# Dix v. RCSH Operations, LLC

> District Court, M.D. Florida · November 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10106378

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** November 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106378

## How later opinions describe it (automated extraction)

- noting that the numerosity requirement is a “generally low hurdle”
- noting that there was no evidence before the district court where “[t]he judge had before him only counsel’s unsupported assertions that FLSA violations were widespread and that additional plaintiffs would come from other stores”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

ROBERT DIX, on behalf of
himself and all others
similarly situated and
MICHAEL PALOMBO,

Plaintiffs,

v. Case No: 2:20-cv-98-FtM-29MRM

RCSH OPERATIONS, LLC,

Defendant.

OPINION AND ORDER
This matter comes before the Court on plaintiffs’ Motion for
Conditional Certification of Collective Action Under the FLSA and
Class Action Under Rule 23 and Facilitation of Court-Authorized
Opt-In Notice (Doc. #22) filed on May 1, 2020. Defendant filed an
Opposition (Doc. #27) on June 15, 2020, to which plaintiffs filed
a Reply (Doc. #32) on June 29, 2020. For the reasons set forth
below, the motion is denied.
I.
On March 1, 2020, plaintiff Robert Dix (plaintiff or Dix)
filed a four-count Amended Class/Collective Action Complaint (Doc.
#6) (Amended Complaint) against defendant RCSH Operations, LLC
(defendant or RCSH), alleging violations of the federal Fair Labors
Standards Act (FLSA), 29 U.S.C. § 201 et seq., (Counts One and
Two), and the Florida Minimum Wage Act (FMWA), § 448.110, Fla.
Stat. and the Florida Constitution, Article X, § 24, (Counts Three
and Four). All four claims generally relate to defendant’s alleged

failure to pay minimum wage to the restaurant servers it employs.
Specifically, Counts One and Three relate to defendant’s failure
to reimburse uniform and tool expenses (Doc. #6, pp. 13-15, 18-
24), while Counts Two and Four relate to the performance of non-
tipped duties (id. pp. 15-17, 24-29.) The Amended Complaint
presents the FLSA claims as collective actions pursuant to 29
U.S.C. § 216(b), and the FMWA/Florida Constitution claims as class
1
actions pursuant to Federal Rule of Civil Procedure 23.
Subsequent to the Amended Complaint being filed, Michael Palombo
joined the action as a plaintiff. (Doc. #21.)
Based on the Amended Complaint and the evidence submitted by
2
the parties , the following background facts are relevant to
certification requests:

1
The Eleventh Circuit allows FLSA claims and class actions
claims to be brought in the same proceeding. Calderone v. Scott,
838 F.3d 1101, 1103 (11th Cir. 2016).
2
“[S]ometimes it may be necessary for the court to probe
behind the pleadings before coming to rest on the certification
question” because “class determination generally involves
considerations that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action.” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350-51 (2011) (citations and marks
omitted).
Defendant is a New Orleans limited liability company which
operates a nationwide restaurant chain with numerous locations in
the state of Florida. (Doc. #6, ¶¶ 1, 13.) Plaintiff Dix worked

for defendant as a server at defendant’s Bonita Springs steakhouse
from August 2018 to September 2019. (Id. ¶ 5, 25.) Plaintiff
Palombo worked as a server at the same Bonita Springs steakhouse
from October 2017 to February 2020. (Doc. #22-2, p. 34.)
Both plaintiffs have supplied Declarations in support of the
allegations in the Amended Complaint and the motion for
certification. (Doc. #22-1; Doc. #22-2.) Both Declarations
contain similar assertions:
•
Upon being hired as a server, defendant required plaintiffs
to spend thirty hours training. During this time,
plaintiffs were paid $8.25 per hour. (Doc. #22-1, ¶¶ 5,
13-14; Doc. #22-2, ¶¶ 6, 13-14.)
•
Prior to beginning their employment, plaintiffs were
required by defendant to purchase a “uniform” consisting
of formal pressed button-down white oxford dress shirts,
black formal slacks, a muted, non-offensive colored tie, a
black belt, black socks, and black non-slip dress shoes.
Each plaintiff spent over $260 on this attire and defendant
required the uniform be worn in order for plaintiffs to
work. (Doc. #22-1, ¶¶ 6-8, 12; Doc. #22-2, ¶¶ 7-9, 17.)
•
In addition to the attire, defendant required plaintiffs
to purchase a wine key, black pens, and a lighter for use
as a server. Each plaintiff spent $12.75 on these tools.
Neither plaintiff was reimbursed for the expenses related
3
to the tools or the clothing. (Doc. #22-1, ¶¶ 9-11; Doc.
#22-2, ¶¶ 10-12.)
•
After completing the week of training, each plaintiff was
paid a reduced hourly wage plus the tips he received as a
server. Each plaintiff was typically scheduled to report
to work around 4 p.m. and work through 10 p.m. Defendant
would instruct plaintiffs and other similar servers to
spend time setting up and “breaking down” the restaurant.
As such, servers would regularly spend at least an hour
and a half of their six-hour shift performing non-tipped
duties. Neither plaintiff was ever paid more than their
reduced hourly wage, regardless of the length of time they
4
spent performing non-tipped duties. (Doc. #6, ¶¶ 49-50;
Doc. #22-1, ¶¶ 24-35; Doc. #22-2, ¶¶ 25-41.)

