United States District Court, E.D. Michigan, Southern Division
MONIQUE CROSS and AMERICA THOMAS, on behalf of themselves and all other persons similarly situated, known and unknown, Plaintiffs,
AMC DETROIT, INC., Defendant.
ORDER AND OPINION DENYING PLAINTIFFS' AMENDED
MOTION FOR CONDITIONAL CERTIFICATION 
G. EDMUNDS UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs' motion for conditional
certification and court approved notice pursuant to 29 U.S.C.
§ 216(b). (ECF No. 18.) Plaintiffs move the Court to
conditionally certify a collective action for unpaid wages
under § 216(b) of the FLSA and approve certain notice
procedures. Defendant opposes conditional certification. On
May 09, 2019, the Court held a hearing in connection with the
motion. For the reasons set forth below, the Court
DENIES Plaintiffs' motion.
an action for unpaid wages brought under the Fair Labor
Standards Act and filed as a putative collective action.
Plaintiffs are bartenders at the Buffalo Wild Wings
restaurant located at 1218 Randolph Street, Detroit, Michigan
48226. Each BWW is independently owned or locally operated.
Defendant AMC Detroit Inc. is the owner of this particular
Buffalo Wild Wings. Plaintiffs are both employees of AMC
bartenders, Plaintiffs are paid an hourly wage rate which is
below the minimum wage, plus a tip credit. Plaintiffs allege
that they and all bartenders at this particular BWW spend in
excess of twenty percent of their time performing untipped
cleaning duties in addition to performing their tipped duties
as bartenders. Plaintiffs assert that the FLSA prohibits
Defendant from taking a tip credit and paying Plaintiffs
sub-minimum wages for this untipped cleaning work. The focus
of Plaintiffs' claim is that they and the other
bartenders spend a significant amount of time-in excess of
twenty percent of their shifts-washing dishes and performing
other tasks that they contend are not part of their tipped
duties. Plaintiffs allege that Defendant in essence requires
all bartenders to perform the duties of both bartenders and
janitors. Plaintiffs claim that Defendant's failure to
pay its bartenders a minimum wage without relying on the tip
credit for performing untipped tasks violates the FLSA. As
such, Plaintiffs seek a conditional certification of a
collective action on behalf of all employees of Defendant AMC
Detroit who worked as bartenders at Defendant's BWW
location in the past three years.
21, 2018, Plaintiffs filed their original complaint
initiating this putative collective action. Plaintiffs'
original complaint named Diversified Restaurant Holdings as
the defendant. Because Defendant AMC Detroit, and
not DRH, is Plaintiffs' employer, the parties stipulated
to dismissing DRH from this action and substituting AMC
Detroit as the defendant. On August 15, 2018, the Court held
an initial scheduling conference and ordered the parties to
conduct limited discovery relating to conditional
certification. The parties conducted some document discovery,
including exchanging interrogatories, but no depositions have
been taken. On February 27, 2019 Plaintiffs filed their
renewed motion for conditional certification. On March 01,
2019, Plaintiffs filed an amended version of their motion for
conditional certification, which is currently pending before
216(b) of the FLSA permits individuals to sue on "their
own behalf and for 'similarly situated'
persons." Comer v. Wal-Mart Stores, Inc., 454
F.3d 544, 546 (6th Cir. 2006). In order to proceed as a
"collective action," the plaintiffs must be
actually similarly-situated and all plaintiffs must
affirmatively opt into the litigation. Id. (citing
29 U.S.C. § 216(b) and Hoffman-La Roche, Inc. v.
Sperling, 493 U.S. 165, 167-68 (1989)). This is in
contrast to "the opt-out approach utilized in class
actions under Fed.R.Civ.P. 23." Id.
courts in the Sixth Circuit follow a two-stage certification
process to determine whether a proposed group of plaintiffs
is "similarly situated" for the purposes of the
statute's requirements. See Comer, 454 F.3d at
546. The first, or "notice" stage, takes place at
the beginning of discovery with a focus on determining
whether there are plausible grounds for the plaintiffs'
claims. Id. If so, the plaintiffs are permitted to
solicit opt-in notices, under court supervision, to potential
plaintiffs such as current and former employees of the
defendant. Id. The second stage occurs after
"all of the opt-in forms have been received and
discovery has concluded." Id.
first stage is "fairly lenient," generally
requiring only that plaintiffs show a colorable basis for
their claim that a class of similarly situated plaintiffs
exists. White v. MPW Indus. Serv., Inc., 236 F.R.D.
363, 366-67 (E.D. Tenn. 2006); Olivo v. GMAC Mortg.
