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Pataky v. Brigantine, Inc.

United States District Court, S.D. California

May 8, 2017

NEAL PATAKY, JESSICA CLEEK, and LAUREN MICHELSON, individually, and on behalf of others similarly situated, Plaintiffs,
THE BRIGANTINE, INC., a California corporation, Defendant.


          Hon. Gonzalo P. Curiel United States District Judge

         Before the Court is Plaintiffs Neal Pataky, Jessica Cleek, and Lauren Michelson's (individually, “Pataky, ” “Cleek, ” or “Michelson”; collectively, “Plaintiffs”) motion for an order (1) conditionally certifying part of this case as a Fair Labor Standards Act “collective action” and (2) providing notice to similarly situated employees. (Dkt. No. 12.) Defendant The Brigantine, Inc. (“Defendant” or “Brigantine”) opposed the motion. (Dkt. No. 21.) Plaintiffs filed a reply. (Dkt. No. 23.) The Court deems this motion suitable for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1). Having considered the parties' arguments and the applicable law, the Court GRANTS Plaintiffs' motion for conditional certification of a FLSA class; DIRECTS the parties to submit a joint proposed Notice form in compliance with the Court's Order; and DIRECTS Defendant to produce to Plaintiffs the potential class members' names, addresses, employment dates, and employment identification numbers.


         On February 22, 2017, Plaintiffs filed the instant putative class action against The Brigantine, Inc., a California corporation which owns and operates multiple restaurants in San Diego County, including restaurants named Brigantine Seafood and Miguel's Cocina. (Dkt. No. 1, Compl. ¶ 4; Dkt. No. 12-2 at 54, Pls.' Ex. 4 at 52.) Since its inception in 1969, Defendant has grown to over 1, 000 team members in over a dozen restaurants. (Dkt. No. 12-2 at 8-9, 11-13, Pls.' Ex. 2 at 6-7, 9-11.) Defendant employs individuals in the capacity of managers, servers, and kitchen staff in each of its restaurants. (Dkt. No. 12-6, Pataky Decl. ¶¶ 2-5; Dkt. No. 12-4, Cleek Decl. ¶¶ 2-4; Dkt. No. 12-5, Michelson Decl. ¶¶ 2-4; Pls.' Ex. 2 at 9-11.)

         Defendant employed Pataky between 2005 and November 2016. (Dkt. No. 12-6, Pataky Decl. ¶¶ 2-4.) From 2005 through 2008, Pataky worked at Zocalo Grille, Brigantine's Old Town location. (Id.) From 2008 through November 2016, Pataky worked at Brigantine Seafood in Coronado. (Id.) Pataky worked as a food server, bartender, a fill-in manager, and a trainer during his employment. (Id.) Between 2013 through November 2016, Pataky was a server on the wait staff. (Id.) Defendant employed Cleek between May 1, 2013 and June 1, 2016 at Brigantine Seafood in Coronado. (Dkt. No. 12-4, Cleek Decl. ¶¶ 2-3.) Cleek was a cocktail server for her first year of employment, and then became a food server on the wait staff for the remainder of her employment. (Id.) Defendant employed Michelson between May 2013 and February 2016 at Brigantine Seafood in Coronado. (Dkt. No. 12-5, Michelson Decl. ¶¶ 2-3.) Michelson was a cocktail server for her first year of employment, and then became a food server on the wait staff for the remainder of her employment. (Id.)

         Plaintiffs allege that Defendant maintained an unlawful “tip pooling” policy, under which Plaintiffs, who were employed as servers at Defendant's restaurants and who earned and were paid tips from Defendant's customers, had to “tip out” significant portions of their earned tip income to other employees who do not provide direct table service to customers, such as Defendant's kitchen staff. (Compl. ¶¶ 8-9.) In their Complaint, Plaintiffs assert three claims for relief based on Defendant's alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 203(m) and 206, (Compl. ¶¶ 15-22); unfair business practices in violation of California's Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., (Compl. ¶¶ 23-28); and unlawful business practices in violation of the UCL, Cal. Bus. & Prof. Code § 17200 et seq., (Compl. ¶¶ 29-34).

