Seghrouchni v. Bascom's Steakhouse, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ALI SEGHROUCHNI, individually and

on behalf of all others similarly situated,

Plaintiff,

v. Case No. 8:23-cv-2568-WFJ-AEP

BASCOM’S STEAKHOUSE, INC., and

FRED B. BULLARD, JR., individually,

Defendants.

_____________________________________/

ORDER

Before the Court is Ali Seghrouchni’s (“Plaintiff”) Motion to Conditionally

Certify an FLSA1 Collective Action and to Certify a Class Action Pursuant to

Federal Rule of Civil Procedure 23(b)(3) (Dkt. 14). Bascom’s Steakhouse, Inc. (the

“Steakhouse”) and Fred Bullard, Jr. (collectively, “Defendants”) have responded in

opposition, and Plaintiff has replied (Dkt. 17; Dkt. 20). On February 14, 2024, the

Court held a hearing on this matter. Upon careful consideration, and with the

benefit of able argument from both sides, the Court grants-in-part and denies-in-

part Plaintiff’s Motion. At this time, the Court conditionally certifies an FLSA

collective action but declines to certify a class under Rule 23. Plaintiff may again

move for class action certification after limited discovery.

1 See generally, the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b).

BACKGROUND

Plaintiff was a server at the Steakhouse between 2021 and 2023. He

claims—individually and on behalf of all others similarly situated—that

Defendants violated the FLSA by subjecting Steakhouse severs to improper tip

pool and clock-out policies. Plaintiff now seeks to: (1) conditionally certify a

FLSA collective action based on both of these allegedly improper policies; and (2)

certify a Rule 23(b)(3) class action based on Defendants’ alleged tip pool policy.

I. Factual History

The Steakhouse is a “refined dining restaurant” that operates out of one

location in Clearwater, Florida. Dkt. 14 at 4. Plaintiff estimates that it employed

around twenty to thirty servers and bartenders at any given time between 2021 and

2023. Dkt. 14-2 at 2. The servers worked in the Steakhouse’s traditional à la carte

dinning section, private event dining section, or both. See Dkt. 17-2 at 1; Dkt. 17-3

at 1. And, during Plaintiff’s employment, all servers were allegedly subject to

mandatory tip pool and check-out policies. Id.

The Steakhouse’s tip pool and check-out policies apparently differed

between the à la carte and private event areas. For instance, while servers in both

areas were required to participate in a tip pool, the tip pool for the à la carte area

allegedly included “scrapers.” Dkt. 1-1 at 28. These employees were essentially

support staff responsible for scraping food into the trash after dishes had been

cleared from dining tables. Dkt. 14-2 at 2. Plaintiff claims that scrapers never had

face to face interactions with customers and were therefore improperly included in

tip pool calculations. Dkt. 1-1 at 26. Plaintiff and Defendants nevertheless disagree

about when the full-time scraper position was implemented, and what other tasks

non-full time scrapers were responsible for completing. See Dkt. 17-2 at 1.

The check-out policy also differed depending on what dining area a server

was working in. According to Plaintiff, Defendants required servers in the à la

carte area to run “checkout” reports at the end of each shift to determine and

finalize the amount of tips owed to such servers. Dkt. 1-1 at 27. Plaintiff maintains

that Defendants required him to clock out before the checkout procedure, which

“typically took 10-20 minutes daily.” Id. As a result, Plaintiff and other servers

who were working at least forty hours a week allegedly missed out on overtime

pay. Id. Defendants, however, claim that the checkout procedure typically took five

minutes or less, and that there was no policy preventing servers from clocking back

in during checkouts for which they had clocked out to facilitate tip pool

calculations. Dkt. 17-2 at 1; Dkt. 17-3 at 1; Dkt. 17-4 and 1. In addition,

Defendants contend that the checkout procedure for private events was wholly

dissimilar because, “for those servers that work private events, the manager

manually prints the checkout documents and servers do not clock out until they are

ready to leave the [Steakhouse] at the end of their shift.” Dkt. 17 at 8.

