Farrow v. Ammari of Louisiana, Ltd.
ORDER AND REASONS granting in part 46 Motion for Partial Summary Judgment. Denying 47 Motion to equitably toll the statute of limitations. Granting in part 61 Motion for Protective Order as instructed herein. Signed by Judge Ivan L.R. Lemelle on 6/29/2017. (cg)
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 1 of 30
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RIENEKE E. FARROW
AMMARI OF LOUISIANA, LTD.
ORDER AND REASONS
Before the Court are several motions filed by the parties.
Judgment.” Rec. Doc. 46. Plaintiff timely filed a memorandum in
opposition. Rec. Doc. 86. Defendant then requested (Rec. Doc. 93),
and was granted (Rec. Doc. 95), leave to file a reply memorandum
(Rec. Doc. 96).
The second is Plaintiff’s “Motion for Equitable Tolling of
Statute of Limitations.” Rec. Doc. 47. Defendant timely filed a
memorandum in response. Rec. Doc. 67. Plaintiff then requested
(Rec. Doc. 69), and was granted (Rec. Doc. 77), leave to file a
reply memorandum (Rec. Doc. 78).
The third is “Defendant’s Motion for Protective Order.” Rec.
Doc. 61. Plaintiff timely filed a memorandum in response. Rec.
Doc. 80. Defendant then requested (Rec. Doc. 83), and was granted
(Rec. Doc. 84), leave to file a reply memorandum (Rec. Doc. 85).
For the reasons discussed below,
IT IS ORDERED that Defendant’s motion for partial summary
judgment (Rec. Doc. 46) is GRANTED IN PART.
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IT IS FURTHER ORDERED that Plaintiff’s motion to equitably
toll the statute of limitations (Rec. Doc. 47) is DENIED.
IT IS FURTHER ORDERED that Defendant’s motion for a protective
order (Rec. Doc. 61) is GRANTED IN PART.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As previously discussed, this case arises out of Rieneke E.
(“Defendant”). Farrow filed this suit on behalf of herself and all
others similarly situated under the Fair Labor Standards Act
(“FLSA”) and various state laws for, among other things, unpaid
minimum wages, overtime wages, and tips. Rec. Doc. 1 at ¶¶ 2, 5,
9. She claims that Defendant willfully violated the FLSA’s minimum
wage provisions by failing to keep accurate records of hours and
tips, not informing employees in advance that a tip credit would
be applied, and not permitting employees to retain all of the tips
11. Further, Plaintiff alleges that
Defendant improperly calculated her and other employees’ overtime
pay rate and that Defendant had a policy of unlawfully deducting
Plaintiff claims that approximately fifty other current and former
waiters suffered from the same unlawful conduct; she consequently
sought conditional certification of a collective action. Id. at ¶
10; Rec. Doc. 11-1 at 2-5.
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certification because Plaintiff’s allegations that Defendant’s
practices “applied uniformly to all tips and waiters in all
restaurants,” were supported only by Plaintiff’s personal paystubs
from one of Defendant’s restaurants. Rec. Doc. 23 at 6. In other
plaintiffs, and failed to provide evidentiary support for the
existence of a widespread plan or policy.” Id. at 7.
On April 10, 2017, two former employees consented to join the
certification. Rec. Doc. 97. That motion is set for submission on
July 5, 2017. Id.
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Without admitting to a violation of the FLSA, Defendant
maintains that any alleged violation was not committed willfully
and therefore that Plaintiff’s claims are subject to a two-year
statute of limitations. Rec. Doc. 46 at 1.
Plaintiff responds that “Defendant is willful because it knew
or recklessly turned a blind eye to a policy implemented in the
company that required employees to clock off to avoid paying
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 4 of 30
overtime and still required the employees to continue working off
the clock without pay.” Rec. Doc. 86 at 2.
Under Federal Rule of Civil Procedure 56, summary judgment is
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue exists if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to
affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 5 of 30
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
Under the FLSA, any action
for unpaid minimum wages, unpaid overtime compensation,
or liquidated damages . . . may be commenced within two
years after the cause of action accrued, and every such
action shall be forever barred unless commenced within
two years after the cause of action accrued, except that
a cause of action arising out of a willful violation may
be commenced within three years after the cause of action
accrued . . . .
collective or class action commences under the FLSA when the
complaint is filed if the person is named as a party plaintiff in
the complaint or “on the subsequent date on which such written
consent is filed in the court in which the action was commenced”).
Plaintiff bears the burden of demonstrating willfulness by showing
that an employer “knew or showed reckless disregard for the matter
of whether its conduct was prohibited by the statute.” Steele v.
