Sofsky v. Aubrey's, Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
LEONARD SOFSKY, on behalf of himself 	)
and all others similarly situated, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 3:25-cv-563-CEA-MJD
)
AUBREY’S, INC., and AUBREY 	)
RANDOLPH BURLESON, 	)
)
Defendants. 	)
MEMORANDUM AND ORDER
This is a Fair Labor Standards Act (“FLSA”) case, filed by Named Plaintiff Leonard Sofsky
(“Plaintiff”) against Defendants Aubrey’s, Inc., and Aubrey Randolph Burleson (“Defendants”).
Plaintiff filed this case on behalf of himself and other similarly situated individuals. He alleges
Defendants violated the FLSA by, inter alia, failing to abide by rules concerning “tip credits” and
mandatory minimum wage requirements. Currently before the Court is Plaintiff’s Motion for
Leave to Amend Complaint [Doc. 70 (“Motion”)], which is accompanied by the proposed Second
Amended Complaint [Doc. 70-1]. Defendants filed a response in opposition to the Motion [Doc.
74], and Plaintiff filed a reply in support [Doc. 76]. Neither party requested a hearing, and the
Court finds a hearing is not necessary. The Court will GRANT the Motion as set forth below [Doc.
70].
I. 	FLSA
Under the FLSA, plaintiffs “may litigate federal minimum-wage and overtime claims on
behalf of other ‘similarly situated’ employees.” Clark v. A&L Homecare and Training Ctr., LLC,
68 F.4th 1003, 1007 (6th Cir. 2023) (quoting 29 U.S.C. § 216(b)). However, to participate in and
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be bound by an FLSA lawsuit, the employee must “affirmatively choose” to join the lawsuit as a
plaintiff, and the district court must find that each such employee is “similarly situated” to the
original, named plaintiff. Clark, 68 F.4th at 1007, 1009. Because such employees may not be aware
of the lawsuit, the United States Supreme Court “discerned in § 216(b) an implied judicial power,
‘in appropriate cases,’ to ‘facilitate notice’ of FLSA suits ‘to potential plaintiffs.’” Clark, 68 F.4th
at 1007 (brackets omitted) (quoting Hoffman-La Roche v. Sperling, 493 U.S. 165, 169 (1989)).
When requesting such court-facilitated, or court-authorized1, notice to other employees, the
original plaintiff is required to “show a ‘strong likelihood’” that the other employees who will
receive the notice are, in fact, similarly situated. Clark, 68 F.4th at 1011 (citation omitted). Often
this means the other employees perform the same work tasks and are “subject to the same
policies—as to both timekeeping and compensation—as the original plaintiffs.” Id. at 1010. To
enable the original plaintiff to identify such similarly-situated other employees who will receive
the court-facilitated notice, district courts “may promptly initiate discovery” in connection with
the named plaintiff’s request for court-facilitated notice. Id. at 1011.
Thus, § 216(b) lawsuits often proceed in two phases: (1) first, the court addresses whether
it will facilitate notice of the lawsuit and, if so, to whom; and (2) second, the court addresses the
merits of the claims asserted by all of the plaintiffs who decide to join. This case remains in the
first phase.
II. 	BACKGROUND
Plaintiff filed the original complaint on November 19, 2025 [Doc. 1]. The only named
defendant was Aubrey’s, and the potential employees were limited to “tipped employees (such as
1 Plaintiff uses the term “court-authorized,” instead of “court-facilitated” when referring to the notice he
is requesting. In this context, these terms are interchangeable.
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servers and bartenders) at one or more of Defendant’s Aubrey’s restaurants.” [Doc. 1 at Page ID
# 1]. Plaintiff alleged that Aubrey’s utilized the tip-credit provisions of the FLSA to pay Plaintiff
(and other tipped employees) less than the minimum wage, but Aubrey’s failed to satisfy certain
requirements of the tip-credit provisions, including (1) failing to provide the required notice to tip-
credit employees; (2) requiring tip-credit employees to perform non-tipped work; and (3) shifting
“business expenses to Tip Credit Employees by requiring them to purchase uniforms and an
apron.” [Doc. 1 at Page ID # 2].
On March 16, 2026, the Court entered a scheduling order to govern phase one [Doc. 46].
It set a deadline of June 1, 2026, for discovery related to court-facilitated notice issues, and a
deadline of June 29, 2026, for Plaintiff to file a motion for court-facilitated notice. On May 6,
2026, the Court granted the parties’ joint motion to extend the phase one deadlines and to toll the
claims of “the Opt-In Plaintiffs who join this action through any Court-facilitated notice.” [Doc.
55 at Page ID # 276]. The close of phase one discovery was extended to July 10, 2026, and the
deadline for Plaintiff’s motion for court-facilitated notice was extended to August 7, 2026.
