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Mendoza v. Mo's Fisherman Exchange, Inc.

United States District Court, D. Maryland

June 22, 2016

MELVIN MENDOZA, et al., On behalf of themselves and others similarly situated, Plaintiffs,
MO'S FISHERMAN EXCHANGE, INC. et al., Defendants


          Ellen Lipton Hollander United States District Judge

         Plaintiffs 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."[1] 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.

         Four 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, "Opt-In Plaintiffs").

         Now 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 Declaration").[2]

         In the 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.

         Defendants 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, note 5.

         Plaintiffs 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.

         I. Factual Allegations[3]

         A. Organizational Structure of Restaurants

         Plaintiffs 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, the "Location" tab on the website for "Mo's Seafood").[4] 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.

         According 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.

         Defendants "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.

         Although 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.

         Defendants "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.

         Defendants 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 those restaurants.

         Defendants 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 various restaurants.

         Plaintiffs 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 relationship.
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 each.
ANSWER NUMBER 25: Mo's Fisherman Exchange, Inc., as well as the other restaurants referenced in Interrogatory No. 25, are owned by Mr. Manocheh.

         The 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.

         Plaintiffs 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 . . . ."

         In 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 (emphasis added):

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. [5]

         B. Plaintiffs

         Plaintiffs 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." Id.

         Plaintiffs 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.

         Each 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 forth below.

         1. Melvin Mendoza

         On 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.

         Mendoza 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.

         According 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.

         Mendoza 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.

         The 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.).

         In 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.

         2. Erick Rivera

         Erick 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.

         In his 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.

         E. 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.

         In "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 January." Id.

         E. 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.

         E. 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 paid." Id.

         According 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.

         E. 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.

         3. ...

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