Case 5:22-cv-00006-JPB Document 1 Filed 01/07/22 Page 1 of 22 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`WHEELING DIVISION
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`CASE NO.
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`JUDGE
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`JURY DEMANDED
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`CHASITY D. ADKINS,
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`Individually and on behalf
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`of all others similarly situated
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`Plaintiffs,
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`v.
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`MT. NEBO FOODS, LLC
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`d/b/a DEE JAY’S BBQ RIBS & GRILLE
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`DEWEY J. GUIDA ENTERPRISES,
`INC. d/b/a DEE JAY’S BBQ RIBS AND
`GRILLE,
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`DEWEY J. GUIDA
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`MICHAEL MCMULLEN
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`Defendants.
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`COLLECTIVE AND CLASS ACTION COMPLAINT
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`Plaintiff Chasity D. Adkins (“Plaintiff Adkins”, “Named Plaintiff”), on behalf of herself
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`and all current and former non-exempt employees (hereinafter “Named Plaintiff and the Putative
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`Class Members”) who worked for Mt. Nebo Foods, LLC dba Dee Jay’s BBQ Ribs & Grille
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`(“Defendant Mt. Nebo”), Dewey J. Guida Enterprises, Inc. dba Dee Jay’s BBQ Ribs And Grille
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`(“Defendant Guida Ent.”), Dewey J. Guida (“Defendant Guida”) and Michael McMullen
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`(“Defendant McMullen”) (collectively, “Defendants”) at any time from approximately January 6,
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`2019 through the final disposition of this matter, to recover compensation, liquidated damages,
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`and attorneys’ fees and costs pursuant to Sections 203, 207, and 216(b) of the Fair Labor Standards
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`Act of 1938 (“FLSA”), as amended 29 U.S.C. § 216(b). Named Plaintiff and the Putative Class
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`-- 1 --
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`5:22-cv-6
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`Bailey
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`1/7/2022
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`Case 5:22-cv-00006-JPB Document 1 Filed 01/07/22 Page 2 of 22 PageID #: 2
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`Members seek all available relief under the applicable West Virginia Minimum Wage and
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`Maximum Hours Law; W. Va. Code §§ 21-5c-1, et seq., the West Virginia Payment and Collection
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`Act, W. Va. C.S.R. 42-5-1, et seq., and § 21-3-10A (“West Virginia Wage Acts”).
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`Named Plaintiff’s and the Putative Class Members’ FLSA claims are asserted as a
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`collective action under Section 16(b) of the FLSA, 29 U.S.C. § 216(b), while their additional state-
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`law claims are asserted as a class action under Fed. R. Civ. P. 23. The following allegations are
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`based on personal knowledge as to Named Plaintiff’s own conduct and are made on information
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`and belief as to the acts of others.
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`I.
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`INTRODUCTION
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`1.
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`Named Plaintiff and the Putative Class Members seek to recover minimum wages
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`that Defendants jointly owe them and have failed to pay, in violation of 29 U.S.C. § 206(a) of the
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`FLSA. Named Plaintiff and the Putative Class Members also allege that Defendants jointly
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`violated 29 U.S.C. § 203(m) of the FLSA which only allows employers to pay less than minimum
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`wage to employees who receive tips under very specific conditions. Defendants are not entitled to
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`apply a tip credit toward the Named Plaintiff’s and the Putative Class Members’ minimum wages,
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`as Defendants failed to (1) ensure that Named Plaintiff and the Putative Class Members retained
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`all the tips they received and (2) establish a valid tipping pool among employees who customarily
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`and regularly receive tips.
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`2.
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`In addition, Named Plaintiff and the Putative Class Members seek to recover
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`minimum wages Defendants jointly owe to them and have failed to pay, in violation of the West
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`Virginia Wage Acts.
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`3.
