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Mendoza v. Mo's Fisherman Exchange, Inc.

United States District Court, D. Maryland

October 14, 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 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 13.

         Thirty-two 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 Plaintiffs”).

         By 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. ¶ 3.

         The parties subsequently submitted a Consent Motion to Approve Notice. See ECF 40.

         By 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 [3] (‘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.

         The 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.” Id.

         The 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.

         On 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.

         In 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).

         Plaintiffs 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.

         On October 4, 2014, defendants submitted their response to the disputed portion of ECF 53. ECF 57 (“Opposition”). Plaintiffs ...

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