Faust et al v. Comcast Cable Communications Managment, LLC

Filing 109

MEMORANDUM. Signed by Judge William M Nickerson on 10/9/2013. (mps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOEL FAUST et al.
v.
COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC
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Civil Action No. WMN-10-2336

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MEMORANDUM
Before the Court is Defendant Comcast Cable Communications
Management, LLC’s Motion for Partial Summary Judgment as to
Named Plaintiffs Joel Faust and Marshall Feldman.
The Motion is fully briefed and is ripe for review.

ECF No. 98.
For the

reasons stated, the Court determines that no hearing is
necessary, Local Rule 105.6, and the motion will be granted in
part and denied in part.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On August 23, 2010, Named Plaintiffs Joel Faust and

Marshall Feldman (collectively referred to as “Plaintiffs”)
filed a Complaint against Defendant Comcast Cable Communications
Management, LLC (“Comcast”), alleging violations of the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., the
Maryland Wage and Hour Law, Md. Code Ann., Labor & Empl. § 3-401
et seq., and the Maryland Wage Payment and Collection Law, Md.
Code Ann., Labor & Empl. § 3-501 et seq.

1

Plaintiffs filed the

Complaint “individually and on behalf of all others similarly
situated.”

ECF No. 1 at 1.

The Complaint contains three

counts, captioned as: I) “Violation of the Fair Labor Standards
Act (Collective Action);” II) “Violation of the Maryland Wage
and Hour Law (Class Action);” and III) “Violation of the
Maryland Wage Payment and Collection Law (Class Action).”1
at 8, 9, 11.

Id.

Plaintiffs allege that Comcast failed to pay them

for work performed “off the clock” while employed by Comcast as
Customer Account Executives (CAEs).

At the time they filed the

Complaint, the Plaintiffs did not file separate forms expressly
stating that they gave their consent to become party plaintiffs
in the FLSA suit.2
Plaintiff Faust was employed full-time as a CAE with
Comcast until May 26, 2010.

Feldman was employed as a CAE with

Comcast until his retirement on April 2, 2010.

Although he was

previously employed full-time, Feldman switched to part-time
status at some point in 2008.

Feldman stated in his deposition

that he believed he became a part-time employee in October or
November 2008, ECF No. 98-2 at 4-5, but Comcast’s personnel
records reflect that Feldman’s schedule change occurred in March
2008.

See ECF No. 107-1.

After becoming a part-time employee,

1

Count III has since been dismissed. See ECF No. 103.
Several dozen other individuals have filed written consents to
be party plaintiffs in the action.
2

2

Feldman did not work over forty hours in any week.

ECF No. 98-2

at 4-5.
Nearly three years after the Complaint was filed,3 Comcast
filed the present Motion for Partial Summary Judgment as to
Named Plaintiffs Faust and Feldman, raising expressly for the
first time the adequacy of Faust and Feldman’s written consent
under the FLSA.

Specifically, Comcast argues that Plaintiffs

failed to file separate written consent forms with this Court as
required by 29 U.S.C. §§ 216 and 256, and, as a result, the
statute of limitations has run with respect to their FLSA
claims.4

Further, Comcast argues that Plaintiffs are not

permitted to continue suit against Comcast individually because,
although the Complaint states that Plaintiffs filed suit both
individually and on behalf of others similarly situated, dual
capacity suits are not permissible under the FLSA.
Alternatively, Comcast argues that, because Plaintiffs have
primarily treated the action as a collective action, they should
not be permitted to switch course to an individual action
midstream.
3

During those three years, the parties filed numerous motions,
including a motion for conditional certification under the FLSA
and multiple discovery-related motions. See, e.g., ECF Nos. 69,
78, 77, 93. Additionally, Comcast has filed two prior motions
for summary judgment as to other opt-in plaintiffs. See ECF
Nos. 68, 82.
4
Comcast does not claim, at this juncture, that it is entitled
to summary judgment with respect to Plaintiffs’ claims under the
Maryland Wage and Hour Law.
3

In defense, Plaintiffs offer a variety of alternative
arguments.

First, they contend that the FLSA does not require

that named plaintiffs file a separate, redundant written
consent.

