IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JESSICA MILLER, et al., :

 :

Plaintiffs, :

 :

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

 : 

EDWIN J. SPENCE, et al., :

 :

Defendants. :

REPORT AND RECOMMENDATION

This case is before the Court on Plaintiffs’ Motion for 

Conditional Certification (Doc. 11), and Defendants’ Motion to 

Strike Plaintiffs’ Supplemental Evidentiary Submission (Doc. 

35). The motions, which have been fully briefed and are ripe 

for resolution, have been referred to the undersigned for a 

report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) 

and Local Rule 72.2(c). Upon consideration of all matters 

presented, the undersigned RECOMMENDS, for the reasons stated 

herein, that Plaintiffs’ Motion for Conditional Certification be 

granted, in part, and denied in part, and that Defendants’ 

Motion to Strike Plaintiffs’ Supplemental Evidentiary Submission 

be denied. 

I. Background Facts

Plaintiff Jessica Miller filed the instant action alleging 

that Defendants violated the Fair Labor Standards Act (“FLSA”) 

by not paying servers and bartenders the required minimum wage. 

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(Doc. 1). In the Complaint, Miller alleges that Defendant Edwin 

J. Spence is the owner of Defendant Port II Seafood & Oyster 

Bar, Inc., Defendant The Shrimp Basket, Inc., and Defendant Gulf 

Coast Steamer, Inc., and through these companies, he operates 

the Steamer restaurant in Gulf Shores (hereinafter “Steamer”), 

Mikee’s Seafood in Gulf Shores (hereinafter “Mikee’s”), and 

twenty Shrimp Basket (“Shrimp Basket”) restaurants in 

Mississippi (2), Florida (8) and Alabama (10). Defendant Edwin 

Spencer, Jr. is alleged to be the son of Edwin S. Spence, Sr., 

the general manager of Mikee’s Seafood, and the district manager 

for several of the other referenced restaurants. (Id. at 1-3).

In her Complaint, Plaintiff Miller asserts that she was 

employed by Defendants as a server/bartender in the Gulf Shores

restaurant,1 that she was paid an hourly wage of $2.13 as a 

server, and $5.00 as a bartender, and that Defendants required 

servers/bartenders to remit a portion of their tips each shift 

to a tip pool, that was improperly distributed to employees who 

do not customarily receive tips, such as food expeditors, oyster 

shuckers, and dishwashers. (Id. at 4-5). Miller further alleges 

that while working as a server, she, and other servers, were 

required to perform cleaning and other side work “off the clock” 

 1 Miller does not identify at which of Defendants’ Gulf 

Shores restaurants she worked.

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before and after their regularly scheduled shifts, were not 

permitted to “clock in” until customers were seated in their 

section, and if they were designated as closers, they would be 

permitted to remain “on the clock” and would be assigned 

additional cleaning duties, but would only be compensated at the 

non-tip producing wage. (Id.). Finally, Miller alleges that 

Defendant Edwin Spence Jr., District Manager, instructed 

managers and assistant managers to "roll back" or reduce the 

hours recorded if employees worked over forty hours a week, in 

order to avoid paying employees their overtime rate. (Id. at 

10). Miller asserts that all other similarly situated servers 

were subject to Defendants' illegal pay practices and are 

similarly situated for purposes of their job duties. (Id.)

In her Motion for Conditional Certification (Doc. 11), 

Miller asks the court to conditionally certify this matter as a 

collective action and to order court-facilitated notice to all 

current and former employees, including servers and bartenders, 

of Defendants Mikee’s, Steamer, and Shrimp Basket restaurants 

who were paid below minimum wage and were required to contribute 

a portion of their tips to non-tipped employees. According to 

Miller, Defendants violated the FLSA by requiring her and other 

“tipped” employees to remit a portion of their tips to 

Defendants for the purpose of distributing monies to non-tipped 

employees. Miller asserts that “[t]his policy was uniformly 

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applied to the entire putative class, rendering the putative 

class members ‘similarly situated’ for the purposes of 

conditional certification.” (Id. at 8). The proposed class for 

conditional certification is described as:

all current and former employees, including servers,

of Mikee’s Seafood, the Shrimp Basket, and Steamer who 

were paid a cash wage less than minimum wage 

(excluding any credit for tips retained), or for whom 

Defendant claimed a “tip credit” while requiring 

employees to contribute a portion of their tips to 

food expeditors, dishwashers, oyster shuckers and/or 

other non-tipped employees from November 19, 2011 

through November 19, 2014.

