HAWKINS v. ALORICA INCORPORATED

Filing 113

ORDER - The Motion for Permissive Joinder of Twelve Party Plaintiffs, 99 , and the Motion to Determine Validity of Written Notices of Consent Filed by Twelve Opt-In Plaintiffs or, in the Alternative, Motion For Equitable Tolling of Statute of Limitations, 100 , are DENIED. (See Order.) Signed by Judge Jane Magnus-Stinson on 10/30/2012. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
RENEE M. HAWKINS, individually and on behalf of others similarly situated,
Plaintiff,
vs.
ALORICA, INC.,
Defendant.

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2:11-cv-00283-JMS-WGH

ORDER
Presently before the Court in this action brought under the Fair Labor Standards Act
(“FLSA”) and the Indiana Wage Payment Act (“IWPA”) are Plaintiff Renee Hawkins’ Motion
for Permissive Joinder of Twelve Party Plaintiffs, [dkt. 99], and Motion to Determine Validity of
Written Notices of Consent Filed by Twelve Opt-In Plaintiffs or, in the Alternative, Motion for
Equitable Tolling of Statute of Limitations, [dkt. 100]. For the following reasons, the Court denies both motions.
I.
BACKGROUND
Alorica, Inc. (“Alorica”) operates a call center in Terre Haute, Indiana. [Dkt. 61-3 at 2,
¶¶ 2-3.] Ms. Hawkins, who was employed as a customer service representative (“CSR”) at the
Terre Haute call center, [dkt. 58 at 3, ¶ 3], initiated this litigation on October 18, 2011, [dkt. 1],
and filed the operative Amended Complaint on April 12, 2012, [dkt. 58]. She asserted claims
against Alorica on behalf of herself and all similarly-situated current and/or former hourly-paid
employees of Alorica who worked at the Terre Haute call center for failure to pay minimum and

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overtime wages under the FLSA, 29 U.S.C. § 216(b), and on behalf of a class of current and
former Alorica employees for unpaid wages under the IWPA, I.C. 22-2-5. [Id.]
Subsequently, Ms. Hawkins sought conditional certification of two classes under the
FLSA: (1) the pre- and post-shift work class, which included certain Alorica employees who,
Ms. Hawkins alleges, were not paid regular or overtime wages for time spent on pre- and postshift work activity; and (2) the unpaid breaks class, which included certain Alorica employees
who, Ms. Hawkins alleges, were not paid regular or overtime wages for time spent in a work rest
period or break of less than twenty minutes. [Dkts. 36; 77.] Ms. Hawkins also sought certification of the same classes under the IWPA pursuant to Federal Rule of Civil Procedure 23. [Id.]
In a September 25, 2012 Order, this Court denied collective and class certification of the
pre- and post-shift work class, but conditionally certified the unpaid breaks class under the
FLSA, and certified that class under the IWPA. [Dkt. 98.] For purposes of her pre- and postshift work claims, Ms. Hawkins now seeks to join as party plaintiffs twelve individuals1 who
filed notices of consent to become a party plaintiff before the Court’s September 25, 2012 Order.
[Dkt. 99; see also dkts. 8-9; 25; 35; 39; 46-48; 52; 54; 75; 91.] Ms. Hawkins also requests that
the Court determine the validity of the notices of consent filed by the twelve individuals or, in
the event the Court denies her Motion for Permissive Joinder, toll the statute of limitations for
the twelve individuals’ FLSA pre- and post-shift work claims for the time from when Ms. Hawkins filed her Motion for Permissive Joinder (September 26, 2012) to the date of this Order.
[Dkt. 100.]