Even if the FLSA does require written consent from

named plaintiffs, they argue, Faust and Feldman’s signed
Declarations and Answers to Interrogatories, filed on April 22,
2011, satisfy the requirement.

Alternatively, they contend

that, by waiting nearly three years into the litigation to raise
the assertion that their consent was inadequate, Comcast has
waived the argument.

Last, should the Court determine that

Named Plaintiffs cannot continue as part of the collective FLSA
action, Plaintiffs contend that Faust and Feldman should be
permitted to continue the suit individually.
II.

LEGAL STANDARD

Summary judgment is appropriate if the record before the
court “shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 377 U.S. 317,
322-23 (1986).

A fact is material if it might “affect the

outcome of the suit under the governing law.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.
In determining

whether there is a genuine issue of material fact, the Court
“views all facts, and all reasonable inferences to be drawn from
them, in the light most favorable to the non-moving party.”
4

Housley v. Holquist, 879 F. Supp. 2d 472, 479 (D. Md. 2011)
(citing Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282,
1286 (4th Cir. 1987)).
III. DISCUSSION
A. Named Plaintiffs in an FLSA Collective Action Must File
Written Consents
A cause of action for unpaid overtime compensation “accrues
at each regular payday immediately following the work period
during which the services were rendered and for which the
overtime compensation is claimed.”

Truslow v. Spotsylvania

County Sheriff, 783 F. Supp. 274, 279 (E.D. Va. 1992).

To

qualify for relief under the FLSA, a plaintiff must commence his
or her action within two years of the accrual of the cause of
action, or, where a “cause of action arising out of a willful
violation” is alleged, within three years.

29 U.S.C. § 255(a).

In determining when an action is commenced for purposes of the
limitations period, “it shall be considered to be commenced in
the case of any individual claimant—
(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 brought; or
(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.

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Id.

Similarly, Section 216 provides, in relevant part, that

“[n]o employee shall be a party plaintiff to [an action to
recover unpaid overtime] unless he gives 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).

Comcast contends that the FLSA requires all plaintiffs –
including all named plaintiffs – to file a written consent with
the Court in order to become a party plaintiff and toll the
applicable statute of limitations.

Because neither Faust nor

Feldman filed separate written consents, Comcast argues, the
limitations period was not tolled and, more than three years
having passed since either Named Plaintiff was employed by
Comcast, has now expired.

Plaintiffs argue that the FLSA does

not require a named plaintiff to file a separate written
consent.

Requiring a separate consent from named plaintiffs

does not further the purpose of the consent requirement, which
is to “make the members of the class of unnamed plaintiffs who
wished to participate in, and be bound by, the action identify
themselves for the benefit of the defendant.”

Allen v. Atlantic

Richfield Co., 724 F.2d 1131, 1135 (5th Cir. 1984).

Rather,

Plaintiffs assert that the filing of the Complaint,
“individually and on behalf of all others similarly situated,”
constituted sufficient notice to Comcast that Plaintiffs
intended to be members of the class of plaintiffs, and that to
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require a named plaintiff to file a separate consent is
redundant.
Courts have repeatedly interpreted Section 256 as requiring
all plaintiffs in an FLSA collective action, whether named or
unnamed, to file written consents to toll the statute of
limitations.

See, e.g., Harkins v. Riverboat Servs., Inc., 385

F.3d 1099, 1101 (7th Cir. 2004); In re Food Lion, Inc., Nos. 942360 et al., 1998 WL 322682, at *13 (4th Cir. June 4, 1998) (per
curiam).

But see Vargas v. General Nutrition Centers, Inc., No.

2:10-cv-867, 2012 WL 5336166, at *5 (W.D. Pa. Oct. 26, 2012)
(“For named plaintiffs, an action is commenced on the date they
file the Complaint.”).

Although the filing of a separate

written consent by a plaintiff named in a complaint may be
redundant, see In re Food Lion, 1998 WL 322682, at *13, it is
nevertheless required by the plain, unambiguous meaning of the
statutory text.

See, e.g., Frye v. Baptist Memorial Hospital,

Inc., 495 F. App’x 669, 675 (6th Cir. 2012).

Section 256 “is

expressly conjunctive,” requiring both the filing of a complaint
and written consents.

