IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RAVEN WILLIAMS, et al., )

 )

Plaintiffs, )

)

v. ) CIVIL ACTION 15-0123-WS-N

 )

ROBERT W. OMAINSKY, et al., )

 )

Defendants. )

ORDER

This matter comes before the Court on Defendant Wintzell’s, Inc.’s Motion for More 

Definite Statement (doc. 8) and Defendants’ Omainsky and Fried Stewed Nude, Inc.’s Motion 

for More Definite Statement (doc. 13). The Motions have been briefed and are now ripe for 

disposition.

I. Relevant Background.

Plaintiffs, Raven Williams, D’Andre Wilkerson, Tiffany Newburn, Danielle Powe, and 

Jennifer Hampton, filed their amended Collective Action Complaint (doc. 4) alleging violations 

of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), on March 17, 2015. The 

Complaint identifies all five plaintiffs as being current or former servers employed at a specific

Wintzell’s Oyster House restaurant described as the “Downtown Mobile restaurant location,” 

and recites dates of employment for each. (Doc. 4, ¶¶ 2-6.) According to the Complaint, 

plaintiff Newburn also worked at the Wintzell’s Oyster House restaurant in Saraland, Alabama 

during her employment dates. (Id., ¶ 4.)1

 1 The Complaint pinpoints the exact location of both restaurants, by specifying an 

address of 605 Dauphin Street, Mobile, AL 36602 for the “Downtown Mobile location” and an 

address of 1208 Shelton Beach Road, Saraland, AL 36571 for the “Saraland location.” (Doc. 4, 

¶ 9.) There is thus no ambiguity in the pleading as to the precise Wintzell’s locations where 

plaintiffs claim to have been employed and to have been harmed by alleged FLSA violations.

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The following four defendants are named in the Complaint: Robert W. Omainsky; 

Wintzells, Inc.; Fried, Stewed, Nude, Inc.; and Wintzell’s Oyster House. As pleaded, defendant 

Omainsky is the president of Wintzell’s Oyster House, and the other defendants are corporations 

conducting business in Alabama. (Doc. 4, ¶¶ 7-8.) No other details about the Wintzell’s 

corporate structure, or the relationship (if any) between the different entities are provided. That 

said, the Complaint specifies that Wintzell’s Oyster House has 11 locations, including the 

Downtown Mobile location, the Saraland location, eight more locations in Alabama

(predominantly in the southwestern part of the state), and one location in Pittsburgh, 

Pennsylvania. (Id., ¶ 9.) The Complaint alleges that each plaintiff “was employed by 

Defendants (also collectively referred to as ‘Wintzell’s Oyster House’)” during the time period at 

issue. (Id., ¶ 2.)

After reciting 19 paragraphs of detailed factual allegations (doc. 4, ¶¶ 12-30), the 

Complaint asserts causes of action against defendants for FLSA violations and unjust 

enrichment. With respect to the FLSA claim, plaintiffs’ pleading identifies several categories of 

alleged statutory violations, including each of the following: (i) defendants required plaintiffs to 

participate in an “invalid tip sharing scheme” that included non-tipped employees (dishwashers); 

(ii) defendants improperly claimed the FLSA tip credit for time that plaintiffs spent performing 

non tip-producing work at the beginning and end of their shifts; and (iii) defendants routinely 

instructed servers to clock out if they were close to 40 hours in a given workweek.

Defendants Wintzell’s, Inc., Robert W. Omainsky and Fried Stewed Nude, Inc. have all 

filed Motions for More Definite Statement pursuant to Rule 12(e), Fed.R.Civ.P.2 The grounds

 2

 The fourth named defendant, Wintzell’s Oyster House, has not filed a Rule 12(e) 

Motion, and indeed has not appeared at all, despite having purportedly been served with process 

more than three months ago, on March 16, 2015. (See doc. 6.) Defendant Wintzell’s, Inc. 

represents that Wintzell’s Oyster House “is not a distinct legal entity capable of being sued, but a 

brand mark which other entities use with permission.” (Doc. 8, at 2 n.1.) If plaintiffs contend 

otherwise, it is expected that they will file an appropriate application for entry of default against 

this defendant by no later than July 20, 2015; otherwise, plaintiffs should file an appropriate 

motion or stipulation dismissing that defendant or amending their pleading on or before that 

same date. Either way, this action cannot proceed indefinitely with defendant “Wintzell’s Oyster 

House” in legal and procedural limbo, having been served with process, not appearing or 

defending, and yet no default proceedings having been initiated against it. This loose end can 

and should be addressed now.

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for these Rule 12(e) Motions are movants’ objections that the Complaint improperly treats all 

defendants collectively and combines multiple alleged FLSA violations into a single count.

