Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 1 of 23 PAGEID # 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION STEPHANIE TURECKY c/o Minnillo & Jenkins Co., LPA 2712 Observatory Avenue Cincinnati, OH 45208 individually, and on behalf of all those similarly situated, vs. Plaintiffs, BOOMTOWN ENTERTAINMENT, LLC c/o CSC-Lawyers Incorporating Service 50 West Broad Street, Suite 1800 Columbus, Ohio 43215 and ARIZONA UNIVERSAL HOLDINGS LLC c/o Richter Law PLLC 8889 East Bell Road #205 Scottsdale, AZ 85260 and CRGE CINCINNATI, LLC c/o CSC-Lawyers Incorporating Service 50 West Broad Street, Suite 1800 Columbus, Ohio 43215 and FRANK CAPRI 4550 East Bell Road, Suite 150 Phoenix, AZ 85032 and JOHN DOES 1-10 (Identities and addresses presently unknown) Defendants. CASE NO 115-cv-527 JUDGE CLASS ACTION COMPLAINT (WITH JURY DEMAND) 1
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 2 of 23 PAGEID # 2 All allegations made in this Class Action Complaint are based upon information and belief except those allegations that pertain to Plaintiff, which are based on personal knowledge. Each allegation in this Class Action Complaint either has evidentiary support or, alternatively, pursuant to Rule 11(b)(3) of the Federal Rules of Civil Procedure, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. I. PRELIMINARY STATEMENT 1. Toby Keith s I Love This Bar & Grill ( Toby Keith s ) is a nationwide chain of restaurants offering American food and live music. Toby Keith s restaurants are located in Auburn Hills, MI; Chicago, IL; Denver, CO; Foxborough, MA; Phoenix, AZ; and Rancho Cucamonga, CA. Additional future locations are planned for Anaheim, CA; Cleveland, OH; College Station, TX; Colorado Springs, CO; and Pittsburgh, PA. 1 2. In early 2012, a Toby Keith s restaurant opened in the Banks development in downtown Cincinnati, centrally located between Great American Ball Park (home to the Cincinnati Reds), Paul Brown Stadium (home to the Cincinnati Bengals), and numerous other venues and attractions. 3. Upon information and belief, Defendants Boomtown Entertainment, LLC, Arizona Universal Holdings, LLC, CRGE Cincinnati, LLC, and Frank Capri ( Employer Defendants ) jointly operated and managed the Cincinnati Toby Keith s restaurant as a single employer. 1 See Website for Toby Keith s I Love This Bar and Grill, http//tobykeithusa.com/about-us (last visited Aug. 7, 2015). 2
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 3 of 23 PAGEID # 3 4. The Cincinnati Toby Keith s restaurant abruptly closed its doors on July 16, 2015, two days after Major League Baseball held its All-Star game in Cincinnati at Great American Ballpark. Employer Defendants gave no prior notice of the closure to restaurant employees. 5. The last paychecks Employer Defendants issued to Cincinnati Toby Keith s restaurant employees for wages earned in their final pay period cannot be negotiated because the account on which those checks are drawn does not contain funds. 6. Plaintiff Stephanie Turecky, a former non-exempt employee of Employer Defendants, brings this action on behalf of herself and all others similarly situated against Employer Defendants and John Doe Defendants 1-10 (collectively, Defendants ) asserting statutory and common law claims arising from Defendants violations of the Worker Adjustment and Retraining Notification Act ( WARN Act ) Act, 29 U.S.C. 2101 et seq.; the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 201 et seq.; Article II, Section 34a of the Ohio Constitution; and the Ohio Minimum Fair Wage Standards Act, O.R.C. 4111.01 et seq. II. JURISDICTION AND VENUE 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331, 29 U.S.C. 216, and 29 U.S.C. 2104(a)(5), because Plaintiff s claims arise, in part, under the WARN Act, 29 U.S.C. 2101-2109. In addition to the named Plaintiff s individual claims, this action is filed as and is intended to be a collective action as authorized by the Fair Labor Standards Act and the WARN Act, 29 U.S.C. 2104(a)(5). This action is also filed as a class action under Rule 23 of the Federal Rules of Civil Procedure. 3
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 4 of 23 PAGEID # 4 8. Federal jurisdiction is invoked in this instance to secure protection and to redress deprivations of rights under the statutes of the United States, specifically including the Fair Labor Standards Act, 29 U.S.C. 201, et seq. 9. Plaintiff also seeks an exercise of this Court s Supplemental Jurisdiction as to the Ohio State law claims under 28 U.S.C 1367. 