(Id.).

In support of the motion, Miller submitted the declarations 

of Rebeka Norwood, Richard Boyett, and Tyra Gardner. (Docs. 11-

1, 11-2, 11-3). In her Declaration, Norwood asserts that she 

worked as a server at the Shrimp Basket in Gulf Shores, Foley,

and Orange Beach, Alabama from January 2013 through February 

2014, that she was paid $2.13 per hour, plus tips, and that she 

was required to contribute a portion of her tips to food 

expeditors, who did not interact with customers.2 (Doc. 11-1).

Richard Boyett avers that he worked as a server at Mikee’s 

in Gulf Shores starting in March 2013, that in October 2013, he 

 2

 Norwood also makes assertions about the performance of 

non-tipped duties; however, Miller’s Motion for Conditional 

Certification seeks to certify a class based on Defendants’ tip 

pooling policy.

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worked as a manager, and that his employment ended in September 

2014. Boyett asserts that as a server, he was paid $2.13 per 

hour, with tips, and that he was required to contribute $2.00

from his tips to food expeditors, who did not interact with 

customers, and 2% of his tips to dishwashers.3 (Doc. 11-2).

Tyra Gardner avers that she worked as a server at Mikee’s 

and Steamer in Gulf Shores, Alabama from March through July 

2014. According to Gardner, as a server, she was required to 

contribute to a tip pool for food expeditors, who did not 

interact with customers, oyster shuckers (at Mikee’s) and 

dishwashers based on a formula that utilized her food sales.4

Gardner further asserts that she believes that there are others 

who would join the lawsuit if given notice. (Doc. 11-3).

Also included in support of the Motion for Conditional 

Certification are four consent forms executed by Richard Boyett, 

Darlla Longo Bezerra, James Chadwick Franks, and Rebecca 

Norwood. (Docs. 11-4, 11-5, 11-6, 11-7). The consent form 

 3 Boyette also makes assertions about the performance of 

non-tipped duties, and alleged “off the clock” work; however, 

Miller’s Motion for Conditional Certification is confined to 

Defendants’ tip pooling policy. (Doc. 11-2).

4 Gardner also makes assertions about the performance of 

non-tipped duties at the $2.13 rate, not being allowed to clock 

in until she had a table to serve, and working “off the clock”; 

however, Miller’s Motion for Conditional Certification is 

confined to Defendants’ tip pooling policy. (Doc. 11-3).

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relates solely to Defendants’ policy or practice of requiring 

servers/bartenders to contribute to a tip pool, which included 

expeditors, dishwashers, or other kitchen staff. (Doc. 11-9) 

While Boyett, Bezerra, Franks, and Norwood express an interest 

in joining this action, Bezerra’s form does not indicate at 

which of Defendants’ restaurant she was employed. Franks’ form 

reflects that he was employed by Mikee’s Seafood in Gulf Shores, 

Alabama, from May 2013 to August 2014 as a server at $2.13 per 

hour, and that he was required to contribute to a tip pool that 

benefited expeditors and dishwashers. 

Defendants have denied the substantive allegations in 

Miller’s Complaint and opposed the Motion for Conditional 

Certification. In their Response in Opposition, Defendants 

acknowledge that servers at Mikee’s, Shrimp Basket, and Steamer 

are paid an hourly wage of $2.13 plus tips, and that they are 

required to contribute a percentage of their tips, based on 

their total food sales, to a tip pool. According to Defendants, 

the certification motion should be denied for a myriad of 

reasons, including that Miller is not similarly situated to the 

putative class members. (Doc. 24). Defendants have also 

submitted competing affidavits from twelve current and two 

former employees who dispute Miller’s substantive allegations. 

(Docs. 24-1, 24-2, 24-3, 24-4, 24-5, 24-6, 24-7, 24-8, 24-9, 24-

10, 24-11, 24-12, 24-13, 24-14). 

