Burke v. Alta Colleges, Inc.

Filing 34

MINUTE ORDER. Defendant's Motion to Stay is DENIED to the extent that it seeksa stay in responding to Plaintiffs Motion to Certify Conditionally a Collective Action. Defendant's response to this motion shall be filed not later than Monday, August 27, 2012. The remaining issues raised in Defendant's Motion to Stay will be addressed at the hearing set for October 9, 2012 by Chief Judge Wiley Y. Daniel on 08/21/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No.

11-cv-02990-WYD-KLM

SCOTT BURKE, on behalf of himself and others similarly situated,
Plaintiff,
v.
ALTA COLLEGES, INC., d/b/a Westwood College, a Delaware corporation,
Defendant.

MINUTE ORDER
ORDERED ENTERED BY CHIEF JUDGE WILEY Y. DANIEL

On November 16, 2011, Plaintiff filed the instant action for wages pursuant to the
Federal Fair Labor Standards Act (“FLSA”) (29 U.S.C. § 201 et. seq.). On July 13, 2012,
Plaintiff filed a Motion to Certify Conditionally a Collective Action Under the Fair Labor
Standards Act 29 U.S.C. § 216(b) and for Court Assisted Notice Under Authority of
Sperling v. Hoffman La Roche, 493 U.S. 165, 169 (1989) (“Motion to Certify Conditionally
a Collective Action”). I set a hearing on this motion for October 9, 2012. On August 13,
2012, Defendant filed a Motion to Stay the Deadline for its Response to Plaintiff’s Motion
to Certify Conditionally a Collective Action, to Bifurcate the Case, and Request for Court
Conference (“Motion to Stay”).
A claim brought pursuant to the FLSA must be “commenced within two years after
the cause of action accrued . . .” 29 U.S.C. § 255(a). An action is “commenced” on the
date the complaint is filed, subject to certain exceptions. 29 U.S.C. § 256. In the case
of a collective action, if an individual claimant does not immediately file written consent to
become a party plaintiff, or if the individual claimant's name does not appear on the initial
complaint, plaintiff's action is considered to be “commenced” when a plaintiff files written
consent. 29 U.S.C. § 256(b). In short, the FLSA has an “opt-in” mechanism which
presumes a lapse of time between the date a collective action is commenced and the date
that each opt-in plaintiff files his or her consent form. With respect to an individual’s
claim, the statute of limitations is not tolled until he or she files a written consent to join or
opt-in to the collective action. Id.
Should this action be certified as a collective action under 29 U.S.C. § 216(b), I am

concerned about possible statute of limitations issues impacting claims by potential opt-in
plaintiffs. Accordingly, Defendant’s Motion to Stay is DENIED to the extent that it seeks
a stay in responding to Plaintiff’s Motion to Certify Conditionally a Collective Action.
Defendant’s response to this motion shall be filed not later than Monday, August 27,
2012. The remaining issues raised in Defendant’s Motion to Stay will be addressed at
the hearing set for October 9, 2012. Should I deny Defendant’s Motion to Stay at the
hearing, I will then hear argument on the Plaintiff’s Motion to Certify Conditionally a
Collective Action.
Dated: August 21, 2012