United States District Court, D. Maryland
MELVIN MENDOZA, et al., On behalf of themselves and others similarly situated, Plaintiffs,
MO'S FISHERMAN EXCHANGE, INC. et al., Defendants
Lipton Hollander United States District Judge
Melvin Mendoza, Erick Rivera, and Armando Portillo have filed
suit under the Fair Labor Standards Act ("FLSA"),
29 U.S.C. § 201 et seq., against Mo's
Fisherman Exchange, Inc. and Mohammed S. Manocheh, doing
business as Mo's Seafood Restaurant; Mo's
Fisherman's Wharf; Mo's; Mo's Seafood Factory;
Mo's Crab and Pasta Factory; and Mo's Neighborhood
Bar and Grill. ECF 1 ("Complaint"). Plaintiffs
allege "willful failure" by defendants "to pay
Plaintiffs their wages, including minimum and overtime
wages." They characterize the suit as both a
collective action under the FLSA and "as a class action
under Fed.R.Civ.P. 23(b)(3)." ECF 1, ¶ 2.
Defendants filed an Answer to the Complaint. ECF 13.
additional plaintiffs have since joined the suit, pursuant to
29 U.S.C. § 216(b). They are Douglas Edgardo Rivera
("D. Rivera") (ECF 9); Wiliam Rivera ("W.
Rivera") (ECF 10); Samuel Gutiérrez Guevara (ECF
23); and Edwin Amilcar Sosa Garcia. ECF 34 (collectively,
pending before the Court is plaintiffs' "Motion for
Conditional Certification and to Facilitate Notice under the
Fair Labor Standards Act" (ECF 25), supported by a
memorandum of law ("Motion Memo, " ECF 25-1)
(collectively, "Motion" or "Motion to
Certify"). Their exhibits include, inter alia,
the Declaration of Melvin Mendoza (ECF 25-4, "Mendoza
Declaration"); the Declaration of Erick Rivera (ECF
25-5, "E. Rivera Declaration"); the Declaration of
Wiliam Rivera (ECF 25-6, "W. Rivera Declaration");
the Declaration of Douglas Edgardo Rivera (ECF 25-7, "D.
Rivera Declaration"); and the Declaration of Samuel
Enrique Gutiérrez Guevara (ECF 25-8, "Guevara
Motion, plaintiffs also ask the Court to approve a proposed
"Notice of Collective Action" (ECF 25-2) and a
"Consent to Join Collective Action" form (ECF 25-3,
"Opt-In Form") (collectively, "Proposed
Notice"), to be sent to potential opt-in plaintiffs in
the event the collective action is certified. See
ECF 25-1, at 2. Pursuant to 29 U.S.C. § 216(b), they ask
the Court to "approve the issuance of notice to the
following, conditionally-certified group of
similarly-situated persons" (ECF 25-1 at 10-11):
All individuals employed by Defendants at any time during the
period beginning May 19, 2012, three years prior to the date
of commencement of this action, to the present who were paid
on an hourly basis and who were paid below the federal
minimum wage and/or did not receive overtime compensation due
for hours worked in excess of forty per week.
oppose the Motion. ECF 28, "Opposition." Their
Opposition is supported by the Declaration of Iraj Nassiri,
General Manager of "Mo's Fisherman Exchange,
LLC" located in Towson, Maryland. Id. at 23-25,
"Nassiri Declaration;" see also infra,
have replied (ECF 33, "Reply") and submitted three
additional exhibits. These include an excerpt from
"Defendant's Response to Plaintiff's First
Interrogatories to Defendants, " which is signed by
Manocheh (ECF 33-1, "Interrogatory Excerpt"); a
letter to Manocheh from the Department of Labor
("DOL") Employment Standards Administration, dated
March 16, 2015, pertaining to a prior FLSA compliance review
(ECF 33-2, "DOL Compliance Letter"); and a letter
from DOL's Wage & Hour Division, Northeast Region, to
Jessica P. Weber, counsel for plaintiffs, providing
information regarding Mo's pursuant to Weber's
Freedom of Information Act ("FOIA") request. ECF
33-3, "FOIA Letter." The Motion has been fully
briefed, and no hearing is necessary to resolve it.
See Local Rule 105.6. For the reasons that follow, I
will grant the Motion in part and deny it in part.