Leasing Enters., Ltd., 826 F.3d 237, 248 (5th Cir. 2016) (citing
Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579
F.3d 546, 552 (5th Cir. 2009); Cox v. Brookshire Grocery Co., 919
F.2d 354, 356 (5th Cir. 1990)) (quoting McLaughlin v. Richland
Shoe Co., 486 U.S. 128, 133 (1988)). “For example, employers act
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 6 of 30
willfully when they know their pay structures violate the FLSA or
omitted). A violation is not necessarily willful simply because it
was negligent or unreasonable. Id. (citing Mireles v. Frio Foods,
Inc., 899 F.2d 1407, 1416 (5th Cir. 1990)); see also Mohammadi,
605 F. App’x at 332 (“For example, an employer that acts without
a reasonable basis for believing that it was complying with the
FLSA is merely negligent, as is an employer that, without prior
regarding its payment practices”) (citations, alterations, and
quotation marks omitted). To that end, “[m]ere knowledge of the
FLSA and its potential applicability does not suffice . . . .”
Zannikos v. Oil Inspectors (U.S.A.), Inc., 605 F. App’x 349, 360
(5th Cir. 2015) (citations omitted); see also Chicca v. St. Luke’s
Episcopal Health Sys., 858 F. Supp. 2d 777, 791 (S.D. Tex. 2012)
responsibilities, and improperly classified him. Such a charge is
not enough to show willfulness.”).
Here, Defendant propounded the following interrogatory on
Identify each and every fact that supports your
allegation that Defendant’s failure to pay minimum wage
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and overtime compensation was arbitrary,
intentional and/or not in good faith.
Rec. Doc. 46-8 at 7. Plaintiff responded “See Complaint §§11-13.”
Id. Paragraph 11 of the complaint merely alleges, in a conclusory
fashion, that Defendant “intentionally, willfully, and repeatedly
harmed plaintiff and the FLSA Collective by engaging in a pattern,
practice, and/or policy of violating the FLSA and committing
conversion of their tips.” Rec. Doc. 1 at ¶ 11. Paragraphs 12 and
13 are wholly irrelevant to this issue.
exchange took place:
Q. Okay. You claim that defendant has intentionally and
willfully violated the F.L.S.A. What are you basing that
A. What is the F.L.S.A.?
Q. . . . Let me ask it differently . . . You claim that
they intentionally failed to pay you minimum wage.
. . .
Q. And what do you base that on?
. . .
A. Mainly they had been paying minimum wage correctly
and then that stopped.
. . .
A. We received paper pay stubs . . . every week. . . .
They went to electronic pay stubs and that’s when I
noticed that I was no longer being paid minimum wage.
. . .
Q. And what [was] the difference between the two pay
A. The paper pay stubs [were] five dollars and change.
The electronic [were] three dollars and change.
Q. In overtime.
A. For overtime, yes.
Q. So not for the regular rate of pay.
A. No. They continued to pay me 2.13.
. . .
Q. So what makes you think it was intentional?
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A. The fact that I just don’t see how you could go from
paying the correct amount to not paying the correct
amount when nothing should have changed in my opinion.
Q. Okay. Is it fair to say that it could have been a
A. That is possible.
Q. Okay. Did anyone ever tell you, “We’re intentionally
changing the overtime rate”?
Q. Do you have any person you could point to, any witness
that would say, “Yes, I think it was also intentional”?
Rec. Doc. 46-4 at 4-7.1
Plaintiff responds that “this line of questioning was only as
to the overtime pay rate and Farrow never testified that the policy
to clock an employee off and have the employee complete the work
unpaid, was unintentional.” Rec. Doc. 86 at 5.
Additionally, Plaintiff produces the declarations of Matthew
Hunter, Judah Nero, and Dishea Brown. Hunter, employed as a waiter
and manager, stated that Defendant “did not want waiters to work
more than 40 hours during slow months. [Defendant] instructed
Managers to clock waiters off the time clock and have them complete
side work off the clock. As a manager, I would instruct waiters to
clock off . . . and . . . complete side work off the clock.” Rec.
Doc. 86-2 at ¶¶ 3-5. Nero similarly testified that “[m]anagers
would instruct waiters to clock off the time clock and to complete
Defendant also notes that it attempted to comply with the FLSA by providing
notice of the “tip credit” in the employee handbook (Rec. Doc. 46-5 at 18-19)
and having Plaintiff sign an “Acknowledgement of Receipt of Handbook and
Certificate of Understanding” (Rec. Doc. 46-7) and a “Notice to Tipped
Employees” signed by Plaintiff (Rec. Doc. 46-6).
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side work off the clock” and that “[m]anagers would also shift
time worked from one week into another week to avoid overtime pay.”