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Subsequent to the filing of her Motion for Conditional 

Certification, Miller filed a motion to amend her complaint in 

order to add five opt-in Plaintiffs, namely Richard Boyett, 

Rebeka Norwood, Darla Bezerra, James Franks, and Amber Race, as 

named Plaintiffs. (Doc. 25). In an order dated March 10, 2015, 

the motion was granted, in part. (Doc. 38). The Court observed 

that the allegations raised in Norwood’s and Boyett’s 

declarations reflect that they were employed as servers at 

Defendants’ restaurants, that like Miller, they alleged that 

they were required to contribute to a tip pool with non-tipped 

employees, and that they were required to perform “work off the 

clock” both before and after their respective shifts. Because 

their allegations are substantially similar to those of 

Plaintiff Miller, the Court granted Plaintiffs’ Motion as to 

Norwood and Boyett. (Id.) The Court denied the Motion with 

respect to Darla Bezerra, James Franks, and Amber Race because 

their consent forms did 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).” 

(Doc. 38 at 7).

II. Defendants’ Motion to Strike Miller’s Supplemental

Evidentiary Submission in Support of Her Motion for 

Conditional Certification.

Before reaching the merits of the Motion for Conditional 

Certification, the Court addresses Defendants’ Motion to Strike 

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Miller’s Supplemental Evidentiary Submission in Support of Her 

Motion for Conditional Certification. (Doc. 35). Defendants 

seek to have stricken the declarations of Marie Vogel and Matt 

Boyington, which Miller submitted after the briefing period had 

closed. Defendants acknowledge that plaintiffs may file opt-in 

consent forms until such time as there is a ruling on a motion 

for certification, but argue that the declarations should be 

disregarded because they are untimely, and because they do not 

contain enough detail to rebut the detailed declarations 

submitted by Defendants. (Id.). In response, Plaintiffs argue 

that Vogel and Boyington did not contact Plaintiffs’ counsel 

until after the briefing period had closed, and that Defendants 

have failed to demonstrate any harm particularly in light of the 

fact that there is no dispute that the opt-in forms, which 

contain the same general information as the declarations, can be 

filed up until a decision is rendered on the certification 

motion. (Doc. 37). 

Upon consideration, the undersigned finds that the Motion 

to Strike is due to be denied. First of all, the Vogel and 

Boyington declarations confirm and elaborate on the information 

that is contained in the consent forms, which all agree were 

timely filed. Further, the declarations do not contain 

allegations that are being asserted for the first time. 

Instead, the Vogel and Boyington declarations raise allegations 

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regarding the existence of the tip pooling policy at the 

Steamer. These same allegations regarding the Steamer were also 

raised in the Gardner declaration, which was submitted in 

conjunction with the Motion for Conditional Certification. 

Similar to the Gardner declaration, Vogel asserts that she 

worked as a server at Steamer from December 2010 through June 

2014, that the manager directed that “food runners”/expeditors 

were not to run food, and that while working at Steamer, she 

observed “food runners”/expeditors “plate the food” so the 

servers could deliver the food to the customers’ tables, but did 

not see them interact with the customers. 

Also, Boyington asserts that he too worked as a server at 

Steamer, and that he was required to contribute to a tip pool, 

which included employees who did not “run” food to customers’ 

tables. Given that the Vogel and Boyington declarations merely 

reiterate allegations that were made in the earlier filed 

Gardner declaration, and that were addressed by Defendants in 

its opposition to the Motion for Conditional Certification, the 

undersigned finds that striking the declarations is not 

warranted under the circumstances. Thus, Defendants’ motion is 

denied.

III. Framework for Conditional Class Certification.

The FLSA expressly authorizes a worker seeking unpaid 

compensation to bring a collective action on behalf of herself

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and “similarly situated” workers. See 29 U.S.C. Sec. 216(b).5

Unlike traditional class actions under Rule 23 of the Federal 

Rules of Civil Procedure (which binds all members of the class 

whether they choose to participate in the litigation or not), 

the FLSA § 216 (b) collective action is “opt-in,” that is,

workers are bound by the lawsuit’s results only if they 

affirmatively decide to participate by submitting written 

consent to the court. Anderson v. Cagle’s, Inc., 488 F.3d 945, 

950 n.3 (llth Cir. 2007)(“[U]nlike class actions governed by 

Rule 23 . . . FLSA collective actions require potential class 

members to notify the court of their desire to opt in to the 

action.”); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 

1216 (llth Cir. 2001); see also Grayson v. Kmart Corp., 79 F.3d 

1086, 1096 n.12 (llth Cir. 1996)(“[I]t is clear that the 

requirements for pursuing a § 216(b)class action are independent 

of, and unrelated to the requirements for class action under 

Rule 23 . . .”). 

