United States District Court, S.D. California
NEAL PATAKY, JESSICA CLEEK, and LAUREN MICHELSON, individually, and on behalf of others similarly situated, Plaintiffs,
THE BRIGANTINE, INC., a California corporation, Defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR CONDITIONAL
CERTIFICATION, DIRECTING THE PARTIES TO SUBMIT A JOINT
PROPOSED NOTICE FORM, AND DIRECTING LIMITED PRODUCTION OF
EMPLOYEE INFORMATION [ECF NO. 12.]
Gonzalo P. Curiel United States District Judge
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.
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.)
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.
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.
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.
opposed the motion on April 14, 2017, (Dkt. No. 21), and
Plaintiffs filed a reply on April 28, 2017, (Dkt. No. 23).
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).
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).
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).
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.
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
Conditional Certification of ...