II. Procedural History

On October 13, 2023, Plaintiff sued Defendants in the Sixth Judicial Circuit

in and for Pinellas County, Florida. Dkt. 1-1 at 2. Less than one month later,

Plaintiff filed an Amended Complaint alleging five counts: Count I—minimum

wage violation under Florida law; Count II—minimum wage violation under the

FLSA; Count III—request for declaratory judgment concerning the legality of

Defendants’ policies; Count IV—overtime wage violation under the FLSA; and

Count V—minimum wage violation under the FLSA and Florida law against

Defendant Mr. Bullard, individually. Id. at 33–37. On November 9, 2023,

Defendants removed the instant case to this Court. Dkt. 1 at 1. Frank Dolsak Jr.

joined as an opt-in plaintiff approximately three weeks later. Dkt. 11-1 at 1.

On December 18, 2023, Plaintiff filed the instant Motion requesting

conditional certification of an FLSA collective action and certification of a Rule

23(b)(3) class action. See generally Dkt. 14. Defendants oppose both requests. See

generally Dkt. 17. The Court now turns to consider these issues.

LEGAL STANDARDS

I. 29 U.S.C. § 216(b)

The FLSA authorizes collective actions against employers by providing that

“[a]n action . . . may be maintained against any employer . . . by any one or more

employees for and in behalf of himself or themselves and other employees

similarly situated.” 29 U.S.C. § 216(b). Unlike in a Rule 23 class action, “[n]o

employee shall be a party plaintiff to [an FLSA collective] action unless he gives

his consent in writing to become such a party and such consent is filed in the court

in which such action is brought.” Id. It follows that the decision to certify an FLSA

collective action, “on its own, does not create a class of plaintiffs.” Morgan v.

Fam. Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008). “[T]he importance

of certification, at the initial stage, is that it authorizes either the parties, or the

court itself, to facilitate notice of the action to similarly situated employees.” Id.

Courts in the Eleventh Circuit generally follow a two-tiered approach in

making FLSA collective action determinations:

The first determination is made at the so-called “notice stage.” At the

notice stage, the district court makes a decision—usually based only

on the pleadings and any affidavits which have been submitted—

whether notice of the action should be given to potential class

members.

Because the court has minimal evidence, this determination is made

using a fairly lenient standard, and typically results in “conditional

certification” of a representative class. If the district court

“conditionally certifies” the class, putative class members are given

notice and the opportunity to “opt-in.” The action proceeds as a

representative action throughout discovery.

The second determination is typically precipitated by a motion for

“decertification” by the defendant usually filed after discovery is

largely complete and the matter is ready for trial. At this stage, the

court has much more information on which to base its decision, and

makes a factual determination on the similarly situated question.

Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001) (internal

quotations and citations omitted).

Given the foregoing, a plaintiff seeking conditional certification has the

burden “to show that there is a reasonable basis for the claim that there are other

similarly situated employees who desire to opt into the case.” Compere v. Nusret

Miami, LLC, 391 F. Supp. 3d 1197, 1201 (S.D. Fla. 2019) (internal quotations and

citations omitted). The Eleventh Circuit has described this standard as “not

particularly stringent,” “fairly lenient,” and “flexible.” Morgan, 551 F.3d at 1261

(quoting Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1214–19 (11th Cir.

2001). Ultimately, the decision to conditionally certify an FLSA collective action

is within the discretion of the district court. Id. at 1260.

II. Federal Rule of Civil Procedure 23

Rule 23 governs class action certification and begins with the threshold issue

of “ascertainability.” Cherry v. Dometic Corp., 986 F.3d 1296, 1302 (11th Cir.

2021). In analyzing this implied Rule 23 prerequisite, courts are to determine

whether “the proposed class is adequately defined and clearly ascertainable” such

that a district court can determine whether the Rule 23(a) factors are satisfied. Id.

