Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-0063(O%Z)JS Document @-8 Filed 10élj/2003 Page 1 of 4
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DEBORAH BAUM, JACK H. BAUM, ROSE MARIE CAMPBELL, CARLOSRIVERA, and LUCIA
DESAMPER, Plaintiffs, v. SHONEY'S INC., f/k/a TPI, INC.,Defendant,
Case No. 98-423-CV-ORL·l9B
UNITED STATES DISTRICT COURT FOR TI-IE MIDDLE DISTRICT OFFLORIDA, ORLANDO DIVISION N
1998 U.S. Dist. LEXIS 21484; 5 Wage & Hour Cas. 2d (BNA) 127
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December 3, 1998, Decided I
December 3, 1998, Filed N
DISPOSITION: [*1] Plaintiffs' Motion for Expedited CORE TERMS: similarly situated, restaurant, notice, age
Court Supervised Notice (Doc No. 9, filed June 5, 1998) discrimination, former employees, aggrieved, authorize, I
DENIED. fluctuating, non-server, franchise, hourly N
CASE SUMMARY: LexisNexis (TM) HEADNOTES - Core Concepts:
PROCEDURAL POSTURE: Plaintiffs filed a motion for Labor & Employment Law: Wage & Hour Laws: Civil
expedited court supervised notice, seeking approval of Procedure & Remedies
the court to send notice to all "similarly situated" [HNI] 29 UCS.C.S. § 216(b) provides that a collective
individuals in accordance with § l6(b) ofthe Fair Labor action may be maintained against any employer by any *
Standards Act of 1938 (FLSA), as amended, 29 US.C.S one or more employees for and in behalf of himself or
§ 201 et seq., in their action brought under the FLSA. themselves and other employees similarly situated.
Defendant employer opposed the motion. 5
Labor & Employment Law: Wage & Hour Laws: Civil
OVERVIEW: Plaintiffs, sued defendant employer under Procedure & Remedies '
the Fair Labor Standards Act of 1938 (FLSA), as [HN2] A court has the discretion to authorize notice to N
amended, 29 MSCS. § 201 et seq., action on behalf of potential class members imder the Fair Labor Standards
themselves and numerous others similarly situated. Act of 1938, as amended, 29 US.C.S. § 201 et seq.
Plaintiffs tiled a motion for expedited court supervised Before authorizing such notice, the court must determine N
notice, seeking approval of the court to send notice to all whether other employees exist who are "similarly
"similarly situated" individuals in accordance with § situated" with respect to job requirements and pay
_ l6(b) of the FLSA. Plaintiffs indicated that the class provisions. In determining whether potential class
should have included all present and former employees members are similarly situated, the United States Court
N of defendant who were paid on an hourly basis or under a of Appeals for the Eleventh Circuit does not require a N
N fluctuating pay plan and who were employed by showing that potential class members were together the
N defendant at any time within the three year period victims of a single decision, policy. However, such a
N preceding the tiling of the complaint. The court denied showing is probative in determining whether potential
* the motion because plaintiffs failed to provide evidence, class members are similarly situated.
N as they were required to do, that aggrieved individuals
, existed within the broad class they proposed, and failed Labor & Employment Law: Wage & Hour Laws: Civil
N to make the required showing that the potential class Procedure & Remedies
N members were similarly situated to each other. [HN3] Before a court authorizes notice to potential class
I members under the Fair Labor Standards Act of 1938, as
E OUTCOME: Plaintiffs motion for expedited court amended, 29 US.C.S. § 201 et seq., plaintiffs, among
N supervised notice was denied because plaintiffs failed to other requirements, must also demonstrate that aggrieved
provide evidence that aggrieved individuals existed individuals exist within the broad class they propose.
I within the broad class they proposed, and failed to make
the required showing that the potential class members Labor & Employment Law: Wage & Hour Laws: Civil
= were similarly situated to each other. Procedure & Remedies
[HN4] Plaintiffs may meet the burden of providing
evidence to support their allegations by making
N substantial detailed allegations of class-wide violations
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Case 3:03-cv-0063((LIZ)JS Document 40-8 Filed 10614/2003 Page 2 of 4 I
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of the Fair Labor Standards Act of 1938, as amended, 29 I
US.C.S. § 201 et seq., supported by aftidavits.
