Green et al v. Harbor Freight Tools USA, Inc.

Filing 462

MEMORANDUM AND ORDER denying 449 Plaintiffs' Motion for Stay of Statute of Limitations for Dismissed Opt-Ins. Signed by District Judge Julie A. Robinson on 12/14/2012. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEPHANIE R. GREEN, et al.,
on Behalf of Themselves and All Others
Similarly Situated,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
HARBOR FREIGHT TOOLS USA, INC.,
)
)
Defendant.
)
________________________________________ )

Case No. 09-CV-2380-JAR-JPO

MEMORANDUM AND ORDER
Plaintiffs brought this collective action under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 216(b), against Defendant Harbor Freight Tools USA, Inc. (“Harbor Freight”), claiming
they were misclassified as exempt from the FLSA’s overtime requirements and are owed
overtime compensation. On August 17, 2012, this Court granted Defendant’s motion to
decertify the conditionally certified class of workers, and dismissed without prejudice the claims
of the thirty-one opt-in claimants.1 This matter is before the Court on Plaintiffs’ Motion for Stay
of Statute of Limitations for Dismissed Opt-Ins (Doc. 449). Plaintiffs request that the stay be
effective August 17, 2012, and run to sixty (60) days after the Court’s ruling on Defendant’s
pending motions for summary judgment against the claims of the five named Plaintiffs.
An action is commenced under the FLSA when a party files suit, but in the case of a
collective action, if a party’s name does not appear on the complaint, the action is commenced
when that party files his or her written consent to become a party of the collective action.2 The

1

Doc. 444.

2

29 U.S.C. § 256(a), (b).

statute of limitations for a plaintiff in a collective action is tolled after the plaintiff has filed a
consent to opt in to the collective action, and begins to run again if the court later decertifies the
collective action.3 There is no language in the FLSA that provides for tolling the claims of
former opt-in plaintiffs following decertification of a collective action.4 Thus, Plaintiffs’ request
is, in effect, a request that the Court equitably toll the statute of limitations to permit the opt-in
plaintiffs to refile their individual claims.
Plaintiffs’ motion is denied. The Court agrees with the reasoning of the district court in
the recent case of Eppenscheid, et al. v. DirectSat USA, LLC, where plaintiffs in a collective
action sought a ruling that the court’s stay of the case pending an interlocutory appeal after
decertification tolled the statute of limitations as to the individual claims of the former opt-in
plaintiffs.5 The court held that it is “inappropriate for this court to enter a broad order
concerning tolling at this stage because the issue of tolling should be addressed by the courts in
which those individuals file their lawsuits.”6 As that court explained,
plaintiffs are seeking tolling for the benefit of an unknown group
of potential plaintiffs who may, in the future, choose to file
individual actions, and whose claims may be adversely affected by
the normal running of the limitations period. Under such
circumstances, [the court] cannot determine whether tolling would
be appropriate.7

3

29 U.S.C. § 216(b).

4

Id.

5

No. 09-cv-625-bbc, slip op. at 1-2 (W.D. Wis. July 7, 2011).

6

Id. at 2-3 (citing Puffer v. Allstate Ins. Co., 614 F. Supp. 2d 905, 917 (N.D. Ill. 2009) (holding that tolling
analysis is “fact-specific” and making “blanket tolling order” is inappropriate); Radmoanovich v. Combined Ins. Co.
of Am., 271 F. Supp. 2d 1075, 1079 (N.D. Ill. 2003) (holding that determinations of tolling must be made on case-bycase basis “if and when” individual files lawsuit)).
7

Id.

2

In the FLSA context, as in others, equitable tolling “permits courts to extend statutes of
limitations on a case-by-case basis in order to prevent inequity.”8 Accordingly, it is left to the
court in which the dismissed opt-in plaintiffs refile their claims, rather than this Court, to
determine whether equity justifies tolling any limitations period.9
Moreover, even if the Court deemed it appropriate to determine whether a stay of the
decertification order equitably tolled the statute of limitations, it would deny Plaintiffs’ request.
As previously discussed, the FLSA does not have a so-called “savings statute” tolling the
limitations period for opt-ins following decertification. In support of their request that the Court
equitably toll the statute of limitations pending ruling on the summary judgment motions,
Plaintiffs cite to cases in which district courts have stayed their decertification orders for a
limited period of time in order to protect the opt-in plaintiffs’ ability to timely file individual
actions, often with little or no discussion.10 Although the Tenth Circuit has not addressed the
circumstances in which equitable tolling applies in FLSA cases, it has addressed the doctrine in
the context of other statutes, including Title VII, where it applies when there has been “active
deception.”11 The Sixth Circuit set forth the following factors to be considered when

8

Johnson v. Academy Mortg. Co., No. 12-CV-276 TS, 2012 WL 3886098, at *1 (D. Utah Sept. 6, 2012).