Rec. Doc. 86-3 at ¶¶ 4-5. Further, Brown, who worked as a hostess,
testified that “[m]anagers would instruct me to clock off the time
clock so I would not go over 40 hours but to still continue working
until the next person scheduled relieved me.” Rec. Doc. 86-4 at ¶
Plaintiff also suggests that Defendant was notified of FLSA
violations by the filing of two separate lawsuits against it in
this Court in 2013. See Charles Trammell, et al. v. Ammari of
Scarborough, et al. v. Ammari of Louisiana, Ltd., et al., CV-136196, Section “A”(4). The Trammell complaint alleged that the
plaintiffs routinely worked more than forty hours per week without
being paid overtime, were not paid the federally-mandated minimum
wage, and that the general manager “took care to avoid scheduling
any Plaintiff . . . to work more than 40 hours at one location,
although he routinely scheduled Plaintiffs . . . to work more than
40 hours total for all Defendants.” Rec. Doc. 1 at ¶¶ 15-16, 49.
The Scarborough complaint similarly alleged that the plaintiffs
Plaintiff also cites to a portion of her deposition testimony in which she
purportedly stated she worked off the clock to avoid overtime pay when asked by
managers to clock out, she never refused to clock out because she believed
Defendant would cut hours one way or another, and that she did not voluntarily
clock out to do side work. Rec. Doc. 86 at 3-5. However, this portion of
Plaintiff’s deposition testimony is not in the record. Plaintiff did not attach
it to her response memorandum and, after searching every exhibit filed into the
record as of June 20, 2017, the Court was unable to locate it.
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 10 of 30
were required to work in excess of forty hours per week and were
not properly compensated for that overtime work. Rec. Doc. 1 at ¶¶
Plaintiff asks that this Court take judicial notice of certain
declarations filed in Trammell. Rec. Doc. 86 at 7. The Fifth
Circuit has stated that “it is not error ‘for a court to take
judicial notice of related proceedings and records in cases before
that court.’” Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1277
n.33 (5th Cir. 1978) (finding that it was not error for the
district court to take judicial notice of depositions and materials
filed in earlier litigation between different parties where the
party that did not request such judicial notice had the opportunity
to submit its own evidence and interrogate those parties whose
depositions were part of the prior proceeding’s records) (quoting
State of Fla. Bd. of Trustees of Internal Imp. Trust Fund v.
Charley Toppino & Sons, Inc., 514 F.2d 700, 704 (5th Cir. 1975))
(other citations omitted); see also Davis v. Bayless, 70 F.3d 367,
372 n.3 (5th Cir. 1995) (finding that it was not error for the
district court to take judicial notice of state court orders that
were filed into the public record when ruling on a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6)).
The first Trammell declaration cited to by Plaintiff was filed
by Kristy Smith. CV-13-4583, Rec. Doc. 33-3. Plaintiff cites to a
particular portion of the declaration in which Smith states that
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“Defendants often failed to pay me overtime for hours worked in
excess of 40 per week, even when I worked more than 40 hours per
week in one location.” Id. at ¶ 27. The second declaration was
filed by Joshua Holsted, who stated “I routinely worked for
Defendants for more than 40 hours per week, but was not paid
overtime.” Rec. Doc. 33-4 at ¶ 23.
Based on this evidence, Plaintiff insists that “Defendant had
notice in 2013 of two complaints that their company-wide policy
violated the FLSA and still continued to utilize the policy as
late as 2017 . . . .” Rec. Doc. 86 at 8 (citing Ramos v. AlBataineh, 599 F. App’x 548, 549 (5th Cir. 2015) (where an employee
employment, was paid roughly $400 each week in cash, maintained
detailed records of her hours and compensation, but her employer
maintained no records, the district court determined that the
employer willfully violated the FLSA after a bench trial; the Fifth
Circuit held that the district court did not clearly err in making
this determination because the employer was aware of the FLSA and
its requirements and his argument that he was unaware that the
employee worked more than forty hours per week was refuted by the
record, such that when “an employer whose employee works over 90
hours per week chooses neither to keep records of their employee’s
time nor acknowledge their employee’s presence for those extended
hours, that employer can easily be said to have disregarded the
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possibility of violating the FLSA . . . especially [where the
employer] is attempting to turn a blind eye to the egregiously
disproportionate ratio between the hours [the employee] worked and
the wages she was paid”).
In its reply memorandum, Defendant argues that Plaintiff did
not assert during her deposition or in her complaint that her claim
for a willful violation of the FLSA was based on working off the
clock. Rec. Doc. 96 at 1. Accordingly, Defendant “concedes that a
factual issue now exists as it relates to the ‘off the clock’ work
claim and whether managers were actually advised to ‘clock waiters
off the time clock,’” but maintains that Plaintiff “fail[s] to
come forth with any evidence to show reckless disregard of the
FLSA as it relates to any other cause of action asserted in the
Complaint.” Id. at 2. In other words, “[e]ach of Plaintiffs’ claims
– except for this newly asserted ‘off the clock’ work claim –
should be limited to the two-year statute of limitations period.”
