United States District Court, M.D. Florida, Fort Myers Division
EDUARDO LOPEZ, for himself and on behalf of those similarly situated Plaintiff,
REAL MONARCA INC and GUILLERMO CUEVAS, Defendants.
OPINION AND ORDER 
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
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,
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).
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 . . .
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).
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).
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 ...