Grant v. Convergys Corporation

Filing 112

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to toll the statute of limitations [Doc. #108] is DENIED. Signed by District Judge Carol E. Jackson on 5/8/2013. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HOPE GRANT, for herself and,
for all others similarly situated,
Plaintiff,
vs.
CONVERGYS CORP.,
Defendant.

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Case No. 4:12-CV-496 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for equitable tolling of the
statute of limitations. Defendant opposes the motion, and the issues are fully briefed.
The Court has certified a key issue in this case for interlocutory appeal pursuant
to 28 U.S.C. §1292(b). Plaintiff wishes to toll the statute of limitations of the Fair
Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., for the duration of that appeal.
The tolling would benefit putative class members who have not yet opted in to the
collective action and for whom the statute of limitations continues to run. 29 U.S.C.
§ 256(b).
Defendant argues that the statute of limitations cannot be tolled for putative
class members, because those individuals are not parties to the litigation. Defendant
contends that tolling the statute of limitations would be akin to issuing an advisory
opinion stating “what the court might do if and when it may be confronted with an
untimely claim.” U.S. v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986). No court in the
Eighth Circuit has followed Cook or suggested that tolling the statute of limitations for
putative class members runs afoul of the “case and controversy” requirement of Article
III of the Constitution, as defendant suggests. Instead, under certain circumstances,

courts in this circuit apply equitable tolling to preserve FLSA claims of putative class
members. See Davenport v. Charter Commc’ns, LLC, No. 4:12-CV-7 (AGF), 2012 U.S.
Dist. LEXIS 116341, at *2-3 (E.D. Mo. Aug. 17, 2012), vacated on other grounds,
(applying equitable tolling to putative class members’ FLSA claims to compensate for
delays caused by opposing counsel); Putnam v. Galaxy 1 Mktg., Inc., 276 F.R.D. 264,
276 (S.D. Iowa Aug. 23, 2011) (tolling the FLSA statue of limitations so putative class
members did not suffer from defendant’s delays); Hembree v. Mid-Continent Trans.,
Inc., No. 08-6094-CV-SJ-HFS, 2010 WL 3927764, at *4 (W.D. Mo. Oct. 4, 2010)
(tolling the FLSA statute of limitations because of delays in litigation attributable to
defendant, plaintiff’s counsel, and the court, but not to potential class members).
Equitable tolling of the FLSA statute of limitations “applies when the plaintiff is
prevented from asserting a claim by wrongful conduct on the part of the defendant, or
when extraordinary circumstances beyond the plaintiff’s control made it impossible to
file a claim on time, such as its excusable ignorance of the statute of limitations.”
Young v. Dollar Tree Stores, Inc., No. 11-cv-1840-REB-MJW, 2013 WL 1223613, at *2
(D. Colo. Mar. 25, 2013) (quoting Beauperthuy v. 24 Hour Fitness, USA, Inc., No. 060715 (SC), 2007 WL 707475, at *8 (N.D.Cal. Mar. 6, 2007)). In this case, the delay
in the proceedings is due to the interlocutory appeal that the Court deemed
appropriate in light of the legal issues implicated by plaintiff’s conditional class
certification motion. This distinguishes the instant case from Davenport, in which the
court granted the plaintiff’s motion for equitable tolling because the delays in question
“were specifically requested by Defendant, the time requested was somewhat lengthy,
and denying Plaintiff’s motion might result in some potential class members losing their

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eligibility . . . due to Defendant’s requests for filing extensions.” Davenport, 2012 U.S.
Dist. LEXIS 116341, at *3.
Litigation delays do not constitute extraordinary circumstances justifying
equitable tolling. See Garrison v. Conagra Foods Packaged Food, LLC, No. 4:12-cv-737
(SWW), 2013 WL 1247649, at *5 (E.D. Ark. Mar. 27, 2013). Such delays do not
preclude a putative class member from filing a claim on time. Although disbursement
of plaintiff’s notice of the collective action to potential class members may be delayed,
“potential opt-in plaintiffs are presumed to be aware of the facts and circumstances of
their employment . . ., and it is those facts and circumstances that allegedly form the
basis of each plaintiff’s FLSA claim against [an employer].” Young, 2013 WL 1223613,
at *2. Because the instant litigation has been delayed due to intrinsic complications,
not because of neglect or procrastination of any party or counsel, the FLSA statute of
limitations will not be tolled for putative class members.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to toll the statute of limitations
[Doc. #108] is DENIED.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 8th day of May, 2013.

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