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Gomez v. MI Cocina Ltd.

United States District Court, N.D. Texas, Dallas Division

August 4, 2017

JAVIER GOMEZ, et al., Plaintiffs,
v.
MI COCINA LTD., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay United States District Judge

         Before 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 motions.

         I. Factual Background and Procedural History

         This is 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).

         Plaintiffs, 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.

         This 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 Plaintiffs”).[1]

         The 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.

         On 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.

         On 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).

         Defendants 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.

         II. Applicable Legal Standard

         The 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 ...


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