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`Accordingly, Plaintiff Adkins brings this action, individually and on behalf of all
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`current and former non-exempt employees who worked for Defendants at any time from January
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`6, 2019 through the final disposition of this matter, to recover unpaid wages and related damages.
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`4.
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`Named Plaintiff also prays that all similarly situated workers (Putative Class
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`Members) be notified of the pendency of this action to apprise them of their rights and provide
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`them an opportunity to opt-in to this lawsuit.
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`5.
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`Named Plaintiff also prays that the Collective and Class Actions are certified
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`pursuant to Section 216(b) of the FLSA and Fed. R. Civ. P. 23.
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`II.
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`JURISDICTION AND VENUE
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`6.
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`The jurisdiction of this Court is invoked pursuant to federal question jurisdiction
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`under 28 U.S.C. § 1331, in that this case arises under a federal law of the United States.
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`7.
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`This Court has supplemental jurisdiction over Named Plaintiff’s and the Putative
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`Class Members’ West Virginia Acts claims pursuant to 28 U.S.C. § 1367 because these claims are
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`so related to Plaintiff’s and the Putative Class Members’ claims under the FLSA that they form
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`part of the same controversy.
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`8.
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`Venue in the Northern District of West Virginia is proper pursuant to 28 U.S.C. §
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`1391(b) because a substantial part of the unlawful conduct described herein occurred within
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`Hancock County, West Virginia, and Defendants’ respective joint places of business reside in this
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`district.
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`III. THE PARTIES
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`9.
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`Plaintiff Adkins is an adult resident of West Virginia residing at 118 Wall Street,
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`Weirton, West Virginia 26062 (Hancock County). From approximately February 1, 2020 through
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`present, Named Plaintiff has worked jointly for Defendants. Named Plaintiff worked for
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`Defendants jointly in the State of West Virginia as Server and performed work out of its facility
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`in Hancock County, West Virginia. Named Plaintiff attaches her Notice of Consent pursuant to
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`Section 216 (b) of the FLSA as Exhibit 1.
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`10.
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`As a server, Named Plaintiff was an hourly, non-exempt joint employee of
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`Defendants as defined in the FLSA and the West Virginia Wage Acts.
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`Case 5:22-cv-00006-JPB Document 1 Filed 01/07/22 Page 4 of 22 PageID #: 4
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`11.
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`During the course of her respective joint employment with Defendants, Named
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`Plaintiff was not being fully and properly paid for all of her compensable hours worked because,
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`respectively, Defendants did not properly calculate her regular rate of pay as a consequence of
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`improper tip pooling, resulting in unpaid wages.
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`12.
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`The Putative Class Members are those current and former employees respectively
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`jointly employed by Defendants as servers at any time from January 6, 2019, through the final
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`disposition of this matter and have been subjected to the same illegal pay system under which
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`Plaintiff Adkins worked and was paid.
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`13.
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`Defendant Mt. Nebo Foods, LLC dba Dee Jay’s BBQ Ribs & Grille (“Defendant
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`Mt. Nebo”) is a foreign for-profit limited liability company registered in the State of Pennsylvania
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`and is currently doing business as Dee Jay’s BBQ Ribs & Grille at 380 Three Springs Dr., Weirton,
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`West Virginia 26062 (Hancock County). Process may be served upon its registered agent and
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`owner, Michael McMullen, at 505 Spanish Tract Road, Sewickley, Pennsylvania 15143.
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`14.
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`Defendant Dewey J. Guida Enterprises, Inc. dba Dee Jay’s BBQ Ribs and Grille
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`(“Defendant Guida Ent.”) is a domestic for-profit corporation registered in the State of West
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`Virginia and was doing business as Dee Jay’s BBQ Ribs and Grille from—in pertinent part—
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`January 6, 2019, until approximately October of 2021, when Defendant Guida Ent. Sold Dee Jay’s
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`BBQ Ribs and Grille to Defendant Mt. Nebo, wherein the tradename Dee Jay’s BBQ Ribs & Grille
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`was created. Process may be served upon Defendant Guida Ent.’s registered agent and president,
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`Dewey J. Guida, at 380 Three Springs Drive, Weirton, West Virginia 26062.
