McFeeley et al v. Jackson Street Entertainment, LLC et al, No. 8:2012cv01019 - Document 14 (D. Md. 2012)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 11/26/12. (Attachment: Notice of Collective Action Lawsuit)(sat, Chambers) (Additional attachment(s) added on 11/26/2012: # 2 Notice of Collective Action Lawsuit) (kns, Deputy Clerk).
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : LAURA MCFEELEY, et al., : v. : Civil Action No. DKC 12-1019 : JACKSON STREET ENTERTAINMENT, LLC, et al. : MEMORANDUM OPINION Presently Standards pending Act and ( FLSA ) ready case is for review this Fair Labor the motion for conditional certification of a collective action and facilitation of notice filed by Plaintiffs Laura McFeeley and Danielle Everett. No. 8). (ECF The issues have been fully briefed, and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Plaintiffs motion for conditional certification of a collective action and facilitation of notice will be granted. I. Background A. Factual Background Plaintiffs Laura McFeeley and Danielle Everett are exotic dancers who have sued the exotic dance clubs, Fuego s Exotic Dance Club ( Fuego ) and Club Extasy Exotic Dance Club ( Club Extasy ), and the individuals and entities that operate both of them: Jackson Entertainment Street Group, Entertainment, LLC, Nico LLC, Risque Enterprises, LLC, Quantum Inc., XTC Entertainment, and Uwa Offiah, for violations of the FLSA and the Maryland Wage and Hour Law ( MWHL ). (ECF No. 3). McFeeley danced at Fuego, and occasionally at Club Extasy, from March 1, 2009 to March 15, 2012. Everett danced at Fuego and Club Extasy from May 1, 2010 through October 31, 2011. From 2009 through October 2011, McFeeley usually worked six nights a week, and fifty-four hours a week. From November 2011 to March 2012, she worked two nights a week, averaging twenty hours a week. Everett typically worked three nights a week, totaling forty-eight hours Plaintiffs worked a week. for During the Defendants, three years Defendants that employed approximately one hundred exotic dancers. Plaintiffs, and all dancers employed by Defendants at both clubs, classify signed them contracts as with Defendants independent that contractors. purported These to contracts provided, and Defendants repeatedly told Plaintiffs and other dancers, that they were not entitled to wages from Defendants, and that they would only be paid by tips received directly from customers. independent Plaintiffs contractor aver that, status, despite Defendants their controlled facial every aspect of dancers job duties, including their schedules, and disciplined and fined the dancers. All dancers at both clubs, including Plaintiffs, paid a nightly fee of approximately $50 to the clubs in exchange for 2 access to the clubs facilities and services. If dancers wanted to use the restroom, they were required to pay the Defendants a $2 fee. Access to the dressing room was provided to them for a fee of $10. $10. Private and semi-private dances carried a fee of Plaintiffs allege that during a typical shift, dancers paid Defendants an average of $100 or more in fees. Plaintiffs allege that their average net hourly take home pay amounted to an out of pocket expense of negative twelve dollars (-$12) per hour. (ECF No. 3 at 9). Plaintiffs allege that Defendants, as employers of all 100 exotic dancers, completely failed to pay them any wage or overtime pay. B. On Procedural Background April 3, 2012, Plaintiffs Defendants, alleging three counts: filed a complaint against violation of the FLSA for failure to pay minimum wage; violation of the FLSA for failure to pay overtime; and violation of the MWHL for failure to pay minimum wage and overtime. Defendants filed an (ECF No. 1). answer, On April 18, before Plaintiffs allegations in an amended complaint. (ECF No. 3). subsequently filed an answer and counterclaims. On July 17, 2012, Plaintiffs augmented moved their Defendants (ECF No. 4). for conditional certification of a collective action for all individuals who worked at either Fuego s Exotic Dance Club or Club Extasy Exotic Dance Club as an exotic dancer at any time since April 1, 2009, 3 who have not been properly compensated for their overtime work or have not been paid a minimum wage for all hours worked. No. 8, at 13). potential (ECF They also requested facilitation of notice to opt-in plaintiffs. Defendants opposed this motion (ECF No. 10), and Plaintiffs have filed a reply (ECF No. 11). II. Motion for Conditional Certification and for CourtFacilitated Notice Under action the against FLSA, their plaintiffs employer for pursuant to 29 U.S.C. § 216(b). Inc., 532 F.Supp.2d 762, 771 may maintain violations a collective under the act Quinteros v. Sparkle Cleaning, (D.Md. 2008). Section 216(b) provides, in relevant part, as follows: An action . