Perez v. New Orleans City et al

Filing 87

ORDER & REASONS: granting in part #82 Partial Motion to Dismiss; FURTHER ORDERED that Plaintiff's claims arising between September 16, 2009 and April 6, 2011 are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 7/28/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CHAD PEREZ

CIVIL ACTION

VERSUS

NO: 12-2280

CITY OF NEW ORLEANS

SECTION: J(1)
ORDER AND REASONS

Before the Court is a Partial Motion to Dismiss (Rec. Doc.
82)

filed

capacity

by

Defendants,

as

the

Department,

Superintendent

and

“Defendants”),

Michael

the

an

City

of

of

Opposition

Harrison,
the

New

thereto

in

New

official

Orleans

Orleans
(Rec.

his

Police

(collectively
Doc.

83)

by

Plaintiff, Chad Perez, (“Plaintiff”) on behalf of a class of
similarly situated police officers, and Defendants’ Reply (Rec.
Doc.

86).

Having

submissions,

the

considered

record,

and

the

the

motion,

applicable

the
law,

parties’
the

Court

finds, for the reasons expressed below, that the motion should
be GRANTED IN PART.
PROCEDURAL AND FACTUAL BACKGROUND
On September 16, 2012, Plaintiff, Chad Perez (“Plaintiff”)
filed

this

situated

action

New

on

behalf

of

Orleans

Police

Department
1

himself

and

all

similarly

(“NOPD”)

officers,

against

the

City

Superintendent
Labor

of

Standards

of
the

Act

New

Orleans

NOPD,

(“the

asserting

(“FLSA”).

City”)

claims

Plaintiff

and

the

under

the

Fair

that

from

alleges

September 16, 2009 through the present date, the NOPD failed to
pay him and other NOPD officers the overtime compensation that
was due to them.
Upon

Plaintiff’s

motion,

on

April

7,

2014,

this

Court

conditionally certified the class of plaintiffs, defined as “New
Orleans

Police

compensation

Department

and/or

J&T

officers

time,

denied

beginning

earned

September

overtime

16,

2009.”

(Rec. Doc. 34, p. 6). In this same Order, the Court approved
Plaintiff’s

proposed

Notice

to

be

sent

to

all

class

members

(Rec. Doc. 33-3) and Plaintiff’s proposed Consent Form (Rec.
Doc. 33-4). The Notice informed potential class members that
“the collective action group includes all current and former
salaried employees of the City who are/were employed as members
of the New Orleans Police Department and who, from September 16,
2009

to

the

present,

have

been

denied

overtime

compensation

and/or J&T Time to compensate them for time expended in excess
of the regularly-scheduled length of time they are required to
work as police officers.” (Rec. Doc. 33-3, p. 2) (emphasis in
original).

2

Despite the Court’s order dated April 7, 2014, as of the
most recent status conference held with the Court on June 23,
2015, Plaintiff had still not sent out Notice and Consent forms
to

its

class

members.

At

the

status

conference,

the

Court

ordered that Plaintiff transmit the Notice and Consent forms to
all potential class members within twenty-one (21) days of the
conference. (Rec. Doc. 80, p. 2). On July 13, 2015, Plaintiff
finally sent out the Notice, using the same language to describe
the class as used in the proposed Notice approved by the Court
in the April 7, 2014 Order.
Defendants

filed

the

instant

action

on

July

14,

2015,

seeking dismissal of all claims arising between September 16,
2009

and

June

limitations
already

11,

period

run.

2012,

on

imposed

Defendants

the

by

the

assert

basis
FLSA

that

the

that
on

the

statute

of

claims

had

prohibits

the

these

FLSA

filing of claims for willful conduct which arise prior to three
years before the date Notice is sent out to potential class
members. In response, Plaintiff denies that the claims should be
dismissed,

first,

because

Defendants

never

objected

to

the

Court’s April 7, 2014 Order, thereby consenting to an equitable
tolling of the statute of limitations. Plaintiff also asserts
that the statute of limitations prevents the filing of claims

3

arising

more

than

three

years

prior

to

the

date

upon

which

Notice is approved by the Court.
LEGAL STANDARD & DISCUSSION
The FLSA imposes a two-year statute of limitations, which
is

extended

to

three

years

for

willful

violations

of

the

statute. 29 U.S.C.A. § 255 (1947). The FLSA further provides
that

an

action

limitations

when

commences
a

for

claimant

purposes
who

is

of

not

this
named

statute
as

a

of

party

plaintiff in the complaint files written consent with the court
where the action was commenced. 29 U.S.C.A. § 256(b).
The
statutory

present

issue

limitation

turns

period

on

is

the

time

measured.

from

which

Defendants

the

maintain

that the language of § 256(b) is clear that the class period is
measured from the date written consent is filed in the record,
or alternatively, from the date Notice is mailed to potential
class members. (Rec. Doc. 86, p. 1). Plaintiff instead submits
that the class period is measured from the date on which the
proposed Notice is approved by the Court.
As noted by Plaintiff, courts within the Fifth Circuit have
repeatedly recognized that “based on the statute of limitations
…

class

certification

is

appropriately

limited

to

workers

employed by the defendant up to three years before notice is
approved by the court.” Tolentino v. C&J Spec-Rent Servs., Inc.,
4

716 F.Supp.2d 642, 654 (S.D. Tex. 2010) (quoting Quintanilla v.
A&R Demolitina, Inc., No. H-04-1965, 2005 WL 2095104, at *16
(S.D.