         On March 24, 2017, Plaintiffs filed the instant motion. (Dkt. No. 12.) Plaintiffs seek an order conditionally certifying an FLSA collective action class under 29 U.S.C. 216(b) and providing notice to the FLSA collective action class. (Dkt. No. 12-1 at 6-7.) Plaintiffs' proposed FLSA collective action class includes: “All current or former employees of The Brigantine, Inc. who have worked on and after February 22, 2014 as ‘servers, ' including but not limited to under job titles of food servers, cocktail lounge servers, dining room servers, and bartenders.” (Dkt. No. 12 at 2.) Plaintiffs' motion solely concerns Count One of their Complaint. (Dkt. No. 12-1 at 6-7.) At a later date, Plaintiffs will move for certification of an opt-out class pursuant to Federal Rule of Civil Procedure 23 for Counts Two and Three, which are brought under the UCL.

         Defendant opposed the motion on April 14, 2017, (Dkt. No. 21), and Plaintiffs filed a reply on April 28, 2017, (Dkt. No. 23).


         Section 16(b) of the FLSA, 29 U.S.C. § 216(b), gives employees the right to bring a private cause of action on their own behalf and on behalf of “other employees similarly situated” for specified violations of the FLSA. Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1527 (2013). A FLSA suit brought on behalf of other employees is known as a “collective action.” See Id. (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-170 (1989)). “No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). Unlike a class action brought under Federal Rule of Civil Procedure 23, “a FLSA case cannot become a collective action unless other plaintiffs affirmatively opt in by giving written and filed consent.” Smith v. T-Mobile USA Inc., 570 F.3d 1119, 1122-23 (9th Cir. 2009).

         Determining whether a collective action is appropriate is within the discretion of the district court. Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). “To maintain an opt-in class under § 216(b), plaintiffs must demonstrate that they are ‘similarly situated.'” Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001); 29 U.S.C. § 216(b). Plaintiffs bear the burden of showing that they and the proposed class are similarly situated. Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 535-36 (N.D. Cal. 2007).

         Courts in the Ninth Circuit have used a two-tiered approach adopted by the Fifth, Tenth, and Eleventh Circuits for determining when employees are “similarly situated.” See Stiller v. Costco, No. 09-CV-2473-H BLM, 2010 WL 5597272, at *2-3 (S.D. Cal. Dec. 13, 2010) (citing cases). During what is often referred to as a “notice stage” determination, a court first determines, “on an ad hoc case-by-case basis, whether plaintiffs are ‘similarly situated.'” Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (internal citation omitted). At this first stage, a court requires “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. at 1102-03 (internal citations and quotation marks omitted). Under this lenient standard, courts require plaintiffs to “show that there is some factual basis beyond the mere averments in their complaint for the class allegations.” Adams, 242 F.R.D. at 536 (internal citation and quotation marks omitted). “The standard for certification at this stage is a lenient one that typically results in certification.” Hill v. R Carriers, Inc., 690 F.Supp.2d 1001, 1009 (N.D. Cal. 2010). This leniency results in part from the fact that, unlike class actions under Rule 23, there are no absent class members to protect, and there is limited evidence available at the initial pleading stage. See Hensley v. Eppendorf N. Am., Inc., No. 14-CV-419-BEN NLS, 2014 WL 2566144, at *2-3 (S.D. Cal. June 6, 2014).

         The second determination is made at the conclusion of discovery, usually on a motion for decertification by the defendant, utilizing a more stringent standard for “similarly situated.” Thiessen, 267 F .3d at 1102. At the second stage, the court reviews several factors, including the disparate factual and employment settings of the individual plaintiffs; the various defenses available to the defendant which appear to be individual to each plaintiff; fairness and procedural considerations; and whether the plaintiffs made any required filings before instituting suit. Id. at 1103.

         Employees must receive “accurate and timely notice concerning the pendency of the class action, so they can make informed decisions about whether to participate.” Hoffman-LaRoche, 493 U.S. at 170. Accordingly, under § 216(b), courts have “the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure.” Id. Courts are therefore empowered to authorize notice and order the production of employee information. See Id. at 169-74.


         I. Conditional Certification of ...

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