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`15.
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`Defendant Dewey J. Guida (“Defendant Guida”) is the president and registered
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`agent of Defendant Guida Ent. Process may be served upon him at 380 Three Springs Drive,
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`Weirton, West Virginia 26062.
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`16.
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`Defendant Michael McMullen (“Defendant McMullen”) is the owner and
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`registered agent of Defendant Mt. Nebo. Process may be served upon him at 505 Spanish Tract
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`Road, Sewickley, Pennsylvania 15143.
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`IV.
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`STATEMENT OF FACTS
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`17.
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`During all times material to this complaint, Defendants jointly acted directly or
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`indirectly, in the interest of an employer with respect to the Named Plaintiff and the Putative Class
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`Members.
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`18.
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`During all times material to this complaint, Defendants were respective joint
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`“employers” within the meaning of the FLSA and the West Virginia Wage Acts.
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`19.
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`During all times material to this complaint, Defendants were respective joint
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`enterprises engaged in commerce or in the production of goods for commerce within the meaning
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`of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said joint enterprises had employees
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`engaged in commerce or in the production of goods for commerce, or had employees handling,
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`selling, or otherwise working on goods or materials that have been moved in or produced for
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`commerce by any person, and in that said enterprise has had and has an annual gross volume of
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`sales made or business done of not less than $500,000 per year (exclusive of excise taxes at the
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`retail level).
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`20.
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`During all times material to this complaint, Named Plaintiff and the Putative Class
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`Members have been Defendants’ joint employees pursuant the West Virginia Wage Acts and have
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`been individual employees who were engaged in commerce or in the production of goods for
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`commerce, or were individual employees who were handling, selling, or otherwise working on
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`goods or materials that have been moved in or produced for commerce by any person as required
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`by 29 U.S.C. §§ 206-207.
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`21.
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`Defendant Guida Ent. and Defendant Guida jointly employed the Named Plaintiff
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`from approximately February 1, 2020, to approximately October of 2021 and some of the Putative
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`Class Members from approximately January 6, 2019, to approximately October of 2021.
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`Approximately sometime during October of 2021, Defendant McMullen and Defendant Mt. Nebo
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`jointly purchased the Dee Jay’s BBQ Ribs and Grille tradename and business from Defendant
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`Guida Ent. And Defendant Guida and changed the tradename from Dee Jay’s BBQ Ribs and Grille
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`to Dee Jay’s BBQ Ribs & Grille.
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`22.
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`During the purchase of the business, Defendant McMullen, and Defendant Mt.
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`Nebo jointly employed Named Plaintiff and some of the Putative Class Members and assumed the
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`same pay practices and policies utilized by Defendant Guida Ent. and Defendant Guida during the
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`latter’s employment of Named Plaintiff and the Putative Class Members.
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`23.
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`As a matter of economic reality, Defendant Guida Ent. and Defendant Guida jointly
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`employed Named Plaintiff and the Putative Class Members at Dee Jay’s BBQ Ribs and Grille (the
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`“Restaurant I”)—located at 380 Three Springs Drive, Weirton, West Virginia 26062—from
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`approximately January 6, 2019, to approximately October of 2021.
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`24.
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`As a matter of economic reality, Defendant Mt. Nebo and Defendant McMullen
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`jointly employed Named Plaintiff and the Putative Class Members at Dee Jay’s BBQ Ribs & Grille
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`(the “Restaurant II”)—located at 380 Three Springs Drive, Weirton, West Virginia 26062—from
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`approximately October of 2021 up to the present.
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`25.
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`During all times material to this complaint, Defendant Guida operated Restaurant I
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`and Defendant McMullen operated Restaurant II.
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`26.
