United States District Court, D. Maryland
BRANDON X.K. WARE, Plaintiff,
AUS, INC. t/a “Fat Daddy's”, et al., Defendants.
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
Brandon Ware (“Plaintiff”), on behalf of himself
and those similarly situated, has filed a Complaint against
defendants AUS, Inc. (“AUS”), AUS2, Inc.
(“AUS2”),  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.)
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.
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. (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 ¶
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.
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.)
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
29 U.S.C. § 216(b).
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.
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).
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