Clay et al v. Northrop Grumman Corporation et al

Filing 117

ORDER AND REASONS: ORDERED that 111 Motion to Dismiss Party Opt-In Plaintiffs is GRANTED and Opt-In Plaintiffs are DISMISSED WITHOUT PREJUDICE. FURTHER ORDERED that Plaintiffs' request that the Court grant a stay so as to toll the statute of limitations regarding Opt-In Plaintiffs' claims is DENIED. Signed by Judge Nannette Jolivette Brown on 3/13/2012. (clm, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LONZO J. CLAY, et al.

CIVIL NO. 09-7625

VERSUS
HUNTINGTON INGALLS, INC.

SECTION: G

ORDER AND REASONS
Before the Court is Defendant Huntington Ingalls, Inc.’s (“Defendant”) Motion to Dismiss
Opt-In Plaintiffs, filed October 13, 2011.1 The motion was set for submission on November 9, 2011.
Plaintiffs filed their untimely2 response in opposition on November 10, 2011.3 Following leave of
Court, Defendant filed its reply on November 23, 2011.4

Having considered the motion, the

untimely response, the reply, the record, and the applicable law, the Court will grant the motion.

I. Background
The four named plaintiffs in this suit, Lonzo J. Clay, Jean L. Guerrier, Randy James, and
Kassandra Paul (“Named Plaintiffs”) filed, on December 12, 2009,5 a putative collective action
against their employer, Defendant, seeking hourly and overtime compensation under the Fair Labor

1

Rec. Doc. 111.

2

Local Rule 7.5 of the Eastern District of Louisiana requires that memoranda in opposition to a motion be
filed eight days prior to the date set for hearing on the motion. This Court has authority to grant a motion as
unopposed, although it is not required to do so. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 356
(5th Cir. 1993).
3

Rec. Doc. 112.

4

Rec. Doc. 116.

5

Rec. Doc. 1.

1

Standards Act (“FLSA”).6 Specifically, Named Plaintiffs contend that they are required to work off
the clock for pre-shift work and during meal break work. Since the filing of this action, more than
300 employees of Defendant have filed notices of consent seeking to opt-in to the putative class
action (“Opt-In Plaintiffs”).
On October 25, 2010, Named Plaintiffs and Opt-In Plaintiffs (collectively, “Plaintiffs”) filed
a Motion for Conditional Certification of their class,7 which United States District Court Judge Jay
Zainey denied on September 29, 2011 when he held that the claims were not appropriate for
representative, collective treatment.8 The case was then reassigned to this Section, Section “G”, on
October 7, 2011.9
On October 13, 2011, Defendant filed the present Motion to Dismiss Party Opt-In Plaintiffs
Without Prejudice,10 seeking to have dismissed without prejudice the greater than 300 individuals
who filed notices of consent seeking to opt-in to this suit. The motion was set for submission on
November 9, 2011, and timely opposition was not filed. However, Plaintiffs filed an untimely
Response to Defendant’s Motion to Dismiss Opt-In Plaintiffs on November 10, 2011.11 The Court
is not required to consider untimely pleadings.12 In their response, Plaintiffs request this Court to

6

29 U.S.C. § 201, et seq.

7

Rec. Doc. 75.

8

Rec. Doc. 109.

9

Rec. Doc. 110.

10

Rec. Doc. 111.

11

Rec. Doc. 112.

12

Frick v. Quinlin, 631 F.2d 37, 40 (5th 1980) (stating that the district court is free to consider or to
disregard an untimely response).

2

convert Opt-In Plaintiffs into original plaintiffs in the case, or alternatively, to dismiss Opt-In
Plaintiffs without prejudice but to grant a stay so as to toll the statute of limitations regarding Opt-In
Plaintiffs’ claims. Plaintiffs requested the Court stay dismissal for an additional 90 days following
the Court’s decision on the motion to dismiss.13 Defendant sought leave to reply to the untimely
opposition, which this Court granted.14 Defendant filed its Reply Memorandum in Support of
Motion to Dismiss Opt-In Plaintiffs, in which Defendant argues that neither conversion of Opt-In
Plaintiffs into original plaintiffs nor a stay is warranted here, on November 23, 2011.15

II. Law and Analysis
A. Overview of FLSA Class Actions
The FLSA sets forth requirements for minimum wage, overtime pay, and record keeping for
employees who are not excepted because they hold an executive, administrative, or professional
position.16

The Act also creates a private right of action for employees when these rights are

violated.17 An action seeking such relief may be maintained against the employer “by any one or
more employees for and in behalf of himself or themselves and other employees similarly situated.”18

13

Plaintiffs requested 90 days “due to the impending holiday season and size of the opt-in group.” Rec.
Doc 112 at p. 3.
14

Rec. Doc. 115.

