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Arnold v. Acappella, LLC

United States District Court, D. Maryland

September 29, 2016

TODD ARNOLD, Plaintiff,
v.
ACAPPELLA, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          Beth P. Gesner United States Magistrate Judge

         Currently pending before the court is plaintiff Todd Arnold's Motion to Conditionally Certify a Fair Labor Standards Act Collective Action Pursuant to 29 U.S.C. § 216(b) and for Approval of and Facilitation of Notice to Potential Class Members (“Plaintiff's Motion”). (ECF No. 20.) Defendants Acappella, LLC and Mihallaq Rapo a/k/a Mike Rapo have filed an Opposition to Plaintiff's Motion to Certify a Fair Labor Standards Act Collective Action Pursuant to 29 U.S.C. § 216(b) and for Approval of and Facilitation of Notice to Potential Class Members (“Defendant's Opposition”). (ECF No. 63.) Plaintiff has filed its Reply (“Plaintiff's Reply”). (ECF No. 68). I have reviewed the parties' papers, and no hearing is deemed necessary. Loc. R. 105.6. For the reasons stated below, Plaintiff's Motion is granted, and notice to potential class members shall be given as set forth below.

         I. Factual Background

         Defendant Acappella, LLC (“Acappella” or “the restaurant”) is a limited liability company, organized under the laws of the State of Maryland, which operates a restaurant, “Acappella Italian Restaurant, ” located in Fallston, Maryland. (ECF No. 1 at ¶ 5, ECF No. 63 at 1.) Defendant Mihallaq Rapo a/k/a Mike Rapo (“Rapo”) is the owner of Acappella. (ECF No. 1 at ¶ 7, ECF No. 63 at 1.)

         In his sworn declaration, plaintiff Todd Arnold (“plaintiff” or “Arnold”) states that he worked as a server at Acappella from mid-2014 through “the beginning of 2015.” (Arnold Decl., ECF No. 20-1 at ¶ 1.) Arnold states that he was paid $3.63 per hour during his employment at Acappella. (Id. at ¶ 2.) Arnold asserts that he was never informed by defendants that that they were taking a “tip credit” on his wages and that he had the right to retain all tips. Arnold also asserts that he, like other servers, was required to pay to management six percent (6%)-later five percent (5%)-of net sales, which amounted to approximately one-third (1/3) of all tips received. (Id. at ¶¶ 2-3.)

         Plaintiff alleges that defendants violated 29 U.S.C. §§ 203(m) of the Fair Labor Standards Act[1] and § 3-419 of the Maryland Wage and Hour Law[2] by failing to inform plaintiff and similarly situated employees that defendants were taking a “tip credit” on their wages and that they had a right to retain all their tips except in a valid tip pooling arrangement. (ECF No. 1 at ¶ 15.) Plaintiff also alleges that defendants violated the Maryland Wage Payment and Collection Law[3] by failing to pay plaintiff and other tipped employees at least the Maryland hourly minimum wage. (Id.)

         Plaintiff seeks to represent a class of similarly situated persons who were subject to defendant's allegedly wrongful employment practices. (ECF No. 20.)

         II. Procedural History

         Plaintiff filed a Collective Action and Class Action Complaint (“the Complaint”) on October 4, 2015.[4] (ECF No. 1.) Pursuant to 28 U.S.C. § 636 and with the parties' consent (see ECF Nos. 13, 14), Judge Russell referred this case to the undersigned for all proceedings on December 21, 2015. (ECF Nos. 10, 11.)

         The now-pending Motion to Conditionally Certify was filed on February 2, 2016. (ECF No. 20.) As the parties were, at that time, engaged in settlement negotiations, defendants were granted additional time in which to respond to Plaintiff's Motion. (ECF Nos. 22, 23.) Additional time passed as the parties engaged in further negotiations, and, on April 7, 2016, a stay was imposed in this case pending the parties' participation in a settlement conference before Judge Coulson. (ECF No. 42.) The settlement conference before Judge Coulson was held on May 3, 2016, but the parties were unable to reach a settlement. (See ECF No. 43.)

         Further delays ensued when original counsel for defendants, Messrs. Walsh and Berger, filed a Motion for Leave to Strike Appearance of Counsel on May 19, 2016. (ECF No. 47.) As it was not apparent that Messrs. Walsh and Berger had complied with Local Rule 101.2's notice requirements, the court directed them to do so; the court also advised defendant Acappella that, as a limited liability company, it was required to be represented by counsel. Loc. R. 101.2(b). (ECF No. 51.) Messrs. Walsh and Berger complied with the court's order regarding Local Rule 101.2 on June 10, 2016. (ECF No. 55.) As required by Local Rule 101.2(b), defendant Acappella was given thirty (30) days in which to obtain new counsel. Loc. R. 101.2(b). (See ECF No. 51.) On July 8, 2016, Mr. McCormick entered his appearance on behalf of both defendants. (ECF No. 58.) Accordingly, Messrs. Walsh and Berger's Motion to Strike Appearance was granted the same day. (ECF No. 59.)

         On July 28, 2016, the stay imposed in this case on April 7, 2016 was lifted, and defendants were directed to respond to plaintiff's Motion to Conditionally Certify within fifteen days. (ECF No. 62.) Defendants' Opposition was timely filed on August 10, 2016. (ECF No. 63.) This court granted plaintiff additional time to file a reply on August 31, 2016, and plaintiff filed its Reply on September 16, 2016. (ECF No. 68). Plaintiff's Motion is thus ripe for adjudication.

         III. Conditional Certification

         a. Legal Standard for ...


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