3
“Upon information and belief,” plaintiffs state defendant
required all servers in each of its restaurant locations “to comply
with this nationwide uniform company policy,” and that neither
plaintiff was aware of a server “who was ever reimbursed for the
costs/expenses for purchase and maintenance of the uniform, and
purchase of the tools.” (Doc. #22-1, ¶¶ 22-23; Doc. #22-2, ¶¶ 23-
24.)
4
“Upon information and belief,” plaintiffs state that all
servers in defendant’s Florida restaurants received the same
Plaintiffs now seek conditional certification of two classes
under the FLSA and certification of two classes under Rule 23 and
the FMWA. (Doc. #22, p. 2.)

II.
Plaintiffs seek conditional certification of a collective
action under the FLSA for two proposed classes:
All Restaurant Servers who worked for Defendant
throughout the United States during the three (3) years
preceding this lawsuit who were required to purchase a
uniform and tools prior to beginning their first week of
employment with Defendant and not reimbursed these
costs.

. . .

All Restaurant Servers who worked for Defendant
throughout the United States during the three (3) years
preceding this lawsuit who were required to spend more
than 20% of their shifts performing “non-tipped”
incidental duties and did not receive the full
applicable federal minimum wage for this work.

(Doc. #22, p. 2.)
A. Conditional Collective Action Certification Requirements
The FLSA authorizes “similarly situated” employees to
maintain a collective action against one or more employers accused
of violating the statute’s wage provisions. 29 U.S.C. § 216(b).
Certification of an FLSA collective action is typically a two-
stage process. Morgan v. Family Dollar Stores, Inc., 551 F.3d

reduced hourly wage regardless of the duties and tasks they
performed during a work shift. (Doc. #22-1, ¶¶ 36; Doc. #22-2, ¶¶
29-31.)
1233, 1260 (11th Cir. 2008) (“[W]e have sanctioned a two-stage
procedure for district courts to effectively manage FLSA
collective actions in the pretrial phase.”). The first stage, and

the one relevant to this motion, is known as the “notice” or
“conditional certification” stage. Id. at 1260-61. “At the notice
stage, a court must determine whether: (1) there are other
employees who desire to opt in to the action; and (2) the employees
who desire to opt in are ‘similarly situated.’” Hart v. JPMorgan
Chase Bank, N.A., 2012 WL 6196035, *3 (M.D. Fla. Dec. 12, 2012)
(citing Dybach v. State of Fla. Dep’t of Corrs., 942 F.2d 1562,
1567-68 (11th Cir. 1991)). Although this determination is made
using a “fairly lenient standard,” the plaintiff must offer
“detailed allegations supported by affidavits which successfully
engage defendants’ affidavits to the contrary.” Id. (quoting
Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996)).

The decision to conditionally certify a collective FLSA action
lies within the sound discretion of the district court. Id.
(citing Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1217
(11th Cir. 2001)).
B. Satisfaction of Conditional Certification Requirements
Defendant opposes conditional certification, asserting
plaintiffs have not sufficiently demonstrated either requirement,
i.e., (1) that other individuals in the proposed FLSA classes
desire to opt in to the litigation, or (2) that individuals in the
putative FLSA classes are sufficiently similarly situated. (Doc.
#27, pp. 6-12.) Defendant also argues that the “highly
individualize nature” of the claims in the Amended Complaint makes

collective action treatment “unworkable.” (Id. pp. 12-15.)
Because the Court agrees with defendant’s first argument, it need
not address the remaining requirement.
“[P]laintiffs have the burden of demonstrating a reasonable
basis for crediting their assertions that aggrieved individuals
exist[] in the broad class that they proposed.” Haynes v. Singer
Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983). “Evidence of other
employees who desire to opt in may be based on affidavits, consents
to join the lawsuit, or expert evidence on the existence of other
similarly-situated employees.” Thomas v. Waste Pro USA, Inc., 360
F. Supp. 3d 1313, 1321 (M.D. Fla. 2019) (quoting Vondriska v.
Premier Mortg. Funding, Inc., 564 F. Supp. 2d 1330, 1334 (M.D.

