Palma et al v. Metro PCS Wireless, Inc.
Filing
127
ORDER denying 122 Plaintiffs' Motion to Equitably Toll the Statute of Limitations. Signed by Judge Virginia M. Hernandez Covington on 12/26/2013. (CH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KAREN PALMA and HALLIE SELGERT,
Plaintiffs,
v.
Case No.
8:13-cv-698-T-33MAP
METROPCS WIRELESS, INC.,
Defendant.
______________________________/
ORDER
This
matter
Plaintiffs’
Motion
comes
to
before
the
Equitably
Court
Toll
pursuant
the
to
Statute
of
Limitations (Doc. # 122), which was filed on December 9, 2013.
Defendant
MetroPCS
Wireless,
Inc.
filed
a
Response
in
Opposition to the Motion on December 19, 2013. (Doc. # 126).
For the reasons that follow, the Motion is denied.
I.
Background
On
May
14,
2013,
Plaintiffs
filed
a
Motion
for
Conditional Certification of this FLSA action. (Doc. # 33).
On June 12, 2013, Plaintiffs filed a Motion for Preliminary
Injunction (Doc. # 57), in which Plaintiffs alleged, inter
alia, that Defendant engaged in intimidating activity designed
to deter Account Service Representatives from participating in
this action.
Among other allegations, Plaintiffs maintained
that “Defendant required many of their current ASRs to execute
a cookie cutter Declaration, in which each ASR declares that
they do not intend to join the case.” (Id. at 8).
Because the
Motion
allegations
for
Preliminary
Injunction
contained
regarding Defendant’s alleged interference with the opt-in
process,
the
Court
held
the
Motion
for
Conditional
Certification in abeyance pending resolution of the Motion for
Preliminary Injunction. (Doc. # 93).
The Magistrate Judge
held a hearing on the Motion for Preliminary Injunction, and
on August 9, 2013, he issued a Report and Recommendation
recommending that the Motion for Preliminary Injunction be
denied.
(Doc.
#
100).
On
September
13,
2013,
after
considering Plaintiffs’ objections and Defendant’s response,
the Court adopted the Report and Recommendation by denying the
Motion for Preliminary Injunction. (Doc. # 111). On December
16,
2013,
the
Court
granted
Certification. (Doc. # 125).
the
Motion
for
Conditional
The Court directed the parties
to file a status report regarding notice to the class by
December 30, 2013. (Id.).
By their present Motion, Plaintiffs seek an Order tolling
the statute of limitations for future opt-in Plaintiffs to
March 18, 2013, the filing date of the Complaint in this case.
II.
Equitable Tolling
“Equitable tolling is the doctrine under which plaintiffs
may sue after the statutory time period has expired if they
2
have
been
prevented
from
doing
so
due
to
inequitable
circumstances.” Ellis v. Gen. Motors Acceptance Corp., 160
F.3d 703, 706 (11th Cir. 1998). In Wallace v. Kato, the
Supreme Court described equitable tolling as “a rare remedy to
be applied in unusual circumstances, not a cure-all for an
entirely common state of affairs.” 549 U.S. 384, 396 (2007).
In the Eleventh Circuit, the doctrine is “applied sparingly.”
Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000).
litigant
seeking
equitable
tolling
bears
the
“[A]
burden
of
establishing two elements: (1) that he has been pursuing his
rights
diligently,
and
(2)
circumstance stood in his way.”
that
some
extraordinary
Downs v. McNeil, 520 F.3d
1311, 1324 (11th Cir. 2008).
Defendant
has
not
challenged
that
Plaintiffs
diligently pursued their rights in this action.
before
the
Court
is
whether
warrant equitable tolling.
extraordinary
circumstances
extraordinary
have
The issue
circumstances
Plaintiffs contend that such
exist
because
the
Motion
for
Conditional Certification was pending for seven months before
being granted by the Court.
Plaintiffs’ comparison of the
present case to Gutescu v. Carey International, Inc., No. 01cv-4026, 2004 U.S. Dist. LEXIS 31105 (S.D. Fla. Feb. 25,
2004), a FLSA case where equitable tolling was applied, is
3
inapplicable.
after
the
There, the court approved notice to the class
motion
for
conditional
certification
pending for over a year and six months. Id. at *12.
had
been
The court
indicated: “for a multiplicity of reasons the Motion to
Certify Class remained pending for an unusual amount of time,
such that tolling of the statute of limitations during the
pendency of the motion is equitable.” Id.
While it is
“unusual” for a motion for conditional certification to remain
pending for 18 months, it is not “extraordinary” for such a
motion to remain pending for seven months, as was the case
here.
See, e.g., Fiore v. Goodyear Tire & Rubber Co., No.
2:09-cv-843, 2011 U.S. Dist. LEXIS 24371, at *10 (M.D. Fla.
Mar. 10, 2011)(“plaintiff has failed to demonstrate that
extraordinary circumstances warrant tolling of the statute of
limitations” even though it took the court nine months to
grant the FLSA motion for conditional certification); Love v.
Phillips Oil, Inc., No. 3:08-cv-92, 2008 U.S. Dist. LEXIS
102366, at *6-8 (N.D. Fla. Dec. 9, 2008)(rejecting FLSA
plaintiffs’ request for equitable tolling when the motion for
conditional certification was pending for nine months before
being granted by the court); Pendlebury v. Starbucks Coffee
Co., No. 04-80521, 2008 U.S. Dist. LEXIS 20089 (S.D. Fla. Mar.
13, 2008)(rejecting
plaintiffs’
4
argument
that
statute
of
limitations in FLSA action should be equitably tolled because
it took the court six months to rule on the motion for
conditional certification and four months to approve the
notice to the potential class members).
Furthermore, courts in the Eleventh Circuit routinely
deny motions like the present one because, during the pendency
of the Motion for Conditional Certification, “putative class
members had two options for filing a timely claim: (1) opt
into this collective action if they were aware of it, or (2)
file an individual FLSA action.” Ramos-Barrientos v. Bland,
No. 606cv089, 2010 U.S. Dist. LEXIS 37562, at *5 (S.D. Ga.
Apr. 15, 2010); Bobbitt v. Broadband Interactive, Inc., No.
8:11-cv-2855, 2012 U.S. Dist. LEXIS 96551, at *7-8 (M.D. Fla.
July 12, 2012)(at any time during the 13 month period in which
the motion for conditional certification was pending, any
putative class member “could have chosen to file suit against
[defendant], as nothing precluded them from doing so.”); see
also Longcrier v. HL-A Co., Inc., 595 F. Supp. 2d 1218, 124344 (S.D. Ala. 2008)(no equitable tolling “during the pendency
of a conditional class certification request.”). Furthermore,
this Court “did nothing to lull putative class members into
inaction, so equitable tolling is not appropriate.” RamosBarrientos, 2010 U.S. Dist. LEXIS 37562, at *5.
5
Thus, the
Court declines to apply the extraordinary remedy of equitable
tolling to this matter.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiffs’ Motion to Equitably Toll the Statute of
Limitations (Doc. # 122) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
26th day of December, 2013.
Copies: Counsel of Record
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