United States District Court, D. South Carolina, Charleston Division
John P. Irvine, on behalf of himself and all others similarly situated, Plaintiff,
Destination Wild Dunes Management, Inc.; Destination Hotels & Resorts, Inc.; and Lowe Hospitality Group, Inc., Defendants
September 13, 2015.
John P Irvine, On behalf of himself and all others similarly
situated, Plaintiff: Joseph Scott Falls, LEAD ATTORNEY, Falls
Legal, Charleston, SC.
Destination Wild Dunes Management Inc, Destination Hotels &
Resorts Inc, Lowe Hospitality Group Inc, Defendants: Eric R
Magnus, LEAD ATTORNEY, PRO HAC VICE, Jackson Lewis PC,
Atlanta, GA; Andreas Neal Satterfield, Jr, Jackson Lewis PC,
Mark Gergel, United States District Judge.
matter comes before the Court on Plaintiff's motion for
conditional class certification under 29 U.S.C. § 216(b)
and approval of a court authorized notice to be sent to
eligible class members. (Dkt. Nos. 44-1, 56). Defendants
oppose the motion for conditional class certification and
object to various aspects of the proposed notice and the
manner in which Plaintiff proposes to distribute that notice.
(Dkt. No. 55).
of background, Plaintiff, who was employed as a server by
Defendants (hereafter referred to collectively as " Wild
Dunes" ), filed this action on March 1, 2015, on behalf
of himself and others similarly situated. Plaintiff alleges
that Defendant failed to pay tipped workers proper minimum
wage under the Fair Labor Standards Act (" FLSA" )
by requiring tipped employees to spend more than 20% of their
work day performing side tasks, by requiring tipped workers
to perform unrelated side work, and by failing to pay
overtime pay properly when tipped employees worked over 40
hours per week. (Dkt. No. 38 at 19-38). Plaintiff seeks
conditional class certification of a collective action "
on behalf of all tipped employees earning less that $7.25 per
hour who are or
were employed by Wild Dunes restaurants and bars from March
1, 2012 through entry of judgment in this case." (Dkt.
No. 44-1 at 6). Defendant moved to dismiss the Complaint on a
variety of legal grounds, which this Court denied by an order
dated May 26, 2015. (Dkt. No. 22). Plaintiff moved on July
23, 2015, for conditional class certification. Defendants
filed a memorandum in opposition on August 20, 2015, and
Plaintiff filed a reply on August 31, 2015. (Dkt. Nos. 44,
FLSA permits a plaintiff to bring an action on behalf of
himself and " other employees similarly situated."
29 U.S.C. § 216(b). If an employee desires to join a
class action under the FLSA, he or she must "
opt-in" by filing with the court a written consent form.
A motion for conditional class certification under the FLSA
is generally addressed through a two-step process. Prior to
initiating the first step, which involves notice to the
eligible class members, the Court must determine whether the
plaintiff has made substantial allegations that the eligible
class members have been collectively the victims of a single
decision, policy or plan that is violative of the FLSA.
Plaintiff carries the burden at this stage, but this has been
recognized to be a " modest" or "
lenient" standard. Upon completion of discovery, the
court addresses the second stage of the class certification
process, which focuses on whether the Plaintiff has met his
burden of demonstrating that the class is actually "
similarly situated." Walter v. Buffets, Inc.,
2015 WL 3903382 at *3-4 (D.S.C. 2015); Benbow v. Gold
Kist, Inc., 2007 WL 7595027 at *1-2 (D.S.C. 2007).
while recognizing that putative class members hold various
positions designated as " tipped positions" by
Defendants, alleges that they are all victims of a common
scheme or plan by Defendants to violate the FLSA, which has
resulted in a substantial underpayment of wages to the
proposed class. Defendants address in detail the different
job assignments, work sites and payment levels of the
putative class, arguing that this proposed class is, in fact,
not " similarly situated."
carefully reviewed the allegations set forth in the Amended
Complaint, the Court is satisfied that Plaintiff has set
forth, at this stage, sufficient allegations of a common
scheme or plan similarly affecting the proposed class to
satisfy the lenient standards of the first step of the
conditional class certification process. Defendants will have
an ample opportunity at the second stage of the certification
process to argue that the class should be decertified. The
Court, at that time, will ...