10. The actions complained of by Plaintiff occurred within the Western Division of the Southern District of Ohio. Accordingly, venue with this Court is appropriate. III. PARTIES 11. Plaintiff Stephanie Turecky is a citizen of the State of Ohio and the United States who at all times relevant to the allegations in this Complaint resided in Warren County, Ohio. 12. Plaintiff was employed by Employer Defendants as a bartender from August 6, 2014 to July 16, 2015, when the Cincinnati Toby Keith s restaurant abruptly closed without providing prior notice to Plaintiff and the other restaurant employees. Ms. Turecky has signed a consent to participate in this action in accordance with 29 U.S.C. 216(b), which is attached as Exhibit A. 13. Defendant Boomtown Entertainment, LLC ( Boomtown ) is a Delaware limited liability company first registered with the Ohio Secretary of State in August 2011. Boomtown is licensed to transact business and did transact business in Ohio. Boomtown was an employer of Plaintiff and members of the proposed Class within the meaning of 29 U.S.C. 203(d). 14. Defendant Arizona Universal Holdings, LLC ( Arizona Universal ) is an Arizona limited liability company with its principal place of business in Scottsdale, Arizona. Arizona 4
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 5 of 23 PAGEID # 5 Universal was an employer of Plaintiff and members of the proposed Class within the meaning of 29 U.S.C. 203(d). 15. Defendant CRGE Cincinnati, LLC ( CRGE ) is an Arizona limited liability company with its principal place of business in Scottsdale, Arizona. CRGE was first registered with the Ohio Secretary of State in July 2011 and is licensed to transact business and did transact business in Ohio. CRGE was an employer of Plaintiff and members of the proposed Class within the meaning of 29 U.S.C. 203(d). 16. Defendant Frank Capri ( Capri ) is the Chief Executive Officer of Toby Keith s I Love this Bar and Grill and is a natural person who, upon information and belief, resides in Arizona. Mr. Capri was an employer of Plaintiff and members of the proposed Class within the meaning of 29 U.S.C. 203(d). 17. Defendants John Does 1-10 are other entities or natural persons presently unidentified and whose addresses are presently unknown, including but not limited to owners, officers, executives, directors, and any other entities who participated in the scheme to schedule Plaintiff and other employees of the Cincinnati Toby Keith s restaurant to work despite knowing that the restaurant would close down after the All-Star Week and that Plaintiff and other employees would not be compensated for the hours they worked during the last pay period prior to the closing. 18. Employer Defendants jointly maintained, operated, and controlled the facilities and operations of the Cincinnati Toby Keith s restaurant since it opened its doors in early 2012 until the time it closed its doors on July 16, 2015, and constituted a single employer of Plaintiff and other similarly situated employees. Amongst other things 5
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 6 of 23 PAGEID # 6 a. Upon information and belief, at all relevant times, Defendants Boomtown, Arizona Universal, and CRGE shared common officers, executives, and directors; b. Upon information and belief, Defendant Capri was and is a managing officer, executive, and/or director of Defendants Boomtown, Arizona Universal, and CRGE; c. Upon information and belief, at all relevant times, Defendant CRGE was a wholly owned subsidiary of Boomtown and/or Arizona Universal; d. Upon information and belief, at all relevant times, Boomtown, Arizona Universal, and Capri directly or indirectly owned CRGE; e. Upon information and belief, at all relevant times, Capri, Boomtown, and Arizona Holdings exercised de facto control over the labor practices governing Plaintiff and the Class members, including the decision to order the mass layoffs and or restaurant closing on July 16, 2015; f. Upon information and belief, at all relevant times, there was a unity of personnel policies emanating from a common source between the Employer Defendants; g. Upon information and belief, at all relevant times, the Employer Defendants jointly made decisions concerning Plaintiff s and similarly situated employees employment, including the decision to terminate their employment. 6
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 7 of 23 PAGEID # 7 IV. STATEMENT OF FACTS 19. Plaintiff hereby incorporates the previous paragraphs of this Complaint by reference as if fully rewritten herein. 20. The Cincinnati Toby Keith s restaurant operated by Employer Defendants was in close proximity to the Cincinnati Reds baseball stadium, the Cincinnati Bengals football stadium and other venues and attractions in downtown Cincinnati. 21. The 2015 Major League Baseball All-Star Game and the associated All-Star Week events took place in Cincinnati beginning on Friday July 10, 2015 and culminated with the All-Star Game on the night of July 14, 2015. The total attendance for the events was in excess of 130,000. 2 22. Upon information and belief, Employer Defendants had been notified that they were in default of their lease prior to the beginning of the All-Star Week on July 10, 2015, and more than 60 days prior to the closing of the Cincinnati Toby Keith s restaurant, but intended to maximize their income from the large crowds associated with the All-Star Week before closing down. 23. Upon information and belief, on or about July 7, 2015, Employer Defendants conspired to release or post a work schedule for Plaintiff and the other similarly situated employees for the period including the All-Star Week, despite knowing that they would be closing the doors of the Cincinnati Toby Keith s restaurant immediately after the All-Star Week. Employer Defendants scheduled Plaintiff and other similarly situated employees to work during 2 See Cincinnati Enquirer July 18, 2015 article, All-Star Week totals by the numbers, http//www.cincinnati.com/story/news/2015/07/18/star-week-totals-numbers/30316577/ (last visited Aug. 6, 2015) 7