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`During all times material to this complaint, Defendant Guida had significant
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`operational control of all or at least significant aspects of the day-to-day operations of the
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`Restaurant I and Defendant McMullen had significant operational control of all or at least
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`significant aspects of the day-to-day operations of the Restaurant II.
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`27.
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`During all times material to this complaint, Defendant Guida made decisions in
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`regard to significant aspects of the day-to-day functions, including the manner in which Named
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`Plaintiff and the Putative Class were paid and their job duties, of the Restaurant I and Defendant
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`McMullen had made decisions in regard to significant aspects of the day-to-day functions,
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`including the manner in which Named Plaintiff and the Putative Class were paid and their job
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`duties, of the Restaurant II.
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`28.
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`During all times material to this complaint, Defendant Guida had the authority to
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`hire and fire employees at Restaurant I, including Named Plaintiff and the Putative Class Members,
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`and Defendant McMullen had the authority to hire and fire employees at Restaurant II, including
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`Named Plaintiff and the Putative Class Members.
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`29.
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`During all times material to this Complaint, Defendant Guida directly supervised
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`Named Plaintiff and the Putative Class Members and controlled their work schedules and
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`employment conditions at Restaurant I.
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`30.
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`During all times material to this Complaint, Defendant McMullen directly
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`supervised Named Plaintiff and the Putative Class Members and controlled their work schedules
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`and employment conditions at Restaurant II.
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`31.
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`During all times material to this Complaint, Defendant Guida had the ability to set
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`and determine the method and rate of Named Plaintiff’s and the Putative Class Members’
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`compensation at Restaurant I.
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`32.
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`During all times material to this Complaint, Defendant McMullen had the ability to
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`set and determine the method and rate of Named Plaintiff’s and the Putative Class Members’
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`compensation at Restaurant II.
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`33.
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`On approximately February 1, 2020, Defendant Guida Ent. and Defendant Guida
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`jointly hired Plaintiff Adkins to work as a server at Restaurant I.
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`34.
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`On approximately October of 2021, Defendant Mt. Nebo, and Defendant
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`McMullen (upon the purchase of the Dee Jay’s BBQ Ribs and Grille tradename and business)
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`jointly employed Plaintiff Adkins to work as a server at Restaurant II.
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`35.
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`Defendants, regardless of whether Plaintiff Adkins was working at Restaurant I or
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`Restaurant II, jointly employed Plaintiff Adkins as a server at their Restaurants for approximately
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`twenty-five (25) to thirty-five (35) hours per week for the time period from approximately
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`February 1, 2020 to the present.
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`36.
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`Upon information and belief, Defendant Guida Ent. and Defendant Guida jointly
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`employed managers at Restaurant I, all of whom collectively also (in addition to Defendant Guida
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`Ent. and Defendant Guida) had ultimate authority, had the authority to hire and fire employees,
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`control, and set employees’ respective work schedules, train employees, and interview potentially
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`new employees.
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`37.
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`Upon information and belief, Defendant Mt. Nebo and Defendant McMullen jointly
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`employed managers at Restaurant II, all of whom collectively also (in addition to Defendant Mt.
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`Nebo and Defendant McMullen) had ultimate authority, had the authority to hire and fire
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`employees, control, and set employees’ respective work schedules, train employees, and interview
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`potentially new employees.
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`38.
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`During all times relevant to this Complaint, Defendants’ managers (regardless of
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`whether they worked at Restaurant I or Restaurant II) shared with Defendants significant
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`operational control of all or at least significant aspects of the day-to-day operations of Defendants’
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`Restaurants, including the manner in which Named Plaintiff and the Putative Class were paid and
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`their job duties.
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`39.
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`During all times relevant to this Complaint, Defendants’ managers shared with
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`Defendants, as exempt employees, the authority to hire and fire employees, including Named
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`Plaintiff and the Putative Class Members.
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`40.
