Doe v. Banc, Jack & Joe, LLC
| Decision Date | 01 June 2020 |
| Docket Number | Civil No.: 17-cv-03843 (KSH) (CLW) |
| Parties | JANE DOE 1, individually and on behalf of all other persons similarly situated, Plaintiff, v. BANC, JACK & JOE, LLC dba TITILLATIONS GO-GO BAR, BANC PERO, JOSEPH CARERI, JACK PERO, ABC COMPANIES 1-10 AND JOHN DOES 1-10, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Before the Court is a motion filed on behalf of plaintiff Jane Doe 1 ("Doe") for conditional certification, court authorized notice, production of relevant contact information relative to her lawsuit filed under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), and class certification pursuant to Federal Rule of Civil Procedure Rule 23. (D.E. 52.) The Court decides this motion without oral argument, and for the following reasons grants Doe's motion for conditional class certification, court-supervised notice, and class certification.
On May 31, 2017, Doe filed this putative class and collective action (D.E. 1 ("Compl.")) on behalf of herself and others similarly situated against entity defendant Banc, Jack & Joe LLC d/b/a Titillations Go-Go-Bar ("Titillations"), individual defendants Banc Pero ("Pero"), Joseph Careri, Jack Pero, and various fictitious defendants (collectively, "defendants"). Doe alleges that defendants misclassified her and members of the putative class as independent contractors and refused to pay them minimum wage, instead requiring them to pay to work and to share gratuities they received with defendants and defendants' employees, in violation of the FLSA and the New Jersey State Wage and Hour Law ("NJWHL"), N.J.S.A. 34:11-56a, et seq. (Compl. ¶¶ 2, 3.)
In November 2018, Doe first sought conditional certification on behalf of plaintiff "and all other persons who were employed by defendants anywhere in the State of New Jersey as dancers or entertainers, or any other equivalent position, and who were not paid the minimum wage and were misclassified as independent contractors under the FLSA during the three year period preceding [the] Complaint." (Id. ¶ 2.) The Court denied Doe's motion without prejudice, finding that she failed to meet the conditional certification standard. (D.E. 14.) The Court also denied her subsequent motion for reconsideration as untimely. (D.E. 52.)
Doe renews her motion for conditional certification pursuant to 29 U.S.C. § 216(b), and for the first time, requests class certification pursuant to Rule 23. She allegesthat the deposition of Banc Pero, an owner and manager of Titillations, corroborates her previous sworn declaration that defendants classified all exotic dancers at Titillations as independent contractors rather than employees, and failed to pay them minimum wage. (D.E. 52 ("Moving Brief"), at 3-4; see also D.E. 52-3 ("Banc Pero Deposition").) Upon conditional certification and class certification, Doe petitions the Court to: (1) approve her proposed FLSA Notice and Consent to Sue form; (2) mandate that defendants produce contact information for all dancers who worked at Titillations during the relevant period, including their addresses, phone numbers, and email addresses; (3) authorize plaintiff to send two rounds of notice mailings and to contact potential members by phone if mail is returned as undeliverable; and (4) additionally require defendants to post notice in Titillations' back room and dressing rooms and give personal copies of the notice to all current dancers upon arrival for their first shift. In addition, Doe requests that all her state law claims proceed as a class action and that a proposed class action notice be sent to the class members. (D.E. 52-12 ("Proposed Order").) Doe is the sole plaintiff; no dancers have opted into the suit.
Defendants oppose Doe's motion in its entirety, describing her request for conditional certification as "nothing more than a vindictive act to punish Titillations for terminating [her] engagement because she violated the club's rules." (D.E. 53 ("Opposition Brief"), at 2.) Defendants contend that they have employed a business model commonly used by other "gentlemen's clubs" and argue that Doe mischaracterized Pero's deposition as new evidence, when in reality it had already beenconsidered by the Court on her motion for reconsideration. (Id. at 14-15.) In the event that certification is granted, defendants challenge Doe's proposed form of notice as "excessive and unfairly prejudicial." (Opposition Brief, at 18.) They request that the Court limit the means of providing notice to regular mail, the type of contact information to be provided to Doe's counsel to physical mailing addresses, and the potential class definition to those who worked or work at Titillations from May 31, 2017 to the present. (Opposition Brief, at 17-21.) Additionally, defendants argue that the class action should be denied because the class of purported plaintiffs is not ascertainable given the transitory nature of the exotic dancing industry; Doe cannot adequately represent the interests of the purported class because she is vengeful and her interests are therefore antagonistic to the interests of its other members; and that common questions of law do not predominate because the individual question of reliance and damages for dancers working different shifts and collecting varying amounts in tips will overwhelm questions that are common to the class.
