Situated v. Austin Rumba Inc. D

• Decision Date: 17 June 2010
• Docket Number: Cause No. A-08-CA-803-JRN.
• Citation: 722 F.Supp.2d 714
• Parties: Jacquelyn PEDIGO, on Behalf of Herself and Others Similarly Situated, Plaintiffs, v. AUSTIN RUMBA, INC. d/b/a Alligator Grill, Defendant.
• Court: U.S. District Court — Western District of Texas

722 F.Supp.2d 714

Jacquelyn PEDIGO, on Behalf of Herself and Others Similarly Situated, Plaintiffs,

v.AUSTIN RUMBA, INC. d/b/a Alligator Grill, Defendant.

Cause No. A-08-CA-803-JRN.

United States District Court, W.D. Texas,Austin Division.

June 17, 2010.

COPYRIGHT MATERIAL OMITTED.

Richard J. (Rex) Burch of Bruckner Burch PLLC & Robert R. Debes, Jr. of Debes Law Firm, for Plaintiffs.

Stephen Orr and David Crawford, Austin, TX, for Defendant.

ORDER

JAMES R. NOWLIN, District Judge.

Before the Court in the above-entitled and styled cause of action are Plaintiffs' Motion for Partial Summary Judgment (Doc. # 47), filed December 18, 2009; Defendant's Response to Plaintiff's Motion for Partial Summary Judgment (Doc. # 49), filed December 29, 2009; Plaintiffs' Reply In Support of Motion for Partial Summary Judgment (Doc. # 50), filed January 2, 2010; Defendant's Sur-Reply (Doc. # 52), filed January 7, 2010; Plaintiffs' Response to Defendant's Sur-Reply (Doc. # 56), filed January 19, 2010; and Defendant's Response to the Court's Order of May 28, 2010 (Doc. # 63), filed June 3, 2010. After a labored review of the parties' arguments, the applicable law and the evidence, the Court is of the opinion that the Motion must be GRANTED IN PART AND DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant 3003 South Lamar, LLP (hereinafter “Defendant”) operates a Cajun-style restaurant in Austin, Texas, which is doing business as Alligator Grill. Plaintiff and class representative Jacquelyn Pedigo (hereinafter “Plaintiff Pedigo”) was formerly a waitress and a bartender at Alligator Grill. On October 29, 2008, Plaintiff Pedigo filed the present lawsuit alleging Defendant violated the minimum wage and overtime provisions of the Fair Labor Standards Act of 1938 (FLSA). See Clerk's Docket # s 1, 8, 11 and 21. On October 30, 2010, the Court, pursuant to 29 U.S.C. § 216(b), conditionally certified a class of “waiters, waitresses, and bartenders employed by 3003 South Lamar, LLP d/b/a Alligator Grill during the period of October 28, 2005 to the present.” See Clerk's Docket # 38. As such, Plaintiff Pedigo currently represents a class of twenty-two opt-in claimants ¹ (collectively “Plaintiffs”) in the present class action lawsuit. Id. To date, Defendant has not sought to decertify the class. ²

In the present motion, Plaintiffs seek summary judgment on their claims that: (1) Defendant failed to pay the appropriate overtime wages to its servers; (2) Defendant improperly deducted fees from its servers' wages to pay for uniforms; and (3) Defendant failed to pay the required minimum wages. See Pl. Mot. at 5. In support of this third claim, Plaintiffs assert that Defendant improperly claimed a tip credit against its minimum wage obligations because: (a) Defendant failed to notify its servers of the tip credit, and (b) Defendant impermissibly required its servers to share tips with dishwashers and preparation cooks. Id. In its Response, Defendant concedes that “it was not in compliance with the FLSA standards regarding the appropriate overtime rate and the charging of employees for uniforms,” but Defendant disputes the damages requested for these violations. See Def. Resp. at 1. Defendant also contends that there are material facts in dispute regarding whether Defendant improperly claimed a tip credit against its minimum wage obligations.

II. STANDARD OF REVIEW

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Fed.R.Civ.P. 56(c). A fact is “material” if it might affect the outcome of the lawsuit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. Therefore, summary judgment is proper if, under governing law, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted. Id. at 250, 106 S.Ct. 2505.

