Williams v. Long, No. 07-3459-PWG.

• Decision Date: 07 November 2008
• Docket Number: No. 07-3459-PWG.
• Citation: 585 F.Supp.2d 679
• Parties: Jill WILLIAMS, et al., Plaintiffs v. Sandra LONG, Defendant.
• Court: U.S. District Court — District of Maryland

585 F.Supp.2d 679

Jill WILLIAMS, et al., Plaintiffs v. Sandra LONG, Defendant.

No. 07-3459-PWG.

United States District Court, D. Maryland.

November 7, 2008.

COPYRIGHT MATERIAL OMITTED

Howard Benjamin Hoffman, Attorney at Law, Rockville, MD, for Plaintiffs.

Sandra Long, Baltimore, MD, pro se.

Neal M. Janey, Sr., Janey Law Firm, PC, Baltimore, MD, for Defendant.

MEMORANDUM

PAUL W. GRIMM, United States Magistrate Judge.

I. Background Facts

On December 27, 2007, Plaintiffs Jill Williams and Erin Dechowitz ("Plaintiffs"), on behalf of themselves and others similarly situated, filed a collective action against Defendant Sandra Long ("Defendant"), owner of Charm City Cupcakes, under the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201 et seq. The Plaintiffs alleged the Defendant had violated §§ 206(a)(1) and 207(a)(1) of the FLSA by failing to compensate the Plaintiffs at the minimum wage and provide overtime pay. Pls.' Compl. ¶¶ 18-19, Paper No. 1. Additionally, the Plaintiffs contended the Defendant had violated Baltimore City's Wage and Hour Law, Balt., Md., Lab. & Empl. Code art. 11, §§ 3-1, 3-3 (2008), and Maryland's Wage Payment and Collection Law, Md.Code Ann., Lab. & Empl. §§ 3-501 et seq. Id. ¶¶ 20-22.

As alleged in the Plaintiffs' Complaint, from October 2007 to November 2007, the Plaintiffs were employed by the Defendant at various times to prepare, bake, or even serve cupcakes at the Defendant's business establishment or various sites. Id. ¶ 11. The Defendant allegedly promised Plaintiff Williams that she would receive an hourly wage of $15.00 an hour, and that Plaintiff Dechowitz would receive $6.25 an hour. Id. Supposedly, despite working a "couple hundred hours between them," the only wage either Plaintiff received was a $20.00 cash advance given to Plaintiff Dechowitz from the Defendant. Id.

On March 10, 2008, the Defendant filed an Answer, Paper No. 7, and brought counterclaims alleging breach of contract, breach of fiduciary duty, and invasion of privacy. Def.'s Countercl. ¶¶ 20-40, Paper No. 8. In response, the Plaintiffs moved to dismiss the Defendant's counterclaims pursuant to Fed.R.Civ.P. 12(b)(1) on the basis that the United States District Court of Maryland did not have supplemental jurisdiction over the counterclaims under 28 U.S.C. § 1367 (2008). Pls.' Mot. Dismiss 1, Paper No. 9. Subsequently, the Court ruled that the Defendant's counterclaims were merely permissive and lacked their own independent jurisdictional basis, thereby effectively granting the Plaintiffs' Motion to Dismiss. Williams v. Long, 558 F.Supp.2d 601, 603-06 (D.Md.2008).

Previously, on May 9, 2008, the Plaintiffs moved to conditionally certify a collective action pursuant to § 216(b) of the FLSA, and sought approval and facilitation of a notice to potential class members. Pls.' Mot. 1, Paper No. 15. This section provides:

An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

§ 216(b). In order to demonstrate other employees were "similarly situated," the Plaintiffs relied on Bell v. Mynt Entm't, LLC, 223 F.R.D. 680 (S.D.Fla.2004), stating that "`the class certification determination is made using a fairly lenient standard, based primarily on the pleadings and any affidavits which have been submitted.'" Pls.' Mot. 3 (quoting Bell, 223 F.R.D. at 681). Accordingly, Plaintiffs' counsel attached to the Motion five exhibits as evidence of the Defendant's alleged actions towards others similarly situated to the existing Plaintiffs. Pls.' Exhs. # # 1-5, Paper No. 15, # # 2-6.

Exhibit # 1 was a copy of printed search results from the Maryland Judiciary Case Search website, which was not authenticated by affidavit or other extrinsic evidence. The printed webpages contained information pertaining to three independent lawsuits pending against "Charm City Cupcakes" in the "Baltimore City District Court"; however, the printed webpages merely stated that the suits were "Contract" claims and did not divulge the specific allegations of each particular suit. Pls.' Exh. # 1.

Exhibit # 2 was a copy of a civil complaint filed on behalf of Amanda Achey, another employee of the Defendant who reportedly failed to receive adequate compensation for work done from August 14, 2007, to September 3, 2008. Pls.' Exh. # 2. At the top of Ms. Achey's complaint was a fax number, suggesting Ms. Achey's attorneys had faxed a copy of the complaint to Plaintiffs' counsel. Id. This exhibit was also not authenticated by any extrinsic evidence.