Once this much is established, the Court moves on to the express Rule 23(a)

factors, which require the putative class representative to show that: (1) “the class

is so numerous that joinder of all members is impracticable” (numerosity); (2)

“there are questions of law or fact common to the class” (commonality); (3) “the

claims or defenses of the representative parties are typical of the claims or defenses

of the class” (typicality); and (4) “the representative will fairly and adequately

protect the interests of the class” (adequacy). Fed. R. Civ. P. 23(a).

After the Rule 23(a) factors are satisfied, the putative class representative

“must [also] demonstrate entitlement to class relief under one of the three

provisions in Rule 23(b).” Nuwer v. FCA US LLC, 343 F.R.D. 638, 646 (S.D. Fla.

2023). Rule 23(b)(3)—the provision at issue here—provides that class certification

is proper 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 Supreme Court has explained that “Rule 23 does not set forth a mere

pleading standard. A party seeking class certification must affirmatively

demonstrate his compliance with the Rule—that is, he must be prepared to prove

that there are in fact sufficiently numerous parties, common questions of law or

fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (alteration in

original). Accordingly, “it may be necessary for the court to probe behind the

pleadings before coming to rest on the certification question[,]” Gen. Tel. Co. of

Sw. v. Falcon, 457 U.S. 147, 160 (1982), and that probing will “[f]requently . . .

entail some overlap with the merits of the plaintiff’s underlying claim[,]” Dukes,

564 U.S. at 351. “[C]ertification is proper only if the trial court is satisfied, after a

rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Id.

(internal citations and quotations omitted).

DISCUSSION

The Court will consider Plaintiff’s request for section 216(b) certification

before shifting to consider certification under Rule 23.

I. Conditional FLSA Collective Action Certification

As noted above, a plaintiff seeking conditional certification under section

216(b) must demonstrate that “there are other employees (1) who desire to join the

lawsuit and (2) who are similarly situated with respect to their job requirements

and pay provisions.” Guerra v. Big Johnson Concrete Pumping, Inc., No. 05-

14237-CIV, 2006 WL 2290512, at *2 (S.D. Fla. May 17, 2006) (citing Dybach v.

State of Fla. Dep't of Corr., 942 F.2d 1562, 1567–68 (11th Cir. 1991)).

Plaintiff has met his burden of establishing that there are other Steakhouse

employees who desire to join this lawsuit. Courts in the Eleventh Circuit have been

“mindful that ‘there is no magic number requirement for the notice stage,’ and that

courts will conditionally certify FLSA collectives even with relatively few

plaintiffs present at this stage of the litigation.” Reyes v. Strada Servs. Inc., No.

8:21-CV-976-VMC-TGW, 2021 WL 4427079, *3 (M.D. Fla. Sept. 27, 2021)

(quoting Ciani v. Talk of The Town Restaurants, Inc., No. 8:14-CV-2197-T-33-

AEP, 2015 WL 226013, *2 (M.D. Fla. Jan. 16, 2015)). The key is whether the

plaintiff can present some direct evidence of possible opt-in plaintiffs which raises

the plaintiff’s expectations beyond mere speculation. See Mackenzie v. Kindred

Hosps. E., L.L.C., 276 F. Supp. 2d 1211, 1220 (M.D. Fla. 2003) (finding that

“unsupported expectations that additional plaintiffs will subsequently come

forward are insufficient to justify notice”). In the instant case, Plaintiff has

provided such evidence. Mr. Dolsak has opted into this lawsuit prior to any

collective action certification notice. Dkt. 11-1 at 1. He and Plaintiff have also

submitted sworn declarations that they know of others, or have spoken to others,

who will want to join if notice is provided. Dkt. 14-3 at 2; Dkt. 14-2 at 2.

Numerous courts have found this level of direct evidence sufficient to satisfy the

first prong of conditional certification under section 216(b). See Guerra, 2006 WL

2290512, at *4 (granting conditional certification where the plaintiff and one-opt in

plaintiff submitted declarations); Wynder v. Applied Card Sys., Inc., No. 09-80004-

CIV, 2009 WL 3255585, at *3 (S.D. Fla. Oct. 7, 2009) (same); Robbins-Pagel v.

