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Tassy v. Lindsay Entertainment Enterprises, Inc.

United States District Court, W.D. Kentucky, Louisville Division

April 6, 2018

GLORIA TASSY, individually and on behalf of all similarly situated, PLAINTIFF,
v.
LINDSAY ENTERTAINMENT ENTERPRISES, INC., DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge United States District Court

         This matter is before the Court on the motion of Plaintiff Gloria Tassy, individually and on behalf of all other similarly-situated persons, to compel discovery. [DN 47.] Defendant Lindsay Entertainment Enterprises, Inc. responded, [DN 50], and Plaintiff replied, [DN 52.] For the reasons discussed in detail below, Plaintiff's motion is GRANTED IN PART AND DENIED IN PART. Additionally, the parties SHALL advise the Court, by Friday, April 13, 2018 whether any additional discovery is requested in light of the upcoming evidentiary hearing.

         FACTUAL AND PROCEDURAL BACKGROUND

         Gloria Tassy, individually and on behalf of all other similarly-situated persons, filed this action against Lindsay Entertainment Enterprises, Inc. in an effort to recover unpaid minimum wages required by the Fair Labor Standards Act of 1938. Lindsay Entertainment Enterprises, Inc. operates The Godfather, a gentleman's club in Louisville, Kentucky. R. 1 at 1, ¶¶ 1-2 (Complaint). The Godfather employees a number people, including “wait staff, bartenders, security personnel and kitchen staff, ” to provide food, drink, and music to its patrons “in an adult setting.” R. 9-2 at 1, ¶ 2 (Lindsay's Declaration); see also R. 1 at 3, ¶¶ 27-28. The “main attraction” at The Godfather, though, remains its many “dancers, ” R. 1 at 3, ¶ 29, among them Gloria “Mia” Tassy, id. at 1, ¶¶ 1-3.

         Tassy worked as a dancer at The Godfather from May 2014 to January 2016. Id. During that time, she says, Lindsay Entertainment Enterprises never paid her a “direct wage.” Id., ¶ 5. Instead, she and other dancers worked for tips, id., ¶ 6, less Lindsay Entertainment Enterprises' cut, id. at 1, 4, ¶¶ 7, 35.

         While Tassy considered herself to be an employee at The Godfather, see Id. at 2, ¶ 16, Lindsay Entertainment Enterprises classified her and other dancers as independent contractors, see R. 9-2 at 1, ¶ 3. According to Douglas “Scott” Lindsay, the President and Chief Executive Officer of Lindsay Entertainment Enterprises, id., ¶ 1, dancers “lease” space at The Godfather “to offer personal dances, entertainment and personal conversations to individual customers, ” id., ¶ 3. In exchange for that access, dancers pay a fee to Lindsay Entertainment Enterprises. Id.

         Lindsay Entertainment Enterprises requires, without exception, all dancers to sign a preprinted Entertainment Lease to that effect. See Id. at 2, ¶ 4. The Entertainment Lease includes, in pertinent part, the following provision:

EXCEPT FOR ANY ADMINISTRATIVE PROCEEDINGS THAT ARE NOT LEGALLY BARRED BY THIS PARAGRAPH, ANY CONTROVERSY, DISPUTE, OR CLAIM ARISING OUT OF THIS LEASE OR RELATING IN ANY WAY TO ENTERTAINER PERFORMING AND/OR WORKING AT THE CLUB AT ANY TIME (IN THIS PARAGRAPH 21, COLLECTIVELY “CLAIM”), WHETHER CONTRACTUAL, IN TORT, OR BASED UPON COMMON LAW OR STATUTE, SHALL BE EXCLUSIVELY DECIDED BY BINDING ARBITRATION HELD PURSUANT TO THE FEDERAL ARBITRATION ACT (THE “F.A.A.”). . . . THE PARTIES WAIVE ANY RIGHT TO LITIGATE SUCH CLAIMS IN A COURT OF LAW, AND WAIVE THE RIGHT TO TRIAL BY JURY. . . .
ENTERTAINER AND THE CLUB AGREE THAT ANY AND ALL CLAIMS SHALL BE BROUGHT AND MAINTAINED INDIVIDUALLY; THAT THEY WILL NOT CONSOLIDATE THEIR CLAIMS WITH THOSE OF ANY OTHER PERSON OR ENTITY, THAT THEY WILL NOT SEEK CLASS OR COLLECTIVE ACTION TREATMENT FOR ANY CLAIM; AND THAT THEY WILL NOT PARTICIPATE IN ANY CLASS OR COLLECTIVE ACTION AGAINST THE OTHER.

Id. at 7, ¶ 21.A-B (Entertainment Lease). “If [a dancer] does not want to agree” to the Entertainment Lease, Scott Lindsay says, “she is free to do so, but she is not allowed to provide personal entertainment at [The Godfather].” Id. at 2, ¶ 5; see also R. 13-1 at 1-2, ¶ 3 (Sloss's Declaration).

         Lindsay brought a motion to stay the proceedings pending arbitration pursuant to the parties' written agreement and the Federal Arbitration Act (FAA), 9 U.S.C. § 3. [DN 9.] The Court determined, however, that it is unclear whether Tassy signed a copy of the Entertainment Lease during her time at The Godfather. Scott Lindsay and Tammy Sloss, a waitress (and former dancer), claim to have witnessed her sign the Entertainment Lease, see R. 9-2 at 2, ¶ 5; R. 13-1 at 1-2, ¶¶ 1-2, 5, but Tassy has denied ever seeing or receiving a copy of the Entertainment Lease prior to bringing this action, see R. 17-1 at 3, ¶¶ 22-24 (Tassy's Declaration). Lindsay Entertainment Enterprises concedes its inability to produce an executed copy. See R. 13 at 4 (Reply in Support of Motion for Stay Pending Arbitration).

         Therefore, in an opinion issued July 8, 2016, the Court held that “Viewing the sparse record in the light most favorable to Tassy, the Court finds a genuine dispute of material fact concerning whether Tassy manifested her assent to the Entertainment Lease and its arbitration provision. Accordingly, the Court must conduct an evidentiary hearing before resolving Lindsay Entertainment Enterprises' motion.” [DN 24 at 6 (July 8, 2016 Memorandum Opinion and Order).]

         Bearing in mind statute of limitations issues, however, on March 9, 2017, the Court proceeded to grant in part and deny in part Tassy's motion for conditional certification, [DN 5.] Specifically, the Court held that the proposed collective FLSA class is CONDITIONALLY CERTIFIED as:

All current and former Entertainers/Exotic Dancers who worked for Lindsay Entertainment Enterprises, Inc., d/b/a The Godfather, from February 10, 2013 to the present who were classified as independent contractors, worked for tips only, and, as ...

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