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The twelve individuals are Jennifer Cree, Sammie Wickiser, Christopher Brown, Carrie Regynski, Angela Paul, Tondra Matheney, John Matheney, Charla Stewart, Christine Griffin, Monica
Townsend, Keri Craffets, and Ashley Fink. [Dkt. 99 at 1.]
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II.
DISCUSSION
A. Motion for Permissive Joinder of Twelve Party Plaintiffs
1. Standard
Federal Rule of Civil Procedure 20 states:
Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
Rule 20 is designed to “promot[e]…efficiency, convenience, consistency, and fundamental fairness.” Elite Enters. v. ASC, Inc., 2005 U.S. Dist. LEXIS 28577, *6 (N.D. Ind. 2005) (citations
omitted). “These policies, not a bright-line rule, control whether the requirements imposed by
Rule 20(a) have been satisfied.” Id.
In addition to the requirements of Rule 20, a court must consider “other relevant factors
in a case in order to determine whether the permissive joinder of a party will comport with the
principles of fundamental fairness.” Intercon Research Associates, Ltd. v. Dresser Industries,
Inc., 696 F.2d 53, 56 (7th Cir. 1982). A motion for joinder should be denied if joinder will create “prejudice, expense or delay.” Chavez v. Ill. State Police, 251 F.3d 612, 632 (7th Cir. 2001)
(citation omitted).
2. Whether Joinder is Appropriate Here
Ms. Hawkins argues that the twelve individuals should be joined as party plaintiffs because: (1) they are already party plaintiffs for their unpaid breaks claims by virtue of the Court’s
certification of that class and their notices of consent to opt in as party plaintiffs; (2) they “all
also have claims identical to those of [Ms. Hawkins] regarding unpaid wages related to pre and
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post-shift work required of each by Alorica”; and (3) joinder is appropriate “[f]or purposes of
consistency and judicial economy” since the parties have already engaged in some discovery regarding the twelve individuals, “many, if not all, of the twelve [individuals] will rely upon one
another and [Ms. Hawkins] as witnesses at trial,” “the group will commonly rely upon their former supervisors,” and without joinder “the parties will likely duplicate significant expenses.”
[Dkt. 99 at 2-6.]
Alorica opposes joinder, asserting that the requirements for joinder are absent because:
(1) the twelve individuals all have “highly individualized experiences related to alleged pre-shift
and post-shift work which is dependent on a variety of factors…”; (2) if joinder is allowed, individualized issues “would overwhelm any minimal similarities they share”; and (3) substantial
discovery is still necessary, and “[i]t would not be efficient or consistent under Rule 20 to have
multiple plaintiffs on different discovery and pretrial tracks joined in the same action.” [Dkt.
104 at 3-5.]
While there is “no hard and fast rule for determining whether a particular situation constitutes a single transaction or occurrence for purposes of Rule 20,” courts will analyze the facts of
each case and consider “when the alleged conduct occurred, whether the same people were involved, whether the conduct was similar, and whether it implicated a system of decision-making
or widely-held policy.” Martinez v. Haleas, 2010 U.S. Dist. LEXIS 31498, *8 (N.D. Ill. 2010).
Courts which consider whether joinder of party plaintiffs is appropriate are often asked to do so
either before a motion for class certification has been ruled upon, or outside of the class context.
Conversely, here, Ms. Hawkins moves for joinder, [dkt. 99], after the Court has already decided
that her pre- and post-shift claims are inappropriate for class treatment, [dkt. 98].

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At least one district court sitting in the Seventh Circuit granted a motion to dismiss for
misjoinder of newly added plaintiffs after it declined to certify a class of individuals who allegedly had been arrested by a City of Chicago police officer in separate incidents, but asserted the
same claims against the officer. Martinez, 2010 U.S. Dist. LEXIS 31498. The court found that
joinder was inappropriate where the improperly joined plaintiffs’ arrests each had its “own
unique facts,” where “[e]ach plaintiff will have different witnesses and testimony to support his
claim,” and where the defendant “will no doubt have his own version of each incident.” Id. at
*10-11. The court specifically noted that it had already denied plaintiff’s motion for class certification for failure to demonstrate that common questions would predominate over individual
ones, and that “[t]he same logic applies” to the joinder issue. Id. at *8.
Similarly, here the Court has already found that Ms. Hawkins did not show that Alorica
had a policy or practice of requiring CSRs to perform pre- and post-shift work without compensation, [dkt. 98 at 12-14, 21], and therefore had not established that she was similarly situated to
other putative class members or that Rule 23(a)’s commonality requirement was satisfied. While
the Court is mindful that the standard for showing joinder is appropriate may not be as stringent
as the standard for class certification, Eclipse Mfg. Co. v. M&M Rental Ctr., Inc., 521 F.Supp.2d
739, 745 (N.D. Ill. 2007), it finds that the individualized issues discussed in its Order denying
conditional and class certification for the pre- and post-shift work class, [dkt. 98], make joinder
of the twelve individuals inappropriate here.
Further, because the Court has already found that Ms. Hawkins has not shown there was
a company-wide policy at the Terre Haute call center to require unpaid pre- and post-shift work –
rather, what CSRs were told regarding pre- and post-shift work varied depending upon who their
supervisors were – trying the claims of CSRs who were instructed differently would create the