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`During all times relevant to this Complaint, Defendants’ managers (regardless of
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`whether they worked at Restaurant I or Restaurant II) shared with Defendants’ control of the
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`Named Plaintiff’s and the Putative Class Members’ work schedule.
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`41.
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`During all times relevant to this Complaint, Defendants’ managers (regardless of
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`whether they worked at Restaurant I or Restaurant II) shared with Defendants’ control of Named
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`Plaintiff’s and the Putative Class Members’ employment conditions.
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`42.
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`During all times relevant to this Complaint, Defendants failed to pay the Named
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`Plaintiff and the Putative Class Members the minimum wage.
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`43.
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`At Restaurant I, Defendant Guida Ent. and Defendant Guida jointly employed the
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`policy of requiring 3% of each server’s total sales to be paid out and subsequently shared between
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`managers, kitchen staff, and hosts/hostesses. The majority, if not all, of this pay-out was paid from
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`the servers’ own tips.
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`44.
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`At Restaurant II, Defendant Mt. Nebo and Defendant McMullen jointly employed
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`the policy of requiring 3% of each server’s total sales to be paid out and subsequently shared
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`between managers, kitchen staff, and hosts/hostesses. The majority, if not all, of this pay-out was
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`and continues to be paid from the servers’ own tips.
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`45.
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`As the Named Plaintiff and the Putative Class Members are servers, they were and
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`are subjected to this policy at both Restaurant I and Restaurant II.
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`46.
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`Upon information and belief, a total of approximately $4000 in tips in a respective
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`week could be shared between employees who do not customarily and regularly receive tips as a
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`result of these policies at Restaurant I and Restaurant II.
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`47.
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`During all times material to this Complaint, Defendant Guida Ent. and Defendant
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`Guida jointly required the Named Plaintiff and the Putative Class Members to pay a portion of the
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`tips they received to the management, kitchen staff, and hosts and hostesses of Restaurant I.
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`48.
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`During all times material to this Complaint, Defendant Mt. Nebo and Defendant
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`McMullen jointly required the Named Plaintiff and the Putative Class Members to pay a portion
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`of the tips they received to the management, kitchen staff, and hosts and hostesses of Restaurant
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`II.
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`49.
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`During all times material to this Complaint, Defendant Guida Ent. and Defendant
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`Guida jointly failed to pay the Named Plaintiff and the Putative Class Members the correct amount
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`of wages resulting in the failure to pay the federal and West Virginia minimum wages.
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`50.
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`During all times material to this Complaint, Defendant Mt. Nebo and Defendant
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`McMullen jointly failed to pay the Named Plaintiff and the Putative Class Members the correct
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`amount of wages resulting in the failure to pay the federal and West Virginia minimum wages.
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`51.
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`Defendant Guida Ent. and Defendant Guida jointly did not satisfy the federal or
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`West Virginia requirements for applying a tip credit to the Named Plaintiff’s and the Putative Class
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`Members’ wages.
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`52.
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`Defendant Mt. Nebo and Defendant McMullen jointly did not satisfy the federal or
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`West Virginia requirements for applying a tip credit to the named Plaintiff’s and the Putative Class
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`Members’ wages.
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`53.
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`Upon information and belief, Named Plaintiff and the Putative Class Members
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`complained to Defendant Guida and management when Defendant Guida operated Restaurant I
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`and to Defendant McMullen and management when Defendant McMullen operated Restaurant II
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`about the improper nature of their respective tip-pooling policies.
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`54.
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`Upon information and belief, Defendant Guida Ent. and Defendant Guida were
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`subjected to a Department of Labor (“DOL”) investigation in the past for the improper nature of
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`their tip-pool policy.
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`55.
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`Upon information and belief, Defendant Mt. Nebo and Defendant McMullen are
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`currently being subject to a DOL investigation for the improper nature of their tip-pool policy.
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`56.
