                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

EDWIN BONILLA,

                      Plaintiff,                          Civil Action No. 14-342 (BAH)

                      v.                                  Judge Beryl A. Howell

RED BEAN SYSTEM, INC., et al.,

                      Defendants.


                                   MEMORANDUM OPINION

       The plaintiff, Edwin Bonilla, brings this suit as a proposed collective action under the

Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and the District of Columbia

Minimum Wage Act (“DCMWA”), D.C. Code §§ 32-1001 et seq., alleging that the defendants,

Red Bean System Inc. d/b/a Sala Thai, and Oy Changsirla (collectively, “the defendants”) failed

to pay him and other similarly situated employees the overtime to which they were statutorily

required. See generally Compl., ECF No. 1. Pending before the Court is the defendants’ partial

motion to dismiss the collective action allegations in the plaintiff’s Complaint. See Defs.’ Mot.

Dismiss Under FRCP 12(b)(6) (“Defs.’ Mot.”) at 1–2, ECF No. 6. For the reasons explained

below, the defendants’ motion is denied.

I.     BACKGROUND

       The plaintiff alleges that he worked approximately sixty hours per week for the

defendants as a “food preparer,” yet he was paid $625 per week as a “salaried employee.”

Compl. ¶¶ 17–21. The plaintiff alleges that he was not compensated at all for his overtime hours

and that the $625 was payment only for the first forty hours he worked each week. See id. ¶ 36.




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       The plaintiff brings the suit as a proposed collective action on behalf of all similarly

situated employees. See id. ¶ 39. He describes the similarly situated employees (“the Proposed

Collective”) as follows:

       [A]ll current and former kitchen and food preparation employees of Defendants at
       all of Defendants’ Sala Thai restaurants in the District of Columbia and Maryland
       during the period March 2011 through the present, who were suffered or
       permitted to work by Defendants and were subject to Defendants’ policy not to
       properly compensate them at the premium rate of pay for hours over forty (40) per
       workweek.

       Id. ¶ 39. The plaintiff avers that the Proposed Collective “consists of more than twenty

(20) members who have been victims of Defendants’ common policy and practices that have

violated their rights under the FLSA and DCMWA by, inter alia, willfully denying them

overtime wages at the required FLSA and DCMWA rate.” Id. ¶ 40. The plaintiff further states

that the Proposed Collective “would benefit from the issuance of a court-supervised notice of the

present lawsuit and the opportunity [for the similarly situated employees] to join the present

lawsuit.” Id. ¶ 44. The plaintiff seeks all unpaid overtime wages, liquidated damages, and

attorneys’ fees. Id. ¶ 51. The plaintiff has not yet moved for conditional certification of the

Proposed Collective.

       The defendants filed an answer to the complaint and moved to dismiss the collective

action allegations on May 21, 2014. See Defs.’ Mot. at 1; Answer to Compl. at 1, ECF No. 5.

The plaintiff filed a timely opposition, see Pl.’s Opp’n Defs.’ Mot. (“Pl.’s Opp’n”) at 1, ECF No.

8, and the defendants filed no reply. The Court scheduled a hearing on the defendants’ motion

for August 6, 2014.

II.    LEGAL STANDARD

       The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim showing that the pleader is entitled to relief, in order to give the defendant


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fair notice of what the . . . claim is and the grounds upon which it rests[.]” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted); FED. R. CIV. P. 8(a). A

motion under Rule 12(b)(6) does not test a plaintiff’s likelihood of success on the merits; rather,

it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236

(1974) abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).

Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a

complaint must offer “more than labels and conclusions” to provide “grounds” for “entitle[ment]

to relief.” Twombly, 550 U.S. at 555 (alteration in original). “Nor does a complaint suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557) (alteration in original). The Supreme

Court has stated that “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

(quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

III.    DISCUSSION

        The FLSA provides that “[a]n action to recover [unpaid overtime] . . . may be maintained

against any employer . . . in any Federal or State court of competent jurisdiction by any one or

more employees for and in behalf of himself or themselves and other employees similarly

situated.” 29 U.S.C. § 216(b). This statutory provision exempts FLSA collective action suits

from the typical requirements of a class action under Federal Rule of Civil Procedure 23,

namely, typicality, numerosity, commonality, and adequacy of representation. See Encinas v.

J.J. Drywall Corp., 265 F.R.D. 3, 6 (D.D.C. 2010); Chase v. AIMCO Props., L.P., 374 F. Supp.



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2d 196, 199–200 (D.D.C. 2005) (collecting cases); see also Hoffmann-La Roche, Inc. v. Sperling,

493 U.S. 165, 172 (1989) (noting that a district court’s discretion over controlling procedures in

FLSA collective action case is contained in FED. R. CIV. P. 83, since procedures in such cases are

“not provided for by rule”) (internal quotation mark omitted). Under the FLSA, “a collective

action has only two threshold requirements: the plaintiff must show that [he] is similarly situated

to the other members of the proposed class, and those other members must ‘opt in’ to the

proposed class.” Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C. 2004). In FLSA

collective actions “potential class members must affirmatively joint (‘opt in’) the lawsuit.”