II. Analysis.

The Federal Rules of Civil Procedure authorize a defendant to move for a more definite 

statement only if a pleading to which response is allowed “is so vague or ambiguous that the 

party cannot reasonably prepare a response.” Rule 12(e), Fed.R.Civ.P. This standard is intended 

to – and does – erect a high bar, reflecting the disfavored status of the Rule 12(e) remedy. See, 

e.g., Fathom Exploration, LLC v. Unidentified Shipwrecked Vessel or Vessels, 352 F. Supp.2d 

1218, 1221-22 (S.D. Ala. 2005) (motions for more definite statement “are viewed with disfavor 

and are rarely granted,” and are “not a substitute for discovery”); Austin v. Auto Owners Ins. Co., 

2012 WL 3101693, *3 (S.D. Ala. July 30, 2012) (“Under clearly established law, motions for 

more definite statement are disfavored and are confined to such narrow circumstances as 

‘shotgun pleadings’ or unintelligible pleadings, not pleadings that are merely less detailed than a 

defendant might like.”) (collecting cases). Under settled law, “[a] motion for a more definite 

statement will only be required when the pleading is so vague or ambiguous that the opposing 

party cannot respond, even with a simple denial, in good faith or without prejudice to himself.” 

Fathom, 352 F. Supp.2d at 1221 (citation omitted).

Movants first balk that the Complaint repeatedly lumps all defendants together, without 

distinguishing precisely what each defendant is alleged to have done or setting forth any factual 

allegations establishing an agency relationship between them. In so objecting, defendants are 

quite correct that one characteristic of improper “shotgun pleadings” violative of Rule 8 is that 

they bunch all defendants together in an undifferentiated mass, without distinguishing one 

defendant’s alleged misconduct from the next. See, e.g., Magluta v. Samples, 256 F.3d 1282, 

1284 (11th Cir. 2001) (“The complaint is replete with allegations that ‘the defendants’ engaged in 

certain conduct, making no distinction among the fourteen defendants charged, though 

geographic and temporal realities make plain that all of the defendants could not have 

participated in every act complained of.”); Kabbaj v. Obama, 568 Fed.Appx. 875, 880 (11th Cir. 

June 13, 2014) (finding improper shotgun pleading where “the complaint refers to the defendants 

collectively, making it impossible to identify which particular defendant engaged in what 

allegedly wrongful conduct”).

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Notwithstanding these authorities, defendants’ “shotgun pleading” argument is misplaced 

with regard to this pleading’s failure to distinguish between defendants. In its present form, the 

Complaint clearly and unambiguously sets forth plaintiffs’ position that each of them “was 

employed by Defendants” (doc. 4, ¶¶ 2-6) and that “[a]t all times relevant to this action, 

Defendants were the ‘employer’ of Plaintiffs as defined by § 203(d) of the FLSA” (id., ¶ 11). In 

other words, plaintiffs are alleging that Wintzell’s, Inc., Fried Stewed Nude, Inc., and Wintzell’s 

Oyster House all qualify as their “employer” for FLSA purposes, and that Omainsky may be held 

liable for these alleged FLSA violations as a corporate officer of Wintzell’s Oyster House. This 

is not a case in which any defendant can reasonably complain that the plaintiff’s pleading is so 

vague and ambiguous that the defendant cannot discern what misconduct or omissions it is being 

accused of, as opposed to other defendants. As such, the line of authorities generally 

condemning collective references to defendants in pleadings has no application here.3

More to the point, recall that defendants are presenting this issue to the Court through the 

vehicle of Rule 12(e). To be entitled to relief under that narrowly circumscribed rule, defendants 

must show that the Complaint is so vague that they cannot respond to it with even a simple 

denial in good faith. Here, the Complaint pleads the time frame in which each of five named

plaintiffs worked at a Wintzell’s Oyster House restaurant, identifies the specific location(s) at 

which he or she worked, and alleges that each defendant qualified as his or her “employer” under 

the FLSA. Armed with that information (specific as to location, time and employer status), 

surely each defendant is well equipped to answer the Complaint in good faith as to whether it did 

or did not employ the plaintiffs and engage in the specified conduct.

4

 Simply put, the 

 3 Nor do movants bolster their Motion by likening plaintiffs’ Complaint against two 

(or possibly three) corporate defendants to a hypothetical lawsuit by a McDonald’s employee 

who “blindly sue[s] every McDonald’s franchisee and their officers because they operate under a 

common brand.” (Doc. 18, at 2.) At this time, the Court has been given no information and no 

reason to believe that the 11-location, two-state Wintzell’s Oyster House operation is analogous 

to the 35,000-store, 118-country McDonald’s enterprise, much less that the corporate hierarchy 

or franchise structure of the two entities is in any way comparable.

4 Defendant Wintzell’s, Inc. makes this very point in its reply by conceding that all 

that is necessary to determine which defendant(s) employed plaintiffs would be to have 

“Plaintiffs review their own pay stubs ... to determine the owner/operator of the locations where 

they claim to have worked.” (Doc. 18, at 2.) Defendants themselves must know the “owner/ 

operator” status of each of the two restaurant locations identified in the Complaint and, to the 

(Continued)

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Complaint’s references to defendants collectively do not render that pleading so unclear or 

imprecise that defendants are unable to frame responsive pleadings. This is not the kind of 

circumstance that might warrant application of the rare, disfavored Rule 12(e) remedy.