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 8 of 23 PAGEID # 8 the pay period immediately prior to the closure in order to induce Plaintiff and other employees to work. 24. Employer Defendants provided no notice to their employees of the shutdown or permanent layoffs that would result from the closing. Indeed, days before the closure, the Cincinnati Toby Keith s restaurant was hiring staff. 3 Instead of informing their employees of the impending closure, on July 16, 2015, after obtaining significant revenues from All-Star Week, Employer Defendants closed the doors of the Cincinnati Toby Keith s restaurant and, upon information and belief, retained the revenues from All-Star Week. 25. Employer Defendants issued Plaintiff and other similarly situated employees paychecks for their final pay period. However, those paychecks cannot be negotiated because the bank on which they are drawn, Chase Bank, has indicated that there is no money in the account on which they are drawn. 26. Upon information and belief, Employer Defendants issued paychecks for the last pay period worked by Plaintiff and the other similarly situated employees knowing that the account upon which those paychecks were drawn did not have sufficient funds to satisfy the checks issued. Employer Defendants actions in issuing checks knowing that they would be dishonored constitute a criminal violation of Ohio Revised Code 2913.11, Passing Bad Checks. 27. Upon information and belief, Employer Defendants intended to obtain the benefit of Plaintiff s and the other similarly situated employees work without compensating them by paying them the wages due for the time worked. Employer Defendants actions in not paying 3 See Cincinnati Enquirer July 17, 2015 article, Love this bar? Not so much as Toby Keith s closes, http//www.cincinnati.com/story/money/2015/07/17/toby-keiths-closes-banks/30239401/ (last visited Aug. 10, 2015). 8
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 9 of 23 PAGEID # 9 Plaintiff and the other similarly situated employees constitute a criminal violation under Ohio Revised Code Section 4113.13(C) and/or (D). 28. Upon information and belief, Employer Defendants employed 50 or more nonexempt individuals who did not receive negotiable paychecks for their last pay period, including but limited to bar staff, bar backs, cleaning crew, kitchen staff, security staff, hosts, wait staff (servers), and managers. 29. Plaintiff is one of the non-exempt employees who have received a paycheck that cannot be negotiated because the account upon which it is drawn does not have adequate funds in it. 30. Plaintiff received the non-negotiable paycheck for her final pay period via the United States Postal Service, as, upon information and belief, did the other similarly situated employees who also received non-negotiable paychecks for their final pay periods. V. COLLECTIVE ACTION ALLEGATIONS 31. Plaintiff hereby incorporates the previous paragraphs of this Complaint by reference as if fully rewritten herein. 32. Plaintiff brings the FLSA claims under 29 U.S.C. 216(b) as a collective action on behalf of the following opt-in Class (the FLSA Class ) FLSA Class. All non-exempt persons who worked at the Cincinnati Toby Keith s restaurant during the pay period ending on July 16, 2015. 33. Plaintiff is similarly situated to all former and current employees described in the 9
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 10 of 23 PAGEID # 10 VI. CLASS ACTION ALLEGATIONS 34. Plaintiff brings this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of herself and as a representative of a class of similarly situated individuals asserting statutory and common law claims arising from Defendants unlawful conduct, including but not limited to, Defendants violation of the WARN Act, 29 U.S.C. 2101 et seq.; FLSA, 29 U.S.C. 201 et seq.; Article II, Section 34a of the Ohio Constitution; and the Ohio Minimum Fair Wage Standards Act, O.R.C. 4111.01 et seq. 35. This class action is proper under Federal Rule of Civil Procedure 23(b)(1), 23(b)(2), and 23(b)(3). Plaintiff brings these claims on behalf of the following Class (the Class ) All non-exempt persons who worked at the Cincinnati Toby Keith s restaurant during the pay period ending on July 16, 2015. 