Fla. 2007)). However, a plaintiff’s or attorney’s belief in the
existence of other employees who desire to opt in and “unsupported
expectations that additional plaintiffs will subsequently come
forward” are insufficient to justify certification. Hart, 2012 WL
6196035, *4 (citation omitted); see also Haynes 696 F.2d at 887
(noting that there was no evidence before the district court where
“[t]he judge had before him only counsel’s unsupported assertions
that FLSA violations were widespread and that additional
plaintiffs would come from other stores”).
Plaintiffs attempt to meet their burden of demonstrating
other employees wish to opt in by asserting that: (1) plaintiff
Palombo has already joined the lawsuit; (2) other employees have

expressed interest in joining the lawsuit but are afraid of
possible retaliation; and (3) there must be others since defendant
applies a common payroll and uniform policy to all its restaurant
servers in the United States. (Doc. #22, pp. 15-16.) Defendant
responds that this is an insufficient showing. (Doc. #27, pp. 6-
8.) The Court agrees with defendant.
The fact that plaintiff Palombo has joined in this action is
insufficient by itself to support certification of the nationwide
class plaintiffs propose. One opt-in plaintiff may or may not be
deemed sufficient. Compare Torres v. Nature Coast Home Care LLC,
2016 WL 5870217, *2 (M.D. Fla. Oct. 7, 2016)(“[E]ven one opt-in
notice can be sufficient to meet the first requirement for

conditional certification.”), with Denson v. Architectural
Coatings, Inc., 2011 WL 46122, *2 (M.D. Fla. Jan. 6, 2011)
(concluding plaintiffs failed to provide sufficient evidence that
other employees wanted to opt in despite three individuals filing
consents to join). The fact that only one employee has joined
this action since it was initiated over nine months ago undermines
the argument that additional servers wish to join. See Kubiak v.
S.W. Cowboy, Inc., 2014 WL 2625181, *11 (M.D. Fla. June 12, 2014)
(“[T]he fact that no additional server has sought to opt-in for
nearly a year while this lawsuit has been pending, further casts
doubt on Plaintiffs’ assertion that other servers desire to join
this action, and indeed supports the opposite inference that all

those interested in joining this lawsuit have already done so.”
(citation and marks omitted)); Denson, 2011 WL 46122, *2 (“[S]ince
the named Plaintiff . . . initiated this litigation over seven
months ago, only three other individuals have come forward to join
this lawsuit. Therefore, the Court will not approve the
certification of the class.”).
Plaintiffs also state that “[o]ther current and former
employees wish to opt-in to this lawsuit but are afraid of possible
retaliation,” and that plaintiff Palombo “has spoken with other
servers about wanting to join but individuals are scared of losing
their jobs unless the court authorizes notice.” (Doc. #22, pp.
15-16.) To support these assertions, plaintiffs cite generally to

their own Declarations, which are attached to the motion. (Id.)
However, neither Declaration contains any reference to other
employees, current or former, who may wish to join this
5
litigation. (Doc. #22-1, pp. 28-32; Doc. #22-2, pp. 34-39.)
Accordingly, the motion’s assertion that other employees wish to
join but are afraid is unsupported in the record. See Kubiak,

5
Defendant notes this problem in its Opposition. (Doc. #27,
p. 7 n.4.) Nonetheless, plaintiffs fail to address this issue in
their Reply.
2014 WL 2625181, *10 (“Plaintiffs’ conclusory statements and mere
belief or unsupported expectations that others desire to join,
without providing any specific facts to support their belief that

other employees are interested in opting in, do not provide a
sufficient basis for certification.”).
Finally, plaintiffs note that defendant enforced a common
payroll policy of refusing to properly compensate servers, and
applied its uniform policy throughout the United States. (Doc.
#22, p. 16.) Plaintiffs seem to be suggesting that because
defendant had the same policies in force across the country, a
class of nationwide servers exists. The issue, however, is not
whether a class of potential plaintiffs exists, but whether other
similarly situated employees who wish to join the collective action
exist. See Rojas v. Uber Technologies, Inc., 2017 WL 2790543, *3
(S.D. Fla. June 27, 2017) (“Rojas claims that ‘similarly situated

employees as Plaintiff exist.’ However, Rojas must show that there
are similarly situated employees who desire to opt-in.” (citations
omitted)). Even assuming plaintiffs’ assertions are correct,
6
which is disputed , plaintiffs have failed to offer evidence that