On July 2, 2026, Plaintiff filed an amended complaint with Aubrey’s consent, pursuant to
Rule 15(a)(2). [See Doc. 60]. The amended complaint added Aubrey Randolph Burleson as a
defendant and expanded the class of potential plaintiffs to include tipped employees working at all
restaurants owned and operated by Mr. Burleson (rather than just tipped employees at Aubrey’s
restaurants). The parties also filed another joint motion seeking to extend the phase one deadlines
again to “allow sufficient time for Defendants to respond to Plaintiff’s First Amended Collective
Action Complaint and for the parties to conduct discovery following the amendment,” which the
Court granted [Doc. 61 at Page ID # 305; see also Doc. 59 (joint motion)]. The close of phase one
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discovery was pushed to September 4, 2026, and the deadline for Plaintiff’s motion for court-
facilitated notice was pushed to October 16, 2026.
On September 10, 2026, Plaintiff filed the instant Motion [Doc. 70], seeking leave to file a
second amended complaint [Doc. 70-1 (“SAC”)]. Plaintiff explains that:
This proposed amendment: (1) includes additional facts related specifically to
Defendants’ violations of the tip credit provisions of the [FLSA], 29 U.S.C. §
216(m), with respect to compensation of overtime hours; and (2) adds Jacquelyn
Foss, a current Opt-In Plaintiff2, who alleges that Defendants took a tip credit in
excess of the amount permitted by the FLSA for overtime hours she and others
similarly situated worked.
[Doc. 70 at Page ID # 346]. Plaintiff further explains that Defendants’ pay records revealed that
Plaintiff (Mr. Sofsky) never worked overtime hours, but Ms. Foss did.
The day after filing the Motion, Plaintiff also filed his Motion for Court-Authorized Notice
to Potential Opt-in Plaintiffs [Doc. 72 (hereafter, “Notice Motion”)], which is accompanied by
several supporting documents, including Plaintiff’s proposed notice and proposed consent forms.
[See Doc. 72-1; Doc. 72-2; Doc. 72-3]. Plaintiff contends that the proposed changes reflected in
the SAC “do not impact the notice or the definition of employees to whom notice is sought,” and
2 A number of so-called “Opt-In Plaintiffs” have already joined this suit by completing forms titled,
“Consent to Become Party Plaintiff.” These forms are different from the Court-facilitated notice
that Plaintiff asks to send out to a larger group of similarly situated employees. Ms. Foss’s Consent
to Become Party Plaintiff form is filed at Docket No. 22-1 at Page ID # 123. The form reads:
“I hereby consent to become a party plaintiff in the above-captioned lawsuit asserting claims under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 216(b) et seq. I designate the Named
Plaintiff listed in the caption above to act as my representative and to make decisions concerning
the litigation, the method and manner of conducting this litigation, and entering agreement(s) with
Plaintiff’s counsel concerning attorneys’ fees, costs, and all other matters pertaining to this lawsuit.
I understand that I will be bound by the judgment of the Court as to all issues in this lawsuit,
including the fairness of any settlement.
Plaintiff’s counsel states that “Ms. Foss joined this case by returning a consent form after learning
of the case from a former co-worker.” [Doc. 76 at Page ID # 878].
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so Plaintiff contemplated that the Motion would be granted when he filed the Notice Motion [Doc.
71 at Page ID # 363–64; Doc. 72 at Page ID # 367 n.2].
III. ANALYSIS
Federal Rule of Civil Procedure 15 directs that, where an amendment is not made as a
matter of course, “a party may amend its pleading only with the opposing party’s written consent
or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice so
requires.” Id. Factors relevant in determining whether leave should be denied include “undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance
of the amendment, [and] futility of the amendment.” See Forman v. Davis, 371 U.S. 178, 182
(1962); see also Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003). “The standard for a motion
to amend is governed by the general principle that ‘cases should be tried on their merits rather than
the technicalities of pleadings,’ which is in turn moderated by the exception that judges should
allow amendment only when doing so does not ‘cause prejudice to the defendants’ or undue delay.”
Med. Ctr. at Elizabeth Place, LLC v. Atrium Health Sys., 922 F.3d 713, 732-33 (6th Cir. 2019)
(quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)). Nevertheless, to “deny a motion to
amend, a court must find ‘at least some significant showing of prejudice to the opponent.’” Ziegler
v. Aukerman, 512 F.3d 777, 786 (6th Cir. 2008).
Defendants do not directly challenge the substance of the SAC; rather they argue they “will
be unfairly prejudiced” if the Court allows the SAC without extending the current scheduling order
deadlines [Doc. 74 at Page ID # 856], including reopening phase one discovery. Citing the new
allegations in the SAC and representations made by Ms. Foss in her declaration submitted in
support of the Notice Motion [Doc. 73-4], Defendants argue they should, at a minimum, be
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permitted to depose Ms. Foss in order to be able to properly respond to the SAC. Defendants also
imply that Plaintiff unduly delayed filing the Motion, considering that Ms. Foss joined the lawsuit
in December 2025 as an Opt-In Plaintiff and that Aubrey’s “produced Ms. Foss’s time and payroll
records with the data and records of other employees” in June and July 2026 [Doc. 74 at Page ID