The FLSA’s “opt–in” procedure was created “to avoid 

 5 § 29 U.S.C. § 216(b) provides:

An action . . . may be maintained against any employer

. . . 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 with 

the court in which such action is brought.

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multiple lawsuits where numerous employees have allegedly been 

harmed by a claimed violation or violations of the FLSA by a 

particular employer.” Prickett v. DeKalb County, 349 F.3d 1294, 

1297 (llth Cir. 2001). The Eleventh Circuit recommends that 

district courts utilize a two-stage analysis to determine

whether to certify a collective action under § 216(b). Anderson 

488 F.3d at 952; Hipp, 252 F.3d at 1218-19. 

“[A]t the initial stage, the district court’s decision [to 

conditionally certify a proposed class] is based primarily on 

the pleadings and any accompanying affidavits,” and as a result, 

courts utilize “a fairly lenient standard for determining 

whether plaintiffs are truly similarly situated.” Anderson, 488 

F.3d at 953 (citations omitted). The plaintiff’s burden at this 

stage is to show a reasonable basis for their claim that (1) 

there are putative class members who wish to opt-in and (2) 

those putative class members are similarly situated to the named 

plaintiffs with respect to their job requirements and pay 

provisions. Morgan v. Family Dollar Stores, Inc. 551 F.3d 1233, 

1260 (llth Cir. 2008); Robinson v. Ryla Teleservices, Inc., 2011 

U.S. Dist. LEXIS 147027 (S.D. Ala. Dec. 21, 2011). In 

establishing that they are similarly situated, plaintiffs “need 

only show that their positions are similar, not identical to the 

positions held by the putative class members”. Hipp, 252 F.3d at 

1217. Indeed, at this stage, plaintiffs can make the required 

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showing, which is not heavy, by proffering substantial 

allegations of class-wide [harm], that is, detailed allegations 

supported by affidavits which ‘successfully engage defendants’ 

affidavits to the contrary.” Id. at 1219; Grayson, 79 F.3d at 

1097. “If the court ‘conditionally certifies the class,’

putative class members are given notice and the opportunity to 

‘opt-in’”. Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 

F.3d 1240, 1243 n.2 (llth Cir. 2003)(quoting Hipp, 252 F.3d at 

1218). The decision to create an opt-in class under section 

216(b) lies within the Court’s discretion. Hipp, 252 F.3d at 

1219 (“The decision to create an opt-in class under § 216(b) . . 

. remains soundly within the discretion of the district 

court.”). 

The second stage is typically precipitated by a motion for 

“decertification” filed after discovery is largely complete. 

Cameron-Grant, Inc., 347 F.3d at 1243 n.2 (quoting Hipp, 252 

F.3d at 1218). At this stage, if the plaintiffs have 

established that they are similarly situated, the court allows 

the representative action to proceed to trial. If it is 

determined that the plaintiffs are not similarly situated, the 

court decertifies the class, the opt-in plaintiffs are dismissed 

without prejudice, and the class representative plaintiffs 

proceed to trial on their individual claims. Id. In determining 

whether to conditionally certify a FLSA action for notification 

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only purposes, the court does not review the underlying merits 

of the case. Kubiak v. S.W. Cowboy, Inc., 2014 U.S. Dist. LEXIS 

80225 (M.D. Fla. June 12, 2014)(citing Pares v. Kendall Lakes 

Auto, LLC, 2013 U.S. Dist. LEXIS 90499(S.D. Fla. Jun 27, 2013); 

Kerce v. W. Telemarketing Corp., 575 F. Supp. 2d 1354, 1358 

(S.D. Ga. 2008).