6
Plaintiffs support their claims that the payroll policy is
widespread by citing to their Declarations, which are
predominantly based “upon information and belief” and mainly
relate to Florida. (Doc. #22-1, pp. 30-32; Doc. #22-2, pp. 36-
37.) To support the claim that the uniform policy is nationwide,
plaintiffs cite to defendant’s job advertisements that require
servers report to work “in the correct uniform.” (Doc. #22-3, pp.
any of these nationwide employees wish to join this action. See
Hart, 2012 WL 6196035, *4 (“Plaintiff has failed to make an
affirmative showing that other employees from across the nation

wish to join this lawsuit so as to warrant conditional
certification.”); see also Rojas, 2017 WL 2790543, *3 (finding
plaintiff failed to meet burden of demonstrating there were others
that desired to opt in to nationwide class when plaintiff only
provided his declaration and one other employee’s notice of consent
to join); Ramirez v. Urban Outfitters, Inc., 2014 WL 12573981, *3
(M.D. Fla. Apr. 22, 2014) (“Plaintiff has failed to demonstrate to
the Court’s satisfaction that other employees desire to opt-in
based on the conclusory declarations of the three plaintiffs
participating in this case. The Court finds that Plaintiff has
not demonstrated a reasonable basis for crediting the assertion
that aggrieved individuals exist in the class she proposes,

particularly when compared to the 181 Anthropologie stores
operating in 41 different states throughout the United States.”
(citation omitted)).
Although plaintiffs’ burden at this stage is not heavy, “it
is not ‘invisible.’” Hart, 2012 WL 6196035, *4 (quoting Brooks v.
Rainaldi Plumbing Inc., 2006 WL 3544737, *2 (M.D. Fla. Dec. 8,

41-75.) In contrast, defendant has provided evidence that no such
“corporate-wide” policies exist. (Doc. #27-1, pp. 27-30.)
2006)). Based on the evidence before it, the Court finds
plaintiffs have failed to meet their burden of demonstrating the
existence of other similarly situated employees who wish to opt in

to the FLSA collective action. Conditional certification of the
two proposed FLSA classes will be denied.
III.
Plaintiffs seek certification of the following classes under
Rule 23 with regards to the FMWA/Florida Constitution claims:
All Restaurant Servers who worked for Defendant within
Florida during the five (5) years preceding this
lawsuit, and who were required to purchase a uniform
prior to beginning their first week of employment with
Defendant and not reimbursed these costs.

. . .

All Restaurant Servers who worked for Defendant within
Florida during the five (5) years preceding this
lawsuit, and who were not paid the full applicable
minimum wage when more than 20% of their shift was spent
performing non-tipped duties and responsibilities.

(Doc. #22, p. 2.) For the reasons explained below, the Court
denies the requested certification.
A. Rule 23 Certification Standards
The Eleventh Circuit has summarized the relevant law
governing class certification as follows:
Before a district court may grant a motion for class
certification, a plaintiff seeking to represent a
proposed class must establish that the proposed class is
“adequately defined and clearly ascertainable.”
DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)
. . . .
If the plaintiff’s proposed class is adequately defined
and clearly ascertainable, the plaintiff must then
establish the four requirements listed in Federal Rule
of Civil Procedure 23(a). Those requirements are:

(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). Those four requirements are
commonly referred to as “numerosity, commonality,
typicality, and adequacy of representation.” See, e.g.,
Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181,
1188 (11th Cir. 2003).

In addition to establishing the Rule 23(a) requirements,
a plaintiff must also establish that the proposed class
satisfies at least one of the three requirements listed
in Rule 23(b). Fed. R. Civ. P. 23(b); Pickett v. Iowa
Beef Processors, 209 F.3d 1276, 1279 (11th Cir. 2000).

Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)
(footnote omitted). Additionally,
[t]he party seeking class certification has the burden
of proof. And the entire point of a burden of proof is
that, if doubts remain about whether the standard is
satisfied, the party with the burden of proof loses. All
else being equal, the presumption is against class
certification because class actions are an exception to
our constitutional tradition of individual litigation.
A district court that has doubts about whether the
requirements of Rule 23 have been met should refuse
certification until they have been met.
Brown v. Electrolux Home Products, Inc., 817 F.3d 1225, 1233–34
(11th Cir. 2016) (marks and citations omitted). Thus, a plaintiff
seeking class certification