Organizational Structure of Restaurants
assert that "Defendants operate six restaurants in the
greater Baltimore area, " as follows: Mo's
Fisherman's Wharf, located at the Inner Harbor in
Baltimore City; Mo's Crab and Pasta Factory in the Little
Italy area of Baltimore City; Mo's Neighborhood Bar and
Grill on Eastern Avenue in Baltimore City; Mo's in
Towson, Baltimore County; Mo's in White Marsh, Baltimore
County; and Mo's Seafood Factory in Glen Burnie,
Baltimore County (collectively, "Mo's"). ECF
25-1, Motion Memo, at 3 n. 4 (citing
"Location" tab on the website for "Mo's
Seafood"). Plaintiffs assert that Manocheh is
"an owner, agent, or principal" of all the Mo's
entities. ECF 1, ¶ 14. Moreover, they allege that
Manocheh "is the founding chef and is the ‘Mo'
after whom the Mo's restaurants are named, " with
"control over the daily operations of the restaurants
and employee pay." Id.
to plaintiffs, Manocheh is "in the restaurants almost
daily, and engages in such tasks as delivering and inspecting
inventory" and he "has the power to instruct
employees on how to perform their duties and exercises that
power." Id.; see also ECF 25-4,
Mendoza Declaration, ¶ 11; ECF 25-5, E. Rivera
Declaration, ¶ 17; ECF 25-6, W. Rivera Declaration,
¶ 19; ECF 25-7, D. Rivera Declaration, ¶ 18; ECF
25-8, Guevara Declaration, ¶ 12 (detailing
Manocheh's involvement at the restaurants where
plaintiffs worked). Moreover, plaintiffs contend that the
restaurants "operate as a single entity" (ECF 25-1
at 6) and all "six restaurants share a common
website." ECF 1, ¶ 11.
"admit that Mr. Manocheh is an owner, agent or principal
of Mo's Fisherman Exchange, Inc ..... " ECF 13,
Answer, ¶ 14. Further, defendants acknowledge that they
"own and operate a seafood restaurant, Mo's
Fisherman Exchange, in Towson, Maryland." ECF 28,
Opposition, at 2. However, defendants dispute that the entity
"does business" as the six restaurants listed in
the Complaint and the Motion. ECF 13, ¶ 10; see
ECF 1 at 1; ECF 25-1 at 3 n.4.
defendants acknowledge that "[t]here are five other
restaurants in the Baltimore metropolitan area that share the
‘Mo's' moniker, " they claim that
"each of those restaurants is separately incorporated,
managed and operated, and none of those restaurants has been
served by Plaintiffs." ECF 28 at 2.
Nevertheless, in their Interrogatory Excerpt (ECF 33-1 at 3),
defendants concede that Manocheh owns all six restaurants.
Further, they admit that Manocheh is "frequently present
in his restaurants." ECF 13, Answer, ¶ 14.
"deny that Mr. Mendoza was employed by Mr. Manocheh
[but] admit that Mr. Mendoza was employed by Mo's
Fisherman Exchange, Inc. in Towson, Maryland." ECF 13,
Answer, ¶ 6. However, defendants dispute that E. Rivera
and Portillo were ever employed by defendants. Id.
¶¶ 7, 8, 10. In addition, they contend that
Manocheh "did not exercise operational control over the
Plaintiffs and did not have an employee-employer relationship
with Plaintiffs." Id. at 7.
rely on the Declaration of Iraj Nassiri, the General Manager
of Mo's Fisherman Exchange in Towson. He avers, in
relevant part (ECF 28 at 23) (emphasis added):
Mo's Fisherman Exchange, LLC does not own, manage,
operate or conduct business as any other Mo's restaurant,
including Mo's Fisherman's Wharf, Mo's Crab and
Pasta Factory, Mo's Seafood Factory, Mo's
Neighborhood Bar and Grill or Mo's White Marsh. Each of
those restaurants are separately incorporated, managed
and operated by other corporate entities, none of which
have been sued or served in this case. I am not employed
by any of those restaurants, nor do I serve as a manager at
have not provided any other documentation to establish that
each restaurant is a separate corporate entity, nor do
defendants discuss ownership of the alleged separate
entities. See generally ECF 13; ECF 28. Notably,
Nassiri avers that he is not employed by any of the other
restaurants, yet there is no information reflecting the basis
of his knowledge as to the corporate status of the other
restaurants. ECF 28 at 23-25. Nor has Manocheh submitted a
declaration setting forth the organizational structure of the
submitted three exhibits with the Reply, portions of which
are relevant to this inquiry. For example, the Interrogatory
Excerpt states (ECF 33-1 at 3) (italics added):
INTERROGATORY NUMBER 24: Explain the
relationship between you and Mo's Seafood Restaurant,
Mo's Fisherman's Wharf, Mo's Seafood Factory,
Mo's Crab and Pasta Factory, Mo's Neighborhood Bar
and Grill, and any other of the six restaurants operated,
managed, or owned by you, including the nature of any
contractual relationship and the dates of any contractual
ANSWER NUMBER 24: Defendants object to
Interrogatory No. 24 as Mr. Mendoza and Mr. Rivera were only
employed by Mo's Fisherman Exchange, Inc., which is a
separate corporation and is separately operated and managed
from the other restaurants referenced above, which are all
owned by Mr. Manocheh.