# 863].
Plaintiff contends that the overtime-related allegations do not represent a new claim that
requires further discovery. Instead, according to Plaintiff, they reflect “facts learned in discovery
that bolster the existing tip-credit notice allegations and facts of actions taken by Defendants
during the course of this litigation.” [Doc. 76 at Page ID # 874]. Moreover, Plaintiff argues, the
overtime-related claims depend entirely on documents and information that have always been in
Defendants’ possession (i.e., payroll records and knowledge about Defendants’ payroll policies),
and not “on any information in the possession of Ms. Foss or any other Plaintiff.” [Id. at Page ID
# 875].
Plaintiff also defends the timing of the Motion, emphasizing that the new allegations are
premised at least in part on information he learned during the Rule 30(b)(6) deposition of Aubrey’s
corporate representative, which took place on August 13, 2026. Plaintiff provided a draft of the
SAC to Defendants on August 25, 2026, with the hope of avoiding motion practice. According to
Plaintiff, Defendants delayed responding to the proposal for ten days, and when Defendants finally
did respond, they proposed a lengthy extension to the phase one discovery deadline. When Plaintiff
asked a follow up question, Defendants then delayed responding for another five days. By then,
phase one discovery had closed and Plaintiff’s motion for court-facilitated notice was due within
a few days.
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Finally, Plaintiff argues that Defendants’ request for additional discovery “rings hollow in
light of their litigation conduct,” specifically referencing Defendants’ decision to use their
deposition time to question Plaintiff about “how he and the Opt-In Plaintiffs formed their attorney-
client relationship” with Plaintiff’s counsel [Doc. 76 at Page ID # 878]. Plaintiff emphasizes that
the statute of limitations continues to run as to any claims held by potential Opt-In Plaintiffs, who
may not even have notice of this lawsuit, and Defendants’ desire to take additional irrelevant
discovery does not justify such “considerable harm” to these individuals [id.].
The Court finds, based on the record as presented, that Plaintiff did not unduly delay
proposing the SAC, nor does the timing of the Motion indicate bad faith in any way. Defendants
have not challenged Plaintiff’s timeline following the August 15 deposition of Aubrey’s corporate
representative, and the Court finds Plaintiff did indeed act diligently to include the overtime
allegations after learning about Defendants’ overtime pay policies during that deposition. As
Defendants do not really object to the SAC on any other grounds, the Court finds justice requires
permitting the amendment and will grant the Motion in this regard.
As to the question of additional discovery and amending the phase one scheduling order a
third time, the Court has given the issue careful consideration and finds a short extension to the
phase one discovery deadline is indeed justified by the SAC, to allow Defendants to depose Ms.
Foss, file an answer to the SAC, and file an amended response to the Notice Motion.3 Whether
they constitute a new claim or simply a new factual basis for an existing claim, the new allegations
concerning Ms. Foss and Defendants’ overtime policies are distinct from those included in the first
3 In light of Plaintiff’s representations that his “proposed Notice and Consent Form contemplates the Court
granting Plaintiff Sofsky’s Motion for Leave to File Second Amended Complaint by referencing Leonard
Sofsky and Jacquelyn Foss as Named Plaintiffs” [Doc. 72 at Page ID # 367 n.2], the Court will not grant
additional time for Plaintiff to amend the Notice Motion.
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amended complaint. These new allegations are also significant enough that Plaintiff felt it
necessary to amend the complaint and add Ms. Foss as a named plaintiff just one day before the
Notice Motion was due. Plaintiff’s argument regarding harm to potential, future Opt-In Plaintiffs
is compelling, particularly considering the language in Clark directing district courts to “expedite
their decision” on court-facilitated notice “to the extent practicable.” 68 F.4th at 1011.
Nevertheless, in making this argument, Plaintiff overlooks the substantial delays he himself has
already agreed to in this litigation.4 The Court expects the parties will work cooperatively to
arrange for Ms. Foss’s deposition at a time and place that is convenient to counsel as well as Ms.
Foss. The Court also notes that Defendants have not identified any other discovery they contend
is necessitated by the SAC, and the Court will not permit any.
Accordingly, the Motion [Doc. 70] is GRANTED as follows:
Plaintiff is ORDERED to file the SAC as a separate docket entry before the close of
business on MONDAY, OCTOBER 19, 2026.
On or before FRIDAY, OCTOBER 23, 2026, the parties SHALL meet and confer in good
faith, by telephone, video conference, or in person, for the purpose of determining a mutually
agreeable date, time, and location for Ms. Foss’s deposition, which SHALL take place on or before
NOVEMBER 6, 2026. Further, Ms. Foss’s deposition SHALL NOT exceed three hours in length.
Defendants SHALL file an amended response to the Notice Motion on or before
DECEMBER 1, 2026, and Plaintiff (and Ms. Foss) SHALL file their reply on or before
DECEMBER 8, 2026.
4 Although the parties agreed in their first joint motion seeking extensions to the phase one deadlines to
toll the claims of potential Opt-In Plaintiffs [Doc. 54; Doc. 55], a similar tolling provision was not included
in connection with the second round of extensions. [See Doc. 59; Doc. 61].
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SO ORDERED.
ENTER:
/s/
MIKE DUMITRU
UNITED STATES MAGISTRATE JUDGE
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