To that end, Defendant insists that the complaints in Trammell
and Scarborough did not provide notice to Defendant of a “companywide policy violat[ing] the FLSA,” because (1) neither action
Defendant insists that this two-year limitations period applies to Plaintiff’s
claims of “unlawful deductions, failure to pay the correct overtime rate,
failure to maintain accurate records of hours worked and tips received,
deprivation of tips earned, failure to provide advance notice of the tip credit,
and failure to pay the minimum wage.” Rec. Doc. 96 at 3.
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violated the FLSA; (2) the Trammell complaint did not allege that
Scarborough complaint served on Defendant on December 11, 2013 was
the first notice Defendant received of these off-the-clock claims
and improper overtime rates and that these mistakes were “rectified
months prior and contradict any allegation that [Defendant]
willfully continued paying an improper overtime rate.” Rec. Doc.
96 at 4-5 (emphasis in original). At most, Defendant insists that
the existence of these suits merely show that Defendant was aware
of the FLSA. Id. at 5.
Nonetheless, even if those suits were sufficient to provide
some notice, Defendant argues that Plaintiff has “not presented
any evidence of a continued FLSA violation or reckless disregard
of the FLSA after the filing of Trammel[l], Scarborough, and the
present lawsuit, other than this ‘off the clock’ work
[Defendant] already concedes should be outside the scope of this
motion.” Rec. Doc. 96 at 5-6.
Defendant concedes that there is a genuine issue of material
fact regarding whether or not Defendant willfully violated the
FLSA by requiring Plaintiffs to work off the clock. These claims
are directly related to Plaintiff’s cause of action for unpaid
overtime wages. Hunter, Nero, and Brown stated that they were
required to work off the clock so Defendant would not have to pay
overtime. Rec. Docs. 86-2 at ¶¶ 3-5; 86-3 at ¶¶ 3-5; 86-4 at ¶ 4.
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To that end, Plaintiff also produced evidence that Defendant was
put on notice in 2013 that certain employees believed they were
not being properly compensated for overtime work. See Trammell,
CV-13-4583, Rec. Doc. 1 at ¶¶ 15-16. Even though these were
unsupported allegations made in a complaint and therefore not
arguably sufficient to put Defendant on notice of a possible
allegations were subsequently supported by declarations. CV-134583, Rec. Docs. 33-3 at ¶ 27; 33-4 at ¶ 23. Plaintiff then produced
evidence that employees opting-in to this litigation claimed that
they were forced to work off the clock to avoid overtime pay.
Because Defendant was notified by employees in 2013 that they
claiming that they were not properly compensated for overtime work,
there is some evidence that Defendant ignored complaints brought
to its attention. Mohammadi, 605 F. App’x at 332. This may mean
that Defendant showed reckless disregard for whether or not its
conduct was prohibited by law. Thus, there is sufficient evidence
to create a genuine issue of material fact regarding whether or
not Defendant willfully violated the FLSA’s overtime provisions.
However, Plaintiff presented no evidence to suggest that
Defendant willfully made unlawful deductions, failed to maintain
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records of the tips received, deprived employees of tips earned,
failed to provide advance notice of the tip credit, or failed to
pay minimum wage.
liquidated damages if the plaintiff can prove a willful violation.
Plaintiff presented no evidence that Defendant willfully violated
the FLSA’s minimum wage provisions. Even though the Trammell
complaint included an allegation that Defendant violated these
provisions, Plaintiff did not produce evidence to suggest that
Defendant failed to pay minimum wages to Plaintiff or other
employees opting-in to this litigation or to otherwise suggest
that Defendant ignored the minimum wage complaints raised in
Trammell. Thus, Defendant is entitled to summary judgment finding
that Plaintiff’s cause of action for unpaid minimum wages is
subject to the two-year statute of limitations.
III. PLAINTIFF’S MOTION TO EQUITABLY TOLL
Plaintiff argues that class certification was denied without
prejudice, putative members may join even when there is no motion
to certify pending,4 and that “extraordinary circumstances” caused
In her motion, Plaintiff asserted that a motion to certify would be filed by
May 9, 2017. Rec. Doc. 47-1 at 2. Plaintiff then stated in her reply brief,
filed on May 22, 2017, that she intended to file a renewed motion for class
certification “upon receipt of additional declarations in support of the motion
as several witnesses have come forward to identify policies in violation of
[the] FLSA.” Rec. Doc. 78 at 1. The motion was ultimately filed on June 19,
2017. Rec. Doc. 97.
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delays, but the statute of limitations continues to run against
potential class members. Rec. Doc. 47 at 1-2. Specifically, on
March 8, 2017, Magistrate Judge Daniel Knowles granted Plaintiff’s
motion to compel responses to Interrogatory Number 11, which
requested Defendant to identify and provide last known mailing
addresses and telephone numbers for current and former employees
“whose duties were similar to those performed by Plaintiff who
were compensated in a manner similar to Plaintiff for the last
three years preceding the filing of the lawsuit.” Rec. Docs. 39 at
1; 31-1 at 5. Judge Knowles reasoned that the information was
“relevant to both her individual claim (as potential corroboration
of the restaurants at which plaintiff worked) and to the potential
certification of a class, should plaintiff re-file her motion.”
