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Green v. Platinum Restaurants Mid-America, LLC

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

September 3, 2019

LAUREN GREEN, et. al., PLAINTIFF
v.
PLATINUM RESTAURANTS MID-AMERICA, LLC d/b/a EDDIE MERLOT'S PRIME AGED BEEF AND SEAFOOD., DEFENDANT

          MEMORANDUM OPINION & ORDER

          Rebecca Grady Jennings, District Judge.

         Plaintiffs Lauren Green, Michael Parsley, Mary Ragsdale, Allen Gibson, Gary Zeck, Ashley Kilkelly, Chris Stevenson, Chris Watson, and Samantha Williams (“Plaintiffs or Named Plaintiffs”) move for class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(3). [DE 170]. Fully briefed, this matter is ripe adjudication. For the reasons below, Plaintiffs' motion for class certification, [DE 170], is GRANTED.

         I. BACKGROUND

         Plaintiffs brought this hybrid collective action and putative class action against the Defendant, Platinum Restaurants Mid-America, LLC (“Platinum”), for alleged violations of the Fair Labor Standards Act (“FLSA”) and Kentucky wage and hour laws. [DE 1]. Platinum owns Eddie Merlot's Prime Aged Beef and Seafood Restaurant in Louisville Kentucky (“Eddie Merlot's”). [DE 145]. The Named Plaintiffs are all former or current Eddie Merlot's servers, cocktail servers, or bartenders. Id.

         Among other alleged Kentucky wage and hour law and FLSA violations, Plaintiffs claim Platinum violated KRS 337.065 and KRS 337.385 by forcing Plaintiffs to participate in a mandatory tip pool. According to Plaintiffs, severs, cocktail servers, and bartenders were all required as a condition of employment to participate in a tip pool established and controlled by Eddie Merlot's management in which they had to pay a certain percentage of the tips they received from customers to bussers, food runners, and sometimes managers. As a result, Eddie Merlot's allegedly illegally claimed a tip credit for each Plaintiff and paid them below minimum wage. Plaintiffs seek damages for lost wages in the amount of the tip credit claimed for each of them by Eddie Merlot's. Plaintiffs also seek an equal amount in liquidated damages and attorneys' fees under KRS 337. 385.

         Based solely on the alleged illegal mandatory tip pool, [1" name="FN1" id="FN1">1] Plaintiffs seek class certification of “All individuals who have been employed by Defendant in its Louisville, Kentucky restaurant as servers, cocktail servers, and/or bartenders, at any time since January 1, 2011.”

         II. STANDARD

         The Court has broad discretion in deciding whether to grant class certification. Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988). That said, “it must exercise that discretion within the framework of Rule 23.” Coleman v. General Motors Acceptance Corp., 296 F.3d 443, 446 (6th Cir. 2002). Under Rule 23 the moving party bears the burden of proving that the proposed class both satisfies Rule 23(a)'s requirements and fits into one of Rule 23(b)'s three subdivisions. Coleman, 296 F.3d at 446; Fed.R.Civ.P. 23(b); see also Ball v. Union Carbide Corp., 13');">385 F.3d 713, 727 (6th Cir. 2004). “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

         Rule 23(a) has four requirements, which all must be satisfied:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a).

         The Court's Rule 23 analysis must be “rigorous.” Dukes, 564 U.S. at 350-51. “Frequently that ‘rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim.” Id. And “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Gen. Tel. Co. of the Southwest v. Falcon, 147');">457 U.S. 147, 160, (1982). However, “the court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits.” Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.), 678 F.3d 409, 417-18 (6th Cir. 2012) (quoting Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012)). Thus, the Court's Rule 23 analysis must not include consideration of whether plaintiffs will ultimately prevail on the merits of their claims. Id. at 418 (citing Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004).

         III. DISCUSSION

         A. Rule 23(a)

         1. Numerosity

         Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “There is no strict numerical test for determining impracticability of joinder.” In re Am. Med. Sys., Inc., 75 F.3d at 1079 (6th Cir. 1996). “However, sheer number of potential litigants in a class, especially if it is more than several hundred, can be the only factor needed to satisfy Rule 23(a)(1).” Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004) (citing 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 3:5, at 243-45 (4th ed. 2002)).

         Platinum does not contest numerosity as the proposed class includes about 200 former and current Eddie Merlot's servers, cocktail servers, and bartenders. The Court finds joinder of over 200 potential plaintiffs infeasible. Thus, Plaintiffs meet Rule 23(a)(1)'s requirement.

         2. Commonality

         Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.'” Dukes, 564 U.S. at 349-50 (quoting General Gen. Tel. Co. of the Sw. v. Falcon, 147');">457 U.S. 147, 157, 102 S.Ct. 2364');">102 S.Ct. 2364, 2370 (1982)). Even so, this does not mean that plaintiffs may show commonality by asserting that they have all suffered a violation of the provision of the law. Id. at 350. Instead, their claims must rely on a common contention “of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Thus, commonality depends not upon the “raising of common ‘questions'-even in droves- but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (quoting Nagareda, 84 N.Y.U. L. Rev. 97, at 132). “The mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant's liability have been resolved does not dictate the conclusion that a class action is impermissible.” Sterling v. Velsicol Chemical Corp., 1188');">855 F.2d 1188, 1197 (6th Cir. 1988).

         Relying on Whitlock v. FSL Mgmt., LLC, No. 3:10CV-00562-JHM, 2012 U.S. Dist. LEXIS 112859 (W.D. Ky. Aug. 10, 2012), Plaintiffs argue that whether servers, cocktail servers, and bartenders needed to participate in the tip pool is a common question of law or fact with a common answer. Platinum argues that the evidence, including the Plaintiffs' deposition testimony, shows that there ...


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