Corp., 374 F.Supp.2d 545, 548 (E.D. Mich. 2004). Some
district courts in the Sixth Circuit have held that this
burden can be met solely upon allegations in the complaint,
Belcher v. Shoney's, Inc., 927 F.Supp. 249, 251
(M.D. Tenn. 1996) (citation omitted), while others have
required a "modest factual showing." Pritchard
v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 595-96
(S.D. Ohio 2002) (quotation and citation omitted).
other hand, the second-stage review is understandably more
stringent as it occurs after the receipt of completed opt-in
notices and completed discovery. Comer, 454 F.3d at
547. In determining whether the class members are similarly
situated at the second stage, courts generally consider: (1)
the factual and employment settings of the individual
plaintiffs; (2) the likely defenses that appear to be
individual to each plaintiff; and (3) the degree of fairness
and the procedural impact of resolving the claims
collectively. See Knispel v. Chrysler Grp. LLC, No.
11-11886, 2012 WL 553722, at *3 (E.D. Mich. Feb. 21, 2012).
At this later stage, the district court has much more
information upon which to make that decision and it employs a
stricter standard. Id. The analysis at the second
stage is more akin to class certification under Fed.R.Civ.P.
23, but the Sixth Circuit has stated that it involves a less
stringent criteria than Rule 23. See O'Brien v. Ed
Donnelly Enterprises, Inc., 575 F.3d 567, 584 (6th Cir.
2009), abrogated on other grounds by Campbell-Ewald Co.
v. Gomez, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016).
when the parties are afforded the opportunity to conduct
discovery before seeking conditional certification, such as
in the case before this Court, courts have employed different
approaches in deciding motions for conditional certification.
See Creely v. HCR ManorCare, Inc., 789 F.Supp.2d
819, 823 (N.D. Ohio 2011) (discussing the "difficult
time" courts have had attempting to craft an
intermediate, or hybrid, standard that falls between the
lenient first-stage and the strict second stage review). The
majority of district courts in the Sixth Circuit have applied
a "heightened" or "more restrictive" -
but not stringent - standard, which is sometimes referred to
as the "modest-plus" standard. See, e.g.,
Swinney v. Amcomm Telecommunications, Inc., No.
12-12925, 2013 WL 4507919, at *3 (E.D. Mich. Aug. 23, 2013);
Wheeler v. City of Detroit, 2012 WL 1119300, at *3
(E.D. Mich. Apr. 3, 2012); Neff v. U.S. Xpress,
Inc., 2013 WL 4479078, at *3 (S.D. Ohio Aug. 20, 2013);
Lankford v. CWL Investments, LLC, 2014 WL 3956184 at
*4 (E.D. Mich. Aug. 13, 2014); Byers v. Care Transp.,
Inc., No. 13-CV-15174, 2016 WL 4771328, at *3 (E.D.
Mich. Sept. 14, 2016).
Creely v. HCR ManorCare, Inc., 789 F.Supp.
2d8l9(N.D. Ohio 2011), the court described the requisite
showing under the heightened "modest-plus"
standard. Id. at 826-27. Under this
"modest-plus" standard, the court compares the
allegations set forth in the plaintiffs' complaint with
the factual record assembled through discovery to determine
whether the plaintiffs have made a sufficient showing beyond
their original allegations that would tend to make it more
likely that a class of similarly situated employees exists.
Id. at 827. In other words, the court reviews
whether the plaintiffs have "advanced the ball down the
field" - showing that it is more likely that a group of
similarly situated individuals may be uncovered by soliciting
opt-in plaintiffs. Id. "Plaintiffs need not
have moved the ball far down the field, but they need to have
shown some progress as a result of the discovery as measured
against the original allegations and defenses."
Id. "How much progress Plaintiffs have made
will be considered in conjunction with Defendant's
evidence and in the context of Plaintiffs' unshifting
burden to prove their claims." Id. However, the
Court will not weigh the relative merits of the parties'
claims at this conditional certification stage. Id.
"A full and complete merits review is best preserved for
the detailed and strict review conducted at stage two."
urges the Court to apply the modest-plus standard here
because the parties engaged in discovery. While neither party
provides significant detail about the status of discovery in
this case, it is clear that the parties conducted some
discovery. In addition, the parties were afforded almost six
months to conduct discovery related to the issue of
conditional certification. Based on the record before the
Court and the statements of counsel at the hearing, the Court
finds the parties had an ample opportunity to obtain
substantial information about Defendant's policies and
procedures and Plaintiffs' claims. Accordingly, the Court
will employ the modest-plus standard and determine whether
Plaintiffs "advanced the ball down the field." ...