Rec. Doc. 39 at 1. When this motion was filed on April 30, 2017,
Plaintiff insisted that Defendant had failed to comply with that
Plaintiff filed the instant motion, she filed a motion to enforce
the Magistrate Judge’s order and for sanctions. See Rec. Docs. 49,
57.5 Magistrate Judge Knowles heard oral arguments on the motion
on May 24, 2017, taking the matter under advisement and ordering
outstanding discovery issues. Rec. Doc. 82. On June 7, 2017, Judge
The original motion (Rec. Doc. 49) was filed on the same day as the instant
motion, April 30, 2017, but was marked deficient. Plaintiff subsequently refiled the motion, curing the noted deficiency, on May 3, 2017. Rec. Doc. 57.
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 17 of 30
Knowles issued an Order recognizing that the motion had been
satisfied. Rec. Doc. 94.
Under the FLSA, the statute of limitations generally runs
from the date that the complaint is filed. 29 U.S.C. § 256.
However, for a collective or class action filed under the FLSA,
shall be considered to be commenced in the case of any
(a) on the date when the complaint is filed, if he is
specifically named as a party plaintiff in the complaint
and his written consent to become a party plaintiff is
filed on such date in the court in which the action is
(b) if such written consent was not so filed or if his
name did not so appear—on the subsequent date on which
such written consent is filed in the court in which the
action was commenced.
Id. See also Atkins v. Gen. Motors Corp., 701 F.2d 1124, 1130 n.5
(5th Cir. 1983) (noting that § 256 “requires class plaintiffs to
opt in, and limitations runs from the opt-in date”) (citations
plaintiff’s claims when strict application of the statute of
limitations would be inequitable.” Lambert v. United States, 44
F.3d 296, 298 (5th Cir. 1995) (citing Burnett v. N.Y. Cent. R.R.
Co., 380 U.S. 424, 428 (1965)). The party requesting equitable
tolling bears the burden of proof. Teemac v. Henderson, 298 F.3d
452, 457 (5th Cir. 2002) (citation omitted). It applies in “rare
and exceptional circumstances,” generally “where ‘the plaintiff is
actively misled by the defendant about the cause of action or is
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 18 of 30
prevented in some extraordinary way from asserting his rights.’”
Id. (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998);
United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000)).
However, it may also be applied “when, despite all due diligence,
a plaintiff is unable to discover essential information bearing on
the existence of his claim.” Pacheco v. Rice, 966 F.2d 904, 90607 (5th Cir. 1992) (citations omitted); see also Castillo v.
Hernandez, No. 10-247, 2010 WL 4595811, at *8 (W.D. Tex. Nov. 4,
2010). The Supreme Court previously outlined various situations in
which limitations periods were equitably tolled, including where
a claimant received inadequate notice, there was a pending motion
to appoint counsel, the court led the plaintiff to believe that
she did not need to do anything more, or where the defendant’s
Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)
Plaintiff argues that Defendant delayed compliance with the
Magistrate Judge’s order “in order to file a motion for summary
judgment on disputed facts that the withheld evidence would prove.”
Rec. Doc. 47-1 at 4. Indeed, five days before Plaintiff filed the
instant motion, Defendant filed the motion for partial summary
judgment discussed above. Rec. Doc. 46. According to Plaintiff,
documents that Defendant should have produced “could support a
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finding of ‘willfulness’ which in turn expands the statute of
limitations from 2 years to 3 years.” Rec. Doc. 47-1 at 5.6
Defendant responds that Plaintiff failed to cite to any case
“that warrants tolling based on a seven-week delay in producing
substantially justified the delay.” Rec. Doc. 67 at 2.7 Further,
Defendant maintains that Plaintiff “identified no less than six
potential witnesses during her deposition” who could arguably
dispute Defendant’s pending motion for partial summary judgment.