Puckett, No. 6:05-CV-1582 ORL-31-DAB, 2006 WL 3393706, at *2 (M.D. Fla.

Nov. 22, 2006) (finding that three affidavits alleging FLSA claims was sufficient

to establish that other individuals were interested in joining).

Plaintiff has also met his burden of showing that other interested Steakhouse

employees are similarly situated. It is worth reiterating that the Eleventh Circuit

has “described the standard for determining similarity, at this initial stage, as ‘not

particularly stringent,’ ‘fairly lenient,’ ‘flexible,’ ‘not heavy,’ and ‘less stringent

than that for joinder under Rule 20(a) or for separate trials under 42(b).’” Morgan,

551 F.3d at 1261–62 (internal citations omitted) (cleaned up). This being the case,

district courts have found sufficient similarity where a group of employees at one

location shared common job requirements and pay provisions. Wynder, 2009 WL

3255585, at *3 (finding “the putative plaintiffs . . . similar” where “they [were]

allegedly non-exempt employees working at the Boca Raton office, performing

similar tasks, and suffering from the same alleged payment practices”); Brown v.

Discrete Wireless, Inc., No. 8:14-CV-1922-T-33EAJ, 2014 WL 6607006, *2 (M.D.

Fla. Nov. 19, 2014) (“For purposes of defining the ‘similarly situated class’

pursuant to § 216(b), Plaintiffs need only show that the defined class is comprised

of representatives who are similarly situated to Plaintiffs with respect to their ‘job

requirements and pay provisions.’”) (citations omitted)).

Plaintiff’s proposed class—all servers employed by Defendants within the

last five years excluding non-tipped, non-minimum wage employees—meets this

low threshold of similarity. The putative class members are all tipped, minimum

wage employees that work, or have worked, at the Steakhouse. Moreover,

Defendants’ own employee declarations show that private event servers also serve

in the à la carte dinning area where they are subject to the same minimum wage

pay provisions and tip/checkout policies. See Dkt. 17-1 at 1; Dkt. 17-2 at 1; Dkt.

17-3 at 1; Dkt. 17-4 at 1; Dkt. 17-5 at 1; Dkt. 17-6 at 1; Dkt. 17-7 at 1.

Of course, the Court recognizes that Defendants’ employee declarations

provide differing accounts concerning both the time at which the full-time scraper

position was implemented and the length of Defendants’ clock-out procedure. But

there is no requirement that Plaintiff’s proposed collective be identically situated.

Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (finding that

plaintiffs “need only show that their positions are similar, not identical, to the

positions held by the putative class members.”) And, Defendants’ arguments

against similarity strike the Court as commonality or predominance issues that are

better suited for the Rule 23 context. At this time, the Court conditionally certifies

an FLSA collective action with the class definition proposed by Plaintiff.2

2 Neither party directly addresses the issue posed by Counts I, III, and the portion of Count V

that relates to Florida law; namely, whether a collective action can encompass these non-FLSA

claims. See Dkt. 1-1 at 33–37. This issue was considered by the court in Bradford v. CVS

Pharmacy, Inc., No. 1:12-CV-1159-TWT, 2013 WL 5587350 (N.D. Ga. Oct. 10, 2013) in

relation to a declaratory judgment claim. There, the court reasoned that, because section 216(b)

“expressly limits a collective action to FLSA claims described in section 216[,]” it was most

prudent to follow the Sixth Circuit’s non-binding precedent and find that “a collective action

brought under the FLSA may not include non-FLSA claims.” Bradford, 2013 WL 5587350, at

*2–3. The Court agrees with this reasoning and, for the time being, limits the collective action

scope in this case to Plaintiff’s FLSA claims and any future asserted FLSA claims that fall under

section 216(b). See Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir. 2003) (finding

that opt-in plaintiffs need not opt-in to FLSA claims asserted after their initial consent to join the

action is made). The parties may submit briefing on this issue if they so wish.