must affirmatively demonstrate his compliance with Rule
23 by proving that the requirements are in fact
satisfied. And the district court must conduct a
rigorous analysis to determine whether the movant
carried his burden, which will frequently entail overlap
with the merits of the plaintiff’s underlying claim. Of
course, the district court can consider the merits only
to the extent they are relevant to determining whether
the Rule 23 prerequisites for class certification are
satisfied. But if a question of fact or law is relevant
to that determination, then the district court has a
duty to actually decide it and not accept it as true or
construe it in anyone’s favor.
Id. at 1234 (marks, emphasises, and citations omitted).
B. Adequately Defined and Clearly Ascertainable Class
The Eleventh Circuit requires that the proposed class be
“adequately defined” and “clearly ascertainable.” Little, 691
F.3d at 1303; Karhu v. Vital Pharm., Inc., 621 Fed. App’x 945, 946
(11th Cir. 2015). In unpublished opinions, the Eleventh Circuit
has stated that a class is not ascertainable “unless the class
definition contains objective criteria that allow for class
members to be identified in an administratively feasible way.”
Karhu, 621 Fed. App’x at 946 (citing Bussey v. Macon Cty. Greyhound
Park, Inc., 562 Fed App’x 782, 787 (11th Cir. 2014)). “Identifying
class members is administratively feasible when it is a ‘manageable
process that does not require much, if any, individual inquiry.’”
Id. (quoting Bussey, 562 Fed. App’x at 787); see also Belcher v.
Ocwen Loan Servicing, LLC, 2018 WL 1701963, *5 (M.D. Fla. Mar. 9,
2018) (“Trial courts within the Eleventh Circuit have commonly
7
applied the administratively feasible requirement.”).
Despite plaintiffs’ “burden of satisfying all implicit and
explicit requirements of Federal Rule of Civil Procedure 23,”
Bussey, 562 Fed. App’x at 787, the motion does not address whether
the proposed classes are adequately defined or clearly
ascertainable. Regarding the latter element, the motion simply
seeks discovery of defendant’s employment records since February
2017 (Doc. #22, p. 17), suggesting plaintiffs intend to use these
records to identify potential class members. However, “[a]
plaintiff cannot establish ascertainability simply by asserting
that class members can be identified using the defendant’s records;
the plaintiff must also establish that the records are in fact

useful for identification purposes, and that identification will
be administratively feasible.” Karhu, 621 Fed. App’x at 948.
Because plaintiffs have offered no argument as to whether the

7
There is currently a split among the circuits as to whether
a plaintiff must demonstrate at the certification stage an
“administratively feasible” method of identifying class members.
Compare Byrd v. Aaron’s Inc.,784 F.3d 154, 163 (3d Cir. 2015) and
Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir.
2012), with Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th
Cir. 2015) and Briseno v. ConAgra Foods, Inc., 844 F.3d 1121,
1125-26 (9th Cir. 2017). The Eleventh Circuit has yet to address
this split in a published opinion. Ocwen Loan Servicing, LLC v.
Belcher, 2018 WL 3198552, *3 (11th Cir. June 29, 2018).
identification of the proposed class members is administratively
ascertainable, the Court finds they have failed to meet their
burden. See Rivera v. Servis One, Inc., 2019 WL 1034071, *4 (M.D.

Fla. Jan. 24, 2019) (“Plaintiffs do not provide any additional
information regarding ascertainability in the Motion, and this
conclusory assertion that the proposed class members can be
identified using the Defendant’s records is insufficient.” (citing
8
Karhu, 621 Fed. App’x at 948)). As the clearly ascertainable

8
Even assuming plaintiffs intend to identify class members
via defendant’s employment records, it is unclear if this would be
administratively feasible. As noted, “[i]dentifying class members
is administratively feasible when it is a manageable process that
does not require much, if any, individual inquiry.” Karhu, 621
Fed. App’x at 946 (marks and citation omitted). Defendant has
produced evidence (1) that it does not have corporate-wide policies
requiring “side work” or the purchase of uniforms and tools, and
(2) that there is a great variety in the amount of side work
performed by servers, and in the clothes worn and tools used by
servers on the job. (Doc. #2701, pp. 27-30.) Accordingly, while
defendant’s records would be useful in identifying all the servers
that have worked for defendant since February 2017, it would seem
greater “individual inquiry” would nonetheless be required to
determine class membership. See Sliwa v. Bright House Networks,
LLC, 333 F.R.D. 255, 272 (M.D. Fla. 2019) (“Because identifying
the members of Plaintiff’s proposed classes would require
significant individualized inquiries, Plaintiff has not proposed
an administratively feasible method for identifying the classes,
and Plaintiff has thus failed to carry his burden of establishing
ascertainability.”); Stalley v. ADS Alliance Data Sys., Inc., 296
F.R.D. 670, 678 (M.D. Fla. 2013) (“[A] class should not be
certified if the court must engage in individualized
determinations of disputed fact in order to ascertain a person’s
membership in the class.”); Walewski v. ZeniMax Media, Inc., 2012
WL 834125, *4 (M.D. Fla. Jan. 30, 2012) (“A court should deny class
certification . . . where the number of individualized
determinations required to determine class membership becomes too
administratively difficult.” (citation omitted)).
element is a prerequisite for class certification, Little, 691
F.3d at 1304, plaintiffs’ failure to establish this element is
sufficient grounds to deny the motion. Nonetheless, the Court

will address the other Rule 23 factors.
C. Numerosity
Plaintiffs may utilize a class action suit “only if: (1) the
class is so numerous that joinder of all members is impracticable.”
Fed. R. Civ. P. 23(a)(1). “Although mere allegations of numerosity
are insufficient to meet this prerequisite, a plaintiff need not
show the precise number of members in the class.” Evans v. U.S.
Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983) (citations
omitted). “Nevertheless, a plaintiff still bears the burden of
making some showing, affording the district court the means to
make a supported factual finding, that the class actually certified
meets the numerosity requirement.” Vega v. T-Mobile USA, Inc.,

