1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JESSICA MILLER, )

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Plaintiff,

vs. CIVIL NO. 14-00468-CG-B

EDWIN J. SPENCE,

EDWIN J. SPENCE, JR.,

PORT II SEAFOOD OYSTER 

 BAR, INC.,

GULF COAST STEAMER, INC., 

and

THE SHRIMP BASKET, INC.,

Defendants.

ORDER

Before the court is Plaintiff’s Motion for Leave to Add Additional 

Named Plaintiffs (Doc. 25). Plaintiff requests to convert five opt-in plaintiffs 

to named plaintiffs. For the reasons explained below, the Court finds that 

Plaintiff’s motion to amend is due to be granted in part and denied in part. 

BACKGROUND

This case arises from a complaint which alleges that Defendants 

violated the Fair Labor Standards Act (FLSA) by denying the plaintiff her 

lawful wages.1 (Doc. 1). In their answer, Defendants deny any violation of the 

FLSA. (Doc. 7 pp. 2 - 3). Defendants admit that Edwin J. Spence owned the 

Port II Seafood & Oyster Bar, the Shrimp Basket, and Gulf Coast Steamer. 

 

1 FLSA, 29 U.S.C. §201 et seq. 

Case 1:14-cv-00468-CG-B Document 38 Filed 03/10/15 Page 1 of 8
2

(Doc. 7, p. 1). Defendants also admit that the plaintiff was a server and 

occasional bartender at Port II Seafood & Oyster Bar (operating as “Mikee’s 

Seafood”) from March 2013 to December 2013. (Doc. 7, p. 2). 

On November 19, 2014, Plaintiff filed a Motion for Conditional 

Certification along with sworn declarations and consent forms of two opt-in 

plaintiffs, Richard Boyett and Rebeka Norwood. (Doc. 11, Exh. 1). The filing 

also included two opt-in consent forms, but no sworn declarations, from 

James Franks and Darla Bezerra.(Doc. 11-5, Doc. 11-6). 

On January 14, 2015, Plaintiff moved to amend the complaint to add 

additional plaintiffs. (Doc. 25). Included in the motion were five signed 

consent forms from the opt-in plaintiffs, Richard Boyett, Rebeka Norwood, 

James Franks, Darla Bezerra and Amber Race. (Doc. 25, Exh. A). The 

Plaintiff seeks to convert these five opt-in plaintiffs to named plaintiffs.

On January 22, 2015, Defendants filed a response opposing the motion 

to amend. (Doc. 28). Defendants argue that the transactions and occurrences 

amongst the Plaintiff and the five individuals are not substantially similar 

because they all worked at different restaurants, at different times, with 

different managers and job duties. (Doc. 28 p. 3). The Court now considers 

Plaintiff’s motion to amend. 

Case 1:14-cv-00468-CG-B Document 38 Filed 03/10/15 Page 2 of 8
3

DISCUSSION

A. FRCP Rule 15(a) 

Federal Rule of Civil Procedure 15(a) provides that leave to amend 

pleadings “shall be freely given when justice so requires.” See Fed. R. Civ. P. 

15(a). The Eleventh Circuit recognized that Rule 15(a) “severely restricts” a 

district court’s discretion to deny leave to amend. Sibley v. Lando, 437 F.3d 

1067, 1073 (11th Cir. 2005). “Unless a substantial reason exists to deny leave 

to amend, the discretion of the District Court is not broad enough to permit 

denial.” Florida Evergreen Foliage v. E.I. DuPont De Nemours and Co., 470 

F.3d 1036, 1041 (11th Cir. 2006) (citation omitted). That said, leave to 

amend can be properly denied under circumstances of “undue delay, bad faith 

or dilatory motive on the part of the movant, repeated failure to cure 

deficiencies by amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowance of the amendment, [or] futility of

amendment.” Equity Lifestyle Properties, Inc. v. Florida Mowing and 

Landscape Service, Inc., 556 F.3d 1232, 1241 (11th Cir. 2009) (citation 

omitted). 

There is no indication of any bad faith or dilatory motive on the part of 

the movants, and the amendment does not appear to be futile. In this case,

for the Court to deny the request, the amendment must result in undue 

prejudice to the opposing party. Defendant asserts that allowing the 

additional plaintiffs will result in “the same unmanageable situation that the 

Case 1:14-cv-00468-CG-B Document 38 Filed 03/10/15 Page 3 of 8
4

Court should avoid by denying conditional certification.” (Doc. 28 p. 2). A 

hypothetical unmanageable situation for the Court does not demonstrate any 

type of undue burden to the Defendants themselves. However, in this case, 

prejudice may arise from the joinder of some of these opt-in plaintiffs without 

adequate evidence of how their case relates to the named plaintiff. Therefore, 

the Court must also consider joinder rules. 

B. FRCP 20 (a)(1) 

Federal Rule of Civil Procedure 20 (a)(1) concerns the permissive 

joinder of plaintiffs to an action. Although the plaintiff does not discuss this 

rule in her motion (Doc. 25), Defendants argue that the addition of the

proposed plaintiffs violates joinder rules. (Doc. 28, pp. 2 -6). The relevant 

language of Rule 20 is plain and unambiguous: 

Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the 

alternative with respect to or arising out of the same 

transaction, occurrence, or series of transactions or occurrences; 

and

(B) any question of law or fact common to all plaintiffs will arise in 

the action.

Fed.R.Civ.P. 20(a)(1).