36. Although the precise number of the Class members is unknown to Plaintiff, upon information and belief the number is at least 50, such that joinder is impractical. The disposition of each Class member s claims through the class action procedure will benefit the parties, the Court, and society as a whole. 37. Plaintiff will fairly and adequately represent and protect the Class members interests, and is committed to the vigorous prosecution of this action. 38. Plaintiff has no conflicts of interest and has retained counsel who are competent and have experience with class actions, including employment class actions. 39. Plaintiff s claims are typical of those of the Class. Plaintiff, like other Class members, worked at Employer Defendants Cincinnati Toby Keith s restaurant and was terminated without cause on or about July 16, 2015, due to the mass layoffs and/or plant closings 10
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 11 of 23 PAGEID # 11 ordered by Defendants. The Plaintiff, like other Class members, was tendered, by United States Mail, a non-negotiable check for the last pay period that she worked and has been deprived of payment of her wages for that pay period due to there being insufficient funds in the account upon which the paycheck was drawn. 40. Common questions of law and fact exist as to all Class members and predominate over questions affecting individual Class members. 41. Common questions of law and fact include, but are not limited to, the following a. whether Employer Defendants failed to compensate Plaintiff and Class members for work performed during the pay period ending July 16, 2015; b. whether Employer Defendants induced Plaintiff and Class members to work at the Cincinnati Toby Keith s restaurant knowing that Plaintiff and Class members would not be compensated for the work; c. whether Employer Defendants issued paychecks knowing that the account upon which those paychecks were drawn did not have sufficient funds to satisfy the checks issued; d. whether Employer Defendants conduct constitutes a breach of contract; e. whether Employer Defendants unlawfully terminated the employment of the members of the Class without cause on their part and without giving them required 60 days advance written notice in violation of the WARN Act; f. whether Employer Defendants unlawfully failed to pay the Class members 60 days wages and benefits as required by the WARN Act; 11
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 12 of 23 PAGEID # 12 g. whether Employer Defendants were unjustly enriched by wrongfully retaining Class members wages and benefits and should therefore disgorge all wages and benefits retained and rightfully owed to Class members; h. whether Plaintiff and Class members were employees of Employer Defendants; i. whether Frank Capri is personally and individually liable to Plaintiff and Class members; j. whether Defendants conduct constitutes civil fraud; and k. whether Defendants conduct constitutes civil conspiracy. 42. Prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual Class members that would establish incompatible standards of conduct for Defendants, and adjudications with respect to individual Class members would, as a practical matter, be dispositive of the interests of the other members not parties to the individual adjudications, and would substantially impair or impede their ability to protect their interests. 43. A class action is appropriate because the common questions of law and fact enumerated above predominate over questions affecting only individual Class members. 44. A class action is superior to other available methods for the fair and efficient adjudication of the claims asserted in this action, as the financial interest of each individual Class member is relatively small, making it economically impracticable to pursue remedies other than by a class action. As such, the Class members have little interest in individually controlling the prosecution of separate actions. 12
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 13 of 23 PAGEID # 13 45. If individual actions were to be brought by the members of the Class, the resulting duplication of lawsuits would cause undue hardship, inefficiencies, and expense to the Court and the litigants, and the nature of the claims is such that it is unlikely that many such claims would be pursued other than on a class basis. 46. Given the above considerations, it is desirable to concentrate the litigation of the claims in this particular forum. 47. Absent a class action, Defendants would likely retain the benefits of their wrongdoing, resulting in a miscarriage of justice. 48. There will be no difficulties in managing this class action as the names and addresses of the persons who are Class members are available from Defendants. Further, notice can be provided to the Class members by using techniques and a form of notice similar to those customarily used in class actions including individual mailed notice and notice by publication, as appropriate. VII. STATEMENT OF CLAIMS Count One Breach of Contract 49. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 50. Plaintiff brings this claim individually and on behalf of the Class. 51. Plaintiff and Class members entered into a contract with Employer Defendants when they agreed to work at the Cincinnati Toby Keith s restaurant in exchange for wages. 52. Plaintiff and Class members fully performed under the contract. 53. Employer Defendants breached the contract by failing to pay wages earned by 13