564 F.3d 1256, 1267 (11th Cir. 2009).
“The proper focus for the numerosity requirement is whether
the joinder of all class members would be impracticable in view of
their numbers and all other relevant factors.” Kubiak, 2014 WL
2625181, *12 (citation omitted). Factors to consider are “the
geographic dispersion of the class members, judicial economy, and
the ease of identifying the members of the class and their
addresses.” Id. (citation omitted). As noted, while plaintiffs
need not show the precise number of members in the class, they
must show “some evidence of or reasonably estimate the number of
class members.” Id. (citation omitted).
Defendant argues plaintiffs cannot establish the numerosity

element because joinder of all servers who fall within the proposed
class is feasible. (Doc. #27, p. 16.) This argument seems to be
premised on defendant’s assertion that “there are only 14 RCSH
restaurants in Florida.” (Id.) However, defendant has also
offered evidence that it employs approximately two hundred servers
9
throughout the state of Florida. (Doc. #27-1, ¶ 9.) This is
consistent with plaintiffs’ “conservative estimate” that three
hundred servers fall within the proposed classes. (Doc. #22, p.
21.) The Court finds plaintiffs have offered a reasonable estimate
of the proposed classes and, given this large number, demonstrated
the impracticability of joinder. See Schojan v. Papa Johns Int’l,

9
There is a dispute between the parties as to how much weight
the court should give this evidence. In support of its Opposition,
defendant has offered a declaration from Katie Gralton, a Human
Resources Generalist employed by non-party Ruth’s Hospitality
Group, Inc. (Doc. #27-1, ¶¶ 2-3.) Ms. Gralton makes various
assertions with regards to defendant, its restaurants, and its
policies. (Id. ¶¶ 3-37.) In response, plaintiffs argue that
because Ms. Gralton does not work for defendant, there is no
information to explain how she has personal knowledge of defendant
or its operation. (Doc. #32, p. 1.) At the same time, however,
plaintiffs rely upon Ms. Gralton’s estimate of two hundred servers
to support their argument for numerosity. (Id. p. 10.) Given
that the parties seem to agree at least two hundred servers
currently work for defendant, the Court finds it unnecessary to
address the other issues at this time.
Inc., 303 F.R.D. 659, 665 (M.D. Fla. 2014) (noting that the
numerosity requirement is a “generally low hurdle”); Kubiak, 2014
WL 2625181, *13 (“While there is no fixed class size that will

satisfy the numerosity requirement, the Court is satisfied that
joinder of more than 150 to 200 individuals would be
impracticable.”). Accordingly, the Court concludes the numerosity
element is satisfied.
D. Commonality
Under Rule 23(a), plaintiffs must also establish that “there
are questions of law or fact common to the class.” Fed. R. Civ.
P. 23(a)(2). To satisfy this commonality requirement, the class
members’ “claims must depend upon a common contention,” and that
common contention “must be of such a nature that it is capable of
classwide resolution.” Dukes, 564 U.S. at 350. This 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.
In the motion, plaintiffs assert that the following issues
are common for all members of the proposed classes:
a. Whether defendant was their employer during the relevant
time period;

b. Whether defendant required servers to incur uniform
expenses without being reimbursed;

c. Whether defendant required servers to incur tool
expenses without being reimbursed;
d. Whether defendant has any good-faith defense for failing
to comply with the FMWA during the relevant time period;

e. Whether defendant required servers to spend more than
twenty percent of their shifts performing non-tipped
duties;

f. Whether defendant failed to pay servers the applicable
Florida minimum wage when they spent more than twenty
percent of their shift performing non-tipped duties.

(Doc. #22, p. 23.)
The Court agrees that common issues of law and fact exist.
For example, Count Three of the Amended Complaint is based upon an
assertion that defendant required its servers purchase a uniform.
(Doc. #6, p. 18.) However, a determination that the attire
defendant requires newly-hired servers to purchase does not
constitute a “uniform” under federal and Florida law “will resolve
an issue that is central to the validity of each one of the claims
in one stroke.” Dukes, 564 U.S. at 350. Accordingly, given the
similarity in the claims of the proposed class members as well as
the common issues of fact and law applicable to those claims, the
Court finds plaintiffs have sufficiently established the
commonality element. See Tillman v. Ally Fin. Inc., 2017 WL
7194275, * 6 (M.D. Fla. Sept. 29, 2017) (noting the “commonality
requirement measures the extent to which all members of a putative
class have similar claims” (citation omitted)); Elkins v.
Equitable Life Ins. of Iowa, 1998 WL 133741, *11-12 (M.D. Jan. 27,
1998) (noting that the “main inquiry” for commonality is “whether
at least one issue exists that affects all or a significant number
of proposed class members,” and that the requirement can be
satisfied “where plaintiffs allege common or standardized conduct
10
by the defendant directed toward members of the proposed class”).
E. Typicality
Rule 23(a) requires that “the claims or defenses of the
representative parties are typical of the claims or defenses of
the class.” Fed. R. Civ. P. 23(a)(3). “Class members’ claims
need not be identical to satisfy the typicality requirement;
rather, there need only exist ‘a sufficient nexus . . . between
the legal claims of the named class representatives and those of
individual class members to warrant class certification.’” Ault
v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir. 2012)
(quoting Prado-Steiman v. Bush, 221 F.3d 1266, 1278-79 (11th Cir.