Harkins v. Riverboat Servs., Inc., No. 99

C 123, 2002 WL 32406581, at *2 (N.D. Ill. May 17, 2002), aff’d,
385 F.3d 1099 (7th Cir. 2004).

Thus, the Court determines that,

“[u]ntil a plaintiff, even a named plaintiff, has filed a
written consent, []he has not joined in the [collective] action,

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at least for statute of limitations purposes.”

Songu Mbriwa v.

Davis Memorial Goodwill Indus., 144 F.R.D. 1, 2 (D.D.C. 1992).
B. Comcast Did Not Waive its Objection to Plaintiffs’
Consent
Plaintiffs argue that, if written consent was required,
Defendant Comcast waived its objection to the inadequacy or
absence of Plaintiffs’ consent.

Specifically, Plaintiffs note

that Comcast has engaged in the present litigation for nearly
three years without raising the absence or validity of their
consent, including filing two prior motions for summary judgment
as to other plaintiffs, but waited until immediately after the
asserted expiration of the statute of limitations to file the
motion for summary judgment.

Plaintiffs contend that, to raise

the issue now after protracted proceedings is in effect to
ambush Plaintiffs with a “trump” card – a litigation tactic of
the sort that the doctrine of waiver is designed to prevent.
Comcast argues that it did not waive its objection to
Plaintiffs’ consent because, in its Answer, it asserted as an
affirmative defense that Plaintiffs’ claims were barred by
limitations.

Moreover, because Plaintiffs demonstrated their

knowledge that written consents were generally required in FLSA
actions by, for example, requesting that notice be issued “at
the earliest possible time,” see ECF No. 1 at 13, and filing
written consents on behalf of opt-in plaintiffs, Comcast argues

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that Plaintiffs were on notice that written consents were
required.

Thus, Comcast contends that it was under no

obligation to explicitly alert Plaintiffs to their failure to
file written consents at an earlier time.
An affirmative defense is “the defendant’s assertion
raising new facts and argument that, if true, will defeat the
plaintiff’s or prosecution’s claim, even if all allegations in
the complaint are true.”

Emergency One, Inc. v. American Fire

Eagle Engine Co., Inc., 332 F.3d 264, 271 (4th Cir. 2003).

“One

of the core purposes of [Federal Rule of Civil Procedure] 8(c)[,
which governs the pleading of affirmative defenses,] is to place
the opposing parties on notice that a particular defense will be
pursued so as to prevent surprise or unfair prejudice.”

Saks v.

Franklin Convey Co., 316 F.3d 337, 350 (2d Cir. 2003).
Generally, affirmative defenses, such as the running of the
statute of limitations, must be pled in an answer or they are
waived.

Fed. R. Civ. P. 8(c).

Where unfair surprise and

prejudice to the plaintiff will not result, however, a defendant
may raise an affirmative defense for the first time in a
dispositive pre-trial motion.

See, e.g., Grunley Walsh U.S.,

LLC v. Raap, 386 F. App’x 455, 459 (4th Cir. 2010).
Plaintiffs appear to argue primarily that the absence or
insufficiency of written consent and the statute of limitations
are two separate affirmative defenses, and alternatively, that
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Comcast’s generalized statute of limitations defense was
insufficient to provide notice to Plaintiffs of the absence of
their consent.

Although the filing of consent and the running

of the limitations period are perhaps arguably distinct, cf.
Patten Grading & Paving, Inc. v. Skanska USA Building, Inc., 380
F.3d 200, 205 n.3 (4th Cir. 2004) (distinguishing between the
failure to invoke an arbitration clause and whether the
resultant participation in litigation amounted to a default
under the Federal Arbitration Act), they are also undoubtedly
intertwined.

Because the statute of limitations is not tolled

in an FLSA collective action as to a particular plaintiff absent
the filing of a written consent, an asserted limitations defense
is logically sufficient to put the plaintiff on notice that the
statute of limitations has not been properly tolled.

By

implication, therefore, a limitations defense alerts plaintiff’s
counsel also to a potential deficiency in consent.
Although the Court is sympathetic to the Plaintiffs’
argument, Plaintiffs provide no authority for their position
that the absence or insufficiency of written consent must be
separately pleaded as an affirmative defense in an FLSA action.
Rather, courts have noted that the assertion of a statute of
limitations defense is sufficient to note and preserve an
objection to a plaintiff’s consent.