-—---------—--·—- End Footnotes ------------- I
COUNSEL: For DEBORAH BAUM, JACK H. BAUM, -——- .
ROSE MARIE CAMPBELL, CARLOS RIVERA,
LUCIA DESAMPER, plaintiffs: H. Clay Parker, IV,
Daniel N. Brodersen, Parker, Burke, Landerman, &
Parker, P.A., Orlando, FL. Plaintiffs allege three distinct claims. First, Plaintiffs
I allege that hourly employees were not compensated for I
For SI-IONEY'S INC., defendant: Michael J. Mueller, all of the time they worked. Second, they contend
Joel M. Cohn, T. Cy Walker, Akin, Gump, Strauss, Defendant used the fluctuating workweek method of
Hauer & Feld, Washington, DC. overtime payment but violated the requirements for this ‘
method of payment. n2 Third, Plaintiffs allege Defendant I
For SHONEY'S INC., defendant: Tucker H. Byrd, required servers to perform non»server duties but[*3] I
Gregory W. Herbert, Greenberg, Traurig, Hoffman, failed to pay the corresponding non-server rate. »
Lipoff, Rosen & Quentel, P.A., Orlando, FL.
--—---—---——------ Footnotes --------------- I
JUDGES: PATRICIA C. FAWSETT, UNITED STATES - - -
DISTRICT JUDGE. I
OPINIONBY: PATRICIA C. FAWSETT I
n2 See 29 GER. § 778.114.
OPINION: ORDER
This cause came before the Court on Plaintiffs‘ Motion
for Expedited Court Supervised Notice and -----——----·----- End Footnotes ---—-—----——— I
Memorandum of Law in Support Thereof (Doe No. 9, —--- I
filed June 5, 1998) and Defendant's Memorandum in I
Opposition to Plaintiffs' Motion for Expedited Cotut I
Supervised Notice (Doc. No. 28, tiled September 4, I
1998). Both parties have submitted a number of Plaintiffs seek approval of the Court to send a notice to I
documents in support of their positions. all "similarly situated" individuals in accordance with
section l6(b) of the FLSA, 29 US. C. § 216(b). Plaintiffs i
Plaintiffs have brought this action against Defendant indicate that the class should include "all present and
I Shoney's Inc, ffk/a TPI, Inc. nl under the Fair Labor former employees of Shoney's Inc. who were paid on an I
I Standards Act of 1938 ("FLSA"), [*2] as amended, 29 hourly basis or under a fluctuating pay plan and who I
LLSC § 201, et seq., Plaintiffs have brought this action were employed at a Shoney's Inc. FT PI, Inc. restaurant at I
I on behalf of themselves and "numerous other similarly any time within the three year period preceding the tiling `
I situated TPI employees" pursuant to 29 US. C. § 216(b). of the Complaint." (Doc. No. 9 at 4, filed Jime 5, 1998).
I (Doc. No. 1 atP 20, filed April 13, 1998). After consideration of the motion and Defendants
I response, the Court denies the motion.
------—----------- Footnotes --—----—---——--
- - - [HN1] Section l6(b) of the FLSA provides that a
I collective action "may be maintained against any
I employer . . . by any one or more employees for and in
behalf of himself or themselves and other employees
nl According to the Defendant, the correct entity is similarly situated." 29 USC § 216(b). [HN2] The
I TPI Restaurants, Inc. ("TPIR"), not TPI Inc.. Before Court has the discretion to authorize notice to potential
' September 1996, TPIR was a separately owned class members under the FLSA. See Dybach [*4] v.
corporation that operated approximately 175 State of Florida Dep't of Corrections, 942 FZ2d 1562,
Shoney's concept restaurants in eleven states under 1567 (11 th Cir. 1991).