IV. Conditional Class Certification Analysis.

A. Other Individuals Seek to Join the Suit

As noted supra, plaintiffs must demonstrate that there are 

other employees who wish to opt-in. The courts have not 

established a magic number that is required to demonstrate that 

there are others who seek to join the action. However, courts 

have determined that as few as two or three can sometimes be 

sufficient to meet the plaintiff’s burden at this stage. See

Ciani v. Talk of Town Restaurant, Inc., 2015 U.S. Dist. LEXIS 

5580 (M.D. Fla. Jan. 16, 2015)(holding that that the presence of 

two opt-in plaintiffs who filed declarations describing their 

working conditions and their desire to join the lawsuit was 

sufficient to demonstrate that others desired to join the 

lawsuit); Stuven v. Tex. De Braz. Corp., 2013 U.S. Dist. LEXIS 

22240 (M.D. Fla. Feb. 19, 2013)(finding that the plaintiff’s 

complaint, in combination with the declarations and presence of 

three additional opt-in plaintiffs, presented adequate evidence 

that others desired to join the action); Robbins-Pagel v. WM.F. 

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Puckett, Inc., 2006 U.S. Dist. LEXIS 85253 (M.D. Fla. Nov. 22, 

2006)(finding that three affidavits alleging claims of unpaid 

overtime was sufficient to establish that other individuals were 

interested in joining the action; Dieujuste v. R.J. Elec., Inc., 

2007 U.S. Dist. LEXIS 100531 (S.D. Fla. Aug. 21, 2007)(granting 

conditional certification when two individuals sought overtime 

wages against the same employer and each filed a declaration).

In this action, Miller submitted declarations from five 

individuals who described their working conditions as servers at 

Mikee’s, Steamers, and/or the Shrimp Basket in Gulf Shores, 

Foley, and Orange Beach. Four of the five, namely Norwood, 

Boyett, Vogel, and Boyington, also submitted consent forms 

indicating their desire to join this lawsuit. As noted supra, 

the Court granted Plaintiff Miller’s motion to add Norwood and 

Boyett as named plaintiffs after determining that the 

allegations in their declarations were substantially similar to 

those in Miller’s complaint. Additionally, two other 

individuals, Bezerra and Franks, have also executed consent 

forms expressing their interest in joining this action. 

Defendants have not seriously contested Plaintiffs’ showing that 

there are other employees who desire to opt into this action, 

and as it relates to the Steamer, Mikee’s, and the Shrimp Basket 

restaurants located in Gulf Shores, Orange Beach, and Foley, the 

undersigned finds that Plaintiffs have met their burden of 

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establishing that there are other individuals who desire to join 

this litigation. However, the record is devoid of any evidence 

that there are others outside of the Gulf Shores, Orange Beach,

and Foley locations who desire to join this action. Thus, 

Plaintiffs have not made the necessary showing with respect to 

Defendants’ establishments outside of Gulf Shores, Orange Beach,

and Foley.

B. The Employees are Substantially Similar.

In determining whether the named plaintiffs are in fact 

sufficiently similar for § 26(b) purposes so as to warrant 

conditional class certification, courts have not established a 

bright line nor formulated a one-size-fits-all approach. See

Longcrier v. HL-A Co., Inc., 595 F. Supp. 2d 1218, 1233 (S.D. 

Ala. 2008)(citing Gerlach v. Wells Fargo & Co., 2006 U.S. Dist. 

LEXIS 24823, 2006 WL 824652, *1 (N.D. Cal., Mar. 28, 

2006)(noting that FLSA does not define “similarly situated” and 

there is little circuit law doing so.). In Hipp, the Eleventh 

Circuit held that plaintiffs can meet their burden “by making 

substantial allegations of class-wide violations, that is, 

detailed allegations supported by affidavits which successfully 

engage defendants affidavits to the contrary”. Hipp, 252 F.3d at 

1219(citation omitted).

In this case, the Complaint attacks three of Defendants’ 

policies/practices; however, the motion seeking conditional 

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certification narrows the focus to Defendants’ tip pool 

policy/practice, and asserts that Defendants require servers and 

bartenders to contribute a portion of their tips to a tip pool 

that includes “non-tipped” employees, such as dishwashers or 

employees who have no-contact with customers. In support of the 

Motion, Plaintiffs have submitted declarations from individuals 

who worked as servers at Mikee’s, Steamers, and the Shrimp 

Basket locations in Gulf Shores, Foley, and Orange Beach, and 

who assert that as servers, they were paid an hourly wage of 

$2.13 and were required to contribute to a tip pool that 

included employees who do not have contact with customers. 

