United States District Court, W.D. Kentucky, Louisville
LAUREN GREEN, et. al., PLAINTIFF
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.
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.
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.
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.
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.”
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).
23(a) has four requirements, which all must be satisfied:
(1) the class is so numerous that joinder of all members is
(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).
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).
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
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.
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).
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 ...