franchise agreements. In September 1996, Shoney's
Inc. acquired TPIR including all the Shoney's Before authorizing such notice, the Court must
concept restaurants previously owned and operated determine whether other employees exist who are
I by TPIR. (Doc. No. 28). "similarly situated" with respect to job requirements and
I pay provisions. See id. at 1567-68. In determining
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whether potential class members are similarly situated, In this case, Plaintiffs propose a class that includes all
the Eleventh Circuit does not require a showing that employees and fonner employees of Shoney's Inc./TPI, {
potential class members were together the victims of a Inc.. This would include employees at approximately 175
single decision, policy, or plan. See Grayson, 79 F.3d Shoney's concept restaurants in eleven states that were I
1086 at 1095 (interpreting § 216(b) in an age under separate franchise agreements. (Doc. 29, filed
discrimination case). However, such a showing is September 4, 1998). In support of their motion, Plaintiffs ‘
probative in determining whether potential class have provided five affidavits that are almost identical to I
members are similarly situated. See e.g. Speriing v. each other. (Doc. No. 18, Doc. No. 19, Doc. No. 20, i
Hojinan-La Roche, Inc., 118 F.R.D. 392, 406 (D.N.J.), Doc. No. 21, Doc. No. 22). The affidavits are limited to Q
affd in relevant part, 862 F.2a' 439 (3d Cir. 1988), affd, employees who work or have worked at Shoney's
493 US. 165 (1989); see Brooks vj Bellsouth restaurants in Orange County, Florida. n4 Id. Plaintiffs I
Telecomms. Inc., 164 F.R.D. 561, 566-67 (ND. Ala. have not provided any evidence that employees in
1995), affd, 114 F.3d 1202 (11th Cir. 1997). restaurants outside of Orange County are similarly “
situated to Plaintiffs. Plaintiffs also have not provided I
[HN3] Before the Court authorizes notice, Plaintiffs evidence, other than general statements within their own
must also demonstrate that aggrieved individuals exist affidavits, that FLSA violations have occurred to I
within the broad class they propose. Haynes v. Singer employees at restaurants outside Orange County.
Co., Inc., 696 F.2a' 884, 888 (11th Cir. 1983). In Further, Plaintiffs have not shown that potential class I
Haymes,[*5] the Eleventh Circuit held that notice should members were together the victims of a single decision, I
not have been authorized where the judge was only policy, or plan. .
presented counsel's unsupported assertions that FLSA I
violations were widespread. See id. -·-~——·—-——-~--—-— Footnotes --—-—-—--—----—
Plaintiffs assert that the allegations in their Complaint
are sufficient to demonstrate the existence of other
potential class members who are similarly situated. This I
assertion is a misstatement and misunderstanding of the n4 Defendants note that the affidavits are also
law. n3 The Eleventh Circuit has clearly indicated that _ substantially similar to affidavits filed in a different
Plaintiffs must provide evidence to support their case against Shoney's in Nashville, Tennessee. (Doc.
allegations. See id. [HN4] Plaintiffs may meet this 28, Exh. 3, filed September 4, 1998).
burden by making substantial detailed allegations of I
class-wide violations of the FLSA supported by I
affidavits. See generally Grayson v. K Mart Corp., 79
F.3d 1086, 1097-99 (11th Cir. 1996) (finding court ———-»——-—-------- End Footnotes ---------——-—
authorized notice proper under 29 (LS. C. § 216(b) in an ----
age discrimination case where plaintiffs provided I
affidavits containing statistics and company executive [*7]
statements that supported the allegations that the
potential class members were "simi1arly situated"). Based on the foregoing, tl1e Court denies Plaintiffs'
motion. Plaintiffs have failed to provide evidence, as
.......----------- Footnotes --------------- they are required to do, that aggrieved individuals exist ;
- - - within the broad class they propose. See Haynes, 696 “
F.2d at 888. Plaintiffs also have failed to make the i
required showing that the potential class members are
similarly situated to each other. See Dybach, 942 F .2d at
n3 This argument calls into question whether 1.567-68. (
Plaintiffs and their counsel are suitable
representatives for their potential class. CONCLUSION
Accordingly, Plaintiffs' Motion for Expedited Court I
Supervised Notice (Doc No. 9, filed June 5, 1998) is `
----------------— End Footnotes --—-———------ DENIED- I
DONE AND ORDERED at Orlando, Florida this, 3rd
[*6] day of December, 1998. i
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EATmc1A c. EAwsE·rr UNITED STATES DISTRICT JUDGE
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