Next, movants maintain that Rule 12(e) relief is appropriate because “Plaintiffs’ 

Amended Complaint does not sufficiently delineate which practice or practices they allege 

violated the FLSA.” (Doc. 8, at 3.) Sure it does. From a plain reading of the Complaint, there 

can be no doubt that plaintiffs are alleging that defendants violated the FLSA by running an 

invalid tip pool (invalid because it included non-tipped dishwashers), claiming the FLSA tip 

credit for non-tip producing duties identified in extensive detail in the fact section of the 

pleading, and requiring plaintiffs to clock out when they neared 40 hours in a workweek (the 

implication being that they were then required to work off the clock). The Complaint includes 

19 paragraphs of detailed supporting factual allegations concerning these alleged violations, 

including a comprehensive description of the tip pool system, an explanation of why plaintiffs 

believe it to be illegal, and enumeration of literally dozens of activities / assigned non-tip 

producing duties that plaintiffs claim they were required to perform. Defendants cannot 

reasonably claim to be unable to discern from the Complaint “which practices or practices” 

plaintiffs contend are in violation of the FLSA.

Nor do movants strengthen their position by complaining that the singular FLSA count of 

the Complaint includes multiple alleged violations, rather than separating each alleged violation 

into a separate numbered count. Such an objection elevates form over substance. In the 

circumstances presented here, inclusion of multiple alleged FLSA violations in a single count in 

no way renders the Complaint an inscrutable “shotgun pleading” to which defendants cannot 

reasonably form a response in good faith. Simply put, the Court will not employ the narrow, 

disfavored Rule 12(e) remedy to require plaintiffs to file a new complaint that subdivides their 

one clearly pleaded FLSA claim into three FLSA subclaims based on unfounded “shotgun 

pleading” objections. Defendants cannot credibly be heard to complain that the Complaint 

disadvantages them by placing them in a situation in which each defendant cannot “determine 

 

extent they equate owner/operator status with “employer” for FLSA purposes (as they appear to 

be arguing), can answer plaintiffs’ pleading effectively.

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the exact nature of claims it faces.” (Doc. 8, at 5.) The Complaint is not an improper shotgun 

pleading. Compare Anderson v. District Bd. of Trustees of Cent. Florida Community College, 77 

F.3d 364, 366 (11th Cir. 1996) (shotgun pleading is one in which it is “virtually impossible to 

know which allegations of fact are intended to support which claim(s) for relief”).

This is not a case in which plaintiffs’ pleading merely “presented generalized allegations 

asserting violations of the minimum wage and overtime provisions of the FLSA by the 

defendants.” Landers v. Quality Communications, Inc., 771 F.3d 638, 646 (9th Cir. 2014). The 

Complaint identifies specific plaintiffs; recites their job titles, duties, dates of employment, and 

restaurant locations; asserts that all defendants qualify as their “employer” for FLSA purposes; 

and enumerates specific practices (with detailed supporting facts) that plaintiffs contend violated 

the FLSA. Nothing further is required to bring this pleading into compliance with Rule 12(e). 

III. Conclusion.

For all of the foregoing reasons, defendants’ Motions for More Definite Statement (docs. 

8 & 13) are DENIED. Defendants Robert W. Omainsky, Wintzell’s, Inc., and Fried Stewed 

Nude, Inc. are ordered to file responsive pleadings by no later than July 15, 2015. As for 

defendant Wintzell’s Oyster House, if that defendant has yet to appear or defend by July 20, 

2015, then plaintiffs must file either (i) an appropriate application for entry of default against this 

defendant; or (ii) an appropriate motion or stipulation dismissing that defendant or amending 

their pleading on or before that same date. Failing such action, the Court will assume that 

plaintiffs intend to abandon their claims against defendant “Wintzell’s Oyster House,” and will 

promptly dismiss same.5

DONE and ORDERED this 1st day of July, 2015.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 5 All movants state in their Rule 12(e) Motions that they “specifically reserve their 

right to move for dismissal pursuant to Fed. R. Civ. P. 12(b).” (Doc. 13, at 2; doc. 8, at 5.) To 

avoid needlessly dragging out preliminary motion practice, they could and should have 

combined their Rule 12(b) objections with their Rule 12(e) objections. At any rate, to the extent 

that defendants would revive the Twombly / Iqbal objections framed in their unsuccessful Rule 

12(e) Motions, this time in the form of Rule 12(b) motions, such motions will be summarily 

denied. Defendants’ previously-stated objections to the adequacy of plaintiffs’ pleading are 

unavailing whether couched in the terminology of Rule 12(e) or Rule 12(b). 

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