Greenstein v. Meredith Corporation
Filing
85
MEMORANDUM AND ORDER denying 49 Plaintiffs Motion for equitable tolling. Signed by District Judge Richard D. Rogers on 8/6/2013. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELISSA GREENSTEIN, on behalf
of herself and all other persons
similarly situated,
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Plaintiffs,
v.
MEREDITH CORPORATION,
Defendant.
Case No. 11-2399-RDR
MEMORANDUM AND ORDER
This case is before the court upon plaintiffs’ motion for
equitable tolling.
Doc. No. 49.
This is a FLSA action alleging
that defendant treated producers who worked at its television
stations as exempt from requirements to pay overtime when they
were not exempt.
On April 23, 2013, this court granted a motion
for conditional class certification and directed that notice be
sent to producers in the relevant class informing them about
this litigation.
was
filed
on
The motion to conditionally certify the class
June
8,
2012
completed on July 19, 2012.
and
briefing
on
the
motion
was
Under the FLSA, the statute of
limitations is tolled only after a plaintiff has filed a consent
to opt into the class action.
29 U.S.C. § 256(a), (b).
So, if
a member of the class was not aware of this action or, for some
other reason, failed to opt in before the limitations period
expired, that person’s right to relief under the FLSA will have
terminated unless the running of the period has been tolled.
Plaintiffs
ask
the
court
to
hold
that
the
statute
of
limitations shall be tolled for the period of time from when
plaintiffs
filed
certification
certification
their
until
order
motion
the
–
court
for
conditional
issued
approximately
an
the
class
conditional
eleven-month
span.
Plaintiffs argue that it is unfair that some potential class
members may have not known of this litigation and had their
claims
expire
certification
while
and
the
notice
decision by the court.
to
motion
class
for
members
conditional
was
pending
class
for
As plaintiffs put it:
The bottom line is the Court’s certification took
longer than usual.
The absent class members are
harmed by this delay. As a result, the delay provides
good cause for the Court to grant equitable tolling .
. .
Doc. No. 58, p. 10.
Plaintiffs do not claim that there is
anything unusual about this case other than the amount of time
taken to decide the certification motion.
Defendant opposes the motion arguing, among other points,
that applying equitable tolling under these circumstances would
make it a matter of normal course, which is arguably contrary,
first, to the rules courts often apply to requests for equitable
tolling, and, second, to Congress’s intent when it established
2
the rules for the commencement of an action by parties who opt
into conditionally certified class lawsuits.
Courts have decided this issue both ways in FLSA cases.
Cf., e.g., Bergman v. Kindred Healthcare, Inc., 2013 WL 2632596
*7-8
(N.D.Ill.
6/11/2013)(granting
equitable
tolling)
with
Garrison v. ConAgra Foods Packaged Food, LLC, 2013 WL 1247649
*4-5 (E.D.Ark. 3/27/2013)(denying equitable tolling).
consideration,
the
court
shall
deny
plaintiffs’
After due
motion
for
equitable tolling for the following reasons.
First,
general
plaintiffs’
standards
for
grounds
equitable
for
tolling
tolling
Supreme Court and the Tenth Circuit.
do
not
meet
acknowledged
by
the
the
The Supreme Court has not
addressed equitable tolling in the FLSA context.
But, the Court
has stated in other situations that the doctrine should be used
rarely or sparingly.
See Wallace v. Kato, 549 U.S. 384, 396
(2007)(“a rare remedy to be applied in unusual circumstances”);
Irwin
v.
Dep’t
(2005)(“typically
of
Veterans
extended
.
.
Affairs,
.
only
498
U.S.
89,
sparingly”).
96
Here,
plaintiff does not offer a principled distinction between a onemonth delay and an eleven-month delay which would justify the
failure to apply equitable tolling in every case.
The Tenth Circuit also has not addressed equitable tolling
in a FLSA case.
that:
But, the Tenth Circuit has observed generally
“Equitable
tolling
may
3
be
appropriate
where
‘the
defendant has actively misled the plaintiff respecting the cause
of action, or where the plaintiff has in some extraordinary way
been prevented from asserting his rights . . . .’”
Million v.
Frank, 47 F.3d 385, 389 (10th Cir. 1995)(quoting Carlile v. South
Routt Sch. Dist., 652 F.2d 981, 985 (10th Cir. 1981)).
of these two scenarios is applicable here.
Neither
Plaintiffs have not
asserted plausible grounds upon which to find that defendant
actively misled plaintiffs or other members of the conditionally
certified class respecting the cause of action in this matter.
See
Abbey
v.
U.S.,
106
Fed.Cl.
254,
287
(Fed.Cl.
