United States District Court, D. South Carolina, Charleston Division
ANDREW BROWDER, on behalf of himself and all others similarly situated, Plaintiff,
PENINSULA GRILL ASSOCIATES, LLC d/b/a HANK’S SEAFOOD RESTAURANT and HENRY “HANK” L. HOLLIDAY, III, individually, Defendants.
PATRICK MICHAEL DUFFY, United States District Judge
This matter is before the Court on Defendants Peninsula Grill Associates, LLC d/b/a Hanks’s Seafood Restaurant (“Hank’s Seafood”) and Henry “Hank” L. Holliday, III’s (“Holliday”) (collectively “Defendants”) Motion to Strike, or in the Alternative, Motion to Dismiss Nicholas Clement’s Untimely Consent (ECF No. 40) (“Motion”). Plaintiff Andrew Browder (“Plaintiff”) has filed a Memorandum in Opposition to Defendants’ Motion (ECF No. 43). For the reasons set forth herein, the Court denies Defendants’ Motion.
On October 23, 2014, Plaintiff commenced this lawsuit, on behalf of himself and other similarly situated current or former employees of Hank’s Seafood, seeking, inter alia, unpaid overtime compensation and minimum wages pursuant to the collective action provision of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). In his Original Complaint, Plaintiff asserted two separate causes of action under the FLSA and one cause of action for violation of
the South Carolina Payment of Wages Act, SC Code Ann. §§ 41-10-10 et seq. (“SCPWA”) against Defendants. Plaintiff alleges that Defendants paid him and other similarly situated current and former nonexempt employees less than the statutory minimum wage by improperly claiming a tip credit while utilizing an invalid “tip pool” in violation of 29 U.S.C. §§ 203(m), 206. Plaintiff also asserts that Defendants failed to pay Plaintiff and those similarly situated the proper overtime wage in violation of 29 U.S.C. § 207. As to the SCPWA, Plaintiff’s Original Complaint asserted that monies Plaintiff and those similarly situated received as tips, either directly or via the tip pool, were “wages, ” as that term is defined by the SCPWA, and that Defendants willfully made unauthorized and illegal deductions from those wages without providing the requisite notice.
On November 14, 2014, Defendants filed a Motion to Dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“First Motion to Dismiss”). Shortly thereafter, on November 25, 2014, Plaintiff filed an Amended Complaint. Accordingly, the Court issued a Text Order on December 3, 2014, finding that Plaintiff’s Amended Complaint rendered moot Defendants’ First Motion to Dismiss. Defendants filed another Motion to Dismiss on December 15, 2014 (“Second Motion to Dismiss”). Plaintiff filed a Response in Opposition to Defendants’ Second Motion to Dismiss on January 20, 2015.
The Parties subsequently informed the Court that they were attempting to resolve the Second Motion to Dismiss. On February 23, 2015, the Parties filed a Joint Motion pursuant to Rule 16 of the Federal Rules of Civil Procedure. By way of their Joint Motion, the Parties notified the Court that they had “negotiated a compromise in which each is giving up certain rights, but each believes it is best for them in proceeding with this action.” (Joint Mot. 1, ECF No. 16). Accordingly, the Parties requested “the entry of an Order . . . to stipulate to certain issues in an effort to streamline this action.” (Id.). In short, Plaintiff agreed to dismiss his SCPWA cause of action and Defendants consented to the availability of certain remedies. The Court granted the Joint Motion on February 25, 2015, and adopted the Parties’ proposed consent order. Following entry of the February 25, 2015 Order, Defendants withdrew their Second Motion to Dismiss and, on March 9, 2015, filed an Answer to Plaintiff’s Amended Complaint.
On March 25, 2015, Plaintiff filed, with Defendants’ consent, a Seconded Amended Complaint. By way of the Second Amended Complaint, Plaintiff sought to clarify matters by deleting the SCPWA claim and all corresponding references to a putative class action under Rule 23 of the Federal Rules of Civil Procedure. Additionally, Plaintiff attempted to more clearly identify which Defendant was the “employer” under the FLSA. Pursuant to the Parties’ agreement, Plaintiff’s Second Amended Complaint related back to the date Plaintiff filed his Original Complaint. Defendants filed their Answer to Plaintiff’s Second Amended Complaint on April 10, 2015.
On April 16, 2015, the Parties filed a Consent Motion for Conditional Collective Action Certification and to Authorize Notice to Putative Class Members (“Consent Motion”). By way of their Consent Motion, the Parties sought an order from the Court conditionally certifying this matter as a collective action under the FLSA, with the class defined as: “All current and former employees of Defendants at anytime from three years prior to the date of the Court granting this Motion to the present (‘Time Period’) who were paid a direct, or hourly, rate less than the statutory minimum wage of seven and 25/100 dollars ($7.25) per hour.” (Consent Mot. 2, ECF No. 32). Additionally, the Parties requested that the Court authorize notice to potential plaintiffs and putative class members and approve the Parties’ agreed-upon process for facilitating and distributing such notice. On April 17, 2015, the Court granted the Parties’ Consent Motion. In doing so, the Court authorized the Parties to provide, via a third-party administrator, putative class members with notice of the opportunity to opt-in to this collective action. Pursuant to the Court’s April 17, 2015 Order, potential plaintiffs were given an agreed-upon forty-five-day period to opt-in to the conditionally certified collective action by filing the requisite consent to join form (“Consent Form”).
On May 27, 2015, Plaintiff’s counsel filed a Consent Form for Brian Walker. On June 11, 2015, shortly after the expiration of the notice period, Plaintiff’s counsel filed a Consent Form executed by Nicholas Clement (“Clement”). Accordingly, Defendants filed the instant Motion on June 22, 2015, asking the Court to strike Clement’s untimely filed Consent Form. On July 9, 2015, Plaintiff filed a Memorandum in Opposition to Defendants’ Motion. Plaintiff’s Memorandum in Opposition was accompanied by an affidavit from Mr. Clement and an affidavit from Plaintiff’s counsel, Bruce Miller. Therefore, this matter has been fully briefed and is now ripe for consideration.
Under the FLSA, a claim for unpaid minimum wages, unpaid overtime compensation, or liquidated damages “shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 29 U.S.C. § 255(a). In the context of a collective action filed pursuant to the FLSA, the action is deemed “commenced” as to an individual claimant:
(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or
(b) if such written consent was not so filed or if his name did not so appear-on the subsequent date on which such written consent is filed in the ...