Exhibit # 3 was similar to Exhibit # 1, and displayed printed case search results from the website of the Employment Standards Service of the Division of Labor and Industry, in the Maryland Department of Labor, Licensing and Regulation ("MDLLR"). The search results clearly showed there were four closed claims against "Charm City Cupcakes," yet, once again, the search results did not state the nature of the claims and were not authenticated by extrinsic evidence. Pls.' Exh. # 3.

Exhibit # 4 was an affidavit from Hope Sachs, Assistant Attorney General to the MDLLR, who is responsible for representing the Commissioner of Labor and Industry to the use and benefit of individuals who have filed claims for unpaid wages with the Employment Standards Service. Pls.' Exh. # 4. In her affidavit, Ms. Sachs stated that on September 7, 2007, she received two claims for unpaid wages against "Sandra Long d/b/a Charm City Cupcakes" in the amounts of $487.07 and $517.74, and noted the claims were appropriate for litigation. Id. Ms. Sachs also stated she received two additional claims on April 18, 2008, in the amounts of $495.38 and $1,079.36, and also believed these claims would be appropriate for litigation. Id. Finally, Ms. Sachs noted she received a claim on November 15, 2006, in the amount of $558.00, but that the Defendant paid the claimant the full disputed amount on March 29, 2007. Id. Of the five total claims described by Ms. Sachs, only the November 15th claim appeared to be present on the printed webpage from the website of the Employment Standards Service.¹

Exhibit # 5 was an affidavit from Samantha Stuck, a former employee of the Defendant who also claimed that she was a victim of FLSA violations by the Defendant, and indicated her willingness to opt-in as a plaintiff if the case was to be certified as a collective action. Pls.' Exh. # 5.

In addition to the attached materials, the Plaintiffs also submitted a proposed notice of a collective action, Pls.' Notice, Paper No. 15, # 7, a consent form to be a class member in a suit against "Sandra Long d/b/a Charm City Cupcakes," Pls.' Consent Form, Paper No. 15, # 8, and a proposed order granting the Plaintiffs' Motion, Pls.' Proposed Order, Paper No. 15, # 9.

The Defendant filed a Memorandum in Opposition, contending the discovery process should be permitted to proceed before any certification was made. Def.'s Mem. Opp'n ¶ 8, Paper No. 16. Specifically, the Defendant urged the Court to deny the Plaintiffs' Motion without prejudice and permit the Plaintiffs to renew the Motion after a period of discovery had been completed. Id.

Before the August 20, 2008 hearing on Plaintiffs' Motion, the Court sought to determine the accessibility of the printed, online information marked as Exhibits # 1 and # 3. In regards to Exhibit # 1, the Maryland Judiciary Case Search website was accessed, and using the case search function on the website, "Charm City Cupcakes" was entered under "Company Name." The results obtained were virtually identical to those submitted by the Plaintiffs in support of their Motion.² In regards to Exhibit # 3, the uniform resource locator ("URL") printed at the top of the webpage was used to access the website; however, further access to the contents of the website was not possible without an Employment Standards Service email address and employee password.

At the hearing on the Plaintiffs' Motion, I asked Plaintiffs' counsel to proffer how he was able to access the information contained in Exhibit # 3 from the Employment Standards Service website. In response, counsel advised that he obtained a printout of the search results pursuant to a request for records under Maryland's Public Information Act ("MPIA"), Md.Code Ann., St. Gov't §§ 10-611 et seq. See Pls.' Mot. 5 n.2. At the conclusion of the hearing, I rendered an oral opinion granting the Plaintiffs' Motion, but reserved the right to file a more comprehensive opinion explaining certain aspects of my ruling, which is found herein.

II. Certification of a Class Action

Under the FLSA, § 216(b) "establishes an `opt-in' scheme whereby potential plaintiffs must affirmatively notify the court of their intention to become a party to the collective action." Montoya v. S.C.C.P. Painting Contractors, Inc., No. CCB-07-455, 2008 WL 554114, at *1 (D.Md. Feb.26, 2008) (quoting Marroquin v. Canales, 236 F.R.D. 257, 259 (D.Md. 2006)) (internal quotation marks omitted).

Most recently, the Montoya court provided an extensive overview of the law detailing a court's conditional certification of a class action. As stated in the case, district courts "`have discretion, in appropriate cases, to ... facilitat[e] notice to potential plaintiffs.'" Id. (alteration in original) (quoting Camper v. Home Quality Mgt., 200 F.R.D. 516, 519 (D.Md.2000)). For example, the plaintiffs in Montoya sought the court's approval for a submitted draft of a notice to other as yet unidentified migrant workers, informing them of their right to opt-in to a suit for violations of...