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Irvine v. Destination Wild Dunes Management, Inc.

United States District Court, D. South Carolina, Charleston Division

September 14, 2015

John P. Irvine, on behalf of himself and all others similarly situated, Plaintiff,
v.
Destination Wild Dunes Management, Inc.; Destination Hotels & Resorts, Inc.; and Lowe Hospitality Group, Inc., Defendants

         Decided September 13, 2015.

Page 708

          For John P Irvine, On behalf of himself and all others similarly situated, Plaintiff: Joseph Scott Falls, LEAD ATTORNEY, Falls Legal, Charleston, SC.

         For 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, Greenville, SC.

Page 709

         ORDER

         Richard Mark Gergel, United States District Judge.

         This 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).

         By way 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

Page 710

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, 55, 56).

         Conditional Class Certification

         The 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).

         Plaintiff, 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."

         Having 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 ...


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