Liebesman v. Competitor Group, Inc.
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment as to Count I (ECF No. 65 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Renewed Motion for Conditional Class Certification and Court-Authorize d Notice Pursuant to §216(b) of the FLSA (ECF No. 53 ) is DENIED as moot. IT IS FINALLY ORDERED that the Court dismisses, without prejudice Plaintiffs state law claims for lack of subject matter jurisdiction. Signed by District Judge Ronnie L. White on 01/15/2016. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
YVETTE JOY LIEBESMAN, on behalf of
herself and all others similarly situated,
No. 4:14-CV-1653 RLW
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff's Renewed Motion for Conditional Class
Certification and Court-Authorized Notice Pursuant to §216(b) of the FLSA (ECF No. 53) and
Defendant's Motion for Summary Judgment as to Count I (ECF No. 65). These matters are fully
briefed and ready for disposition.
Defendant Competitor Group, Inc. ("Defendant") operates the Rock ' n' Roll
Marathon/Half-Marathon Series of races. (Amended Complaint and Class Action Complaint
("Complaint" or "Compl."), ECF No. 23 , ifif7-8). The Rock ' n' Roll Marathon/Half-Marathon
Series has been staged in approximately twenty-four locations, including the St. Louis Rock 'n'
Roll Marathon/Half Marathon. (Compl., if8). Plaintiff Yvette Joy Liebesman alleges that she
"volunteered" as a bicycle escort on October 21 , 2012 for the Rock 'n' Roll Marathon in St.
Louis, Missouri. (Compl., if6). Plaintiff claims that she was led to believe that her labor would
be in support of local charities, the community, and other charitable purposes. (Compl., if54).
However, Plaintiff maintains that this was incorrect and she worked without proper
Plaintiff purports to represent the following class:
All persons who expended their time, labor, and efforts, purported in a volunteer
capacity, on behalf of Defendant Competitor Group, Inc., in operating events in
the Rock 'n' Roll Marathon from October 21 , 2012 until present.
(Compl., if66). Plaintiff alleges claims for violations of the Fair Labor Standards Act ("FLSA"),
violations of state minimum wage laws, unjust enrichment, and fraud.
The Court finds that ruling on Defendant's Motion for Summary Judgment prior to ruling
on Plaintiffs Motion for Conditional Class Certification is appropriate because the Motion for
Summary Judgment is dispositive of the issues at hand. The Court will defer ruling on Plaintiffs
Motion for Conditional Class Certification, particularly because the class representative's claim
is untenable. "Deciding dispositive motions first can avoid costly litigation associated with class
certification because ' if the court determines that the named plaintiffs' claims lack merit, such a
decision ordinarily, though not invariably, disqualifies the named plaintiffs as proper class
representatives, thus resolving the issue of class certification. "' Hartley v. Suburban Radiologic
Consultants, Ltd. , 295 F.R.D. 357, 368 (D. Minn. 2013) (quoting Chavez v. Ill. State Police, 251
F.3d 612, 630 (7th Cir.2001) (alteration and internal quotation marks omitted)); see also Marx v.
Centran Corp., 747 F.2d 1536, 1552 (6th Cir.1984) ("To require notice to be sent to all potential
plaintiffs in a class action when the underlying claim is without merit is to promote inefficiency
for its own sake."); see also Thompson v. County of Medina, Oh. , 29 F.3d 238, 241 (6th Cir.
1994); Wright v. Schock, 742 F.2d 541 , 544 (9th Cir.1984)("It is reasonable to consider a Rule
56 motion first [(before ruling on a motion for class certification)] when early resolution of a
motion for summary judgment seems likely to protect both the parties and the court from
needless and costly further litigation."); McCall v. Monro Muffler Brake, Inc., No. 4:10CV269
JAR, 2013 WL 1282306, at *2 (E.D. Mo. Mar. 27, 2013).
MOTION FOR SUMMARY JUDGMENT
A. Motion for Summary Judgment Standard
The Court may grant a motion for summary judgment if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the 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." Fed. R. Civ. P. 56(c); Celotex Corp. v. Citrate , 477 U.S. 317, 322 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031 , 1042 (8th Cir. 2011). The substantive law
determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly
preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex Corp. , 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving
party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of
material fact, not the "mere existence of some alleged factual dispute." Fed. R. Civ. P. 56(e);
Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials
of his pleading. Id.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor.
Celotex Corp., 477 U.S. at 331. The Court' s function is not to weigh the evidence but to
determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. " ' Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge. "' Torgerson, 643 F .3d at 1042 (quoting Reeves v.
Sanderson Plumbing Prods. , Inc. , 530 U.S. 133, 150 (2000)).
Finally, " [t]here is no
' discrimination case exception' to the application of summary judgment, which is a useful
pretrial tool to determine whether any case, including one alleging discrimination, merits a trial."
Torgerson, 643 F.3d at 1043 (citing Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir.
2010), citing Wallace v. DTG Operations, Inc. , 442 F.3d 1112, 1118 (8th Cir. 2006), and quoting
Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999)).