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 14 of 23 PAGEID # 14 Plaintiff and Class members. 54. As the result of Employer Defendants breach, Plaintiff and the Class members were harmed. As such, Plaintiff and the Class are entitled to compensatory damages, consequential damages, punitive damages, interest, attorney fees, costs, and expenses. Count Two Denial of Minimum Wages under the FLSA, 29 U.S.C. 206 55. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 56. Plaintiff brings this claim individually and on behalf of the FLSA Class. 57. Employer Defendants denial of minimum wages for hours worked by Plaintiff and members of the FLSA Class during the last pay period violates the FLSA, including but not limited to the minimum wage provisions of 29 U.S.C. 206. 58. Plaintiff and members of the FLSA Class are entitled to recover from Employer Defendants an appropriate amount for all hours worked, for the last pay period, together with liquidated damages in an amount equal thereto, and attorney fees pursuant to 29 U.S.C. 216(b). Count Three Willful violation of FLSA, 29 U.S.C. 255(a) 59. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 60. Plaintiff brings this claim individually and on behalf of the FLSA Class. 61. Employer Defendants conduct constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. 255(a) such that Plaintiff and members of the FLSA Class are entitled to recover from Employer Defendants an appropriate amount for all hours worked including minimum wages during the last pay period, together with liquidated damages in an 14
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 15 of 23 PAGEID # 15 amount equal thereto and attorney fees pursuant to 29 U.S.C. 216(b). Count Four Denial of Minimum Wages under Article II, 34a of the Ohio Constitution 62. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 63. Plaintiff brings this claim individually and on behalf of the Class. 64. Under the Article II, 34a of the Ohio Constitution, Employer Defendants were required to pay Plaintiff and members of the Class the legally-required minimum wage for all hours worked. 65. Employer Defendants conduct as described above violates Article II, 34a of the Ohio Constitution governing payment of minimum wages. Article II, 34a is a self-executing provision that provides a private right of action. 66. Employer Defendants have willfully and with reckless disregard deprived Plaintiff and members of the Class of the payment of minimum wage compensation under Article II, 34a of the Ohio Constitution, which entitles Plaintiff and others similarly situated to liquidated and/or punitive damages and other appropriate relief. Count Five Denial of Minimum Wages under the Ohio Minimum Fair Wage Standards Act 67. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 68. Plaintiff brings this claim individually and on behalf of the Class. 69. Under the Ohio Minimum Fair Wage Standards Act ( OMFWSA ), O.R.C. 4111.01 et seq., Employer Defendants were required to pay Plaintiff and members of the Class the legally-required minimum wage for all hours worked. 15
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 16 of 23 PAGEID # 16 70. Employer Defendants conduct as described above violates the OMFWSA provisions governing payment of minimum wages. 71. Employer Defendants have willfully and with reckless disregard deprived Plaintiff and members of the Class of the payment of minimum wage compensation under the OMFWSA, which entitles Plaintiff and others similarly situated to liquidated and/or punitive damages and other appropriate relief. 72. Plaintiff asserts this claim in the alternative, in the event that this Court finds that she may not proceed directly under Article II, 34a of the Ohio Constitution for Employer Defendants failure to pay the Class the legally-required minimum wage for all hours worked. Count Six Unjust Enrichment / Quantum Meruit 73. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 74. Plaintiff brings this claim individually and on behalf of the Class. 75. Plaintiff and members of the Class conferred a benefit upon Employer Defendants when they worked hours and provided services to Employer Defendants, and performed such other acts and conduct for Employer Defendants benefit. 76. The benefits were conferred by Plaintiff and members of the Class without receiving just compensation from Employer Defendants for the services rendered. 77. Employer Defendants have been unjustly enriched by the benefits conferred by Plaintiff and members of the Class. 78. Plaintiff and members of the Class are entitled to just compensation for the reasonable value of services rendered to Employer Defendants. 16