2000)). “This nexus exists if the claims or defenses of the class
and the class representative arise from the same event or pattern

10
Defendant argues that because the Court will have to make
individualized determinations for each class member, it is
impossible to resolve the claims “in one stroke.” (Doc. #27, p.
17.) Specifically, defendant argues the Court will have to
individually determine (1) whether each server was required to
make certain purchases, (2) how much they spent, (3) whether they
were reimbursed, (4) whether they were required to perform certain
duties, (5) whether the duties were tipped or non-tipped, (6) how
much time they spent on those duties, and (7) how they were
compensated for such time. (Id.) The Court finds this argument
is more applicable to the predominance issue that will be addressed
later in this Opinion and Order.
or practice and are based on the same legal theory.” Ault, 692
F.3d at 1216 (marks and citation omitted). “The main focus of the
typicality requirement is that the plaintiffs will advance the

interests of the class members by advancing their own interests.”
Kubiak, 2014 WL 2625181, *15.
Defendant argues plaintiffs fail to demonstrate typicality
because the proposed class members were in fact not required to
purchase a specific uniform or tools, or required to perform non-
tipped duties. (Doc. #27, p. 18.) Plaintiffs, however, have
offered evidence via their Declarations and the employment
announcements that contradict defendant’s assertions. (Doc. #22-
1; Doc. #22-2; Doc. #22-3; Doc. #32-2.) Given that the claims of
the proposed class members are based upon the same alleged conduct
and the same legal theory as plaintiffs’, the Court finds
plaintiffs have sufficiently demonstrated typicality. See

Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th
Cir. 1984) (“A sufficient nexus is established if the claims or
defenses of the class and the class representative arise from the
same event or pattern or practice and are based on the same legal
theory.”); Mesa v. Ag-Mart Produce, Inc., 2008 WL 2790224, *6 (M.D.
Fla. July 18, 2008) (“The typicality requirement is generally met
if the class representative and the class members received the
same unlawful conduct, irrespective of whether the fact patterns
that underlie each claim vary.”).
F. Adequacy of Representation
The fourth requirement for class certification under Rule
23(a) is that “the representative parties will fairly and

adequately protect the interests of the class.” Fed. R. Civ. P.
23(a)(4). This analysis involves two inquiries: “(1) whether any
substantial conflicts of interest exist between the
representatives and the class; and (2) whether the representatives
will adequately prosecute the action.” Valley Drug Co. v. Geneva
Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation
omitted). “[T]he existence of minor conflicts alone will not
defeat a party’s claim to class certification: the conflict must
be a ‘fundamental’ one going to the specific issues in
controversy.” Id. at 1189 (citations omitted).
Additionally, class counsel must fairly and adequately
represent the interests of the class. Fed. R. Civ. P. 23(g)(4).

“This requirement, aimed at ensuring the rights of absent class
members are vigorously protected, is not satisfied where class
counsel represents parties whose interests are fundamentally
conflicted.” W. Morgan-E. Lawrence Water & Sewer Auth. v. 3M Co.,
737 Fed. App’x. 457, 464 (11th Cir. 2018) (citations omitted).
Plaintiffs’ motion asserts that there is no conflict in the
case, that the attorney they have retained has experience handling
FMWA claims and federal wage litigation, and that the interests of
the class will be fairly and adequately represented. (Doc. #22,
p. 24.) Defendant does not contest any of these assertions. As
there is no indication that the interests of plaintiffs are in
conflict with the interests of the proposed class members, nor any

indication plaintiffs’ counsel will not fairly and adequately
represent the interests of the class, the Court finds the adequacy
of representation prong of Rule 23 is satisfied. See In re Fla.
Cement & Concrete Antitrust Litig., 2012 WL 27668, *5 (S.D. Fla.
Jan. 3, 2012) (finding adequacy of representation prong satisfied
when there was nothing to suggest a conflict and no reason to doubt
attorney’s qualifications or ability to conduct the litigation).
G. Rule 23(b) Requirements
Finally, in addition to the Rule 23(a) requirements,
plaintiffs must also establish that the proposed classes satisfy
at least one of the three requirements listed in Rule 23(b). Fed.
R. Civ. P. 23(b). Here, plaintiffs seek certification under Rule

23(b)(3) (Doc. #22, p. 24), which permits class certification if
“the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3). The Eleventh Circuit has stated:
To determine whether the requirement of predominance is
satisfied, a district court must first identify the
parties’ claims and defenses and their elements. The
district court should then classify these issues as
common questions or individual questions by predicting
how the parties will prove them at trial. Common
questions are ones where the same evidence will suffice
for each member, and individual questions are ones where
the evidence will var[y] from member to member.