II. Rule 23(b)(3) Class Action Certification

As previously stated, ascertainability is an implied Rule 23 prerequisite that

focuses on a plaintiff’s proposed class definition. Cherry, 986 F.3d at 1302. A class

is adequately defined and clearly ascertainable as long as it enables a district court

to properly analyze whether the express Rule 23(a) factors are satisfied. Id. at

1303. Essentially, this means that a proposed class cannot be defined through

vague or subjective criteria that make it impossible for a district court to determine

who belongs to the class. Collado v. 450 North River Drive, LLC, No. 22-CV-

23074, 2023 WL 8371030, at *3 (S.D. Fla. Dec. 4, 2023).

Plaintiff’s request for class certification fails at this initial stage. Plaintiff’s

proposed Rule 23 class definition is “[a]ll servers who worked for Defendant[s]

within the five (5) years preceding this lawsuit[,]” presumably excluding, like the

in FLSA collective, any servers who were non-tipped, non-minimum wage

employees. Dkt. 14 at 1, 13. This class definition is impermissibly vague and

indefinite for a simple reason; namely, Plaintiff fails to identify whether the term

‘servers’ “include[s] only waiters and waitresses or if bartenders are included in

the class as well.” Teahl v. The Lazy Flamingo, Inc., No. 2:13-CV-833-FTM-

38CM, 2015 WL 179367, at *2 (M.D. Fla. Jan. 14, 2015). While this may strike

one as an insignificant problem, it creates significant issues for the Court’s analysis

of numerosity and commonality. Indeed, Plaintiff’s only evidence concerning

numerosity are his and Mr. Dolsak’s declarations which state that the “Steakhouse

typically had approximately twenty-thirty (20-30) servers and bartenders on the

roster at one time who were subject to the same payroll practices as [us].” Dkt. 14-

2 at 2; Dkt. 14-3 at 2. The Court cannot make numerosity inferences based on these

numbers without knowing whether bartenders are included in Plaintiff’s proposed

class or what percentage of these employees were servers. See Dukes, 564 U.S. at

350 (“A party seeking class certification must affirmatively demonstrate his

compliance with the Rule—that is, he must be prepared to prove that there are in

fact sufficiently numerous parties[.]”); Bennett v. Hayes Robertson Grp., Inc., 880

F. Supp. 2d 1270, 1278 (S.D. Fla. 2012) (finding the plaintiff’s proposed class

definition “vague, indefinite, and overbroad” where it failed “to distinguish

between tipped and non-tipped employees”).3 Additionally, because a Rule 23

commonality finding does not follow from the lenient standards applicable to a

notice-stage section 216(b) finding, the Court is also unable to determine

commonality without knowing whether Plaintiff intends to represent Steakhouse

bartenders. At the very least, Plaintiff must clarify this point.

3 Numerosity “has been described as a ‘low hurdle’ for the class proponent.” Collado, 2023 WL

8371030, at *4 (quoting Manno v. Healthcare Rev. Recovery Grp., LLC, 289 F.R.D. 674, 684

(S.D. Fla. 2013)). That said, “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) (emphasis in original). And “mere allegations of numerosity are insufficient to satisfy”

Rule 23(a)(1). Id.

CONCLUSION

Accordingly, it is hereby ORDERED and ADJUDGED:

(1) Plaintiff’s Motion (Dkt. 14) is GRANTED-IN-PART and DENIED-

IN-PART.

(2) The Court certifies a collective FLSA action as to Counts II and IV.

(3) The Court declines to certify a Rule 23 class action.

(4) Within twenty-one (21) days of the entry of this Order, the parties are to

submit a joint motion with a proposed collective notice and means of

dissemination.

DONE AND ORDERED at Tampa, Florida, on March 12, 2024.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record