INTERROGATORY NUMBER 25: Identify the owners
and shareholders of your Maryland restaurants, including but
not limited to what percentage of the restaurants is owned by
ANSWER NUMBER 25: Mo's Fisherman
Exchange, Inc., as well as the other restaurants referenced
in Interrogatory No. 25, are owned by Mr. Manocheh.
Interrogatory Excerpt states that the Towson restaurant is a
distinct corporate entity, but not an LLC. It also
establishes that Manocheh owns all of the Mo's
restaurants. See also ECF 13, ¶ 14. Plaintiffs
assert in the Reply that, "for all of Defendants'
bluster about how each of the six restaurants are separate
and distinct entities, they have failed to produce any
evidence that pay or timekeeping practices actually differed
between the various Mo's restaurants." ECF 33 at 9.
also submitted a DOL Compliance Letter (ECF 33-2) dated March
16, 2015, sent from DOL's Wage and Hour Division to
Manocheh, at the mailing address for "Mo's
Seafood" in Glen Burnie, Maryland. Id. at 2.
DOL addressed its authority to conduct investigations under
the FLSA, and said, id.: "An investigation of
your company located at address [sic] shown above, Inner
Harbor, Little Italy, Towson, White Marsh and Eastern Avenue
locations has been scheduled . . . ."
addition, plaintiffs submitted DOL's response to a FOIA
request made by plaintiffs. ECF 33-3 at 2. The FOIA Letter
includes an attachment of "six pages of agency
records" showing the "Compliance Action Report and
Narrative" that DOL created as a result of the FLSA
compliance investigation of Mo's. Id. At the
outset, the material references the Mo's Glen Burnie
location and states, in relevant part, ECF 33-3 at 4
Mohammad Manocheh is the President and sole stockholder of
the Company. The subject firm is a full-Service seafood
restaurant. Manocheh has total [sic] of five Mo's
Seafood locations in the Baltimore metropolitan area.
The firm has been in business for over 20 years and was
incorporated on July 23, 1992 in the state of Maryland.
allege that they worked for defendants in two of the six
Mo's restaurants, over different periods, and in varying
capacities. They aver: "Defendants hired Plaintiffs,
determined Plaintiffs' compensation rates and method of
pay, assigned Plaintiffs' job duties, set their work
schedules, maintained time records, and paid
Plaintiffs." ECF 1, Complaint, ¶ 18. According to
plaintiffs, "Mo's maintained the same wage payment
policies and practices at all of its restaurant
locations." Id. ¶ 12. To illustrate,
plaintiffs note that "employees at Mo's
Fisherman's Wharf and Mo's Neighborhood Bar and Grill
informed Mr. [E.] Rivera that they had experienced the same
wage violations that Mr. Rivera has experienced."
Id. They also contend that "the managers at the
Towson and White Marsh restaurants, where Plaintiffs were
employed, also regularly supervised employees at other
Mo's locations as assigned by Mr. Manocheh."
rely on several declarations to support their allegations,
including two of their own, and three from Opt-In Plaintiffs.
See generally ECF 25-4-ECF 25-8.
affiant whose declaration accompanies the Motion to Certify
estimates that between 75 and 100 employees who worked at
Mo's did not receive overtime wages or the regular wages
they were owed. See ECF 25-4, Mendoza Declaration,
¶¶ 8, 9; ECF 25-5, E. Rivera Declaration, ¶
15; ECF 25-6, W. Rivera Declaration, ¶ 15; ECF 25-7, D.
Rivera Declaration, ¶ 14; ECF 25-8, Guevara Declaration,
¶ 10. A summary of plaintiffs' contentions is set
November 4, 2014, Melvin Mendoza began to work as a
dishwasher at the Mo's restaurant in Towson. Id.
¶ 19; ECF 25-4, Mendoza Declaration, ¶¶ 1, 3.
His "duties included washing dishes, assisting with food
preparation, stocking inventory, and performing other work
assigned by Defendants." ECF 1, ¶ 19. Mendoza was
paid $7.50 per hour in this position (ECF 25-4, ¶ 3) and
quit his job (id. ¶ 5) on December 31, 2014.