Tex.

Aug.

30,

2005)(internal

quotations

omitted

and

emphasis added)); see also Watson v. Travis Software Corp., No.
H-07-4104, 2008 WL 5068806, at *9 (S.D. Tex. Nov. 21, 2008) (“A
class period covering the three years before the date this court
approves conditional certification and notice is appropriate in
this case.”). Accordingly, the Court recognizes that the date of
approval of Notice, as opposed to the date of the mailing of the
Notice, is determinative for purposes of establishing a class
period.
Defendants

attempt

to

differentiate

the

present

circumstances from those in Watson, asserting that “in Watson,
the class was approved and the notice was sent simultaneously.”
(Rec. Doc. 82-1, p. 3). However, Defendants do not cite to any
portion of the Watson opinion for this proposition, nor is there
any

evidence

in

the

opinion

that

this

occurred.

Moreover,

considering the language used in Tolentino, even if the approval
and mailing of the notice occurred simultaneously, this does not
alter the rule that a statute of limitations for purposes of
establishing a class under the FLSA is determined by the date on
which Notice is approved by the court.

5

Here, the Court approved Plaintiff’s proposed Notice in its
Order

dated

April

7,

2014.

Accordingly,

the

class

period

includes all claims arising three years prior to this date, or
from April 7, 2011. Therefore, the Court agrees that a number of
claims included in Plaintiff’s Notice fall outside of this class
period and are thus time barred.
Plaintiff argues that even those claims that fall outside
the statutory three-year period should be permitted to proceed,
because by failing to contest the class period for over a year
after

the

Defendants

Court
have

issued

its

“consented

Order

to

an

approving

equitable

the

tolling

Notice,
of

the

statute for all class members as of the date that this action
was filed.” (Rec. Doc. 83, p. 2). The Court is not persuaded by
this

argument.

The

doctrine

of

equitable

tolling

allows

a

plaintiff to pursue time-barred claims “where strict application
of the statute of limitations would be inequitable.” Switzer v.
Wachovia Corp., No. H-11-1604, 2012 WL 1231743, at *2 (S.D. Tex.
Apr. 12, 2012). The Fifth Circuit strictly construes the FLSA’s
statutory limitation on class periods, “and courts cannot change
the

terms

of

the

statute

unless

warranted

by

extraordinary

circumstances.” Mejia v. Bros. Petroleum, LLC, No. 12-2842, 2014
WL 3853580, at *1 (E.D. La. Aug. 4, 2014) (Berrigan, J.) (citing
Atkins v. Gen. Motors Corp., 701 F.2d 1124, 1130 n. 5 (5th Cir.
6

1983));

see

also

Switzer,

2012

WL

1231743,

at

*2

(“[T]he

doctrine applies only in rare and exceptional circumstances.”).
Generally, equitable tolling is only applied when a plaintiff is
unable to discover information which is essential to his claim,
or

is

“actively

misled

by

the

defendant

about

the

cause

of

action or is prevented in some extraordinary way from asserting
his rights.” Mejia, 2014 WL 3853580, at *1 (quoting Teemac v.
Henderson,

298

F.3d

452,

457

(5th

Cir.

2002)

(internal

quotations omitted)).
Here, in support of its request that the Court equitably
toll

the

statutory

period

and

permit

claims

as

far

back

as

September 2009 to proceed, Plaintiff asserts that by failing to
oppose the Court’s Order approving Plaintiff’s definition of the
conditionally-certified class, Defendants consented to equitable
tolling. However, the circumstances in the present matter can
hardly be considered “extraordinary.” There is no evidence that
Plaintiff was “actively misled” by Defendants, or prevented in
any way from commencing the action within three years of the
2009 claims. Moreover, Defendants assert that they raised the
issue of the class period shortly following the Court’s Order
during a conference held before Magistrate Judge Shushan, at
which point they alerted Plaintiff to their concerns regarding
the

duration

of

the

class

period.
7

(Rec.

Doc.

86,

p.

2).

Therefore, despite not being formally recorded with the Court,
Plaintiff was aware of Defendants’ objection to the proposed
class period beginning on September 16, 2009.
Because

the

Court

finds

no

extraordinary

circumstances

which would warrant an equitable tolling of the FLSA statute of
limitations, Plaintiff’s claims from September 16, 2009 to April
6, 2011 are considered time barred.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss is
GRANTED IN PART.
IT
between

IS

FURTHER

September

ORDERED
16,

2009

that

Plaintiff’s

and

April

6,

claims

2011

are

arising
hereby

DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 28th day of July, 2015.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

8