Interrogatory Number 11 because she wanted to solicit potential
class members. Id. at 3. Finally, Defendant avers that “Plaintiffs’
Plaintiffs’ counsel chose not to seek discovery before filing for
conditional certification in April 2016 and then not until nine
Plaintiff responds to this specific allegation by noting that after
Plaintiff also argues that Defendant previously stated that it intended to
appeal the discovery ruling. Rec. Doc. 47-1 at 5; see also Rec. Doc. 47-2 at 2
(in which defense counsel informed Plaintiff’s counsel that they were
“considering appealing the discovery order and will give proper notice if we do
7 In support, Defendant cites to its memorandum opposing Plaintiff’s motion to
enforce and for sanctions. See Rec. Doc. 66. It later explains in its response
to the instant motion that “the delay was caused, in part, by the laborious
process of searching both electronic and paper records for information that was
jeopardized after Ammari’s computer system crashed more than two years ago.”
Rec. Doc. 67 at 4 (citing Rec. Doc. 66 at 7).
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 20 of 30
Rule 26 disclosures were exchanged in April of 2016, Defendant
propounded its first set of discovery at the end of June; within
propounded the discovery at issue. Rec. Doc. 78 at 3.
Plaintiff has failed to satisfy her burden of proving that
this is a “rare and exceptional” case in which the opt-in or
potential plaintiffs were “prevented in some extraordinary way
from asserting [their] rights.” Teemac, 298 F.3d at 457. Plaintiff
does not explain how Defendant’s failure to timely respond to an
interrogatory prevented any potential plaintiff from asserting his
or her rights or discovering information essential to his or her
prevented her from gathering evidence to respond to Defendant’s
motion for partial summary judgment, but Plaintiff supported her
response to that motion with declarations and evidence from earlier
Defendant had responded to the interrogatory and Plaintiff has not
moved, in the three weeks since that time, to supplement her
Further, Plaintiff had already commenced her action under the FLSA
by filing the complaint as a named plaintiff—meaning that, if she
bears her burden of proof at trial, she will be entitled to any
unpaid wages due for the two or three years preceding the filing
of the complaint.
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If anything, it appears
to the Court that Plaintiff is
suggesting that Defendant’s failure to timely respond to the
interrogatory prevented her from notifying other employees who may
Defendant’s motion for a protective order, discussed below, that
the interrogatory was designed to locate witnesses, not claimants.
In any event, there is no evidence that, by failing to timely
plaintiffs to delay filing a complaint or opt-in notice. If the
potential plaintiffs were told to clock-out and continue working
without pay, as Plaintiff alleges, a reasonable exercise of due
diligence would have alerted them to the fact that they were not
being properly compensated. See, e.g. Sandoz v. Cingular Wireless,
L.L.C., 675 F. App’x 498 (5th Cir. 2017) (in section II(A), the
Fifth Circuit explains that employees could have discovered that
their effective wage fell below the minimum wage and accordingly
filed suit, such that tolling was inappropriate).
DEFENDANT’S MOTION FOR A PROTECTIVE ORDER
Defendant asks that communications with potential opt-in
plaintiffs be permitted to proceed only pursuant to a notice
procedure approved by the Court. Rec. Doc. 61 at 1.
Pursuant to Local Rule 83.2.3, this Court uses Louisiana’s
Rules of Professional Conduct. Rule 7.4(a) provides that “a lawyer
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 22 of 30
client . . . in person, by person to person verbal telephone
contact, through others acting . . . on the lawyer’s behalf . . .
when a significant motive for the lawyer’s doing so is the lawyer’s
pecuniary gain.” It is similar to Rule 7.3 of the Model Rules of
Professional Conduct and the comments to that rule explain that
such contact creates a potential for abuse because “[t]he person,
who may already feel overwhelmed . . . may find it difficult fully
judgment and appropriate self-interest in the face of the lawyer’s
presence and insistence upon being retained immediately.”
recognized that trial courts have “a substantial interest in
multiple parties.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S.
165, 171 (1989). “Indeed, because of the potential for abuses in
collective actions, such as unapproved, misleading communications
to absent class members, ‘a district court has both the duty and
the broad authority to exercise control over a class action and to
enter appropriate orders governing the conduct of counsel and
parties.’” Belt v. Emcare, Inc., 299 F. Supp. 2d 664, 667 (E.D.