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. 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. This provision potential establishes plaintiffs must an opt-in affirmatively scheme, notify their intentions to be a party to the suit. the whereby court of Quinteros, 532 F.Supp.2d at 771 (citing Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D.Md. 2000)). When pursuant deciding to the whether FLSA, to courts certify generally 4 a collective follow a action two-stage process. 2010). Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D.Md. In the first stage, commonly referred to as the notice stage, the court makes a threshold determination of whether the plaintiffs have demonstrated that potential class members are similarly situated, such that court-facilitated notice to the putative class members would be appropriate. Camper, 200 F.R.D. at 519). close of inquiry discovery, to similarly the determine situated, In the second stage, following the court whether as Id. (quoting conducts the required a more plaintiffs by § stringent are 216(b). in fact Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D.Md. 2007). At this later stage, referred to as the decertification stage, the court makes a final decision about the propriety of proceeding as a collective action. Syrja, 756 F.Supp.2d at 686 (quoting Rawls, 244 F.R.D. at 300). Plaintiffs here have moved for conditional certification of a collective action, and they have requested court-facilitated notice to potential opt-in plaintiffs. A. Conditional Certification Is Appropriate Because Plaintiffs Have Made a Modest Factual Showing that Exotic Dancers Employed by Defendants at Fuego Exotic Dance Club and Extasy Exotic Dance Club Are Similarly Situated Determinations of the appropriateness of conditional collective action certification . . . are left to the court s discretion. Syrja, 756 F.Supp.2d at 686; see also Hoffmann-La 5 Roche, Inc. v. threshold issue discretion is Sperling, in 493 U.S. determining whether 165, 169 Plaintiffs exercise such demonstrated have The to whether (1989). that potential opt-in plaintiffs are similarly situated. 200 F.R.D. at 519 (quoting 29 U.S.C. § 216(b)). situated [does] not mean identical. Camper, Similarly Bouthner v. Cleveland Constr., Inc., No. RDB-11-0244, 2012 WL 738578, at *4 (D.Md. Mar. 5, 2012) (citing Hipp v. Liberty Nat l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001)). FLSA plaintiffs is similarly Rather, a group of potential situated if its members can demonstrate that they were victims of a common policy, scheme, or plan that violated the law. Mancia v. Mayflower Textile Servs. Co., No. CCB-08-0273, 2008 WL 4735344, at *3 (D.Md. Oct. 14, 2008); Quinteros, 532 F.Supp.2d at 772. standard, plaintiffs generally need only To satisfy this make a relatively modest factual showing that such a common policy, scheme, or plan exists. Marroquin v. Canales, 236 F.R.D. 257, 259 (D.Md. 2006). To meet this burden and demonstrate that potential class members are similarly situated, Plaintiffs must set forth more than vague allegations with meager factual support regarding a common policy to violate the FLSA. D Anna, v. M/A COM, Inc., 903 F.Supp. 889, 894 (D.Md. 1995); Bouthner, 2012 WL 738578, at *4. Their evidence need not, 6 however, enable the court to determine conclusively whether a class of similarly situated plaintiffs exists, Bouthner, 2012 WL 738578, at *4, and it need not include evidence that the company has a formal policy of refusing to pay overtime, Quinteros, 756 F.Supp.2d at 772. Plaintiffs may rely on [a]ffidavits or other means, such as declarations showing. and deposition testimony, to make the required Williams v. Long, 585 F.Supp.2d 679, 684-85 (D.Md. 2008); Essame v. SSC Laurel Operating Co., --- F.Supp.2d ---, 2012 WL 762895, at *3 (D.Md. Mar. 12, 2012). Here, through McFeeley s declaration, Plaintiffs make a modest factual showing that they are similarly situated to other exotic dancers who have worked at Fuego or Club Extasy since April 1, 2009, but have not compensation, including overtime pay. received appropriate First, McFeeley submitted a declaration attesting that she worked at both Fuego s and Club Extasy beginning in March 2009, and that she and other exotic dancers were required to sign a contract certifying that they were to be Defendants classified disciplined as independent them, dictated otherwise treated them like employees. McFeeley alleges that all contractors, dancers, their but schedules, (ECF No. 8-2). at both clubs, that and Second, signed contracts providing that they would not be paid any wages or provided overtime pay, but that all of their compensation would come from tips paid directly by customers. 