Under the FLSA, it is permissible for an employer to pay an 

employee cash wages below the minimum wage if the employer 

supplements the difference with the employee’s tips which is 

referred to as the employer taking a “tip credit.” Rubio v. Fuji 

Sushi & Teppani, Inc., 2013 U.S. Dist. LEXIS 8469 (M.D. Fla. 

Jan. 22, 2013)(citing 29 U.S.C. § 203(m)). In order for an 

employer to qualify for a “tip credit” under 29 U.S.C. § 203(m), 

the employer must establish that (1) the tip credit is claimed 

for qualified tipped employees; (2) the employees received 

proper notice of § 203(m); and (3) all tips received by the 

employees were retained by them, except when the employee 

participates in a valid tip pool with other customarily tipped 

employees. Garcia v. Koning Rest. Int’l, LLC, 2013 U.S. Dist. 

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LEXIS 186533 (S.D. Fla. May 10, 2013). If an employer fails to 

satisfy any of these preconditions, the employer may not claim 

the tip credit, regardless of whether the employee suffered 

actual economic harm as a result. Id.

Defendants argue that the Motion for Conditional 

Certification should be denied for a myriad of reasons, 

including that Plaintiff Miller has failed to show that she is 

similarly situated to the putative members of the collective 

class. According to Defendants, Miller has alleged that she 

worked as a server, bartender, and assistant manager in 

Defendants’ restaurants; yet, she does not identify which of 

Defendants’ restaurants that she worked in, and their records 

reflect that she worked exclusively for Mikee’s except for a 

single shift at Shrimp Basket. Defendants further contend that 

she is not similarly situated to the putative class members 

because she also performed the duties of a bartender and the 

evidence is undisputed that bartenders did not contribute to a 

tip pool. Defendants also contend that the fact that Plaintiff 

Miller also worked as an assistant manager further distinguishes 

her from the putative plaintiffs as she was paid $10 per hour, 

which is more than the minimum wage. Additionally, Defendants

assert that Miller’s claims regarding “side work” and “working 

off the clock” will require individualized treatment, and the 

class claim relates solely to the “tip pool” policy. Defendants 

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further contend that because their three restaurant brands have 

different concepts, and involve different menus and employee 

duties, they are not suitable for class treatment.

The undersigned finds that at this stage of the litigation, 

the differences asserted by Defendants are not sufficient to 

defeat conditional certification of this action as it relates to 

servers at Mikee’s, Steamers, and the Shrimp Basket locations in 

Gulf Shores, Orange Beach, and Foley. In this case, Plaintiffs 

have made a substantial showing that servers at the abovereferenced restaurants are treated similarly and are subject to 

the same hourly wage and the same policy/practice with regards 

to the tip pool. There is no dispute that Defendants paid 

servers at the above-referenced locations $2.13 per hour, that 

Defendants took a tip credit, and that Defendants required 

servers to contribute to a tip pool. Defendants’ policy and 

practice of requiring servers to contribute to a tip pool was 

applicable at each of the above-referenced restaurants. And, 

there is no question that the restaurants were owned by the same 

or closely related individuals and entities, and that there was 

some overlap in management and employees. Moreover, Plaintiffs 

have produced evidence that the tip pool impermissibly included 

non-tipped employees and thereby invalidated Defendants’ ability 

to claim the tip credit. 

Although Defendants assert and have submitted declarations 

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that the tip pool did not include impermissible employees, the 

court is not permitted to make merit determinations at this 

stage. See Ciani, 2015 U.S. Dist. LEXIS 5580 (M.D. Fla. Jan. 16, 

2015)(defendants’ competing affidavits challenging the 

plaintiffs’ allegations regarding overtime and the tip credit 

far exceeded the court’s limited inquiry at the notice stage of 

the conditional certification process); Reyes v. AT&T Mobility 

Servs. LLC, 801 F. Supp. 2d 1350, 1358 (in ruling on a motion 

for conditional certification, the court declined to engage in a 

“credibility battle” of the affidavits at the first stage); 

Creely v. HCR Manorcare Inc., 789 F. Supp. 2d 819, 839 (N.D. 