The Court must view the evidence presented on the motion in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in that party's favor. Id. at 255, 106 S.Ct. 2505. As interpreted by the Supreme Court, this standard mandates the entry of summary judgment “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and upon which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 318, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. DISCUSSION

A. STATUS OF DISCOVERY

As an initial matter, Defendant objects that Plaintiffs' Motion is premature because the opt-in period of the conditionally certified class was open until January 15, 2010, and discovery is still ongoing. See Def. Resp. at 2; Def. Sur-Reply at 2. Contrary to this objection, the plain language of Rule 56 permits “a party may move for summary judgment at any time until 30 days after the close of discovery.” See Fed.R.Civ.P. 56(c)(1)(A). “The new rule allows a party to move for summary judgment at any time, even as early as the commencement of the action.... The rule does set a presumptive deadline at 30 days after the close of all discovery.” See Advisory Committee Notes to the 2009 Amendments to Rule 56. The time prescribed in Rule 56 applies “unless different time is set by local rule or the court orders otherwise.” See Fed.R.Civ.P. 56(c)(1).

In the present case, discovery closed over six months ago on December 11, 2009, and Plaintiffs are correct that Defendant does not identify any additional discovery that is needed in order to properly and fully respond to Plaintiffs' Motion for Summary Judgment. See Clerk's Docket # 13 at ¶ 6. Therefore, Plaintiffs properly filed the present motion under the relevant time limits set forth in Rule 56. Furthermore, under the Scheduling Order entered in the above-entitled case, the Court ordered, per the joint request of the parties, that all dispositive motions must be filed on or before December 18, 2009. See Clerk's Docket # 13 at ¶ 7. The present motion was timely filed on December 18, 2009, the last day possible for filing such a motion. Accordingly, the Motion is ripe for the Court's consideration under the general mandate of Rule 56 and this Court's case-specific Scheduling Order. For these reasons, the Court will proceed to rule upon the merits.

B. OVERTIME WAGES

Turning to Plaintiffs' first claim, section 207 of the FLSA mandates that for each hour an employee works in excess of 40 hours in a given week, the employer must pay an overtime wage that is at least one and one-half times the employee's regular hourly rate. See 29 U.S.C. § 207(a). As indicated, “Defendant concedes that it did not pay [the required] overtime wages to its servers.” See Def. Resp. at 2. Defendant, however, contends that “there should be no finding of any damages for any of the claimants on this issue, as Defendant has already paid the back wages and deductions to all parties who would accept the checks, and the moneys for all other parties, including any of the claimants in this suit who refused payment, are currently being held in trust by the Department of Labor.” See Def. Resp. at 1. Essentially, Defendant insists that Plaintiffs either do not have any rights to seek damages or that Plaintiffs have waived their rights to seek damages in the present case.

Defendant has presented evidence that it has already paid “the backwages and deductions” it owes to Plaintiffs into trust with the Department of Labor (hereinafter “DOL”). Nevertheless, Plaintiffs are not required to accept such backwages and deductions as compensation for Defendant's violation(s) of the FLSA overtime wage provisions. Section 216 of the FLSA provides that “employers who violate [section 207] are subject to suit by aggrieved employees who may recover the unpaid wages, liquidated damages equal in amount to those damages, and reasonable attorney's fees.” Sneed v. Sneed's Shipbuilding, Inc., 545 F.2d 537, 538-539 (5th Cir.1977)(citing 29 U.S.C. § 216(b)). ³ The FLSA does provide “for a waiver of an additional recovery when settlement payments have been supervised by the Secretary of Labor.” Alvarez v. 9ER's Grill @ Blackhawk, LLC, No. H-08-2905, 2009 WL 2252243, at *7 (S.D.Tex. July 28, 2009) (citing 29 U.S.C. § 216(c)). However, in order to constitute a valid waiver of any right an employee may have to seek unpaid wages, liquidated damages and reasonable attorney's fees, section 216(c) plainly requires: (1) the employer to tender “payment in full;” and (2) the employee to agree “to accept such payment.” See 29 U.S.C. § 216(c); See also Sneed, 545 F.2d at 539 (citing 29 U.S.C. § 216(c)).

In the present case, Defendant has tendered “payment in full” to the Department of Labor, thereby satisfying the first requirement under section 216(c). Plaintiffs, however, have not agreed to accept such payment as required in order to constitute a valid waiver. By Defendant's own admission, “Plaintiffs' attorney specifically requested that no payment be made to any of the claimants ...” See Def. Resp. at 1. Accordingly, Plaintiffs' claims remain unsettled, and for this reason, Plaintiffs have not waived their rights to seek unpaid wages, liquidated damages and reasonable attorney's fees in the present case.

Defendant's argument that Plaintiffs have not “provided any evidence that all members of the class rejected the proposed settlement accepted by the Department of Labor” ⁴ improperly attempts to shift the burden onto Plaintiffs. See ...