7 Third, McFeeley declares that all Fuego and Club Extasy dancers were required to pay Defendants a series of fines and fees to perform their job duties. Fourth, McFeeley asserts that Defendants repeatedly told all exotic dancers that they would not be paid a wage or overtime pay. Finally, McFeeley avers that all dancers were not fully compensated by the Defendants for all hours worked, and that she has personal knowledge of other exotic dancers who also were not paid wages or overtime. attested to in McFeeley s Taken together, these facts declaration establish the modest factual showing necessary for conditional certification of a class of exotic dancers who were employed at Defendants Fuego Exotic Dance Club or Club Extasy Exotic Dance Club since April 1, 2009. Defendants occasionally contend worked that at sufficient knowledge policies. assertions are too that Extasy, (ECF No. 10 at 3). certification. of Club vague (Id. to at 5). because club s she McFeeley only does have employment not practices and They further argue that her form the basis of conditional McFeeley s declaration of Club Extasy s employment practices is based on her alleged personal knowledge from having worked both there and at Defendants Fuego dance club. show that This is a sufficient, concrete factual basis to other Defendants there. similarly See situated dancers are employed by Faust v. Comcast Cable Comms. Mgmt., 8 LLC., No. WMN-10-2336, 2011 WL 5244421, at *4 (D.Md. Nov. 1, 2011) (limiting conditional certification of FLSA class to one of eight Maryland call centers because even though employees at all call centers perform the same tasks and are subject to the same company policies, Plaintiffs have failed to provide any concrete evidence facilities had demonstrating been victims of that the employees same illegal at other policies); Camper, 200 F.R.D. at 520-21 (holding that although plaintiffs preliminarily established the existence of a company-wide policy concerning use of time clocks, notice to the potential class was warranted with respect to only the plaintiffs made a factual showing). Plaintiffs make violations at the both required exotic one facility where the Unlike in Faust and Camper, evidentiary dance clubs, showing based on of FLSA McFeeley s personal experience working in both locations. Defendants Plaintiffs next request argue for that the conditional not sufficiently establish the should certification McFeeley s declaration is not credible. does court deny because They argue that she basis of her personal knowledge, making her declaration an inappropriate foundation on which to conditionally certify a class. (ECF No. 10, at 4-5). Personal knowledge of facts may be inferred from Plaintiff s statements of first-hand experience and her observations; she does not need to declare specifically every detail undergirding 9 her personal knowledge. See Sjoblom v. Charter Commc ns, LLC, 571 F.Supp.2d 961, 968-69 (W.D.Wisc. 2008) (refusing to discard plaintiffs evidence for lack of personal knowledge where declarants did not actually know whether coworkers were paid for overtime work because this fact could be inferred from declarants observations and personal experience of not being paid for overtime); Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 1991) (concluding that personal knowledge includes reasonable inferences grounded in observation or first-hand experience). Thus, for assertions purposes of of conditional personal knowledge certification, seem to be McFeeley s grounded in reasonable inferences based on her observations and experience. Even if the unstated basis of her knowledge did cast some doubt on McFeeley s credibility, conditional certification would not be denied determinations conditional on are that usually certification. basis alone inappropriate Essame, because credibility for question 2012 WL the 762895, at of *3 (citing Colozzi v. St. Joseph s Hosp. Health Ctr., 595 F.Supp.2d 200, 205 (N.D.N.Y. 2009)). Conditional certification pursuant to § 216(b) is, therefore, warranted for the class of all individuals who worked at either Fuego s Exotic Dance Club or Club Extasy Exotic Dance Club as an exotic dancer at any time since April 1, 2009, who 10 have not been properly compensated for their overtime work or have not been paid a minimum wage for all hours worked. B. Court Supervised Notice to Potential Opt-In Plaintiffs is Proper Because Plaintiffs have made a preliminary showing that exotic dancers working at Fuego and Club Extasy are similarly situated, notice of this action will be provided to exotic dancers who currently work, or have worked since April 1, 2009, at those clubs. form. Plaintiffs have submitted a proposed notice (ECF No. 8-3). proposed notice form. The district Defendants suggested comments to the (ECF No. 10, at 8). court has broad discretion regarding the details of the notice sent to potential opt-in plaintiffs. Lee v. ABC Carpet & Home, 236 F.R.D. 193, 202 (S.D.N.Y. 2006) (citing Hoffmann-La Roche, 493 U.S. at 171). The overarching policies of the FLSA s collective suit provisions require that the proposed concerning the notice provide pendency of accurate the and collective timely action, notice so that [potential plaintiffs] can make informed decisions about whether to participate. Whitehorn v. Wolfgang s Steakhouse, Inc., 767 F.Supp.2d 445, 450 Heartland Brewery, (S.D.N.Y. Inc., 516 2011) (quoting F.Supp.2d 2007)). 11 317, Fasanelli 323 v. (S.D.N.Y. Defendants suggest that Plaintiffs notice fails to assert Defendants position in the lawsuit, including their potential liability for Defendants counterclaims.1 afforded the opportunity to notify Defendants will not be potential plaintiffs that they might be responsible for counterclaims or other costs. See Whitehorn, 767 F.Supp.2d at 451 (denying defendants request to notify potential plaintiffs of potential liability on counterclaims); Guzman v. VLM, Inc., No. 07 Civ. 1126, 2007 WL 2994278, at *8 (E.D.N.Y. Oct. 11, 2007) (rejecting notice of potential counterclaim terrorem effect liability that is because it disproportionate may to have an in the actual likelihood that costs or counterclaim damages will occur in any significant degree ). The parties do not comment on the length of the notice period, and leave this to the court s discretion. Notice periods may vary, but numerous courts around the country have authorized See, e.g., ninety-day Wass, opt-in 2011 WL periods 1118774, for at collective *11 actions. (denying the defendant s request to shorten the opt-in period to fewer than 1 Plaintiffs have also requested that the court appoint their counsel as counsel for this collective action. Defendants have not opposed this request. Thus, any potential opt-in plaintiff who does not enter an appearance through his or her own counsel, or indicate a desire to represent himself or herself, will be represented by Plaintiffs counsel. 12 ninety days); Calderon v. Geico Gen. Ins. Co., No. RWT 10cv1958, 2011 WL 98197, at *2, 8-9 (D.Md. Jan. 12, 2011) (authorizing a ninety-day notice period); Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 68-69 (E.D.Pa. 2009) (finding a ninety-day opt-in period to be reasonable). Plaintiffs may, therefore, notify other potential plaintiffs of this action by first-class mail using the court-approved notice appended to this memorandum opinion.2 III. Conclusion For the foregoing reasons, Plaintiffs motion for conditional certification and for court-facilitated notice will be granted. A separate Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 2 To effectuate this notice, Defendants will be required to produce, to the extent possible, the full names and last known home addresses of potential opt-in plaintiffs within fourteen days of the issuance of the accompanying Order. Defendants will not, however, be required to provide phone numbers for potential opt-in plaintiffs at this time because Plaintiffs have made no showing of any special need for the disclosure of this information. See Calderon, 2011 WL 98197, at *9 ( [A]bsent a showing by plaintiffs of special need for disclosure of class members telephone numbers, ordering such disclosure is not appropriate. (quoting Arevalo v. D.J. s Underground, No. DKC 09-3199, 2010 WL 4026112, at *2 (D.Md. Oct. 13, 2010))). 13
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