15

Rec. Doc. 116.

16

29 U.S.C. §§ 206(a)(1), 207(a)(1), 213(a)(1). The employer bears the burden of proving the
applicability of an exemption. Corning Glass Works v. Brennan, 417 U.S. 188, 197 (1974).
17

29 U.S.C. § 216(b) (providing in relevant part that “[a]ny employer who violates the provisions of [the
FLSA] shall be liable to the employees affected in the amount of their unpaid minimum wages, or their unpaid
overtime compensation, as the case may be, and in the additional equal amount of liquidated damages”).
18

Id.

3

Such an action is referred to as a collective action. However, the FLSA does not define the
requirements for employees to be deemed “similarly situated.”
A two-step method, originally articulated in Lusardi v. Xerox Corporation19 is routinely
utilized to determine the appropriateness of certification of a collective action. Under this approach,
the plaintiff moves for conditional certification of his collective action.20 For purposes of conditional
certification under Section 216(b) of the FLSA, the term “certification” refers to the process by
which the Court facilitates notice to potential plaintiffs of the pendency of the action and their
opportunity to opt-in.21 The Court first determines at the notice stage whether notice should be given
to potential members of the class action, and this determination is usually made on the basis of “only
. . . the pleadings and any affidavits.”22 Because the Court typically has little evidence at this stage,
the determination of conditional certification “is made using a fairly lenient standard, and typically
results in ‘conditional certification’ of a representative class.”23 Generally, courts do not require
more than “substantial allegations that the putative class members were together the victims of a
single decision, policy, or plan”24 and only a modest factual basis is required. While certification
is by no means automatic, it is probable at this stage.25 Only those employees who affirmatively opt19

118 F.R.D. 351 (D.N.J. 1987).

20

Sandoz v. Cingular Wireless, LLC, 553 F.3d 913, 916 n. 2 (5th Cir. 2008).

21

Hoffman-LaRouche, Inc. v. Sperling, 493 U.S. 165, 169 (1989).

22

Mooney v. Aramco Services Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
23

Id. at 1214.

24

Id.

25

Lima v. Int’l Catastrophe Solutions, Inc., 493 F.Supp.2d 793, 797-98 (E.D. La., June 27, 2007) (Fallon,
J.) (citing Mooney, 54 F.3d at 1213-14).

4

in to the suit are bound by a collective action under 29 U.S.C. § 216(b),26 although some potential
plaintiffs may choose to opt-in even before notice is sent.
If conditional certification is granted, the case then proceeds through discovery as a class
action to the merits stage, at which time Defendants may move for decertification.27 At that time,
the Court must make a factual determination as to whether there are similarly-situated employees
who have opted-in.28 A more stringent approach governs, and Lusardi applies a three-factor test
considering: (1) the extent to which employment settings are similar or disparate; (2) the extent to
which any of the employer’s defenses are common or individuated; and (3) fairness and procedural
considerations.29 If the Court determines that employees are similarly situated, the collective action
may proceed, but if the Court determines that employees are not similarly situated, the Court must
dismiss the opt-in employees, leaving only the named plaintiffs’ original claims.30
Although the more lenient Lusardi approach is the more common approach and routinely
utilized by courts in this District,31 it is not the only recognized method for conditional class

26

“[N]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to
become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b).
27

Mooney, 54 F.3d at 1214.

28

Sandoz, 553 F.3d at 916 n. 2 (citing Mooney, 54 F.3d at 1213-14).

29

Kuperman v. ICF Int’l, No. 08-565, 2008 W L 4809167 at *5 (E.D. La. 2008) (Barbier, J.) (quoting
Johnson v. Big Lots Stores, Inc., 561 F.Supp.2d 567, 573 (E.D. La. 2008) (Vance, C.J.) (conditional certification the
majority approach)).
30

Sandoz, 553 F.3d at 916 n. 2.

31

See, e.g., Melson v. Directech Southwest, Inc., No. 07-1087, 2008 U.S. Dist. LEXIS 48525 (E.D. La.
2008) (Feldman, J.); Johnson, 561 F.Supp.2d at 569; England v. New Century Fin. Corp., 370 F.Supp.2d 504, 509
(M .D. La. 2005). See also, 7B C. W right & A. Miller, Federal Practice & Procedure § 1807 (3d ed.2002) (stating
that “most courts in collective actions follow a two-stage certification process”).