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 17 of 23 PAGEID # 17 Count Seven Failure to Pay Semi-monthly Wages Due, O.R.C. 4113.15 79. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 80. Plaintiff brings this claim individually and on behalf of the Class. 81. During the three-year period preceding the filing of this Complaint, Employer Defendants breached O.R.C. 4113.15(A) by failing to pay Plaintiff and members of the Class (1) on or before the first day of each month for all wages earned by them during the first half of the preceding month ending with the fifteenth day thereof; and (2) on or before the fifteenth day of each month all wages earned by them during the last half of the preceding calendar month. 82. Employer Defendants are liable for the unpaid wages described above and for additional amounts as interest as provided by O.R.C. 4113.15(B). Count Eight Failure to Maintain Wage and Hour Records, Article II, 34(a) of the Ohio Constitution 83. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 84. Article II, Section 34a of the Ohio Constitution requires employers to maintain records for each employee showing that employee s name, address, occupation, pay rate, hours worked for each day worked, and each amount paid to an employee for a period of not less than three years following the last date that the employee was employed. 85. Because Employer Defendants did not compensate Plaintiff and members of the Class for the last pay period prior to closing the Cincinnati Toby Keith s restaurant on or about July 16, 2015, Employer Defendants did not maintain records for each employee showing that employee s name, address, occupation, pay rate, hours worked for each day worked, and each 17
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 18 of 23 PAGEID # 18 amount paid to an employee for a period of not less than three years following the last date that the employee was employed. 86. By failing to create, keep, and preserve proper wage and hour records, Employer Defendants have violated Article II, Section 34a of the Ohio Constitution. 87. Employer Defendants are liable for the attorney fees and costs of Plaintiff and members of the Class incurred as a result of its failure to comply with Article II, Section 34a of the Ohio Constitution. Count Nine Civil Fraud 88. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 89. Plaintiff brings this claim individually and on behalf of the Class. 90. Prior to closing the Cincinnati Toby Keith s restaurant, Defendants knowingly and intentionally, or with utter disregard and recklessness as to the truth or falsity of their representation, scheduled Plaintiff and the other Class members to work during the pay period ending July 16, 2015, thereby representing to Plaintiff and the Class members that they would receive compensation for the hours worked during that pay period. Defendants did so while concealing the fact that the Cincinnati Toby Keith s restaurant would close immediately after the All-Star Week and that Defendants would not compensate Plaintiff and the other Class members for their hours worked during the pay period. 91. Plaintiff and the other Class members reported to work at the Cincinnati Toby Keith s restaurant, worked, and obtained revenue for Defendants believing that they would be compensated by Defendants for the hours worked. 18
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 19 of 23 PAGEID # 19 92. Plaintiff and the other Class members justifiably relied on Defendants representation that they would be compensated for work performed during the pay period ending July 16, 2015. Had Plaintiff and the other Class members known they would not be compensated for their hours worked, they would not have reported to work and worked for Defendants financial benefit. 93. At the time Defendants scheduled Plaintiff and the other Class members to work, they knew that their representation to Plaintiff and the other Class members that they would receive compensation for their hours worked was false, or they utterly and recklessly disregarded the probability that they would close the Cincinnati Toby Keith s restaurant immediately after the All-Star Week and would choose not to compensate Plaintiff and the other Class members for their hours worked, with the intent of inducing Plaintiff and the other Class members to rely on Defendants representation and to work for each Defendant s benefit. 94. Plaintiff and the other Class members were proximately injured by not receiving compensation for the hours they actually worked, from which each Defendant derived financial benefit. Count Ten Civil Conspiracy 95. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 96. Plaintiff brings this claim individually and on behalf of the Class. 97. Defendants together maliciously conspired to conceal the impending closing of the Cincinnati Toby Keith s restaurant in order to induce Plaintiff and the other Class members to report to work and work for the benefit of Defendants, and knowing that they did not intend to 19
