Cope v. Let's Eat Out, Inc.

319 F.R.D. 544, 97 Fed. R. Serv. 3d 1018, 2017 U.S. Dist. LEXIS 118933, 2017 WL 1968395
CourtDistrict Court, W.D. Missouri
DecidedMay 10, 2017
DocketCase No. 6:16-cv-03050-SRB
StatusPublished
Cited by2 cases

This text of 319 F.R.D. 544 (Cope v. Let's Eat Out, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cope v. Let's Eat Out, Inc., 319 F.R.D. 544, 97 Fed. R. Serv. 3d 1018, 2017 U.S. Dist. LEXIS 118933, 2017 WL 1968395 (W.D. Mo. 2017).

Opinion

ORDER

STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff Olivia Cope’s Motion for Class Certification (Doc. # 143). [549]*549For the reasons stated below, the motion is granted.

I. Background

This Motion for Class Certification, filed pursuant to Federal Rule of Civil Procedure 23, arises from a franchise-wide “Guest Payment Policy” purportedly promulgated by Defendant Bruno Management Company, Inc. (“Defendant Bruno”) at four Buffalo Wild Wings restaurants in Missouri. As memorialized, the policy required servers and bartenders at Defendants’ Buffalo Wild Wings restaurant locations to reimburse the restaurant for losses resulting from guests who leave the premises without making payment for their bill. However, the manner in and extent to which this policy was enforced—including when the policy was implemented, whether servers and bartenders at different locations were required to pay, whether this policy extended to cash shortages, and the percentage of a bill that employees actually paid—are vigorously disputed.

A. History of Proceedings

On February 10,2016, Plaintiff Olivia Cope (“Plaintiff Cope”) filed the instant action against Defendants Let’s Eat Out, Inc., d/b/a/ Buffalo Wild Wings, later amended to include Defendant Bruno and other co-defendants (collectively, the “Defendants”), for (1) violations of the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.; (2) failure to pay minimum wages to Plaintiff Cope and the putative class pursuant to the Missouri Minimum Wage Law (“MMWL”), Missouri Revised Statutes § 290.500, et seq.; and (3) claims for unjust enrichment and quantum meruit under Missouri common law for Defendants’ alleged failure to pay Plaintiff and other tipped employees all earned minimum wages.

Plaintiff Cope was employed at a Buffalo Wild Wings restaurant in Springfield, Missouri, between approximately March 2013 and January 2016, For approximately the first six to seven months of her employment, Plaintiff Cope worked as a cashier, and then as a server. For the last five to six months of her employment, Plaintiff Cope also worked as a bartender. The Complaint alleges that Defendants violated the FLSA by: (1) paying tipped employees sub-minimum, tip-credit rates of pay, while failing to inform them of the tip-credit provisions of the FLSA; (2) requiring them to perform improper types and excessive amounts of non-tipped work; and (3) requiring them to reimburse the restaurants from their tips when customer walkouts or cash register shortages occurred. Furthermore, the Complaint alleges that Defendants violated Missouri state minimum wage laws and Missouri common law by enforcing the “Guest Payment Policy,” which— at least, according to the terms of the policy—required employees to reimburse the restaurants for tips for losses resulting from customer walkouts or cash register shortages.

On April 1, 2016, Plaintiff Cope filed a motion for conditional certification of a class of “all current and tipped employees of Defendants’ Buffalo Wild Wings restaurants who were paid sub-minimum wages in the last three years” for her FLSA claim pursuant to 29 U.S.C. § 216(b), which authorizes certification of collective actions for violations of the FLSA. (Doc. # 36, p. 21). The motion requested that the Court approve the mailing and electronic publishing of notice and a reminder notice to consent to join the action by the stated deadline, and to require that Defendants Let’s Eat Out, Inc. and Jeremy Boyer provide Plaintiff Cope with a list of names and contact information for tipped employees who had worked at Defendants’ multiple restaurant locations in Arkansas, Alabama, Florida, Missouri, Nebraska, and Oklahoma for the past three years. After being advised that the initially-named Defendants had no authority to produce the names and contact information of potential members of the FLSA collective action claim (the “FLSA Class”) outside of Defendants’ Springfield, Missouri and Huntsville, Alabama locations, Plaintiff Cope added Defendant Bruno to the action and subsequent filed a motion to enlarge the Step-One Notice to employees of the remaining Buffalo Wild Wings restaurants operated by Defendant Bruno. (Doc. # 67).

[550]*550Unlike the present Rule 23 motion, Plaintiff Cope’s Section 216(b) motion involved an analysis of whether Plaintiff had established a “colorable basis” that class members were required to perform extensive amounts of non-tipped work, including closing duties, intensive cleaning duties, and other “side” work1 during their shifts in violation of the FLSA, to warrant conditional certification for notice purposes and enable plaintiffs to opt-in to the FLSA claim. Hewing to the more lenient evaluation standards governing FLSA certification, the Court granted the Section 216(b) motion for conditional certification and issuanee/enlargement of notice.

B. The Instant Motion

The Court has been asked to certify the following two classes under Plaintiffs Missouri state law claims for employees who worked at Defendants’ four locations in Missouri—the “MMWL Class” and “Missouri Common Law Class”—pursuant to the considerably more stringent requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3):

1. All current and former servers and bartenders working at any of Defendants’ Buffalo Wild Wings restaurants in Missouri who, at any time from February 10, 2014 until May 31,2015, were paid sub-minimum, tip-credit rates of pay.
2. All current and former servers and bartenders working at any of Defendants’ Buffalo Wild Wings restaurants who, at any time from February 10, 2011 until May 31, 2015, were paid sub-minimum, tip-credit rates of pay.

In connection with the requested class certification, Plaintiff Cope asks the Court to: (1) appoint Plaintiff Cope as Class Representative; (2) designate Plaintiffs counsel of record as Class Counsel; (3) order Defendants to provide a third-party notice administrator a “Class List” containing the names and information of prospective class members; and (4) approve the proposed class action notice.

II. Legal Standard

Class certification is governed by Federal Rule of Civil Procedure 23. Rule 23 requires that an action satisfy all four prerequisites of Rule 23(a) and at least one of the provisions of Rule 23(b). Comcast Corp. v. Behrend, 569 U.S. 27, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). Pursuant to Rule 23(a), the party seeking certification must demonstrate that the proposed class satisfies the requirements of numerosity, commonality, typicality, and adequate representation, to ensure that any class claims are limited “to those fairly encompassed by the named plaintiffs claims.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156, 102 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
319 F.R.D. 544, 97 Fed. R. Serv. 3d 1018, 2017 U.S. Dist. LEXIS 118933, 2017 WL 1968395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cope-v-lets-eat-out-inc-mowd-2017.