As alleged in the complaint and supported by Doe's 2017 declaration (D.E. 14-1 ("2017 Doe Decl.")), she worked from August 2016 until January 2017 as an exotic dancer at Titillations, an adult entertainment nightclub located in Bloomfield, New Jersey. (Compl. ¶ 8; 2017 Doe Decl. ¶¶ 2, 4.) Doe's job duties included "dancing on stage during stage rotation, performing personal dances (also called 'lap dances' or'private dances') for customers, and spending time with customers in semi-private rooms and areas." (2017 Doe Decl. ¶ 3.)
Doe asserts that she was classified as an "independent contractor" rather than an employee, and that she "understand[s] that all the dancers who worked at Titillations at the same time as [she] did were classified the same way." (2017 Doe Decl. ¶ 5; see also Banc Pero Deposition.) She alleges that she was not paid an hourly minimum wage or issued a paycheck, W-2, or 1099, and her sole income was derived from patron tips. (Compl. ¶¶ 28-30.) Upon information and belief Doe alleges that "over 100 different women have worked as dancers at Titillations without being paid any minimum wages[.]" (Id. ¶ 31; see also Banc Pero Deposition.) Individual defendant Banc Pero, an owner/manager at Titillations, testified that all dancers at Titillations are considered independent contractors rather than employees and therefore do not receive minimum wage. (Banc Pero Deposition, at 75:6-15; 76-9-15; 79:23-80:4.)
Doe was required to pay a $30.00 non-negotiable "house fee" or "tip out" to the manager for each shift she worked, as well as an additional $15.00 to the DJ, regardless of how much money she earned working her shift. (Compl. ¶ 39; 2017 Doe Decl. ¶ 16.) Doe alleges that, during her first shift at Titillations, the manager read aloud and gave to her a written copy of the "rules for the position" and instructed her that these rules and other expectations posted on the club's bulletin board were the "official rules of the club." (2017 Doe Decl. ¶¶ 14-15.) These "Dancer Info and Rules," which have been effective for more than 15 years and apply to all dancers, governed fees,scheduling, and dancers' appearance and performance and were posted "conspicuously in the back room for all dancers to see," in dressing rooms, and on the Titillations bulletin boards. (2017 Doe Decl. ¶¶ 18, 21-33; D.E. 52-4, Ex. B ("Dancer Info and Rules"); Banc Pero Deposition, 38:2-39-6.) The rules state the following: (Dancer Info and Rules, at D0000009.) In addition to this posting, Doe asserted in her 2017 declaration that she "often spoke with other dancers in the dressing room" and "observed [them] during their shifts," and "[b]ased upon these observations and the many rules posted in the back room, it was clear to [her] that each and every dancer was subject to the same rules and performed the same job duties as [she] did." (2017 Doe Decl. ¶ 20.)
"The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract." Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2013). Section 216(b) grants "similarly situated" employees the right to sue in a collective action. 29 U.S.C. § 216(b). Distinct from class actions brought under Fed. R. Civ. P. 23, the FLSA requires collective action members to affirmatively opt in by filing a written consent with the court. Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 242-43 (3d Circ. 2013).
The Third Circuit follows a two-step process when determining if a suit brought under the FLSA may proceed as a collective action. Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192 (3d Cir. 2011), rev'd on other grounds, Symczyk, 569 U.S. 66 (2013). At the first stage, "the court makes a preliminary determination whether the employees enumerated in the complaint can be provisionally categorized as similarly situated to the named plaintiff." Id. If the plaintiff satisfies this burden, the court grants conditional certification "for the purpose of facilitating notice to potential opt-in plaintiffs and conducting pre-trial discovery." Camesi, 729 F.3d at 243. At the second step, the court, with the benefit of a fuller record, "makes a conclusive determination as to whether each plaintiff who has opted into the collective action is in fact similarly situated to the named plaintiff." Id. Plaintiffs must satisfy the...
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