Id. ¶¶ 1, 6.
claims that he was "regularly required" to
"work more than 40 hours per week." ECF 1, ¶
21. He asserts that in his "first 4 weeks on the job,
[he] worked 6 days a week, for about 8 to 9 hours each
day." ECF 25-4, ¶ 4. Thereafter, he "began
working up to 13 to 15 hours per day." Id. In
his Declaration, Mendoza avers: "Although I almost
always worked more 40 hours [sic] each week, when Mo's
paid me, the restaurant paid me at the same hourly rate of
$7.50 per hour for all hours that I worked, rather than
time-and-one-half my regular rate for hours over 40."
Id. Mendoza also contends that Mo's only paid
him "wages in cash" for the first four weeks of his
employment. Id. ¶ 6. And, after Mendoza quit
his job with Mo's in December 2014, Mo's paid him
"two checks for gross wages of $862.50 each."
Id. Mendoza maintains that these checks did not
"fully compensate" him for the time he "worked
without being paid." Id.
to Mendoza, "Manocheh visited the restaurant every
day" and would "supervise general operations and
revise the inventory and payroll." Id. ¶
11. Additionally, Manocheh "would consult and direct
[the] manager . . . ." Id. Manocheh put a
"manager" named Eric "in charge of pay . . .
." Id. ¶ 12. Eric "processed the
credit card payments, made bank runs, and was responsible for
paying out the workers at the restaurant." Id.
Mendoza recalls that "[a]t one point" Eric
"had a tally of which workers were still owed parts of
their wages, and how much, on his cell phone."
Id. There were "a few other managers at the
restaurant" with whom Mendoza was less familiar.
Id. ¶ 13.
recounts that he complained "directly to Mr.
Manocheh" about not receiving full wages. ECF 25-4,
Mendoza Declaration, ¶ 7. According to Mendoza, Manocheh
responded that he, Manocheh, "did not have enough
money." Id. Mendoza also "complained to
one of the managers, Eric (last name unknown)" about his
wages. Id. Eric told Mendoza that he, Eric,
"didn't have money" and then paid Mendoza
"what he had available in cash." Id.
Mendoza Declaration includes five pages of handwritten time
sheets that Mendoza "maintained during [his] employment
with Mo's. . . ." ECF 25-4, ¶ 10. Mendoza
explains that he kept track of the hours he worked by
recording the hours he worked each day, or the day after,
along with the wages he was owed. Id. ¶ 11. The
time sheets are difficult to decipher, but appear to show
records for weekly hours worked that exceeded 40 hours.
See, e.g., ECF 25-4 at 8-9. For example, during one
week with the dates numbered 10 through 16, Mendoza appears
to have logged 57 hours. Id. at 8 (including days of
the week, in Spanish, with corresponding periods of work as
follows: "Martes, " 5:00 p.m.-2:00 a.m.;
"Miercoles, " 5:00 p.m.-2:00 a.m.; "Jueves,
" 5:00 p.m.-1:30 a.m.; "Viernes, " 5:00
p.m.-2:00 a.m.; "Sabado, " 5:00 p.m.-2:30 a.m.;
"Domingo, " 5:00 p.m.-12:30 a.m.).
addition, Mendoza contends that he "worked alongside
other employees at Mo's who also worked more than 40
hours each week." ECF 25-4, ¶ 8. He
"believe[s] that they were all paid their regular hourly
rate for all of the hours they worked too, rather than
time-and-one-half." Id. According to Mendoza,
his co-workers "also went at least some period of time
without being paid at all or paid entirely for their work . .
. ." Id. Mendoza "believe[s] there are
probably 75 to 100 workers who have worked at a Mo's
restaurant at some point since May 2012 and did not receive
overtime or all the regular wages they were owed."
Id. ¶ 9.
Rivera avers that he "was employed by Mo's and its
owner, Mohammed Manocheh, at the Towson location, from
on/about March 28, 2013 through January 4, 2015." ECF
25-5, E. Rivera Declaration, ¶ 1; see also ECF
1, ¶¶ 22-24. E. Rivera began working for Mo's
as a dishwasher, and was paid $7.50 per hour in that
position. ECF 25-5, ¶ 3. "In fall 2013, Mo's
reassigned [E. Rivera] to work as a food runner."
Id. ¶ 4. According to plaintiffs,
"Defendants required food runners to be included in a
tip pooling arrangement, such that food runners received a
portion of the tips earned by servers." ECF 1, ¶
25. Yet, "Defendants did not inform Mr. Rivera of the
amount of the tip credit they were taking, or of his rights
as a tipped worker, including the right to retain all tips
except pursuant to a valid tip pooling arrangement, and the
right to receive additional compensation if his tips did not
bring his hourly wage to the statutory minimum wage."