See Matuska v. NMTC, Inc.,

Civ. No. 10-3529(JAP), 2012 WL 1533779, at *3 n.6 (D.N.J. Apr.
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30, 2012) (defendant was not barred from objecting to
Plaintiffs’ written consents after lengthy discovery and
depositions where it asserted in its answer an affirmative
defense stating “Plaintiffs’ claims are barred, in whole or in
part, by applicable statutes of limitations”).

Additionally,

courts have noted, in similar procedural postures, that the
defendant “ha[s] no duty to inform” the plaintiff of his or her
failure to file a written consent to join the collective action,
“or to assert that he [or she] was required to do so [prior to
the running of the limitations period].”

Frye v. Baptist

Memorial Hospital, Inc., No. 07-2708, 2011 WL 1595458, at *8
(W.D. Tenn. Apr. 27, 2011).

Thus, Comcast’s assertion of the

statute of limitations defense in its Answer was sufficient to
put Plaintiffs on notice that the statute of limitations had not
been properly tolled.

Comcast did not waive its objection to

Plaintiffs’ consent.
C. Plaintiffs Filed Written Consents on April 22, 2011
Plaintiffs alternatively contend that, if Comcast did not
waive its objection, Faust and Feldman complied with the written
consent requirement by filing signed Declarations and Answers to
Interrogatories on April 22, 2011.
7, 23-8.

See ECF Nos. 23-4, 23-5, 23-

The FLSA requires only that a plaintiff give consent,

to be filed with the court, in writing.

29 U.S.C. § 216(b).

“While it is clear that some document in addition to the
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complaint must be filed, it is not clear what form the written
consent must take, especially when the alleged party plaintiff
is a named plaintiff.”

D’Antuono v. C & G of Groton, Inc., No.

3:11cv33 (MRK), 2012 WL 1188197, at *2 (D. Conn. Apr. 9, 2012).
Courts have generally shown “considerable flexibility” with
respect to the form of consent, Manning v. Gold Belt Falcon,
LLC, 817 F. Supp. 2d 451, 454 (D.N.J. 2011), requiring only that
“the signed document verif[y] the complaint, indicate[] a desire
to have legal action taken to protect the party’s rights, or
state[] a desire to become a party plaintiff.”

Perkins v. S.

New England Tel. Co., No. 3:07-cv-967, 2009 WL 3754097, at *3
n.2 (D. Conn. Nov. 4, 2009).
Plaintiffs contend that their signed declarations and
answers to interrogatories, filed with the Court on April 22,
2011, operate as their written consent under sections 216 and
256 of the FLSA.

Specifically, Plaintiffs note that the

documents state facts supporting their individual and
representative claims, “prominently indicate the pendency of
this case,” identify themselves as “named Plaintiffs,” and refer
to “this litigation.”

See ECF No. 102 at 5.

Comcast contends

that, because the declarations and interrogatories do not state
explicitly “I consent” to the action, they are insufficient to
meet the FLSA’s requirements.

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In support for its contention that explicit language is
required to provide consent, Comcast points to Manning v. Gold
Belt Falcon, LLC.

In Manning, the court determined that a

signed declaration, which stated in relevant part “I am the
named Plaintiff in this action,” was sufficient to acknowledge
participation in the lawsuit.

817 F. Supp. at 454-55.

Although

the Manning court approved of the express consent as sufficient
under the FLSA, it did not state that such express consent is
required.

Indeed, courts have considered less explicit

statements to be sufficient to demonstrate consent.

For

example, in D’Antuono, the court read broadly an affidavit
executed by the plaintiff as implicitly verifying the complaint
and her desire to participate in the suit.5

Moreover, the court

considered relevant that the plaintiff had already participated
in a lengthy deposition.

2012 WL 1188197, at *4.

The Court declines to read the consent requirement of
Sections 216 and 256 so strictly as to require that a plaintiff
explicitly state “I consent” or “I am the named Plaintiff” in
order to join a collective action under the FLSA.