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`Upon information and belief, during the first DOL investigation, Defendant Guida
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`coached employees to tell the DOL investigators that managers were servers and that they worked
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`80% of the time bussing tables, when—in reality—they did not.
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`57.
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`The federal and West Virginia Wage Act violations that are the basis of this
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`complaint that occurred from January 6, 2019, until approximately October of 2021 at Restaurant
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`I continued under the new ownership at Restaurant II from approximately October of 2021 and
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`upon information and belief continue as of the filing of this Complaint.
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`58.
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`Defendants jointly, knowingly, willfully, or with reckless disregard carried out its
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`illegal pattern or practice of failing to pay minimum wage with respect to the Named Plaintiff and
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`the Putative Class Members in this action.
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`V.
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`CAUSES OF ACTION
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`COLLECTIVE ACTION ALLEGING FLSA VIOLATIONS
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`A. FLSA COVERAGE
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`Named Plaintiff re-alleges, and incorporates by reference, the allegations set forth
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`59.
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`in the preceding paragraphs.
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`60.
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`The FLSA Collective is defined as:
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`All servers who have been employed by Dewey J. Guida Enterprises, Inc. d/b/a
`Dee Jay’s BBQ Ribs and Grille, at any time from January 6, 2019, through the
`final disposition of this matter and all servers who have been employed by Mt.
`Nebo Foods, LLC d/b/a Dee Jay’s BBQ Ribs & Grille, at any time from
`January 6, 2019, through the final disposition of this matter. (“FLSA
`Collective” or “FLSA Collective Members”).
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`61.
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`Named Plaintiff reserves the right to amend and refine the definition of the FLSA
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`Collective class she seeks to represent based upon further investigation and discovery.
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`62.
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`At all times hereinafter mentioned, Defendant Guida Ent. and Defendant Guida
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`have been a joint enterprise within the meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r).
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`63.
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`At all times hereinafter mentioned, Defendant Mt. Nebo and Defendant McMullen
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`have been a joint enterprise within the meaning of Section 3(r) of the FLSA, 29 U.S.C § 203(r).
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`64.
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`At all times hereinafter mentioned, Defendant Guida Ent. and Defendant Guida
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`have been a joint enterprise engaged in commerce or in the production of goods for commerce
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`within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said enterprise
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`has had employees engaged in commerce or in the production of goods for commerce, or
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`employees handling, selling, or otherwise working on goods or materials that have been moved in
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`or produced for commerce by any person, or in any closely related process or occupation directly
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`essential to the production thereof, and in that that enterprise has had, and has, an annual gross
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`volume of sales made or business done of not less than $500,000.00 (exclusive of excise taxes at
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`the retail level which are separately stated).
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`65.
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`At all times hereinafter mentioned, Defendant Mt. Nebo and Defendant McMullen
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`have been a joint enterprise engaged in commerce or in the production of goods for commerce
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`within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said enterprise
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`has had employees engaged in commerce or in the production of goods for commerce, or
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`employees handling, selling, or otherwise working on goods or materials that have been moved in
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`or produced for commerce by any person, or in any closely related process or occupation directly
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`essential to the production thereof, and in that that enterprise has had, and has, an annual gross
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`volume of sales made or business done of not less than $500,000.00 (exclusive of excise taxes at
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`the retail level which are separately stated).
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`66.
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`During the respective periods of Named Plaintiff and the Putative Class Members’
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`employment by Defendants, these individuals have provided services for Defendants that involved
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`interstate commerce for purposes of the FLSA.
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`67.
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`In performing the operations hereinabove described, Named Plaintiff and the
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`Putative Class Members have been engaged in commerce or in the production of goods for
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`commerce within the meaning of §§ 203(b), 203(i), 203(j), 206(a), and 207(a) of the FLSA. 29
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`U.S.C. §§ 203(b), 203(i), 203(j), 206(a), 207(a).
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`
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`

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`68.