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 20 of 23 PAGEID # 20 pay Plaintiff and the other Class members for the hours they worked during the last pay period. Plaintiff and the other Class members have been injured by not receiving wage compensation for the last pay period. Count Eleven Violation of the WARN Act 98. Plaintiff repeats and reiterates the previous paragraphs as if fully rewritten herein. 99. Plaintiff brings this claim individually and on behalf of the Class. 100. At all relevant times, Employer Defendants employed more than 100 employees who in the aggregate worked at least 4,000 hours per week exclusive of overtime within the United States. 101. At all relevant times, Employer Defendants were employers as that term is defined in 29 U.S.C. 2101(a)(1) and 20 C.F.R. 639(a) and continued to operate as a business until determining to order a mass layoff and/or plant closing at the Cincinnati Toby Keith s restaurant. 102. Employer Defendants constituted a single employer of Plaintiff and Class members under the WARN Act. 103. On or about July 16, 2015, Employer Defendants ordered a mass layoff and/or plant closing at the Cincinnati Toby Keith s restaurant, as that term is defined in 29 U.S.C. 2101(a)(2). 104. The mass layoff and/or plant closing at the restaurant resulted in unemployment losses, as that term is defined by 29 U.S.C. 2101(a)(2) for at least 50 of Employer Defendants employees. 20
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 21 of 23 PAGEID # 21 105. Plaintiff and each of the other members of the Class were discharged by Employer Defendants without cause on their part, as part of or as the reasonable foreseeable result of the mass layoff and/or plant closing ordered by Employer Defendants at the Cincinnati Toby Keith s restaurant. 106. Plaintiff and the Class members are affected employees within the meaning of 29 U.S.C. 2101(a)(5). 107. Employer Defendants failed to give Plaintiff and Class members written notice that complied with the requirements of the WARN Act. 108. Plaintiffs and Class members are aggrieved employees of the Employer Defendants as that term is defined in 29 U.S.C. 2104(a)(7). 109. Employer Defendants failed to pay Plaintiff and Class members their respective wages, salary, commissions, bonuses, accrued holiday pay, and accrued vacation for 60 days following notice of their terminations. Employer Defendants are also liable to Plaintiff for her reasonable attorney fees under 29 U.S.C. 2104. PRAYER FOR RELIEF WHEREFORE, Plaintiff and all other similarly situated employees of Employer Defendants who elect to opt-in to this FLSA action as described with particularity in 29 U.S.C. 216(b), and also those who are encompassed by the Rule 23 class definition, demand judgment against the Defendants as follows With respect to the FLSA Class 1. An Order permitting this litigation to proceed as a collective action; 2. Prompt notice, pursuant to 29 U.S.C. 216(b), to all similarly situated employees of 21
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 22 of 23 PAGEID # 22 Defendants that this litigation is pending and that they have right to opt-in to this litigation; 3. Judgment against Defendants for violating the Fair Labor Standards Act; 4. An Order declaring that the Defendants violations of the Fair Labor Standards Act were willful; 5. An award of unpaid wages and liquidated damages thereon consistent with the provisions of the Fair Labor Standards Act; 6. An award of Plaintiff s reasonable attorneys fees and costs; With respect to the Class 1. An Order certifying the Class, pursuant to Rule 23, appointing Plaintiff as representative of the Class, and appointing the law firms representing Plaintiff as counsel for the Class; 2. An award of damages and liquidated damages; 3. Pre-judgment and post-judgment interest, as provided by law; 4. Such other injunctive and equitable relief as the Court may deem just and proper; 5. Reasonable costs and attorneys fees; and 6. Such other relief which in law and equity is appropriate. Respectfully submitted, MINNILLO & JENKINS, Co. LPA /s/christian A. Jenkins CHRISTIAN A. JENKINS (Ohio Bar No. 0070674) NIROSHAN M. WIJESOORIYA (Ohio Bar No. 0079780) 2712 Observatory Avenue Cincinnati, Ohio 45208 Telephone (513) 723-1600 22
Case 115-cv-00527-MRB Doc # 1 Filed 08/12/15 Page 23 of 23 PAGEID # 23 Telecopier (513) 723-1620 cjenkins@minnillojenkins.com niro@minnillojenkins.com GOLDENBERG SCHNEIDER, LPA JEFFREY S. GOLDENBERG (Ohio Bar No. 0063771) TODD B. NAYLOR (Ohio Bar No. 0068388) One West Fourth Street, 18 th Floor Cincinnati, Ohio 45202 Telephone (513) 345-8291 Telecopier (513) 345-8294 jgoldenberg@gs-legal.com tnaylor@gs-legal.com JURY DEMAND Plaintiff demands a trial by jury as to all issues so triable in this matter. /s/ Niroshan M. Wijesooriya NIROSHAN M. WIJESOORIYA (Ohio Bar No. 0079780) 23