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 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, alleging violations of the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
201 et seq. ECF 1 (“Complaint”).
Plaintiffs claim “willful failure” by defendants
“to pay Plaintiffs their wages, including minimum and
overtime wages.” Plaintiffs have also lodged claims
under the Maryland Wage and Hour Law, Md. Code, § 3-401
et seq. of the Labor & Employment Article
(“L.E.”), and the Maryland Wage Payment and
Collection Law, L.E. § 3-501 et seq. The
Complaint also includes a count for “Quantum Meruit
(Individual and Class Action).” ECF 1 at 15. Plaintiffs
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
additional plaintiffs have since joined the suit, pursuant to
29 U.S.C. § 216(b). See ECF 9; ECF 10; ECF 23;
ECF 34; ECF 45; ECF 46; ECF 47; ECF 49; ECF 50; ECF 51; ECF
52; ECF 54; ECF 56; ECF 60 (collectively, “Opt-In
Memorandum (ECF 37) and Order (ECF 38) of June 23, 2016, I
granted in part and denied in part plaintiffs' Motion to
Certify the Collective (ECF 25). In particular, I granted the
Motion “as to conditional certification of the proposed
collective for the period of three years prior to date of
[the] Order, to present.” ECF 38 ¶ 1. But, to the
extent plaintiffs sought approval of the Proposed Notice (ECF
25-2; ECF 25-3), I denied the Motion. Id. ¶ 1.
And, I directed “plaintiffs [to] submit an amended
Proposed Notice that comports with [the] Memorandum Opinion
[ECF 37], as well as a proposed version of the Proposed
Notice to be disseminated on Facebook.” Id.
parties subsequently submitted a Consent Motion to Approve
Notice. See ECF 40.
Order of July 14, 2016 (ECF 42), I granted that motion. In
particular, I ordered “that the Notice attached as ECF
No. 40, Exhibit 1 [i.e., “Notice of Collective
Action”] be distributed as set forth in the Court's
order of June 23, 2016 [ECF No. 38] and also in the plan set
forth in ECF No. 40, Exhibit  (‘Social Media Plan
for Distribution of Notice').” ECF 42. Pursuant to
the Social Media Plan for Distribution of Notice, I also
permitted plaintiffs' counsel to advertise the collective
action by posting on Facebook, in English and Spanish, an
abbreviated notice approved by the Court. See ECF
40-3 (“Facebook Notice”). The Facebook Notice
states, ECF 40-3:
Attention all hourly employees from Mo's Seafood and/or
Pasta Restaurants: if you worked at any Baltimore-area
Mo's restaurant at any time between June 23, 2013 and the
present, you may be eligible to join a lawsuit for unpaid
wages, including overtime. Click on the link for more
information and to join this lawsuit.
Facebook Notice contains a link to a website dedicated to
this case. ECF 40-3. This Website contains “(1) the
name of the case (2) the full text of the Notice [of
Collective Action] in English and Spanish, (3) downloadable
versions (into PDFs and/or Word documents) of the Notice and
the Opt-In form, (4) the Notice deadline, and (5)
Plaintiffs' attorneys' contact information.”
complete eight-page Notice of Collective Action contains an
“Introduction” setting forth the background of
the case; a “Description of the Lawsuit, ”
i.e., a description of plaintiffs' claims; a
statement describing “Who Can Join the Lawsuit”;
a statement making clear that “No Retaliation [is]
Permitted” against any claimants; a detailed
explanation of “How to Participate”; a statement
explaining the “Effect of Joining the Lawsuit”;
and a statement explaining that there is “No Legal
Effect In Not Joining Suit.” ECF 40-1.
September 16, 2016, plaintiffs filed a “Motion to
Approve Social Media Spending and Response to Queries.”
ECF 53 (“Motion”). It is supported by the
Declaration of Hannah Walsh, a paralegal. ECF 53-1.
Plaintiffs seek “to (1) increase their spending on
dissemination of the notice of the action on social media;
and (2) post a pre-approved response to queries about the
case made by potential class members through social
media.” Id. at 1.
particular, plaintiffs assert, ECF 53 at 3:
To avoid further perpetuating such misapprehensions,
Plaintiffs seek explicit permission to respond on Facebook to
queries about the suit with a simple, nonspecific statement:
“If you have questions about this lawsuit, including
whether you are eligible to join it, please review the Notice
of the lawsuit, accessible by clicking the link on the
Facebook post above, or call the telephone number listed in
that Notice.” (Emphasis added).
represented in the Motion: “After conferring with
counsel for Defendants, undersigned counsel is authorized to
represent that Defendants consent to Plaintiffs' request
for approval of an additional $1, 000 in spending on the
Facebook advertisement, but not to Plaintiffs' request
for permission to respond to comments.” Id. at
3. Therefore, by Order dated October 5, 2016 (ECF 59), I
approved the portion of the Motion pertaining to the request
to increase social media spending, to which defendants had
consented. But, I noted that the “Order [did] not
address the portion of ECF 53 that concerns the parties'
dispute as to plaintiffs' request to respond to
queries” because “[t]hat dispute was not yet ripe
for resolution.” Id.
October 4, 2014, defendants submitted their response to the
disputed portion of ECF 53. ECF 57
(“Opposition”). Plaintiffs ...