Kinne et al v. Rocky Mountain EMS, Inc.

Filing 60

ORDER denying 26 Plaintiff's Motion to Toll Statute of Limitations. By Judge Robert E. Blackburn on 9/11/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Robert E. Blackburn, Judge
Civil Case No.12-cv-02710-REB-CBS
KAREN KINNE, TIM DILL, ABRAHAM BACA, individually and on behalf of others
similarly situated,
Plaintiffs,
v.
ROCKY MOUNTAIN EMS, INC., D/B/A ROCKY MOUNTAIN MOBILE MEDICAL, AND
RAYMOND GOETZE
Defendants.

ORDER DENYING PLAINTIFFS’ MOTION TO TOLL STATUTE OF LIMITATIONS
Blackburn, J.
This matter is before me on the Plaintiffs’ Motion To Toll Statute of
Limitations [#26]1 filed February 8, 2013. The defendant filed a response [#32], and
the plaintiff filed a reply [#40]. I deny the motion.
This case concerns the plaintiffs’ claims under the Fair Labor Standards Act
(FLSA). On February 8, 2013, the plaintiffs filed a motion to conditionally certify this
case as a collective action under the FLSA. The motion was briefed fully as of March
15, 2013. Concurrent with this order, I am entering an order granting conditional
certification of an FLSA collective action in this case.
As is typical in FLSA collective actions, there is a delay between the plaintiffs’

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“[#26]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

filing of the complaint and the ultimate conditional certification of the case as a collective
action. Generally, most potential opt-in plaintiffs do not learn of the pendency of the
collective action until after the case has been certified conditionally and the court
authorizes notice to be sent to potential opt-in plaintiffs. Meanwhile, the statute of
limitations continues to run on the claims of potential plaintiffs who have not opted-in or
have not filed independently a suit asserting their FLSA claim.
The plaintiffs ask the court to apply the doctrine of equitable tolling and toll the
statute of limitations as to the claims of potential opt-in plaintiffs as of the date the
plaintiffs filed their initial complaint, October 12, 2012. Absent equitable tolling, the
plaintiffs contend, the claims of some potential opt-in plaintiffs will be barred due to the
passage of time between the filing of the complaint and a ruling on the motion for
conditional certification. The defendant argues that there is no basis for equitable tolling
of the statute of limitations.
Potential opt-in plaintiffs have two options for filing a timely FLSA claim against
the defendants: (1) file an individual FLSA suit on their own behalf; or (2) opt-in to this
collective action when they become aware of the collective action. In either of these two
ways, a reasonably diligent opt-in plaintiff can assert his or her FLSA rights and prevent
the expiration of his or her claims. The plaintiffs cite voluminous case authority, mostly
decisions of United States District Courts, in support of their position. The defendants
cite authority concerning the application of the doctrine of equitable tolling generally.
Having considered the authority cited by the parties and other relevant authority, the
circumstances of this case, and the parties’ arguments, I conclude that the usual rules
governing claim accrual and equitable tolling are applicable in a FLSA collective action.
Generally, a cause of action accrues when the plaintiff knows or has reason to
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know of the injury that is the basis of the action. A cause of action accrues even though
the plaintiff may not be aware of all of the evidence relevant to his or her claim. Baker v.
Bd. of Regents of State of Kan., 991 F.2d 628, 632 (10th Cir. 1993). The time period
defined in the applicable statute of limitations begins to run on the day the plaintiff’s
claim accrues.
Equitable tolling may toll the expiration of the statute of limitations.
In civil actions, this court has applied equitable tolling when the
defendant's conduct rises to the level of active deception; where a plaintiff
has been lulled into inaction by a defendant, and “[l]ikewise, if a plaintiff is
actively misled or has in some extraordinary way been prevented from
asserting his or her rights.”
U.S. v. Clymore, 245 F.3d 1195, 1199 (10th Cir. 2001) (quoting Biester v. Midwest
Health Servs., Inc, 77 F.3d 1264, 1267 (10th Cir. 1996)). In addition, equitable tolling
may be appropriate when the plaintiff demonstrates “extraordinary circumstances” that
made it “impossible” for the plaintiff to file a timely lawsuit. Id. Tolling is available only
“when [a plaintiff] diligently pursues his claims and demonstrates that the failure to
timely file was caused by extraordinary circumstances beyond his control.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
Nothing in the record of this case shows that any plaintiff or any potential opt-in
plaintiff was deceived, misled, lulled into inaction, or otherwise faced extraordinary
circumstances that made it impossible for them to file a timely FLSA claim. The
underlying premise of the plaintiffs’ position is that potential opt-in plaintiffs could not
know about the facts that are the basis of their possible FLSA claim until they receive
notice of a collective action. Generally, potential opt-in plaintiffs are presumed to be
aware of the facts and circumstances of their employment with Rocky Mountain EMS,
Inc., and it is those facts and circumstances that allegedly form the basis of each
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plaintiff’s FLSA claim against the defendants. Generally, their claims accrue when they
gain knowledge of these facts.
If a particular putative opt-in plaintiff demonstrates circumstances that justify
equitable tolling, then equitable tolling may be appropriate in that particular case. There
is no basis, however, to assume, a fortiori, without any evidence, that all opt-in plaintiffs
or potential opt-in plaintiffs in this case somehow have been prevented from filing a
timely FLSA claim based on their employment with Rocky Mountain EMS, Inc.
THEREFORE, IT IS ORDERED that the Plaintiffs’ Motion To Toll Statute of
Limitations [#26] filed February 8, 2013, is DENIED.
Dated September 11, 2013, at Denver, Colorado.
BY THE COURT:

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