Courts are encouraged to entertain “...the broadest possible scope of action 

consistent with fairness to the parties; joinder of claims, parties and remedies 

is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 

724, (1966). “Rule 20 permits ‘the joinder of a person who has some interest 

Case 1:14-cv-00468-CG-B Document 38 Filed 03/10/15 Page 4 of 8
5

in an action ..., even when that interest is not so strong as to require his 

joinder’ under Rule 19.” Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009) 

(citing Field v. Volkswagenwerk AG, 626 F.2d 293, 299 (3d Cir. 1980)). 

Defendants assert that the additional plaintiffs are not similarly 

situated because they did not work at the same restaurants. (Doc. 28 pp. 4 –

6). However, after reviewing the Defendants’ opposition to Plaintiff’s Motion 

for Conditional Certification, it does appear that the restaurants are similar. 

While the ambience of each location may vary, all three locations have the 

same owner and at each of these locations servers were paid $2.13 per hour 

plus tips with a requirement of donating between one and a half and two 

percent to a tip pool. (Doc. 24 pp. 4 – 10). Furthermore, at each restaurant,

opt-in and named plaintiffs allege they performed tasks off-the-clock -- time 

for which they were not paid. (Doc. 11). 

This Court will allow the addition of the opt-in plaintiffs who are 

clearly similarly situated to the named Plaintiff Jessica Miller. The Court 

will deny the addition of opt-in plaintiffs for which there is not enough 

evidence to indicate a similar series of events or transactions.

1. Richard Boyett

Included in the Motion for Certification (Doc. 11) is a sworn declaration 

from Mr. Richard Boyett concerning his experience while working at Mikee’s 

in Gulf Shores. (Doc. 11-2). Mr. Boyett and Ms. Miller both worked at the 

Gulf Shores Mikee’s and their declarations about employment are very 

Case 1:14-cv-00468-CG-B Document 38 Filed 03/10/15 Page 5 of 8
6

similar. Mr. Boyett worked as a server and later, a manager for about a year 

and a half. (Doc. 11-2, p.1). Both Mr. Boyett and Ms. Miller were paid a 

starting salary as servers of $2.13/hour plus tips. They also allege that the 

Defendants required them to contribute a certain percentage of their tips to a 

pool for non-tip employees. Finally, both Ms. Miller and Mr. Boyett claim the

Defendants required them to work without pay before they clocked in and 

after they clocked out. The Court is not ruling on the merits of these 

allegations, but rather noting the similarities between the parties’ 

allegations. Because the claims arise from similar transactions, Mr. Richard 

Boyett may be named as a plaintiff. 

2. Rebeka Norwood 

Included in the Motion for Certification (Doc. 11) is a sworn declaration 

from Ms. Rebeka Norwood concerning her experience while working the 

Shrimp Basket. (Doc. 11-1). Ms. Norwood worked as a server at three Shrimp 

Basket locations for about a year. (Doc. 11-1, p.1). While Ms. Norwood did not 

work at Mikee’s like Ms. Miller and Mr. Boyett, her allegations against the 

Defendants are extremely similar. Like Ms. Miller, she was paid $2.13 per 

hour plus tips and claims the Defendants required her to contribute to a tip 

pool with non-tipped employees and work unpaid time before she clocked-in 

and after she clocked out. (Doc. 11-1, p. 2 – 4). Though Ms. Norwood worked 

at a different restaurant, the allegations are substantially similar to those of 

the named Plaintiff and therefore, Ms. Norwood may be named as a plaintiff 

Case 1:14-cv-00468-CG-B Document 38 Filed 03/10/15 Page 6 of 8
7

in this action. Again, the Court is not ruling on the merits of these

allegations. 

3. Darla Bezerra, James Franks and Amber Race 

The claims of Darla Bezerra, James Franks and Amber Race are not as 

clearly aligned with those of the Plaintiff. Rather than providing declared, 

sworn statements, Plaintiff merely filed “opt-in” consent forms for Ms. 

Bezerra, Mr. Franks and Ms. Race. (Doc. 25-5, Doc. 25-6, Doc. 25-7). 

These forms are not sworn declarations and are not notarized. (Doc. 

25-5, Doc. 25-6, Doc. 25-7). Mr. Franks’ and Ms. Race’s forms, though 

completed in the entirety, do not provide enough information about their 

shifts and required duties to indicate claims arising from a series of similar 

transactions as required by FRCP 20(a)(1). 

Furthermore, Ms. Bezerra’s form is not complete. (Doc. 25-5). Ms. 

Bezerra wrote the Defendants paid her $2.13 per hour, but did not write at

what location(s) she worked for seven years. Ms. Bezerra also did not indicate 

whether she was forced to participate in a tip pool with non-tipped 

employees, a central element to the Plaintiff’s FLSA claims. (Doc. 25-5). 

Even applying the “broadest scope of action” standard, there is not 

enough information provided to indicate that these three opt-in plaintiffs’ 

claims arise from the similar series of facts as those of the Plaintiff, Ms. 

Miller. United Mine Workers of Am. v. Gibbs, 383 U.S. at 724. Therefore, the 

Case 1:14-cv-00468-CG-B Document 38 Filed 03/10/15 Page 7 of 8
8

Court DENIES the addition of opt-in plaintiffs Ms. Bezerra, Mr. Franks and 

Ms. Race as named plaintiffs. 

Accordingly, Plaintiff’s motion to amend the complaint (Doc. 25), is 

GRANTED, in part, to add Mr. Boyett and Ms. Norwood as named plaintiffs 

and DENIED, in part, as to adding Ms. Bezerra, Mr. Franks and Ms. Race. 

DONE and ORDERED this 10th day of March, 2015.

/s/ Callie V. S. Granade

UNITED STATES DISTRICT JUDGE

Case 1:14-cv-00468-CG-B Document 38 Filed 03/10/15 Page 8 of 8