Rather, a

signed declaration that “manifests a clear intent to be a party
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The court in D’Antuono noted that the only possible statement
relevant to consent in the affidavit read: “‘Given my current
financial circumstances and my understanding of the costs
associated with arbitration, I cannot afford to arbitrate my
claims and I could not afford to undertake this litigation and
pursue my rights if I lost at arbitration.’” 2012 WL 1188197,
at *3.
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plaintiff” is sufficient to operate as consent.

Id.

Thus, the

Court must determine whether Plaintiffs’ signed declarations and
answers to interrogatories demonstrate a clear intention to join
the collective action.

As the Court noted in D’Antuono, “[t]his

question is a close one, and one which would not have arisen had
[Plaintiffs’] counsel simply ensured that a written consent form
was filed along with the complaint.”

Id.

Here, Plaintiffs’ signed declarations each indicate the
respective plaintiff’s willingness to testify in the matter and
the underlying facts of the litigation.

Additionally, each

declaration acknowledges that Comcast’s alleged practices
applied to all CAEs.

ECF Nos. 23-4, 23-5.

Similarly, each

signed Answers to Interrogatories repeatedly designate Faust and
Feldman, respectively, as a plaintiff in the suit, describe the
facts underlying the litigation, and refer to the “named
Plaintiffs” as individuals with “personal knowledge of the facts
at issue in the case.”

ECF Nos. 23-7 at 3; 23-8 at 3.

Moreover, both Faust and Feldman have participated in
depositions.

Thus, the Court finds that Faust and Feldman filed

sufficient written consent with the Court on April 22, 2011.
Comcast contends that, even if Plaintiffs’ alleged April 22
consent was valid, it is still entitled to summary judgment as
to Plaintiff Feldman and as to that portion of Plaintiff Faust’s
claim arising prior to April 22, 2008 because, assuming a three14

year statute of limitations applies, the entirety of Feldman’s
and a portion of Faust’s FLSA claims are time barred.
Specifically, with respect to Feldman, Comcast contends that he
did not work more than forty hours a week after March of 2008.
In support, Comcast attached to its Reply internal e-mails
confirming Feldman’s switch to a part-time schedule, an HR form
indicating that Feldman switched to part-time effective March 9,
2008, and pay records from June 2007 through the end of his
employment with Comcast.

See ECF No. 107-1.

Based on these

records, Comcast argues that the last time Feldman worked more
than forty hours in one week was more than three years prior to
Feldman’s institution of his FLSA suit.6

Feldman testified in

his deposition, however, that although he was not sure precisely
when he became a part-time employee, he “believe[d]” that it was
“October or November 2008.”

See ECF No. 98-2 at 68-69.

Comcast claims that, because it presented documentation
supporting its assertion that Feldman switched to part-time
status in March of 2008, Feldman’s claim is no more than
speculation and does not raise a genuine issue of material fact.
The Court agrees.
Q

The transcript of Feldman’s deposition reads:

Do you remember when you went part time?

6

In his deposition, Feldman stated that he did not work more
than forty hours in any week from the time he went part time
until he left his job. ECF No. 98-2 at 5.
15

A
I think it was, like, October or November of
2008, I believe. I’m not really sure of that. I’m
pretty sure that’s what it was.
ECF No. 98-2 at 4-5.

Feldman’s unsupported beliefs, which are

contradicted by the factual record, are not sufficient to create
a genuine issue of material fact regarding when he reduced his
hours with Comcast.

See Iko v. Shreve, 535 F.3d 225, 230 (4th

Cir. 2008) (“When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.” (quoting Scott v. Harris, 550 U.S. 372, 380
(2007))).
With respect to Plaintiff Faust, Comcast contends that it
is entitled to summary judgment on any portion of Faust’s claim
arising prior to April 22, 2008.

As noted above, the Court

determines that Faust filed written consent on April 22, 2011.
Therefore, Faust’s suit commenced and the statute of limitations
was tolled on that date.

Because Faust alleges a willful

violation of the FLSA, the three-year statute of limitations
applies, and any claim arising prior to April 22, 2008 is
barred.

Summary judgment will therefore be granted to the

extent that Plaintiff Faust claims overtime compensation for
work performed prior to April 22, 2008.

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D. Plaintiffs May Not Continue Suit in an Individual
Capacity
Finally, Plaintiffs argue that, to the extent that their
collective action claims are barred, they may still proceed
individually.

