Compere v. Nusret Miami, LLC

391 F. Supp. 3d 1197
CourtDistrict Court, S.D. Florida
DecidedAugust 21, 2019
DocketCase No. 1:19-cv-20277-KMM
StatusPublished
Cited by2 cases

This text of 391 F. Supp. 3d 1197 (Compere v. Nusret Miami, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Compere v. Nusret Miami, LLC, 391 F. Supp. 3d 1197 (S.D. Fla. 2019).

Opinion

K. MICHAEL MOORE, UNITED STATES CHIEF DISTRICT JUDGE

THIS CAUSE came before the Court upon named Plaintiff Melissa Compere's ("Plaintiff" or "Compere") Motion to Certify 216(b) Collective Action ("Mot. to Certify") (ECF No. 19) and Defendant Nusret Miami, LLC's Partial Motion to Dismiss ("Mot. to Dismiss") (ECF No. 9). The Parties filed their respective responses and replies.1 The matter is now ripe for review.

*1200I. BACKGROUND

On January 18, 2019, Plaintiff filed a Collective Action Complaint on behalf of herself and all others similarly situated against Defendants Nusret Miami, LLC ("Nusret Miami") and Nusret Gokce ("Gokce") (collectively, "Defendants") seeking relief under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. and the Declaratory Judgment Act, 28 U.S.C. § 2201. See generally ("Compl.") (ECF No. 1). Plaintiff alleges that she and other front-of-the-house tipped employees were (1) forced to participate in a tip pool or tip-share, in which tips were shared with non-tipped employees and (2) paid below the minimum and overtime wage for tipped employees. See generally id. In Count I, Plaintiff asserts a claim for failure to pay minimum wage in violation of the FLSA. Id. at 7-8. In Count II, Plaintiff asserts a claim for failure to pay overtime wages in violation of the FLSA. Id. at 8-9. In Count III, Plaintiff requests a declaration that Defendants' acts, policies, practices, and procedures have violated the FLSA. Id. at 9-10.

Now, Plaintiff moves to conditionally certify a collective action with the following class definition:

All front-of-the-house tipped employees who worked at Nusr-et Steakhouse in Miami within the two years preceding this lawsuit and who, as a result of Defendants' policy of requiring Class Members to share tips with non-tipped employees and to work without being paid an hourly wage, earned less than the applicable minimum and/or overtime wage for one or more weeks.

Mot. to Certify at 1-2. Plaintiff also moves this Court to permit Plaintiff to notify potential class members of the pendency of this action and of their right to opt in to this action. Id. at 18-19.

Plaintiff and Opt-In Plaintiff Valdo Sulaj ("Sulaj") filed affidavits in support of the Motion to Certify.2 See Affidavit of Melissa Compere ("Compere Aff.") (ECF No. 16); Affidavit of Valdo Sulaj ("Sulaj Aff.") (ECF No. 18). In their affidavits, Compere and Sulaj state that "to the best of [their] knowledge and belief [they] worked with approximately 200 other tipped employees who were subject to the same policies and procedures as [them]." See Compere Aff. ¶ 10; Sulaj Aff. ¶ 7. Compere and Sulaj add that "other tipped employees at Nusr-et Steakhouse will want to participate in this lawsuit," but that "many of them are unaware of their rights pertaining to minimum and overtime wages, or in fear of retaliation if they were to exercise their rights in an individual action." Compere Aff. ¶ 11; Sulaj Aff. ¶ 8. In addition to Compere and Sulaj, other employees have opted in to this lawsuit (collectively referred to herein as "Opt-In Plaintiffs"). See Notices of Consent to Join (ECF Nos. 39, 44, 54, 56).

Additionally, Defendant Nusret Miami moves to dismiss the declaratory relief claim (Count III) pursuant to Federal Rule of Civil Procedure 12(b)(6). See generally Mot. to Dismiss. Because the resolution of the Motion to Certify impacts the resolution of the Motion to Dismiss, the Court will first address the Motion to Certify. See Hart v. JPMorgan Chase Bank, N.A. , No. 8:12-CV-00470-T-27TBM, 2012 WL 12914660, at *2 (M.D. Fla. June 20, 2012) (denying motion to dismiss to allow the court to first address the plaintiff's motion to certify).

*1201II. LEGAL STANDARD

A. Certification of 216(b) Collective Action

The FLSA authorizes collective actions against employers for unpaid minimum wage and overtime compensation. 29 U.S.C. § 216(b). Section 216(b) provides that an action "may be maintained ... by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." Id. A plaintiff may bring a collective action on behalf of similarly-situated persons subject to the requirements that prospective plaintiffs file a written consent in the court where the action is brought. Id. ; Hipp v. Liberty Nat'l Life Ins. Co. , 252 F.3d 1208, 1216 (11th Cir. 2001). A collective action brought under the FLSA can include only those plaintiffs who affirmatively opt in to the action by filing their consent in writing. 29 U.S.C. § 216(b).

Courts in the Eleventh Circuit generally use a two-tiered procedure for certifying FLSA collective actions.

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391 F. Supp. 3d 1197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/compere-v-nusret-miami-llc-flsd-2019.