Id.; see also ECF 1, ¶ 32. Moreover,
plaintiffs assert: "Defendants paid Mr. Rivera and other
similarly-situated tipped employees wages below the federal
statutory minimum of $7.25 an hour and the Maryland statutory
minimum wage of $7.25 an hour (prior to January 1, 2015) or
$8.00 an hour (as of January 1, 2015), without complying with
applicable ‘tip credit' requirements." ECF 1,
¶¶ 32, 33.
Declaration, E. Rivera described his role and compensation as
a food runner (ECF 25-5, ¶ 4):
In that position, I brought food orders to waiters and
cleaned part of the kitchen. I was paid $6 per hour. I
received some of the tips paid to the servers, but was never
told how my share was calculated or given any other
information about how the tipping arrangement worked.
Managers never asked how much I had made in tips in a given
night or week. I never got any notice about a tip credit.
Rivera claims that, while he was employed both as a
dishwasher and a food runner, he "routinely worked 13 to
15 hours per day, six days per week." Id.
¶ 5; see also ECF 1, ¶ 26. E. Rivera
recalls "working almost constantly with this
schedule" for three months. ECF 25-5, ¶ 5. He also
details a period in December 2013, during which he "was
the only food runner on staff and had to work seven days a
week for around 14-15 hours per day." Id.
¶ 6. During other weeks, he "worked about 60-70
hours per week." Id. ¶ 5. E. Rivera
maintains that he "never received time-and-one-half for
the hours over 40 that [he] worked." Id. ¶
7. Instead, he was "paid [the] regular rate ($7.50 or
$6) for all hours worked." Id.
"October 2014, Mo's did not pay [E. Rivera] anything
at all, even though [he] worked . . . regular hours."
ECF 25-5, ¶ 9. And, "from about November 10, 2014
until [his] last day on January 4, 2015, Mo's again did
not pay [E. Rivera] for any time that [he] worked."
Id. When E. Rivera stopped working at Mo's, he
was paid "$300 in cash to make up for the skipped pay
period in October . . . ." Id. ¶ 10.
However, according to E. Rivera, "the $300 did not come
close to fully compensating [him] for this missed pay period,
or for all the missed pay periods in November through
Rivera's Declaration is supported by a photograph of a
single time card. ECF 25-5 at 7. The time card shows the
hours E. Rivera worked between December 9, 2014 and December
21, 2014. Id. Although the times stamped on the time
sheet are difficult to decipher, E. Rivera contends that the
time card shows that he "worked about 124 hours during
this two-week period, or an average of 62 hours each
week." Id. ¶ 14.
Rivera recounts that "Eric (last name unknown) and
Little Mon (spelling unknown)" were his managers.
Id. ¶ 16. According to E. Rivera, "Little
Mon also worked in Glen Burnie" (id.), and both
managers "received their orders from Mr. Manocheh by
phone and when he was in the restaurant." Id.
E. Rivera contends that he "complained directly to Mr.
Manocheh about the wages he owed [E. Rivera] at least
twice." ECF 25-5, ¶ 11. In response, Manocheh told
Rivera that he, Manocheh, "could not pay [E. Rivera]
because he did not have the money." Id. Also,
E. Rivera "often asked the manager, Eric . . . when [he]
would be paid." Id. ¶ 12. E. Rivera was
told "to ask Mr. Manocheh" and "Mr. Manocheh
had said that he did not have the money to pay."
Id. E. Rivera continued to work for Mo's because
he "felt that if [he] quit [he] would never be
to E. Rivera, "other employees" with whom he worked
at Mo's "also worked well over 40 hours most weeks,
but Mo's never paid them time-and-one-half their regular
rates for hours over 40." ECF 25-5, E. Rivera
Declaration, ¶ 8. E. Rivera "spoke to workers at
Mo's White Marsh, Inner Harbor, and Eastern Avenue
locations who told [E. Rivera] they experienced similar wage
problems." Id. ¶ 13.
Rivera maintains that "Mr. Manocheh visited [the
restaurant where E. Rivera worked] every day."
Id. ¶ 17. "During each visit, [Manocheh]
would always come back to check on the kitchen and give
workers and managers instructions." Id. And, E.
Rivera stated: "Although Mr. Manocheh does not speak
Spanish, I can speak a little English, and so Mr. Manocheh
would sometimes make comments to me directly about my work.
When Mr. Manocheh was at the restaurant, he acted like a
manager and owner." Id. ¶ 17.