After identifying the common and individual questions,
the district court should determine whether the common
questions predominate over the individual ones. We have
adopted the following rule of thumb:

[I]f common issues truly predominate over
individualized issues in a lawsuit, then the
addition or subtraction of any of the
plaintiffs to or from the class [should not]
have a substantial effect on the substance or
quantity of evidence offered. . . . If, on the
other hand, the addition of more plaintiffs
leaves the quantum of evidence introduced by
the plaintiffs as a whole relatively
undisturbed, then common issues are likely to
predominate.

But predominance requires a qualitative assessment too;
it is not bean counting, and the relative importance of
the common versus individual questions also matters.
District courts should assess predominance with its
overarching purpose in mind—namely, ensuring that a
class action would achieve economies of time, effort,
and expense, and promote . . . uniformity of decision as
to persons similarly situated, without sacrificing
procedural fairness or bringing about other undesirable
results.

Brown, 817 F.3d at 1234–35 (citations and punctuation omitted).
The Court finds there are common questions of fact and law
that would apply to each proposed class. For example, in Count
Three plaintiffs allege defendant required them to purchase a
uniform and failed to reimburse them, and that this resulted in a
per se violation of the FMWA because they were only being paid
minimum wage at the time. Accordingly, a common issue would be
whether defendant paid all its newly hired servers minimum wage
during the first week of training. However, there are also
individual questions which the Court concludes predominate the

claim. For example, while it appears defendant requires its
servers wear a certain style of clothing, the evidence suggests
defendant does not require newly hired servers purchase specific
attire or even any attire at all if they own the type of clothing
required. Accordingly, individualized inquiries would have to be
conducted as to each server regarding (1) whether they purchased
attire as part of their employment, (2) what type of attire was
purchased, and (3) whether that specific attire constituted a
“uniform” under the FLSA and FMWA. See Bussey, 562 Fed. App’x at
789 (“[C]ommon issues will not predominate over individual
questions if, as a practical matter, the resolution of [an]
overarching common issue breaks down into an unmanageable variety

of individual legal and factual issues.”) (citation and marks
omitted).
Similar problems exist as to Count Four, which alleges
defendant failed to pay plaintiffs minimum wage for the time they
spent performing non-tipped duties when such duties exceeded
twenty percent of their shifts. Such a claim would require
numerous individualized determinations for the proposed class
members, such as whether servers were required to perform non-
tipped duties, how much time each server spent on non-tipped
duties, and what wage each server was being paid at that time.
These individual questions predominate whatever common issues may
exist. See Luna v. Del Monte Fresh Produce (Se.), Inc., 354 Fed.

App’x 422, 424 (11th Cir. 2009) (“The district court did not err
in finding that liability would hinge upon evaluation of proof as
to each individual’s earnings and time worked. . . . Where, after
adjudication of the classwide issues, plaintiffs must still
introduce a great deal of individualized proof or argue a number
of individualized legal points to establish most or all of the
elements of their individual claims, such claims are not suitable
for class certification under Rule 23(b)(3).” (marks and citation
omitted)).
As the Court has determined individual issues of law and fact
predominate both Counts Three and Four, plaintiffs have failed to
meet their burden under Rule 23(b)(3). Accordingly, it is

unnecessary for the Court to address the superiority prong. See
Carey v. United States, 2013 WL 7118116, *6 (M.D. Fla. July 17,
2013) (“Due to Plaintiffs’ failure to establish numerosity under
Rule 23(a) and predominance under Rule 23(b), it is unnecessary to
address whether the superiority requirement of Rule 23(b)(3) has
been met.”).
As plaintiffs have failed to establish an administratively
feasible method of identifying proposed class members, and failed
to demonstrate common issues of law and fact predominate in Counts
Three and Four, the Court concludes class certification under Rule
23 is inappropriate.
Accordingly, it is now
ORDERED:
Plaintiffs’ Motion for Conditional Certification of
Collective Action Under the FLSA and Class Action Under Rule 23
and Facilitation of Court-Authorized Opt-In Notice (Doc. #22) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 24th day of
November, 2020.

VAY = Pe
E. STEELE
Sq IOR UNITED STATES DISTRICT JUDGE

Copies:
Parties of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106378. Public record. Not legal advice.