5

certification, even within this District.32

The Fifth Circuit has recognized a second method of

analysis, characterized by Shushan v. University of Colorado.33 Under this Shushan analysis,
plaintiffs must prove the existence of a definable, manageable class, as well as that plaintiffs are
proper representatives of the class.34 This requires plaintiffs to provide individualized proof that the
claims of every single opt-in plaintiff can be presented to a jury with some measure of efficiency,
and the analysis is more akin to that for class certification under Rule 23 of the Federal Rules of
Civil Procedure.35
In this case, Judge Zainey opted to apply an approach somewhat in between Lusardi and
Shushan, determining that a “more demanding analysis of the certification issue [was] appropriate
in light of the substantial discovery that [had] taken place . . . .”36 Because of the substantial amount
of discovery that had been conducted, he looked at the outset to standards commonly employed at
the second step of the Lusardi analysis. Judge Zainey ruled that “[t]he collective action mechanism
of the FLSA serves no utility if thousands of plaintiffs join together in one lawsuit only to then try
their claims individually”37 and determined that because of information revealed through discovery,
“the Court should [not] simply ignore the fact that certain individualized defenses might apply and
postpone the issue until decertification.”38 Therefore, the Court declined to “blithely certify the
32

In fact, Judge Zainey declined to apply the Lusardi approach in this case.

33

132 F.R.D. 263 (D. Colo. 1990).

34

Shushan, 132 F.R.D. at 268.

35

See id. at 268

36

Rec. Doc. 109 at p. 12.

37

Id.

38

Id.

6

action with a blind eye toward deficiencies that discovery has already revealed,”39 and denied
Plaintiff’s Motion for an Order Permitting Court Supervised Notice to Employees of Their Opt-In
Rights.40

B. Motion to Dismiss Opt-In Plaintiffs
When a court declines to certify a class under the FLSA, the claims of the opt-in plaintiffs
can no longer proceed as such. As a result, courts typically dismiss the claims of the opt-in plaintiffs
without prejudice.41 Here, Plaintiffs instead seek to convert Opt-In Plaintiffs into named plaintiffs,
such that the suit could proceed with all individuals who have opted-in to this action.
Plaintiffs do not cite to, and the Court could not find, any authority that specifically analyzes
available remedies when opt-in plaintiffs are deemed not to be similarly situated, but courts within
the Fifth Circuit have couched their dismissals without prejudice in mandatory language, finding that
the court “must” dismiss the claims of opt-in plaintiffs found not to be similarly situated, leaving
only the original claims of the named plaintiffs.42 The few cases that have allowed opt-in plaintiffs
to be converted into original plaintiffs have been from courts outside of this Circuit and have
involved situations where the denial of certification was specifically rendered without prejudice such

39

Id. at pp. 12-13.

40

Id. at p. 29.

41

See, e.g., Sandoz, 553 F.3d at 916 n.2; Basco v. Wal-Mart Stores, Inc., No. 00-3184, 2004 W L 1497709,
at *3, 8 (E.D. La., July 2, 2004) (Duval, J.); England, 370 F.Supp.2d at 504; see also, Mooney, 54 F.3d at 1214 (“If
the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed
without prejudice.”).
42

Sandoz, 553 F.3d at 916 n. 2.

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that plaintiffs had leave to redefine the class.43
Plaintiffs have identified no cases where a court within the Fifth Circuit has allowed opt-in
plaintiffs deemed not to be similarly situated, such that collective certification was denied, to then
join the case as named plaintiffs. Plaintiffs articulate no reason for their request, and further, the
effect of granting their request would be to create the same unmanageable situation that Judge Zainey
sought to avoid in denying collective certification. Accordingly, to now allow the Opt-In Plaintiffs
to be converted into named plaintiffs would violate the policies and practical considerations
underlying the decision not to certify the collective action in the first place. Plaintiffs have cited no
authority to overcome the presumption, contained within the mandatory language of prior cases, that
dismissal without prejudice is the appropriate and necessary remedy here. Therefore, the Court will
dismiss without prejudice the Opt-In Plaintiffs in this matter.

C. Plaintiffs’ Request that the Court Stay Dismissal to Equitably Toll the Action
The doctrine of equitable tolling “preserves a plaintiff’s claims when strict application of the
statute of limitations would be inequitable.”44 “A district court may refuse to toll limitations because
it interprets a statute or regulation to prohibit tolling or because it refuses to exercise its equitable
discretion to toll.”45 Principles of equitable tolling apply in FLSA actions.46 Therefore, the decision

43

See, e.g., Bamgbose v. Delta-T Group, Inc., 724 F.Supp.2d 510, 514 (E.D. Pa. 2010); White v. Kcpar,
Inc., No. 6:05-cv-1317, 2006 W L 1722348, *1 (M.D. Fla., June 20, 2006).
44

United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (quotation omitted).

