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Lopez v. Real Monarca Inc.

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

June 13, 2018

EDUARDO LOPEZ, for himself and on behalf of those similarly situated Plaintiff,
v.
REAL MONARCA INC and GUILLERMO CUEVAS, Defendants.

          OPINION AND ORDER [1]

          SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the parties' Joint Stipulation and Motion to Facilitate Notice (Doc. 54) filed on May 23, 2018. The matter is ripe for review.

         Background

         This is a Fair Labor Standards Act (“FLSA”) case. At this stage, the Court must decide whether to conditionally certify a collective action and whether to authorize the distribution of notice and consent forms. Defendant Guillermo Cuevas owns and operates Defendant Real Monarca Inc. d/b/a Monarca's Authentic Mexican Cuisine Bar & Grill (“Real Monarca”), a restaurant in Lee County, Florida. (Doc. 23 at ¶¶ 6-7). Plaintiff Eduardo Lopez was a server and bartender at Real Monarca from April 2014 until May 2017. (Doc. 23 at ¶ 16). Lopez alleges he was paid the tipped minimum wage and Defendants violated the FLSA by failing to inform him of their intent to claim a tip credit. (Doc. 23 at ¶¶ 18-20). He also alleges Defendants violated the FLSA by failing to pay him overtime wages when he worked over forty hours per week. (Doc. 23 at ¶ 26). Other bartenders and servers at Real Monarca allegedly experienced the same circumstances. (Doc. 23 at ¶¶ 32, 48).

         Based on these allegations, Lopez filed a Complaint on behalf of himself and other similarly situated individuals. (Doc. 1). After Defendants moved to dismiss, Lopez filed an Amended Complaint. (Docs. 19; 23). In February 2018, Lopez moved for conditional certification of an FLSA collective action. (Doc. 34). Lopez proposed a collective definition that included

[A]ll [s]ervers and [b]artenders who worked for Defendant at the Monarca's Authentic Mexican Cuisine Bar & Grille location, from August 2, 2014 through the date the notice is sent, who worked over forty hours in one or more workweeks, but [were] not paid for his/her overtime hours[] or who were not provided notice of Defendant[s'] intention to claim the tip credit.

(Doc. 34 at ¶ 11). Two months later, the parties informed the Court they were stipulating to conditional certification. (Doc. 52). A month after that, the parties filed their Joint Stipulation and Motion to Facilitate Notice, a proposed notice, and a proposed consent form. (Docs. 54; 54-1; 54-2).

         Legal Standard

         Under 29 U.S.C. § 216(b), plaintiffs can pursue FLSA violations in their individual capacity and on behalf of “similarly situated” individuals. 29 U.S.C. § 216(b). Where plaintiffs sue on behalf of themselves and other similarly situated individuals, the suit is a “collective action.” See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). Collective actions benefit the judicial system “by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged . . . activity.” Id.

         But plaintiffs represent themselves only until a collective action is certified. See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). For certification to be proper, plaintiffs bear the burden of showing a “reasonable basis” there are other “similarly situated” individuals. Id. They may present “affidavits of other employees, consents to join the lawsuit filed by other employees, or expert evidence on the existence of other similarly situated employees.” Hart v. JPMorgan Chase Bank, N.A., No. 8:12-CV-00470-T-27, 2012 WL 6196035, at *4 (M.D. Fla. Dec. 12, 2012).

         The Eleventh Circuit has encouraged the use of a two-tiered approach to certification. Morgan, 551 F.3d at 1260. The first tier, known as the notice stage, is relevant here. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001). “At the notice stage, the district court makes a decision-usually based only on the pleadings and any affidavits which have been submitted-whether notice of the action should be given to potential class members.” Id. “[T]his determination is made using a fairly lenient standard, and typically results in conditional certification of a representative class. If the district court conditionally certifies the class, putative class members are given notice and the opportunity to opt-in. The action proceeds as a representative action throughout discovery.” Id. (internal quotations omitted).

         Discussion

         A. Conditional Certification

         When deciding whether conditional certification is proper at the notice stage, courts must determine whether: (1) there are other employees who desire to opt-in to the action; and (2) the employees who desire to opt-in are “similarly situated.” Dybach v. State of Fla. Dep't of Corr.,942 F.2d ...


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