Tex. 2003) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 100
(1981)); see also Vogt v. Tex. Instruments Inc., No. 05-2244, 2006
WL 4660133, at *2 (N.D. Tex. Aug. 8, 2006) (noting that this same
duty and broad authority exists in collective actions brought under
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 23 of 30
responsibility begins once the collective action is filed, before
the court conditionally certifies the class or authorizes a section
216(b) notice.” Vogt, 2006 WL 4660133, at *2 (citation omitted).
collective actions, the parties’ First Amendment rights require
any restrictions on speech to be narrowly-tailored. See Bernard,
452 U.S. at 103-04 (“Although we do not decide what standards are
mandated by the First Amendment in this kind of case, we do observe
that the order involved serious restraints on expression. This
fact, at minimum, counsels caution on the part of a district court
in drafting such an order, and attention to whether the restraint
is justified by a likelihood of serious abuses”). Accordingly, a
district court may not restrict communications “without a specific
record showing by the moving party of the particular abuses by
which it is threatened.” Id. at 102 (quoting Coles v. Marsh, 560
F.2d 186, 189 (3d Cir. 1977); see also Vogt, 2006 WL 4660133, at
*3 (noting that “[w]hile actual harm need not be proved to justify
an order limiting class contacts, the movant must at least present
evidence that a potential likelihood for serious abuse exists”)
(citations omitted). In light of these concerns, courts have chosen
to restrain communications in limited situations, such as when
“the communications were misleading, coercive, or an improper
attempt to undermine Rule 23 by encouraging class members not to
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 24 of 30
On May 9, 2017, Defendant learned that Plaintiff’s counsel
was communicating with Defendant’s employees. Rec. Doc. 61-1 at
2.8 Defendant supplied a May 5, 2017 letter from Plaintiff’s
counsel addressed to one of Defendant’s employees, along with an
affidavit by one of Defendant’s employees recognizing that current
and former employees had been contacted by Plaintiff’s counsel.
See Rec. Doc. 61-2. The letter from Plaintiff’s counsel provided,
We represent former employee of Pier 424 and Creole
Cuisine, Liz Farrow, Mathew Hunter and Judah Nero. You
have been identified as an employee of Creole Cuisine
who may have also not received correct payment for wages
and overtime during your employment. We are looking for
potential witnesses and time is of the essence.9 We would
appreciate if you would contact us to discuss this
matter. Thank you.
Id. at 3. Defendant insists that this communication is both
According to Defendant, Plaintiff allegedly requested employee
As previously discussed, Plaintiff requested the names and contact information
for employees similarly situated to Plaintiff. See Rec. Doc. 31-1 at 3
(Plaintiff’s motion to compel discovery responses). On March 8, 2017, Magistrate
Judge Knowles granted Plaintiff’s motion to compel in part, ordering Defendant
to supply the requested information. Rec. Doc. 39. Again, the order stated that
“the information that plaintiff seeks is relevant to both her individual claim
(as potential corroboration of the restaurants at which plaintiff worked) and
to the potential certification of a class, should plaintiff re-file her motion.”
Id. at 1. Accordingly, Defendant produced the required information on May 4,
2017. See Rec. Doc. 61-1 at 2. The letter addressed to Defendant’s employees
was dated the following day, May 5, 2017. Rec. Doc. 61-2 at 3.
9 When the communication was sent, trial was scheduled to commence on June 19,
2017. See Rec. Doc. 65.
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 25 of 30
contact information for the purposes of identifying witnesses, but
solicitation because it states that the recipient was “identified”
as someone who “may have also not received correct payment for
wages and overtime during your employment.” Id. (citing Rec. Docs.
31-1 at 2-3; 61-2 at 3). Defendant argues that this implies that
it “identified these individuals as employees who were not properly
paid.” Id. at 5. It also suggests that Plaintiff’s counsel has
reason to believe that the recipient was not properly paid and
that Plaintiff has already proven that Farrow, Hunter, and Nero
were not properly paid. Id. at 5-6.
Plaintiff responds that the communication did not contain
solicitation language and that, instead, the letter was intended
to find witnesses. Rec. Doc. 80 at 1-2. Plaintiff specifically
directs this Court to a formal opinion issued by the ABA Committee
on Ethics and Professional Responsibility, which provided the
Both plaintiffs’ counsel and defense counsel have
legitimate need to reach out to potential class members
regarding the facts that are the subject of the potential
class action, including information that may be relevant
to whether or not a class should be certified. With
respect to such contacts, Rule 4.3, which concerns
lawyers dealing with unrepresented persons, does not
limit factual inquiries but requires both sides to
refrain from giving legal advice other than advice to
engage counsel, if warranted. If, on the other hand,
plaintiffs’ counsel’s goal is to seek to represent the
putative class member directly as a named party to the
action or otherwise, the provisions of Rule 7.3, which
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 26 of 30
governs the lawyers’ direct contact with prospective
clients, applies. The fact that an action has been filed
as a class action does not affect the policies underlying
Rule 7.3 that prohibit the types of contact with
prospective clients that have serious potential for
overreaching and other abuse. However, Rule 7.3’s
restrictions do not apply to contacting potential class
members as witnesses, so long as those contacts are
appropriate and comport with the Model Rules.
ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 07-445, at
Plaintiff further notes that she reurged her motion to certify
a collective action and that the motion requests appropriate notice
to be issued pursuant to the relevant rules. Rec. Doc. 80 at 3;
see also Rec. Doc. 97 (the pending motion to certify a collective
In its reply memorandum, Defendant insists that the letter
was intended to solicit clients and that “not coincidentally, four
solicitation.” Rec. Doc. 85 at 1-2 (citing Rec. Docs. 70-73).
Further, Defendant notes that Plaintiff has not supplemented her
witness list with new fact witnesses. Id. Thus, Defendant requests
that Plaintiff’s and her counsel’s communications with Defendant’s
current and former employees be limited to the notice procedure.
Id. at 3.
In Vogt, relied on by Defendant, the court considered three
communications sent by plaintiffs to various employees:
named plaintiff sent a flyer; (2) an opt-in plaintiff sent an
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 27 of 30
email; and (3) plaintiffs’ counsel sent an advertisement. 2006 WL
4660133, at *1. The employer requested a temporary restraining
authorization. Id. at *2. The court recognized that “[f]ew courts
have addressed how communications initiated by plaintiffs or their
counsel to potential class members should be regulated during the
interim period after suit has been filed, but before the court
notification pursuant to section 216(b).” Id. at *3. Nonetheless,
discretionary, and potential class members are not included as
precertification communications . . . .” Id.
The court then determined that the flyer, which contained a
formula for the recipient to calculate “the amount of unpaid
overtime that you are owed,” was misleading; the court therefore
prohibited further distribution. Id. at *4-5. The email, which
stated that if they won, and there was precedent from a case last
year, they would be paid monies owed, was also misleading. Id. at
*6. Thus, the court prohibited plaintiffs from forwarding the
“ADVERTISEMENT” on the first page, was modeled after a section
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 28 of 30
litigation. Id. at *7. The court found that the advertisement was
not misleading or coercive. Id. at *9-10. Nor did it undermine the
conditionally certified the class, it was only delivered to 166
employees where the proposed class consisted of 5,000 employees,
and because plaintiff’s counsel enjoyed certain commercial speech
rights. Id. at *10-11. At most, it was an attempt to solicit
potential class members to opt-in to the collective action. Id. at
Here, the letter sent by Plaintiff’s counsel is misleading.
Plaintiff’s counsel and potential plaintiffs. After all, Plaintiff
has a right to gather evidence from potential witnesses. Plus, a
motion to certify a collective action is currently pending before
this Court and set for submission on July 5, 2017. Rec. Doc. 97.
If the Court grants that motion, an approved notice will be
available to potential plaintiffs.
Nonetheless, Plaintiff’s counsel may not continue to use the
letter at issue. Future communications between Plaintiff’s counsel
and potential plaintiffs should not imply that this Court has found
that Plaintiffs were not properly compensated or that Defendant
identified certain employees as individuals who may not have been
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 29 of 30
Plaintiff’s counsel made inappropriate phone calls to Defendant’s
employees. To that end, Plaintiff’s counsel is reminded of her
ethical obligations under Rule 7.4.
IT IS ORDERED that Defendant’s motion (Rec. Doc. 46) is
GRANTED IN PART. Named Plaintiff Rieneke E. Farrow filed the
complaint and her consent to sue on December 29, 2015. Rec. Doc.
1. Judah Nero and Matthew Hunter did not file their consent forms
until April 10, 2017. Rec. Docs. 42-43. Shameka Brown, Tevin
Butler, Mia Johnson, and Alphonse Honore did not file their consent
Plaintiffs’ claims for unpaid minimum wages are limited to the
two-year period immediately preceding those dates.
IT IS FURTHER ORDERED that Plaintiff’s motion to equitably
toll the statute of limitations (Rec. Doc. 47) is DENIED.
IT IS FURTHER ORDERED that Defendant’s motion for a protective
order (Rec. Doc. 61) is GRANTED IN PART. Plaintiff’s counsel may
not continue to use the letter attached to Defendant’s motion or
any other communications that could be construed as misleading,
coercive, or as an attempt to undermine the collective action.
However, the Court does not grant Defendant’s motion insofar as it
seeks to prohibit all communications between Plaintiff’s counsel
Case 2:15-cv-07148-ILRL-DEK Document 101 Filed 06/29/17 Page 30 of 30
and Defendant’s employees. To that end, Plaintiff shall submit a
revised letter and/or other forms of communication to potential
claimants for Defendant’s review within seven (7) days of the date
of this Order. Within seven (7) days after receipt of the same,
Defendant shall confer with Plaintiff to resolve any objections to
the proposed communication. Thereafter, either party may seek
judicial relief on remaining issues, provided that compliance with
local rules and orders is achieved beforehand.
New Orleans, Louisiana, this 29th day of June, 2017.
SENIOR UNITED STATES DISTRICT JUDGE
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