45

Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir. 2002) (citations omitted).

46

Morales v. Bimbo’s Best Produce, Inc., No. 08-5105, 2009 W L 1591172, at *1 (E.D. La. Apr. 20, 2009)
(McNamara, J.); Sandoz, 769 F.Supp. 2d at 1063 (citations omitted).

8

of whether to toll rests within the discretion of the district court and where the district court “declines
to exercise its equitable powers,” the appellate court will review only for abuse of discretion.47
The burden to prove that equitable tolling is warranted rests squarely on the party seeking to
invoke tolling.48 Furthermore, equitable tolling applies in “rare and exceptional circumstances,”49
principally where a plaintiff “is prevented in some extraordinary way from asserting his rights,”50
and the remedy is available only where a plaintiff “diligently pursues his or her rights.”51
In this action, Plaintiffs request that the Court’s dismissal be made effective ninety days from
the issuance of the dismissal order, citing numerous cases in which courts have granted stays to
allow the dismissed opt-in plaintiffs to individually pursue their claims.52 However, in each of the
cases cited by Plaintiffs, the stay was granted as part of the order denying certification and was
intended to provide opt-in plaintiffs with reasonable time to file individual suits once they received

47

Id.

48

Teemac, 298 F.3d at 457 (citing Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402, 404 (5th 1995);
Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992)).
49

Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).

50

Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir.1996).

51

Montelong v. Housing Auth. of El Paso, No. 09-0388, 2010 W L 3239235 (W .D. Tex. Aug. 13, 2010)
(citing Caldwell v. Dretke, 429 F.3d 521, 530 n. 23 (5th Cir. 2005); Pacheco v. Rice, 966 F.2d 904, 906-07 (5th Cir.
1992)).
52

See, e.g., England, 370 F.Supp.2d 504, 511-12 (“The Court shall withhold entry of final judgment
granting [the motion] to give each individual plaintiff who wishes to proceed with an individual claim to file suit in
this district within 30 days.”); Johnson v. TGF Precision Haircutters, Inc., No. H-03-3641, 2005 W L 1994286, at *8
(S.D. Tex., Aug. 17, 2005) (“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 statutes of limitations for 30 days after the entry of
this Order.”).

9

notice that their claims were dismissed.53 Plaintiffs have cited no case law, and the Court has been
unable to locate any cases, where collective certification was denied and opt-in plaintiffs were not
dismissed from the suit for a lengthy period of time but the Court then allowed the opt-in plaintiffs
additional time beyond the gap between the denial of certification and the dismissal order.
Furthermore, Plaintiffs cannot be said to have“diligently pursue[d their] rights”54 given that
their request for a stay to equitably toll their claims was untimely asserted in a response to a related
motion filed eight days late and, indeed, filed after the noticed submission date for the motion had
passed. Additionally, the Court notes that Opt-In Plaintiffs should have already received notice over
five full months ago that the case would not proceed as a collective action.55 Therefore, Opt-In
Plaintiffs have already been granted a lengthy period of delay, even greater than the time requested,
and Plaintiffs have not demonstrated that Opt-In Plaintiffs will be prevented from pursuing their
rights. Plaintiffs have provided nothing to suggest that equitable tolling is warranted here, much less
have Plaintiffs carried their burden to show the type of exceptional circumstances typically required
to merit equitable tolling. Therefore, the Court declines to exercise its discretion to grant a stay.

III. Conclusion
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Party Opt-In Plaintiffs is

53

One court has later chosen to toll the statute of limitations regarding opt-in plaintiffs, but it did so by
amending its prior order to include a 30-day toll regarding the dismissal of opt-in plaintiffs without prejudice.
Faison v. Texas EZPawn, L.P., No. G-07-067, 2007 W L 1481047, at *1 (S.D. Tex., May 21, 2007).
54

55

Montelong, 2010 W L 3239235.
Judge Zainey denied collective action status on September 29, 2011. Rec. Doc. 109.

10

GRANTED and Opt-In Plaintiffs are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs’ request that the Court grant a stay so as to toll
the statute of limitations regarding Opt-In Plaintiffs’ claims is DENIED.
NEW ORLEANS, LOUISIANA, this ______ day of March, 2012.
13th

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

11