Because the FLSA consent requirement applies only

to collective actions, Plaintiffs contend that they properly
tolled the statute of limitations with respect to their
individual claims upon filing the Complaint.

Comcast argues, by

contrast, that the FLSA does not permit plaintiffs to proceed in
both individual and collective capacities.

Further, even if it

does, Comcast asserts that Plaintiffs did not indicate with
sufficient clarity at the outset of the suit their intent to
file claims individually.

As a result, Comcast was not on

notice and Plaintiffs should not be permitted to change course
midstream.
The FLSA provides that an individual may file suit for
overtime compensation “for and in behalf of himself or
themselves and other employees similarly situated.”
216(b).

29 U.S.C. §

Although the Fourth Circuit has never stated expressly

that dual capacity suits are permitted under § 216 of the FLSA,
it has also “never foreclosed the possibility.”

Smith v.

Central Security Bureau, Inc., 231 F. Supp. 2d 455, 460 (W.D.
Va. 2002).

In Smith, the court read Fourth Circuit precedent as

suggesting that, “where the record reveals an intent to file an

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individual claim, and the individual claim is timely filed, it
should be allowed to continue, notwithstanding the individual
plaintiff’s failure to timely file a consent to join the
collective action.”

Id. (discussing In re Food Lion, Inc., Nos.

94-2360 et al., 1998 WL 322682 (4th Cir. June 4, 1998)).
To the extent that the FLSA permits the filing of dual
capacity actions, therefore, the Court must determine whether
the record reveals an intention to file an individual claim.

A

plaintiff’s complaint, to be construed as proceeding in a dual
capacity, must “clearly put the employer and the court on notice
of” his intention to file in an individual capacity.
461.

Id. at

Compare id. (plaintiffs proceeding “individually and on

behalf of [others]” may properly assert a dual capacity action)
with Frye, 2011 WL 1595458, at *5 (plaintiffs proceeding “on
behalf of themselves and all other similarly situated hourly
employees” asserted only a representative, and not an
individual, action).

In addition to the caption, the face of

the complaint itself is relevant in determining whether a
plaintiff intended to proceed in an individual capacity.

See,

e.g., Ochoa v. Pearson Educ., Inc., Civ. No. 11-cv-1382 (DMCJAD), 2012 WL 95340, at *4 (D.N.J. Jan. 12, 2012) (examining
both the caption and the allegations of the complaint to
determine whether the plaintiff brought his FLSA action in a
dual capacity).
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Here, Plaintiffs’ Complaint appropriately states that it is
filed by Plaintiffs Faust and Feldman “Individually, and on
Behalf of All Others Similarly Situated.”

ECF No. 1 at 1.

The

allegations of the Complaint, however, contain no reference to
an individual capacity action.

Rather, the Complaint states

that “Plaintiffs bring their FLSA overtime claims as a
collective action pursuant to 29 U.S.C. § 216(b),” and
“Plaintiffs bring their MWHL overtime claims and MWPCL unpaid
wage claims as a class action pursuant to Fed. R. Civ. P. 23.”
Id. at ¶¶ 6-7.

Further, Count I, the only count to allege a

violation of the FLSA, is captioned specifically as a collective
action.

Id. at 8.

To the extent that the allegations under

Count I refer to individuals, they appear to refer to the
potential opt-in plaintiffs, rather than Faust and Feldman in
their individual capacities.

See id. at ¶¶ 37, 39.

Moreover,

although Plaintiffs repeated the phrase “individually and on
behalf of all others similarly situated” in multiple court
filings, never did Plaintiffs assert, in any other manner, their
intention to proceed by way of anything other than a collective
action.

A mere recitation in pleadings of the phrase

“individually and on behalf of all others similarly situated,”
absent any further indication in the Complaint or subsequent
filings of an intention to proceed in a dual capacity, is not

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sufficient to put the employer and the Court on notice of an
individually-filed action.
IV.

CONCLUSION

For the foregoing reasons, Defendant Comcast’s Motion for
Partial Summary Judgment as to Named Plaintiffs Joel Faust and
Marshall Feldman will be granted in part and denied in part.
separate order will issue.

______________/s/__________________
William M. Nickerson
Senior United States District Judge
DATED: October 9, 2013

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A