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risk of prejudice to Alorica and potentially lead to confusion if the claims were tried together,
before one jury. See McDowell v. Morgan Stanley & Co., 645 F.Supp.2d 690, 696 (N.D. Ill.
2009) (“should these claims be tried together, before a single jury, the risk of confusion, prejudice, overlapping proof and duplicative testimony would be substantially increased, given the
differences between each of the Plaintiffs’ situations. At trial, the parties would likely call to testify the individual Plaintiffs, their supervisors, co-workers and witnesses from each individual
office. Such testimony is highly individualized…”).2
Accordingly, the Court finds that joinder of the twelve individuals is not warranted here,
and denies Ms. Hawkins’ Motion for Permissive Joinder of Twelve Party Plaintiffs.
B. Motion to Determine Validity of Written Notices of Consent Filed by Twelve
Opt-In Plaintiffs or, in the Alternative, Motion for Equitable Tolling of Statute
of Limitations
Because the Court is denying Ms. Hawkins’ Motion for Permissive Joinder, it also denies
as moot the portion of her Motion to Determine Validity of Written Notices of Consent Filed by
Twelve Opt-In Plaintiffs or, in the Alternative, Motion for Equitable Tolling of Statute of Limitations that seeks a determination regarding the validity of the notices of consent. The Court will
consider, however, the remainder of the motion, which asks the Court, in the event it denies the
Motion for Permissive Joinder (as it has), to toll the statute of limitations for the twelve individuals’ FLSA pre- and post-shift work claims from the date the Motion for Permissive Joinder was
filed to the date of this Order.
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As to Ms. Hawkins’ argument that joining the twelve individuals as plaintiffs here would be
efficient in terms of future discovery, the Court notes that, to the extent the twelve individuals
file separate lawsuits for their pre- and post-shift work claims and are then deposed in this case
regarding their unpaid breaks claims, counsel for those individuals and counsel for Alorica are
free to agree to cover topics relevant to both lawsuits during a single deposition and, thus, conserve resources. The Court can also enlist one magistrate judge to manage discovery of all of the
cases.

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1. Standard
As a general rule, equitable tolling may allow a late FLSA claim under three circumstances: (1) where the defendant has misled the plaintiff about his cause of action; (2) where the
plaintiff has been prevented in some extraordinary way from asserting his rights; or (3) where the
plaintiff has timely asserted his rights in the wrong forum. Veerkamp v. United States Sec. Assocs., 2006 U.S. Dist. LEXIS 71368, *15 (S.D. Ind. 2006). Where a potential plaintiff has affirmatively opted-in to a suit, the statute of limitations stops running on the date he or she files a
written consent. Powers v. Centennial Communs. Corp., 2010 U.S. Dist. LEXIS 18397, *6
(N.D. Ind. 2010).
2. Whether Tolling is Appropriate Here
Ms. Hawkins seeks to have the statute of limitations for the twelve individuals’ FLSA
pre- and post-shift work claims tolled from the date of her Motion for Permissive Joinder to the
date of this Order, [dkt. 100 at 5-6], apparently believing that the statute of limitations began
running again on September 25, 2012, when the Court denied her motion to collectively certify
the FLSA pre- and post-shift work class. The Court declines to decide whether it should toll the
statute of limitations for the twelve individuals’ FLSA pre- and post-shift work claims because
those individuals are not parties to this litigation for purposes of those claims. To decide the tolling issue for non-parties would be to issue an advisory opinion, which the Court is prohibited
from doing. Merriweather v. Southwest Research Inst., 2010 U.S. Dist. LEXIS 131811, *6 (S.D.
Ind. 2010) (declining to rule on tolling issue for FLSA plaintiffs who had been excluded from
certified class because such a ruling would be advisory in nature). See also FCC v. Airadigm
Communs., Inc., 616 F.3d 642, 654 (7th Cir. 2010) (“federal courts are not authorized to issue

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advisory opinions”). To the extent the twelve individuals decide to file their own lawsuits to assert their pre- and post-shift work claims, the tolling issue is properly decided by those courts.
III.
CONCLUSION
For the foregoing reasons, both Ms. Hawkins’ Motion for Permissive Joinder of Twelve
Party Plaintiffs, [dkt. 99], and her Motion to Determine Validity of Written Notices of Consent
Filed by Twelve Opt-In Plaintiffs or, in the Alternative, Motion For Equitable Tolling of Statute
of Limitations, [dkt. 100], are DENIED.

10/30/2012
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Peter N. Farley
SUTHERLAND ASBILL AND BRENNAN LLP
[e-mail]
Gregory W. Guevara
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Katherine Kendricks
SUTHERLAND ASBILL AND BRENNAN LLP
[e-mail]
Robert Peter Kondras Jr.
HUNT HASSLER & LORENZ LLP
[e-mail]
Allegra J. Lawrence-Hardy
SUTHERLAND ASBILL AND BRENNAN LLP
[e-mail]
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Kurt E. Lentz
SUTHERLAND ASBILL AND BRENNAN LLP
[e-mail]
Andrew M. McNeil
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Caitlin M Miller
HUNT, HASSLER & LORENZ
[e-mail]

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