Skelton v. Sukothai, LLC

• Decision Date: 27 January 2014
• Docket Number: Civil Action No. 13–4771.
• Citation: 994 F.Supp.2d 785
• Parties: Brent SKELTON v. SUKOTHAI, LLC, Keith Scarmuzza, and Royal Trading, LLC.
• Court: U.S. District Court — Eastern District of Louisiana

994 F.Supp.2d 785

Brent SKELTON

v.SUKOTHAI, LLC, Keith Scarmuzza, and Royal Trading, LLC.

Civil Action No. 13–4771.

United States District Court, E.D. Louisiana.

Jan. 27, 2014.

Casey Michael Ransom, Robert Joseph Wiley, Rob Wiley, PC, Dallas, TX, Laura Lanier Catlett, Attorney at Law, New Orleans, LA, for Brent Skelton.

H. Michael Bush, Sarah Voorhies Myers, Chaffe McCall LLP, New Orleans, LA, for SukoThai, LLC, Keith Scarmuzza, and Royal Trading, LLC.

ORDER AND REASONS

HELEN G. BERRIGAN, District Judge.

This matter comes to the Court on the plaintiff's motion for conditional class certification and judicial notice. Rec. Doc. 18. The defendant opposes. Rec. Doc. 25. The Court, having considered the record, the applicable law, and the memoranda of counsel, hereby GRANTS the plaintiff's motion for the following reasons and modifies his proposed notice as stated further below.

Plaintiff brought this complaint in June 2013, seeking damages for the defendants' alleged failure to pay him, or any other SukhoThai server, minimum wage under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Rec. Doc. 1. Plaintiff alleges that defendants required plaintiff and other servers to “tip out” 10% of their tips to kitchen staff, and that this practice rendered the plaintiff and other servers ineligible to be classified as “tipped employees” for purposes of FLSA and the minimum wage. Id., ¶¶ 7–32. The defendants answered the complaint, admitting defendant's employment in the Marigny SukhoThai location, but denying the substance of the complaint either totally or as written. Rec. Doc. 14.

The plaintiff seeks to maintain this action “on behalf of himself ... and other employees similarly situated” pursuant to 29 U.S.C. § 216(b). The Fifth Circuit has embraced two different approaches for determining whether such a complaint should be certified as a collective action under § 216(b). See Roussell v. Brinker Int'l, Inc., 441 Fed.Appx. 222, 226 (5th Cir.2011); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213–16 (5th Cir.1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). The first or Lusardi approach,¹ which the plaintiff leverages in this motion, proceeds via two-step inquiry. Id. at 1213. At the first step,

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.

Because the court has minimal evidence, this 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. at 1213–14. The plaintiff's motion concerns this “notice stage” determination.

At the notice stage, the plaintiff need only produce “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan....” Id. at 1213 n. 8 (quoting Sperling v. Hoffmann–La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.1988)). Despite defendants' arguments to the contrary, the Court finds this burden easily satisfied on the showing made by the plaintiff. His affidavit provides, in pertinent part: that both Marigny and Uptown SukhoThai locations are commonly owned and operated; that they share service employees; that servers at each location are compensated according to the same policy; and that under this policy servers are systematically divested of tip income and compensated at $2.13 an hour, a rate below the minimum wage. Rec. Doc. 18–2.

The defendants' argument that the putative class members are not similarly situated because they are not in fact commonly employed amounts to an argument the defendants' would be claiming disparate defenses against the various class members. Such an argument is better reserved for a motion to decertify after notice and discovery. Whether any one defendant qualifies as an employer to all class members for FLSA purposes is a fact-sensitive inquiry that would benefit from discovery. See Aguilar v. Complete Landsculpture, Inc., 04–0776, 2004 WL 2293842 at *3 (N.D.Tex. Oct. 7, 2004). More importantly, if the only issue tending to undermine similarity between class members is the identity of the employer, the Court can create subclasses to accommodate the distinction. See id. (citing Rodolico v. Unisys Corp., 199 F.R.D. 468, 484 (E.D.N.Y.2001)).

The Court similarly rejects the defendants' argument that the putative class is overly broad, temporally speaking. Like employer status, the willfulness required to create damages liability for a three-year span is a fact-sensitive determination under FLSA that would benefit from discovery. See Singer v. City of Waco, Tex., 324 F.3d 813, 821 (5th Cir.2003) (“Under the FLSA, a violation is willful if the employer either knew or showed reckless disregard for ... whether its conduct was prohibited by the statute.” (internal quotation marks omitted)). For the time being, the plaintiff alleges that willfulness is at least partially exemplified by evidence common to the putative class, i.e., the defendants' use of a checkout sheet in both SukhoThai locations to calculate the portion of class member tips to be deducted from their pay. Rec. Doc. 18–3. This will suffice for purposes of conditional certification. Therefore, a class will be conditionally certified and notice will issue.

Defendants argue that the class notification should be limited to servers directly employed by defendant Royal Trading, LLC and employed by them within the past 2 years. Rec. Doc. 25 at 8. For the reasons explained above, the Court declines any such narrowing of the class.

The Court finds that the 60 days requested for notice is neither excessive nor unreasonable for this type of case. Therefore, no change to that number will be ordered.

Because the plaintiff does not object to defendants' paragraph regarding contingency fees, liability for costs, and the...