Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 04-26-2023

Case Style:

Kristen DeWitt v. Gervasi Vineyard & Italian Bistro, et al.

Case Number: 5:22-cv-00476

Judge: Benita Y. Pearson

Court: United States District Court for the Northern District of Ohio (Summit County)

Plaintiff's Attorney:

Click Here to Watch How To Find A Lawyer by Kent Morlan

Click Here For The Best Akron Employment Law Lawyer Directory

If no lawyer is listed, call 918-582-6422 and MoreLaw will help you find a lawyer.

Defendant's Attorney: David L. Dingwell, Gary A. Corroto, Kristen S. Moore

Description: Akron, Ohio employment law lawyers represented Plaintiff who sued Defendants on Fair Labor Standards Act violation theories.

The Fair Labor Standards Act? The Fair Labor Standards Act (FLSA) is a federal law which establishes minimum wage, overtime pay eligibility, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments.

The parties negotiated - and the Court approved - the following language in the IMPORTANT NOTICE TO POTENTIAL COLLECTIVE ACTION MEMBERS: “This Notice informs you of a collective action that has been filed under the Fair Labor Standards Act (“FLSA”), advises you of your rights as a potential collective action member, and tells you how you can be included in the action. If you wish to be included in this collective action, you must sign and return the enclosed Consent Form as explained below.” ECF No. 17-1 at PageID #: 161, ¶ 1. “You can return the Consent Form by . . . signing it electronically through Adobe Esign.” ECF No. 17-1 at PageID #: 161, ¶ 4. In addition, once the Court determined that text message notification was appropriate, see ECF No. 19 at PageID #: 172, the parties negotiated the following neutral language to be used in the body of the text message to be sent to the putative class members:

This message is to inform you of a Fair Labor Standards Act collective action filed against Gervasi Vineyard & Italian Bistro on behalf of current and former servers employed at The Bistro or The Crush House between October 7, 2019 and February 28, 2022. The U.S. District Court for the N.D. of Ohio has authorized this Notice. Please click the link below to read the Notice and review the included Consent Form. For questions and/or to provide an updated mailing address, call The Lazzaro Law Firm at 216-696-5000.

The text message was linked to the Adobe© eSign document. Sample Notice of Text Message Notification...

Pending is Defendants' Motion for Sanctions for Violation of Court-Authorized Notice Procedure (ECF No. 23). Defendants Gervasi 1700, LLC and Gervasi Vineyard & Italian Bistro, LLC (hereinafter “Defendants”) move the Court to exercise its inherent authority to impose sanctions, including dismissal of the above-entitled FLSA collective action for violation of the Court's Order (ECF No. 19), entered on October 7, 2022. In the alternative, Defendants request that the Court decertify the putative class - allowing the case to proceed solely with the plaintiffs who joined prior to the coercive email notifications.[1] In addition, Defendants ask the Court to order Plaintiffs' Counsel to reimburse them for their reasonable attorney's fees incurred as a result of the improper communications with the putative class. The Court has been advised, having reviewed the record, the parties' briefs, and the applicable law. For the reasons that follow, the Court grants the alternative prong of the motion and will award attorney's fees to Defendants.

Outcome: For the reasons stated above, the Court finds that Plaintiffs' Counsel did not generate an email notice to the putative class members that was neutral and did not encourage participation in the collective action. Accordingly, the Court grants the alternative prong of Defendants' Motion for Sanctions for Violation of Court-Authorized Notice Procedure (ECF No. 23) and will award Defendants attorney's fees and costs incurred in bringing and prosecuting the within motion. To remedy the prejudice suffered by Defendants, the Court decertifies the conditionally certified putative class. The case shall proceed solely with Plaintiff Kristen DeWitt and opt-in Plaintiffs Nathaniel Jackson, Danessa Alexander, Shannon Ruth, and Brooke Steiner - the current or former employees who joined the collective action as plaintiffs prior to the improper notifications. The other 34 opt-in Plaintiffs are dismissed without prejudice. They will have the right to initiate their own action should they choose to do so. But, The Lazzaro Law Firm, LLC cannot represent them, and cannot recover any fees or costs, for representing them in the present case.

The Court will determine the amount of reasonable attorney's fees and costs that Defendants are entitled to, pursuant to the Court's inherent authority, following the submission of an affidavit(s) by Defendants within 30 days of the date of this Memorandum of Opinion and Order setting forth their attorney's fees and costs. If Plaintiffs' Counsel objects to the number of hours expended in bringing and prosecuting the within motion, within 30 days after service of the affidavit, they shall provide a detailed, specific explanation of why a particular item of services rendered was not reasonably expended. The explanation must include a comprehensive presentation of all factual grounds and legal analysis in a non-conclusory fashion.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case