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`Specifically, Named Plaintiff and the Putative Class Members are (or were) non-
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`exempt employees of Defendants who assisted customers, wherever they were from. 29 U.S.C. §
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`203(j).
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`69.
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`At all times hereinafter mentioned, Named Plaintiff and the Putative Class
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`Members are (or were) individual employees who were engaged in commerce or in the production
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`of goods for commerce as required by 29 U.S.C. §§ 206-07.
`
`70.
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`The proposed class of similarly situated employees, i.e. Putative Class Members,
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`sought to be certified pursuant to 29 U.S.C. § 216(b), is defined in Paragraph 60.
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`71.
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`The precise size and identity of the proposed FLSA Collective class should be
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`ascertainable from the business records, tax records, and/or employee and personnel records of
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`Defendants.
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`72.
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`Collective action treatment of Named Plaintiff’s and the FLSA Collective
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`Members’ claims are appropriate because Named Plaintiff and the FLSA Collective Members have
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`been subjected to the common joint business practices referenced in the paragraphs above, and the
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`success of their claims depends upon the resolution of common issues of law and fact, including
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`inter alia, whether Defendants jointly satisfied the FLSA’s requirements for payment of the
`
`statutory minimum wages.
`
`73.
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`The Named Plaintiff and the FLSA Collective Members have been similarly
`
`affected by the joint violations of Defendants in workweeks during the relevant time period, which
`
`amount to a single decision, policy, or plan to avoid paying all earned minimum wages.
`
`74.
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`Named Plaintiff is similarly situated to the FLSA Collective Members and will
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`prosecute this action vigorously on their behalf.
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`75.
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`Named Plaintiff intends to send notice to all of the FLSA Collective Members
`
`pursuant to Section 216 (b) of the FLSA. The names and addresses of the FLSA Collective
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`Members are available from Defendants’ joint records.
`
`
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`-- 13 --
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`RULE 23 CLASS ACTION ALLEGATIONS
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`76.
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`Named Plaintiff brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and (b)(3)
`
`on behalf of the following putative Class (“Rule 23 Class”). The Rule 23 Class is defined as
`
`follows:
`
`All servers who have been employed by Dewey J. Guida Enterprises, Inc. d/b/a
`Dee Jay’s BBQ Ribs and Grille, at any time from January 6, 2019, through the
`final disposition of this matter and all servers who have been employed by Mt.
`Nebo Foods, LLC d/b/a Dee Jay’s BBQ Ribs & Grille, at any time from
`January 6, 2019, through the final disposition of this matter. (“FLSA
`Collective” or “FLSA Collective Members”).
`
`
`
`77.
`
`Named Plaintiff reserves the right to amend and refine the definition of the Rule 23
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`Class she seeks to represent based upon further investigation and discovery.
`
`78.
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`Numerosity: The putative Class Members from West Virginia are so numerous that
`
`joinder of all members in the case would be impracticable.
`
`79.
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`Commonality/Predominance: There is a well-defined community of interest among
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`Class members and common questions of both law and fact predominate in the action over any
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`questions affecting individual members. These common legal and factual questions, include, but
`
`are not limited to, the following
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`a. Whether the Rule 23 Class members are owed wages in connection with the
`respective tip-pool arrangements employed by Defendants;
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`b. Whether Defendants provided proper notice of the tip-credit to Named Plaintiff
`and each Rule 23 Class Member;
`
`c. Whether the respective tip-pool arrangements employed by Defendants are
`impermissible;
`
`d. Whether Defendants engaged in a policy or practice of improperly applying a tip-
`credit to each Rule 23 Class Member;
`
`e. Whether Defendants engaged in a policy or practice of failing to pay each Rule 23
`Class member regular wages or minimum wage for each non-overtime hour
`worked;
`
`f. Whether Defendants should be required to pay compensatory damages, attorneys’
`fees, penalties, costs, and interest for violating the state laws and wage acts
`
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`to
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`the
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`members
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`appliable
`
`g. Whether Defendants’ alleged unlawful tip policies were instituted willfully or with
`reckless disregard of the law.
