant who desire to opt-in and (2) that these other employees are similarly situated with respect to their job requirements and with regard to their pay provisions”) (internal quotation marks and citations omitted).

         The plaintiff has the burden of proving that there are other similarly situated employees who want to opt into the class, but courts have recognized that the standard for this determination is a flexible one. Morgan, 551 F.3d at 1260-61 (citations omitted); Guerra v. Big Johnson Concrete Pumping, Inc., No. 05-14237, 2006 WL 2290512, at *3 (S.D. Fla. May 17, 2006) (Lynch, Mag. J.) (recognizing that the collective action standard is less stringent than what is required for joinder, Rule 23 class action certification, and severance under Rule 42). The Eleventh Circuit has instructed that under § 216(b), courts must determine whether the employees who the plaintiff claims are members of the class and would want to join are “similarly situated-not whether their positions are identical.” Morgan, 551 F.3d at 1260.

         Nevertheless, to be successful, plaintiffs must provide more than just unsupported assertions, and often provide affidavits in support of their pleadings for the Court to consider. See, e.g., id., at 1261, 1262 n.41; Bell v. Mynt Entm't, LLC, 223 F.R.D. 680, 683 (S.D. Fla. 2004) (Jordan, J.). A plaintiff's burden at the notice stage is satisfied by making “detailed allegations supported by affidavits which successfully engage defendants' affidavits to the contrary.” Blake v. Batmasian, 197 F.Supp.3d 1367, 1371 (S.D. Fla. 2016) (Marra, J.) (quoting Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996)).

         Here, Alvarez asks the Court to certify an opt-in class comprised of:

All bussers and servers (“tipped employees”) who worked for Defendants during the three (3) years preceding this lawsuit and who, as a result of Defendants' policy of requiring them to share their tips with non-tipped employees, earned less than the applicable minimum regular ...

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