Lindsay v. Gov’t Emps. Ins. Co., 448 F.3d 416, 419 (D.C. Cir. 2006).

       The defendants assert that the “Plaintiff[] fail[s] to reasonably and fairly articulate and

allege any set of facts as to the essential and defining characteristics of any class of allegedly

‘similarly situated’ employees to whom the policies of Defendant(s) in denying overtime

compensation may apply.” Defs.’ Br. Supp. Mot. Dismiss (“Defs.’ Mem.”) at 1–2, ECF No. 7.

To bolster their argument, the defendants aver that the Proposed Collective could theoretically

encompass “virtually every employee, engaged in both managerial, sales, as well as other jobs”

and that many of those “would clearly be exempt employees, such as professional chefs who are

within the cited group of ‘Kitchen Help[.]’” Id. at 5–6. On its face, the defendants’ argument is

deficient, since the Proposed Collective would appear to exclude all “front-of-house” staff in the

defendants’ restaurants, such as servers and hosts. See Compl. ¶ 39 (limiting Proposed

Collective to “kitchen and food preparation employees”).

       Moreover, a court typically considers a plaintiff’s collective action allegations at the time

the plaintiff moves to conditionally certify the collective or to involve the court in notifying

potential collective members. See, e.g., Castillo v. P & R Enters., Inc., 517 F. Supp. 2d 440,



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444–45 (D.D.C. 2007) (noting two-step procedure involving conditional certification of

collective pre-discovery and potential decertification post-discovery). The defendants here rely

on an unpublished, out of circuit magistrate judge’s opinion for their contention that a collective

action can be dismissed on 12(b)(6) grounds. See Defs.’ Mem. at 4 (citing Meggs v. Condotte

Am., Inc., No. 12-20876 CIV, 2012 U.S. Dist. LEXIS 116326, at *8–9 (S.D. Fla. Aug. 17,

2012)). 1 Not only is that case not binding on this Court, it is also inapposite. In Meggs, the

magistrate judge held that a motion to dismiss filed by the defendants was “premature at this

stage” and found that the allegations in that complaint, namely, the type of worker, the

employment dates, the employment locations, control by the defendants, and the lack of overtime

pay, were sufficient to meet the plaintiff’s burden under 12(b)(6). See id. at *9–10.

         Assuming, arguendo, that it is appropriate to dismiss a proposed collective action solely

based on the Complaint, the plaintiff has met his burden here. Indeed, the plaintiff must make

only a “modest factual showing sufficient to demonstrate that they and potential plaintiffs

together were victims of a common policy or plan that violated the law,” Castillo, 517 F. Supp.

2d. at 445 (quoting Chase, 374 F. Supp. 2d at 200) (internal quotation marks omitted), when

seeking conditional certification. Here, on a motion to dismiss, when the Court must consider

only whether the allegation is plausible, accepting the facts in the Complaint as true, the burden

on the plaintiff necessarily is even lower. The plaintiff has met this low burden by identifying

the Proposed Collective as consisting of (1) food prep and kitchen staff, (2) employed in the

District of Columbia and Maryland, (3) between March 2011 and the present, (4) who were

“suffered or permitted to work by Defendants,” and (5) were not paid overtime wages as a result



1
 The defendants failed to offer a single citation to authority from the D.C. Circuit or the District of the District of
Columbia. See generally Defs.’ Mem. Instead, the defendants rely on Eleventh Circuit precedent—and cases from
district courts bound by the Eleventh Circuit’s rulings—almost exclusively. See generally id.

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of the Defendants’ policy. See Compl. ¶ 39. This is adequate at the motion to dismiss stage to

identify who the similarly situated employees may be and why they are similarly situated.

       The Court is not ruling today on conditional certification since there is no motion before

it for such a ruling. The defendants are free to dispute any motion for conditional certification of

the Proposed Collective at the appropriate time, but for the purposes of a motion to dismiss, the

plaintiff has met his burden.

IV.    CONCLUSION

       For the foregoing reasons, the defendants’ Partial Motion to Dismiss is denied. The

parties shall, by August 17, 2014, comply with the requirements of this Court’s Standing Order ¶

3, ECF No. 3, by filing jointly a Meet and Confer Report pursuant to Local Civil Rule 16.3(b).

       An appropriate Order accompanies this Memorandum Opinion.

                                                                       Digitally signed by Beryl A.
                                                                       Howell
                                                                       DN: cn=Beryl A. Howell,
                                                                       o=District Court for the District of
       Date: August 1, 2014                                            Columbia, ou=District Court
                                                                       Judge,
                                                                       email=howell_chambers@dcd.us
                                                                       courts.gov, c=US
                                                      __________________________
                                                                       Date: 2014.08.01 14:35:11 -04'00'

                                                      BERYL A. HOWELL
                                                      United States District Judge




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