9
See Merriweather v. Sw. Research Inst., No. 09-cv-0328-JMS-WGH, 2010 WL 5139862, at *2 (S.D. Ind.
Dec. 10, 2010) (where court denied motion for equitable tolling because conditional class was never certified, further
concluding that “[i]f the opt-in plaintiffs choose to file individual lawsuits, any questions regarding the statute of
limitations should be answered by the courts in which those suits are filed.”).
10

See, e.g., Beauperthuy v. 24 Hour Fitness USA, Inc., 772 F. Supp. 2d 1111, 1134 (N.D. Cal. 2011) (“To
avoid prejudice to individual opt-in Plaintiffs who may choose to file their own cases, the Court invokes its equity
powers to toll the applicable statute of limitations for 30 days after the entry of this Order.”); Proctor v. Allsups
Convenience Stores, Inc., 250 F.R.D. 278, 284 (N.D. Tex. 2008) (tolling statute of limitations for opt-in plaintiffs for
30 days); Smith v. Heartland Automotive Servs., 404 F. Supp. 2d 1144, 1155 (D. Minn. 2005) (staying decision
granting motion to decertify for 60 days to permit opt-in plaintiffs to refile their claims).
11
See Smith v. BNSF Ry. Co., 246 F.R.D. 652, 654-55 (D. Kan. 2007) (discussing doctrine in context of
FLSA case) (citing Million v. Frank, 47 F.3d 385, 389 (10th Cir. 1995)).

3

determining if the doctrine applies to FLSA claims:
(1) whether the plaintiffs lacked actual notice of their rights and
obligations; (2) whether they lacked constructive notice; (3) the
diligence with which they pursued their rights; (4) whether the
defendant would be prejudiced if the statute were tolled; and (5)
the reasonableness of the plaintiffs’ remaining ignorant of their
rights.12
Plaintiffs do not assert that any opt-in plaintiff who has exercised due diligence or was
actively deceived will be barred from filing suit. Indeed, Plaintiffs should have notified the optin plaintiffs that the case has been decertified as of August 17, 2012, and that the statute of
limitations on their ability to file individual suit is running. Significantly, Plaintiffs did not
request the Court stay its decertification order either in their response in opposition to
Defendant’s motion or in a motion for reconsideration or to alter or amend the order dismissing
the opt-in plaintiffs without prejudice. Instead, they filed the instant request nearly six weeks
after entry of the decertification order, seeking retroactive relief much broader than that granted
in the cases they cite in support of their request, where the courts typically stayed the
decertification order for thirty to sixty days contemporaneously with entry of the order.13 These
circumstances do not offer any support for Plaintiffs’ request for equitable tolling, and their
motion is denied.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion for Stay of

12

Archer v. Sullivan Cnty., Tenn., Nos. 95-5214, 95-5215, 1997 WL 720406, at *3 (6th Cir. Nov. 14, 1997).

13

See e.g., Beauperthuy v. 24 Hour Fitness USA, Inc., 772 F. Supp. 2d 1111, 1134 (N.D. Cal. 2011) (“To
avoid prejudice to individual opt-in Plaintiffs who may choose to file their own cases, the Court invokes its equity
powers to toll the applicable statute of limitations for 30 days after the entry of this Order.”); Proctor v. Allsups
Convenience Stores, Inc., 250 F.R.D. 278, 284 (N.D. Tex. 2008) (tolling statute of limitations for opt-in plaintiffs for
30 days); Smith v. Heartland Automotive Servs., 404 F. Supp. 2d 1144, 1155 (D. Minn. 2005) (staying decision
granting motion to decertify for 60 days to permit opt-in plaintiffs to refile their claims).

4

Statute of Limitations for Dismissed Opt-Ins (Doc. 449) is DENIED.
IT IS SO ORDERED.
Dated: December 14, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE