United States District Court, W.D. Kentucky
CHARLES R. SIMPSON III, SENIOR JUDGE UNITED STATES DISTRICT
matter is before the Court on the motion of Plaintiffs Marlin
Palma and Pablo Rebollar (collectively,
“Plaintiffs”) for leave to file their fourth
amended complaint under Federal Rule of Civil Procedure 15(a)
and (c), ECF No. 40. Defendants Enrique Roman, Victor
Fernandez, El Nopal R & F, Inc., Roman Bardstown Road, Inc.,
El Nopal Mexican Family Restaurant, Inc., and El Nopal -
LaGrange, Inc. (collectively, “Defendants”)
responded, ECF No. 42. Plaintiffs replied, ECF No. 43. For
the reasons explained below, the Court will grant
Plaintiffs' motion for leave to file their fourth amended
Allegations in the Third Amended Complaint
are former employees who allege that Defendants failed to pay
them minimum and overtime wages in violation of the Fair
Labor Standards Act (FLSA), 29 U.S.C. §§ 206(a) and
207(a). Third Am. Compl. ¶ 1, ECF No. 27. Plaintiffs
also claim that Defendants violated 29 U.S.C. § 203(m)
of the FLSA, which permits employers, under certain
conditions, to pay less than minimum wage to employees who
receive tips. Id. Plaintiffs also assert that
Defendants violated Kentucky Revised Statute § 337.275
by failing to pay them required minimum wages. Id.
¶ 2. Plaintiffs further contend that Defendants failed
to pay them wages owed on the termination of their
employment, illegally required their employees to remit
portions of their tips to management, failed to maintain
accurate employment records, and failed to timely pay their
employees, which are required by Kentucky Revised Statutes
§§ 337.055, 337.065, 337.320, 337.020, and
337.990(1), (5), and (7). Id.
14, 2016, Plaintiffs Rachel Moll, Marlin Palma, and Hector
Dionisio filed the original complaint against Enrique Roman,
Victor Fernandez, El Nopal R & F, Inc., Roman Crestwood,
Inc., El Nopal Mexican Family Restaurant, Inc., Roman
Salgado, LLC, Marino, LLC, and Roman F. Hurstbourne, Inc.
Compl. 1, ECF No. 1. On July 26, 2016, Plaintiffs amended
their complaint as a matter of right, adding another
plaintiff, Pablo Rebollar, and another defendant, El Nopal -
La Grange, Inc. Am. Compl. 1, ECF No. 11.
August 2, 2016, Plaintiffs filed a second amended complaint
that dismissed Rachel Moll's claims and named only six
defendants. Second Am. Compl. 1, ECF No. 14. By agreed order,
Rachel Moll and Defendants Roman Crestwood, Inc., Roman
Salgado, Inc., Marino, LLC, and Roman F. Hurstbourne, Inc.
were terminated from the litigation. Agreed Order 8/10/2016
1, ECF No. 22. About a month later, Plaintiffs sought leave
to file a third amended complaint that added retaliation
claims. Mot. Leave 1, ECF No. 23. This Court granted
Plaintiffs' motion for leave to file a third amended
complaint. Order 10/23/2016 1, ECF No. 26.
November 14, 2016, the parties participated in the Federal
Rule of Civil Procedure 26(f) conference. Report 1, ECF No.
30. At the conference, the parties agreed that joinder of
additional parties and amendment of pleadings would be due by
April 3, 2017. Id. at 2. The report of the Rule
26(f) conference was filed on December 2, 2016, and discovery
commenced. Id. at 1.
February 28, 2017, Plaintiff Hector Dionisio was dismissed
from the case without prejudice. Order 2/27/2017 1, ECF No.
36. As a result, there are two plaintiffs in the case, Marlin
Palma and Pablo Rebollar. There are six defendants: Enrique
Roman, Victor Fernandez, El Nopal R & F, Inc. Roman Bardstown
Road, Inc., El Nopal Mexican Family Restaurant, Inc., and El
Nopal - LaGrange, Inc.
now seek to file a fourth amended complaint to remove
Defendants Roman Bardstown Road, Inc. and El Nopal - La
Grange, Inc. from the case and to substitute Roman, Inc. and
Romans No. 3, Inc. Mot. Amend 3, ECF No. 40. Plaintiffs
assert that Roman, Inc. and Romans No. 3, Inc. are the true
corporate entities who owned and operated the El Nopal
restaurants at 6300 Bardstown Road, Louisville, KY 40291 and
12418 LaGrange Road, Suite 120, Louisville, KY 40245 at which
they allegedly worked. Id. Plaintiffs argue that the
Court should grant their motion for leave to file a fourth
amended complaint because they have not exhibited undue delay
in moving to amend and because Defendants will not suffer
undue prejudice if the proposed amendment is granted.
Id. at 6-11. Defendants contend in opposition that
Plaintiffs have not demonstrated good cause for amending the
complaint and that such amendment will significantly
prejudice them by complicating the current litigation and by
slowing discovery. Resp. Opp. Mot. Amend 3-5, ECF No. 42.
Federal Rules of Civil Procedure permit a party to
“amend its pleading once as a matter of course”
if the amendment is filed “before being served with a
responsive pleading.” Fed.R.Civ.P. 15(a)(1). In
“all other cases[, ]” the party must receive the
“opposing party's written consent or the
court's leave.” ...