2012)(government agency policies are not the kind of concealment
or secretive conduct which would prevent the plaintiffs from
becoming aware of an FLSA injury); Huggins v. U.S., 2005 WL
6112625 *8 (Fed.Cl. 8/16/2005)(plaintiffs not misled by repeated
assertions that they were properly classified); Aly v. Butts
County, 841 F.Supp. 1199, 1202 (M.D.Ga. 1994)(same).
further
finds
conditional
that
class
circumstance.
the
delay
certification
in
is
deciding
not
an
the
The court
motion
for
“extraordinary”
See, e.g., Young v. Dollar Tree Stores, Inc.,
2013 WL 1223613 (D.Colo. 3/25/2013)(10-month delay); Vargas v.
General Nutrition Centers, Inc., 2012 WL 5336166 *7-9 (W.D.Pa.
10/26/2012)(11-month delay from filing of motion for conditional
certification).
4
A second reason to deny the motion for equitable tolling is
that plaintiffs’ grounds for tolling do not meet the standards
employed by other judges in this district.
When dealing with
contested motions for equitable tolling in FLSA cases, other
judges in this district have applied the following five factors
drawn from Archer v. Sullivan County, 1997 WL 720406 *3 (6th Cir.
11/14/1997)
and
Graham-Humphreys
v.
Memphis
Brooks
Museum
of
Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000):
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.
Green v. Harbor Freight Tools USA, Inc., 888 F.Supp.2d 1088,
1107 (D.Kan. 2012)(addressing whether to stay a decertification
order); In re Bank of America Wage and Hour Emp’t Litig., 2010
WL 4180530 *6 (D.Kan. 10/20/2010); Smith v. BNSF Railway Co.,
246
F.R.D.
652,
654-55
(D.Kan.
2007).
In
most
instances,
equitable tolling has been denied when it has been contested.1
1
In Smith, the court applied the listed factors and denied equitable tolling.
In In re Bank of America, the court granted equitable tolling because it
found the putative plaintiffs could have relied upon a court order to believe
they could wait to file an opt-in form. In Allen v. Mill-Tel, Inc., 2012 WL
2872160 *8 (D.Kan. 7/12/2012), the court declined to order equitable tolling
where the plaintiffs did not allege active deception or allege facts for the
court to consider the equitable factors relied upon in Smith. In Pegues v.
CareCentrix, Inc., 2013 WL 1896994 *5 (D.Kan. 5/6/2013), the court denied
equitable tolling where plaintiff suggested no facts making joining the
lawsuit impossible or demonstrating interference by the defendant). Tolling
was ordered in Pinkston v. Wheatland Enterprises, Inc., Case No. 11-2498
(D.Kan. 3/22/2013), but there was no opposition from defendant.
5
Obviously,
deciding
a
therefore,
these
motion
by
standards
for
focusing
do
not
conditional
upon
that
concern
class
factor
the
certification
plaintiffs
demonstrated good grounds for equitable tolling.
standards
tolling
to
this
should
plaintiffs
case,
be
have
the
denied.
had
court
It
the
concludes
appears
same
that
notice
delay
and,
have
not
Applying those
that
equitable
potential
of
in
their
opt-in
rights
and
obligations available to them as did the named plaintiff in this
case.2
They
were
aware
and
not
compensated
employees
plaintiffs’
assistance
counsel
from
have
that
they
for
engaged
information
were
overtime.
in
supplied
treated
In
outreach
by
as
potential opt-in plaintiffs of this litigation.
addition,
efforts
defendant)
exempt
to
(with
notify
The court has
no claim or information that potential opt-in plaintiffs have
diligently
attempted
efforts blunted.
to
pursue
their
rights
or
had
diligent
Defendant may face additional claims if the
court orders equitable tolling, but the court has no reason to
find that this would be unduly prejudicial.
is
not
aware
of
reasons
for
potential
Finally, the court
opt-in
plaintiffs
to
remain ignorant of their rights which should compel equitable
2
If this notice was not effective in informing potential plaintiffs of their
rights, it may not require equitable tolling.
As defendant has noted, the
Tenth Circuit ruled in a Railroad Retirement Act case that lack of knowledge
of the applicable law did not warrant equitable tolling.
Gatewood v.
Railroad Retirement Board, 88 F.3d 886, 890 (10th Cir. 1996).
See also,
Young, 2013 WL 1223613 *2 (“Generally, potential opt-in plaintiffs are
presumed to be aware of the facts and circumstances of their employment . . .
that form the basis of each plaintiff’s FLSA claim”).
6
tolling.
obtain
In addition to the above-mentioned opportunities to
notice,
it
appears
that
defendant
changed
its
classification of producers after the filing of this litigation.
This action would provide some notice to a potential plaintiff
of the possibility of a FLSA claim.
After considering the five
factors listed above, the court finds that equitable tolling is
not justified.
In
conclusion,
for
the
above-stated
reasons,
the
shall deny plaintiffs’ motion for equitable tolling.
IT IS SO ORDERED.
Dated this 6th day of August, 2013, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
7
court
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