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Ware v. AUS, Inc.

United States District Court, D. Maryland

April 13, 2017

BRANDON X.K. WARE, Plaintiff,
AUS, INC. t/a “Fat Daddy's”, et al., Defendants.



         Plaintiff Brandon Ware (“Plaintiff”), on behalf of himself and those similarly situated, has filed a Complaint against defendants AUS, Inc. (“AUS”), AUS2, Inc. (“AUS2”), [1] 216 of OC, LLC (“216”), 8201 LLC (“8201”), Edward B. Braude (“Mr. Braude”), and Lisa A. Braude (“Mrs. Braude”), alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl., § 3-401, et seq. (“MWHL”), and the Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl., § 3-501, et seq. (“MWPCL”). (ECF No. 1.)

         Currently pending before this Court is Plaintiff's Motion for Conditional Certification of a Collective Action under 29 U.S.C. § 216(b) of the Fair Labor Standards Act (“Plaintiff's Motion”) (ECF No. 10). The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Plaintiffs' Motion for Conditional Certification (ECF No. 10) is GRANTED. Notice to potential class members shall be given as set forth below.


         Defendants Edward B. Braude and Lisa A. Braude, a married couple, are officers and owners of defendants AUS, Inc.; AUS2, Inc.; 216 of OC, LLC; and 8201, LLC.[2] (ECF No. 1 at ¶ 8.) Defendant AUS owns and operates a restaurant/carry-out service trading under the name “Fat Daddy's” located at 216 South Baltimore Avenue in Ocean City, Maryland (“Baltimore Ave. location”). (ECF No. 19 at 4.) Defendant Edward Braude is the owner of AUS. (Id.) Defendant AUS2 owns and operates a restaurant/carry-out service also trading under the name “Fat Daddy's” located at 8201 Coastal Highway in Ocean City, Maryland (“82nd Street location”). (Id.) Defendant Lisa Braude is the owner of AUS2. (Id.) Plaintiff Ware worked as an hourly employee at Fat Daddy's 82nd Street location from June 2016 until October 2016. (ECF No. 23-5 at ¶ 2; ECF No. 1 at ¶ 11.)

         Plaintiff alleges that defendants “implemented and enforced a policy and practice of not paying overtime compensation to Plaintiff, and similarly situated hourly employees who were regularly required to work more than forty (40) hours per week. (ECF No. 1 at ¶ 12.) Specifically, Plaintiff alleges that Edward Braude told Plaintiff at his employment interview that “Fat Daddy's did not pay overtime” and that Defendants required employees to work a set number of weekly hours in excess of forty hours per week, “but never paid Plaintiff, and others similarly situated, any type of overtime compensation.” (ECF No. 1 at ¶¶ 11-12.) Thus, Plaintiff asserts, this Court should conditionally certify a collective action consisting of those current and former Fat Daddy's employees who were subjected to similar compensation practices. See ECF No. 1 at 7.

         Defendants argue that plaintiff fails to establish that he and the potential class members are similarly situated because plaintiff only worked at the 82nd Street location of Fat Daddy's for four months, and because he fails to allege sufficient facts to show that other workers were subjected to similar wage practices. (ECF No. 19 at 7.) Thus, Defendants assert that if conditional certification is granted, it should be limited to only those employees who worked at Fat Daddy's 82nd Street location from June 26, 2016 through October 2, 2016. (Id. at 9.)


         Under the FLSA, a plaintiff may bring an action on behalf of himself and other employees so long as the other employees are “similarly situated” to the plaintiff. 29 U.S.C. § 216(b); see also Quinteros v. Sparkle Cleaning, Inc., 532 F.Supp.2d 762, 771 (D. Md. 2008). As this Court has previously noted, Section 216 “establishes an ‘opt-in' scheme, whereby potential plaintiffs must affirmatively notify the court of their intentions to be a party to the suit.” Quinteros, 532 F.Supp.2d at 771 (citing Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D. Md. 2000)). Section 216(b) provides, in relevant part, that:

An action . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b).

         Furthermore, this Court has employed a two-step inquiry when deciding whether to certify a collective action under the FLSA. Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D. Md. 2010); Banks v. Wet Dog Inc., No. CIV.A. RDB-13-2294, 2015 WL 433631, at *1 (D. Md. Feb. 2, 2015). First, upon a minimal evidentiary showing that a plaintiff can meet the substantive requirements of 29 U.S.C. § 216(b), the plaintiff may proceed with a collective action on a provisional basis. Second, following discovery, the court engages in a more stringent inquiry to determine whether the plaintiff class is “similarly situated” in accordance with the requirements of § 216. Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007) (internal citations omitted). The Court then renders a final decision regarding the propriety of proceeding as a collective action. Id. The second, more “stringent” phase of collective action certification under the FLSA is often prompted by a defendant's filing of a motion to decertify, and thus is referred to as the “decertification stage.” Syrja, 756 F.Supp.2d at 686.

         Whether to grant conditional certification is a matter of the court's discretion. Syrja, 756 F.Supp.2d at 686 (stating that “[d]eterminations of the appropriateness of conditional collective action certification . . . are left to the court's discretion[]”); see also Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). As the Court has explained, the “paramount issue in determining the appropriateness of a conditional class certification is whether plaintiffs have demonstrated that potential class members are ‘similarly situated.'” Williams v. Long, 585 F.Supp.2d 679, 684 (D. Md. 2008).

         Plaintiffs bear the burden of showing that their claims are “similarly situated, ” but courts have ruled that “similarly situated” need not mean “identical.” See, e.g., Hipp v. Liberty Nat. Life Ins. Co.,252 F.3d 1208, 1217 (11th Cir. 2001). This Court has held that a group of FLSA plaintiffs is similarly situated if they can show they were victims of a common policy, scheme, or plan that violated the ...

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