Jones v. RS&H, Inc.

Filing 15

ORDER denying 13 Motion for Reconsideration. Signed by Judge Susan C Bucklew on 2/24/2017. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRADLEY JONES, on behalf of
himself and others similarly
situated,
Plaintiffs,
v.

Case No. 8:17-cv-54-T-24 JSS

RS&H, INC.,
Defendant.
______________________________/
ORDER
This cause comes before the Court on Plaintiff’s Motion for Reconsideration. (Doc. No.
13). Defendant opposes the motion. (Doc. No. 14). As explained below, the motion is
DENIED.
I. Background
Plaintiff filed an age discrimination complaint under the Age Discrimination in
Employment Act (“ADEA”) and the Florida Civil Rights Act. (Doc. No. 1). On January 17,
2017, prior to Defendant appearing in the case, Plaintiff filed a motion for conditional
certification and assumed that the motion would be electronically served on Defendant via
CM/ECF. (Doc. No. 7). Defendant, having not been served with the motion, failed to respond to
the motion. The Court, unaware of the service issue, issued an order to show cause to Defendant
for failing to respond to the motion. (Doc. No. 10). In response to the Court’s order, Defendant
explained that it had not been served with the motion, nor had Plaintiff conferred with Defendant
regarding the motion. (Doc. No. 11).
As a result, this Court issued an order terminating Plaintiff’s motion for conditional

certification. (Doc. No. 12). Additionally, the Court directed Plaintiff to confer with Defendant
regarding the motion and then to re-file and serve the motion if an agreement could not be
reached. (Doc. No. 12). In response to the Court’s order, Plaintiff filed the instant motion for
reconsideration.
II. Motion for Reconsideration
In the instant motion, Plaintiff asks the Court to vacate its order terminating Plaintiff’s
motion for conditional certification. Plaintiff argues that the Court did not give Plaintiff an
opportunity to respond prior to the Court’s order terminating the motion, and the termination of
the motion could have serious consequences due to the statute of limitations. Plaintiff asks the
Court to un-terminate the motion for conditional certification and to simply extend the deadline
for Defendant to respond (rather than having Plaintiff re-file the motion). Plaintiff argues that
the date of filing the motion for conditional certification is important. Specifically, Plaintiff
contends that Plaintiff’s motion for conditional certification had to be filed by January 17, 2017
in order to preserve opt-in plaintiffs’ claims. (Doc. No. 13). However, Plaintiff acknowledges
that “the Eleventh Circuit’s precedent provides that the statute of limitations is not tolled for optin plaintiffs until their consents are filed.” (Doc. No. 7). Yet Plaintiff intends to ask the Court to
follow non-binding precedent to toll the statute of limitations as of either: (1) the date that
Plaintiff filed his complaint; or (2) the date that Plaintiff filed his motion for conditional
certification. (Doc. No. 7).
Defendant responds that the Eleventh Circuit’s opinion in Grayson v. K Mart Corp., 79
F.3d 1086 (11th Cir. 1996), forecloses Plaintiff’s argument regarding tolling the statute of
limitations. In Grayson, an issue before the Court was when an opt-in plaintiff’s consent to join

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had to be filed for pre-November 21, 1991 ADEA claims. See id. at 1105, 1105 n.35, 1107 n.39.
The Grayson plaintiffs had a two- or three-year period after their demotion to “begin a civil
action” (depending on whether the ADEA violation was willful or non-willful) in order not to be
barred by the statute of limitations, and the court concluded that these opt-in plaintiffs would be
deemed to commence their civil action only when they filed their written consents to opt into the
class. See id. at 1100, 1106.
The Grayson court noted that plaintiffs who had post-November 21, 1991 ADEA claims
“must begin a civil action within ninety days after the date of [their] receipt of the EEOC’s
notice that [their] charge was filed.” Id. at 1100. In a footnote, the Grayson court discussed how
its statute of limitations analysis differed for plaintiffs who had post-November 21, 1991 ADEA
claims:
[The above analysis would] apply only to plaintiffs who were subject
to the allegedly discriminatory act prior to November 21, 1991, the
effective date of the Civil Rights Act of 1991. The Civil Rights Act
replaced the two-year and three-year statutes of limitations with a
ninety-day period in which to begin a civil action after the plaintiff
has received the EEOC's notice that his charge was filed. For
plaintiffs who allege being subject to wrongful conduct occurring
after November 21, 1991, an analogous rule would be to allow
potential plaintiffs ninety days from the date they receive the
notice of the opt-in class, to file their written consent to opt into
the class.
Id. at 1107 n.39 (emphasis added).
Given Grayson, the Court agrees with Defendant that Plaintiff’s argument—that the
statute of limitations must be tolled by the filing of the complaint or the motion for conditional

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certification—must be rejected.1 The Grayson court did not find that the date of a motion for
conditional certification had a bearing on the statute of limitations issue. Accordingly, the Court
sees no harm to Plaintiff by allowing the order to stand, which simply terminates Plaintiff’s
motion for conditional certification and grants Plaintiff leave to re-file it.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion for
Reconsideration (Doc. No. 13) is DENIED. If Plaintiff wants to re-file his motion for
conditional certification, he must file it by March 13, 2017.
DONE AND ORDERED at Tampa, Florida, this 24th day of February, 2017.

Copies to:
Counsel of Record

1

Given the quoted language from the footnote in Grayson, it is unclear to the Court how a
statute of limitations problem could be caused by the filing date of the motion for conditional
certification. The parties should address any statute of limitations issues, with citations to
authority, in the forthcoming motion for conditional certification and response thereto.
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