Ohio 2011)(“[T]his court is not swayed by [defendants’] 

submission of thirty-five ‘happy camper’ affidavits . . . These 

affidavits are of little use at this juncture . . . the courts’

function at this stage of conditional certification is not to 

perform a detailed review of individual facts from employees 

hand-picked by [the defendant]. Those questions of breadth and 

manageability of the class are left until the second stage 

analysis following the receipt of forms from all opt-in 

plaintiffs”). Accordingly, based upon the record before the 

Court, the undersigned finds that Plaintiffs have met their 

burden with respect to servers and the tip pool policy utilized 

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by Defendants at Mikee’s, Steamers, and the Shrimp Basket 

locations in Gulf Shores, Orange Beach, and Foley.6 See

Longcrier, 595 F. Supp. 2d. at 1241( “[T]he critical inquiry for 

defining the scope of the class is whether all included 

prospective class members are similarly situated, meaning that 

they are all collectively victims of a single policy or plan.”). 

While Plaintiffs seek to certify a class including all 

employees, including servers and bartenders at the abovereferenced restaurants, plus other Shrimp Basket restaurants 

located in other parts of Alabama, Florida, and Mississippi, 

they have presented no evidence that bartenders at any of 

Defendants’ restaurants were required to contribute to a tip 

pool. There is also no evidence before this Court that 

individuals who worked in those locations desire to join this 

action, or that servers at those locations were required to 

contribute to tip pools that were distributed to non-tip 

employees. Accordingly, the Motion for Certification is due to 

 6 The undersigned stresses that this is a preliminary finding and 

that it is possible that at the end of discovery, the addition 

of Plaintiffs’ claims regarding “off the clock” work and “side 

work” might yield a different result in a stage two 

certification analysis. See Longcrier, 595 F. Supp. 2d at 1238. 

(While the defendants’ affidavits created factual disputes as to 

whether all hourly employees were subject to the same policies, 

such disputes were properly addressed after discovery at the 

second stage of the FLSA collective action process, if and when 

a motion to decertify was filed.). 

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be denied with respect to bartenders and non-server employees, 

as well as individuals who were employed at Shrimp Basket 

locations other than Gulf Shores, Orange Beach, and Foley. See

Gonzalez v. TZ Insurance Solutions, LLC, 2014 U.S. Dist. LEXIS 

40188 (M.D. Fla. March 26, 2014)(where there was no evidence 

before the court bearing on whether defendants followed the same 

procedures outside the state of Florida, court determined that 

it was appropriate to limit breadth of the action to the 

defendants’ locations in Florida.)

In sum, the undersigned recommends that Plaintiffs’ Motion 

for Conditional Certification be granted in part and denied in 

part, that the class be conditionally certified as to 

individuals who were employed as servers at Mikee’s, Steamers, 

and Shrimp Basket restaurants located in Orange Beach, Gulf 

Shores, and Foley between November 19, 2011 and November 2014, 

and were required to contribute to a tip pool that included 

employees customarily not entitled to tips. 

The undersigned further recommends that Defendants be 

required to produce to Plaintiffs’ counsel, in a mutually 

agreeable format, a list containing the name and current or last 

known address of all current and former servers whom Defendants

employed at Mikee’s, Steamer, and Shrimp Basket restaurants in 

Orange Beach, Gulf Shores, and Foley during between November 19, 

2011 and November 2014.

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Finally, the undersigned recommends that counsel for the 

parties be directed to confer and to submit to the court a 

mutually agreeable form of notice of opt-in rights for the 

Court’s approval. See Dybach v. State of Fla. Dep’t of 

Corrections, 942 F.2d 1562, 1567 (llth Cir. 1991)(concluding 

that the district courts are empowered to give notice to 

prospective opt-in plaintiffs under § 216(b) of their right to 

opt in if they so desire, provided that the “similarly situated” 

threshold is satisfied.); Gonzalez v. TZ Insurance Solutions, 

LLC, 2014 U.S. Dist. LEXIS 40188 (M.D. Fla. March 26, 

2014)(“Court-authorized notice in a class action context helps 

to prevent ‘misleading communications’, and ensures that the 

notice is ‘timely, accurate and informative.’” (citation 

omitted).

Notice of Right to File Objections

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who 

objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. ALA. L.R. 72.4. 

In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the Magistrate 

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Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this the 25th day of March, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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