United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge
the court are: Defendants' Motion for Decertification of
Conditionally Certified Collective Action, filed November 18,
2016 (Doc. 578); Plaintiffs' Motion to Strike Evidence
from Defendants' Motion for Decertification of
Conditionally Certified Collective Action, filed January 19,
2017 (Doc. 596); Defendants' Objections to and Motion to
Strike Plaintiffs' Appendices filed with their Response
to Defendants' Motion for Decertification, filed February
15, 2017 (Doc. 611); and Plaintiffs' Cross-Motion to
Strike and Objection to Admissibility of Defendants'
Evidence Chart Under Dkt. 611-1, filed February 27, 2017
(Doc. 615). Having considered the motions, responses,
replies, pleadings, record, evidence, and applicable law, the
court grants Defendants' Motion for
Decertification of Conditionally Certified Collective Action
(Doc. 578), and denies as moot all remaining
Factual Background and Procedural History
a collective action alleging violations of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”). Plaintiffs are Javier Gomez, Alfredo
Huerta, Daniel Bobadilla, Ubriel Rodriguez, and Daniel Merino
(“Plaintiffs”), each of whom resides in Dallas,
Texas, and is a tipped waiter earning $2.13 per hour plus
tips at a Mi Cocina restaurant in Dallas. On behalf of
themselves and all similarly situated employees, Plaintiffs
filed this action on August 15, 2014, alleging violations of
the FLSA's minimum wage and overtime provisions by
Defendants Mi Cocina Ltd.; M Crowd GP, LLC; M Crowd
Restaurant Group, Inc.; Mi Cocina, LLC; and Mercury Grill,
Ltd. (“Defendants” or “Mi Cocina”).
The live pleading is Plaintiffs' Third Amended Complaint,
filed July 30, 2015 (Doc. 169).
on behalf of themselves and others similarly situated,
contend that Defendants (1) did not pay them for all hours
worked; (2) did not pay them overtime pay for hours worked in
excess of forty hours per week; (3) required them to work
during their breaks; (4) required them and other tipped
employees to work off the clock or for $2.13 per hour
“to do deep cleaning outside of their normal
responsibilities;” (5) deducted cash from earned tips
to cover nonpaying customers, broken items, or register
shortages; (6) required “waiters/waitresses, bus boys,
hostesses, and bartenders to participate in a tip
pool;” (7) withheld a percentage of credit card tips to
cover transaction costs charged by credit card companies; (8)
required waitresses and waiters to contribute 3% of their
tips to a tip pool that was distributed to bartenders, bus
staff, and hostesses; (9) required a portion of tips to be
paid to management and other ineligible employees; and (10)
failed to inform them that Defendants intended to take a
“tip credit.” Third Am. Compl. ¶¶
17-25. Plaintiffs allege that these violations occurred at
multiple locations, not just one of Defendants'
restaurants. See Id. ¶ 26.
case was originally assigned to former Chief Judge Jorge A.
Solis, who, on March 4, 2015, conditionally certified the
class in this case as consisting of waiters and waitresses
(including cocktail servers), hostesses, bus staff, and
bartenders who were employed at Defendants' restaurants
between August 15, 2011, and March 4, 2015. See
Order (Doc 123). After the court authorized notice to
potential opt-in plaintiffs pursuant to 29 U.S.C. §
216(b), a total of 354 individuals have opted in to this
collective action (“Opt-In
parties have conducted significant discovery. On November 5,
2015, the magistrate judge granted a request by Defendants to
modify discovery limitations originally set by former Chief
Judge Solis and allowed Defendants the opportunity to
propound written discovery on twenty percent (20%) of the
Opt-In Plaintiffs and take depositions of seven percent (7%)
of the Opt-In Plaintiffs. See Order (Doc. 336).
Defendants served uniform discovery requests, including
requests for admission, on sixty-two (62) Opt-In Plaintiffs.
Nineteen (19) of the Opt-In Plaintiffs served with written
discovery provided timely answers, ten (10) never responded
to any written discovery, and thirty-three (33) have served
late answers. By operation of law, forty-three (43) of the
sixty-two (62) Opt-In Plaintiffs were, therefore, deemed to
have admitted all items in Defendants' requests for
admission. See Fed. R. Civ. P. 36.
April 19, 2016, almost three months after Defendants first
notified Plaintiffs of the deemed admissions and requested
that Plaintiffs respond as soon as possible if they were
planning to seek withdrawal of the deemed admissions,
Plaintiffs filed their Emergency Motion to Withdraw or Amend
Deemed Admissions to Defendants' Request for Admissions
and Extension of Time to Respond to Discovery (Doc. 440),
seeking to withdraw deemed admissions of forty-three (43)
individuals who had opted in as Plaintiffs to the conditional
class but had failed to answer timely five separate sets of
requests for admissions.
April 27, 2016, the case was reassigned to this court.
Pursuant to the 28 U.S.C. § 636(b)(1)(A), the court
referred Plaintiffs' Emergency Motion to Withdraw or
Amend Deemed Admissions to Defendants' Request for
Admissions and Extension of Time to Respond to Discovery and
related pleadings to the magistrate judge for hearing and
determination. On May 18, 2016, the magistrate judge held a
hearing on the motion, which she denied. See Hearing
Transcript (Doc. 467-2); Order (Doc. 455). On June 2, 2016,
Plaintiffs appealed the magistrate judge's ruling to this
court. On February 24, 2017, following a de novo
review, the court overruled Plaintiffs' objections and
affirmed the magistrate judge's ruling. See Mem.
Op. & Order (Doc. 613).
now ask the court to decertify the conditional class, arguing
that the Opt-In Plaintiffs are not similarly situated, that
“[i]ndividual fact findings and legal conclusions will
inevitably dominate the case and make impossible a
determination of any common facts or legal issues, ”
and “Plaintiffs have not and cannot propose a trial
plan that would be anything other than an unmanageable mess
in order to unsort all of the divergent facts, claims, and
defenses.” Defs.' Mot. to Decertify 2.
Applicable Legal Standard
FLSA requires employers to compensate their non-exempt hourly
employees at overtime rates for time worked over the
statutorily-defined maximum of forty hours per week, and to
ensure that employees receive wages each week that are, on
the average, equal to the minimum of $7.25 per hour worked.
29 U.S.C. § 207(a). If an employer does not provide that
pay, the statute authorizes an employee to bring suit against
his or her employer not only on behalf of him or herself, but
also on behalf of other “similarly situated”
employees. Specifically, section 216(b) of the FLSA provides
in pertinent part:
An action . . . may be maintained . . . 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.
29 U.S.C. § 216(b). The purpose of allowing this type of
action is to “serve the interest of judicial economy
and to aid in the vindication of plaintiffs'
rights.” Proctor v. Allsups Convenience
Stores,Inc., 250 F.R.D. 278, 280 (N.D. Tex.
2008) (Robinson, J.) (citations omitted). Unlike class
actions brought under Federal Rule of Civil Procedure 23 that
require plaintiffs to “opt-out, ” classes under
§ 216(b) of the FLSA are opt-in classes, which requires
an employee to “opt ...