`
`of
`
`the
`
`Rule
`
`23
`
`Class;
`
`
`
`80.
`
`Typicality: Named Plaintiff’s claims are typical of claims of the Rule 23 class she
`
`seeks to represent in that Named Plaintiff and all other members suffered damages as a direct and
`
`proximate result of Defendants’ common and systemic payroll policies and practices. Named
`
`Plaintiff’s claims arise from Defendants’ similar policies, practices, and course of conduct as all
`
`other Class members’ claims and Named Plaintiff’s legal theories are based on the same or similar
`
`facts.
`
`81.
`
`Adequacy: Named Plaintiff will fully and adequately protect the interests of the
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`Rule 23 Class and have retained counsel who are qualified and experienced in the prosecution of
`
`wage and hour class actions. Neither Named Plaintiff nor her counsel have interests that are
`
`contrary to, or conflicting with, the interests of the Rule 23 Class.
`
`82.
`
`Superiority: A class action is superior to other available methods for the fair and
`
`efficient adjudication of the controversy, because, inter alia, it is economically feasible for the
`
`Rule 23 Class members to prosecute individual actions of their own given the relatively small
`
`amount of damages at stake for each individual along with the fear of reprisal by their employer.
`
`83.
`
`This case will be manageable as a Rule 23 Class action. Named Plaintiff and her
`
`counsel know of no unusual difficulties in this case and Defendants all have networked computer
`
`and payroll systems that will allow the class, wage, and damages issues in this case to be resolved
`
`with relative ease.
`
`84.
`
`Because the elements the Rule 23(b)(3) are satisfied in this case, class certification
`
`is appropriate. Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393; 130 S. Ct.
`
`1431, 1437 (2010) (“[b]y its terms [Rule 23] creates a categorial rule entitling a plaintiff whose
`
`suit meets the specified criteria to pursue his claim as a class action”).
`
`
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`

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`Case 5:22-cv-00006-JPB Document 1 Filed 01/07/22 Page 16 of 22 PageID #: 16
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`COUNT I
`FAIR LABOR STANDARDS ACT (“FLSA”)
`MINIMUM WAGE
`
`Named Plaintiff re-alleges, and incorporates by reference, the allegations set forth
`
`85.
`
`in the preceding paragraphs.
`
`86.
`
`During the time period from approximately January 6, 2019, to approximately
`
`October of 2021, Defendant Guida Ent. and Defendant Guida (“Restaurant I Joint Employers”)
`
`were the joint employers of the Named Plaintiff and the FLSA Collective Class within the meaning
`
`of 29 U.S.C. § 203(d).
`
`87.
`
`During the time period from approximately October of 2021 to the present,
`
`Defendant Mt. Nebo and Defendant McMullen (“Restaurant II Joint Employers”) were and are the
`
`joint employer of the Named Plaintiff and the FLSA Collective Class within the meaning of 29
`
`U.S.C. § 203(d).
`
`88.
`
`During the time period from approximately January 6, 2019, to the present, Named
`
`Plaintiff and the FLSA Collective Class were jointly employed by either the Restaurant I Joint
`
`Employers or the Restaurant II Joint Employers within the meaning of 29 U.S.C. § 203(e)(1).
`
`89.
`
`During the time period from approximately January 6, 2019, to the present,
`
`Defendants respectively jointly employed the Named Plaintiff and the FLSA Collective Class
`
`within the meaning of 29 U.S.C. § 203(g).
`
`90.
`
`During the time period from approximately January 6, 2019, to the present,
`
`Defendants were respective joint employers subject to the FLSA.
`
`91.
`
`During all times material to this Complaint, Named Plaintiff and the FLSA
`
`Collective Class have not been exempt fro