B. Failure to File Written Consent to be a Party to the FLSA Collective Action
The FLSA sets forth the consent requirement:
An action ... may be maintained against any employer ... by any one or
more employees for and in behalf of himself or themselves and other
employees similarly situated. No 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); Acosta v. Tyson Foods, Inc., 800 F.3d 468, 471-72 (8th Cir. 2015). In
Acosta, the employees brought claims "by themselves and on behalf of other similarly situated
individuals" and asked for the court to allow them to proceed "as a collective action pursuant to
29 U.S.C. §216(b)." The Eighth Circuit noted that Acosta was required to file a timely consent
because his complaint alleged a collective action. Id., 800 F .3d at 4 72. The Eighth Circuit held
that because Acosta failed to file a written consent "before the statute of limitations expired, the
district court should have dismissed Acosta's claim under the FLSA." Acosta, 800 F .3d at 4 72
(citing Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101-02 (7th Cir. 2004)); see also
Gomez v. Tyson Foods, Inc. , 799 F.3d 1192, 1194 (8th Cir. 2015) ("an employee must file a
written consent within the statute of limitations to proceed as a party plaintiff when a claim under
the FLSA is pleaded as a collective action"); Harkins v. Riverboat Servs., Inc., 385 F.3d 1099,
1101 (7th Cir. 2004)("The statute is unambiguous: if you haven't given your written consent to
join the suit, or if you have but it hasn't been filed with the court, you're not a party. It makes no
difference that you are named in the complaint, for you might have been named without your
consent."). This binding Eighth Circuit authority requires this Court to dismiss, with prejudice,
Plaintiffs FLSA claim. Acosta, 800 F.3d at 472; Gomez, 799 F.3d at 1194. Because Plaintiff
did not file her consent until after 3 years from the accrual of her action, her FLSA claim is timebarred under Eighth Circuit precedent.
As discussed herein, Plaintiff tries to avoid this result by contending that she filed another
document that served as her consent or that she is subject to one of several exceptions applies.
(ECF No. 73).
1. Discovery and Other Documents Filed in this Case
Plaintiff maintains that her motions for conditional class certification, declaration and
interrogatories satisfy the written consent requirement of the FLSA. See ECF Nos. 73 at 4-8; 74
at 2-3 . In her interrogatories and declaration, Plaintiff describes her personal knowledge of her
duties as a volunteer. Plaintiff does not cite to any part of either her interrogatories or her
declaration where she expresses her consent to become a party plaintiff.
The Court holds that the documents Plaintiff identifies in the Court record do not
constitute a written to consent to being a party plaintiff. The Eighth Circuit has been instructive
regarding what is not sufficient for consent. In Acosta, the Eighth Circuit found that Acosta's
three separate sets of interrogatory answers and deposition, which was filed in support of the
Motion for Class Certification, were not sufficient to demonstrate consent. (ECF No. 76 at 5-6).
Likewise, in Gomez, the Eighth Circuit held that Gomez' s interrogatory answers and his
deposition, which was used in support of the Motion for Class Certification, were not enough to
demonstrate consent. (ECF No. 76 at 6). District Courts have likewise held that a plaintiff must
provide more than the interrogatories and declarations, which are present in this case, to
demonstrate that plaintiff's consent to being a party plaintiff. See Perkins v. S. New England Tel.
Co., No. CIV.A. 3:07-CV-967JC, 2009 WL 3754097, at *3, n. 2 (D. Conn. Nov. 4,
2009)(holding that Perkins' Declaration as part of her severance package that said she "did not
release any claims relating to unpaid overtime wages which are the subject ofthis litigation" was
insufficient to stand in as her consent form in an FLSA action); Ketchum v. City of Vallejo , No.
CIV. S051098RRBJFM, 2007 WL 4356137, at *2 (E.D. Cal. Dec. 11 , 2007)(holding action was
not properly commenced until April 11 , 2007 when Plaintiff filed an "amended declaration with
the court attesting that: 'I indicated my consent to be a party plaintiff to this lawsuit by agreeing
to be an original named plaintiff. Therefore, I have already indicated my consent, and I continue
to consent to participate in this action. "'); cf Montalvo v. Tower Life Bldg. , 426 F.2d 1135,
1148-49 (5th Cir. 1970) (consent form consisting of a typewritten statement requesting that
"legal action be taken to secure my claim for me due me under the Fair Labor Standards Act,"
followed by the plaintiffs signature, sufficiently constituted written consent because it clearly
established an intent to become a party plaintiff). The Court holds Plaintiff's other filings do not
demonstrate her consent to act as a party plaintiff as a matter of law.
2. Equitable Tolling
Plaintiff further contends that this Court should equitably toll Plaintiffs FLSA claim to
allow her to bring her federal claim. (ECF No. 73 at 8-9). Plaintiff claims that the delay in filing
her consent was the result of the "substantial delay caused by Defendant' s motion practice."
(ECF No. 73).
'"The doctrine of equitable tolling permits a plaintiff to sue after the statutory time period
has expired if he has been prevented from doing so due to inequitable circumstances."'
Firstcom, Inc. v. Qwest Corp., 555 F.3d 669, 675 (8th Cir. 2009) (quoting Pecoraro v. Diocese
of Rapid City, 435 F.3d 870, 875 (8th Cir. 2006)). "Because statutes of limitations protect
important interests of certainty, accuracy, and repose, equitable tolling is an exception to the rule,
and should therefore be used only in exceptional circumstances." Motley v. United States, 295
F.3d 820, 824 (8th Cir. 2002) (quotation omitted); see Riddle v. Kemna, 523 F.3d 850, 857 (8th
Cir. 2008) ("Equitable tolling is an exceedingly narrow window of relief." (quotation omitted));
Pecoraro, 435 F.3d at 875 ("Courts generally require strict compliance with a statute of
limitations and rarely invoke doctrines such as equitable tolling to alleviate a plaintiff from a loss
of his right to assert a claim."). Plaintiff, as the party claiming the benefit of an exception to the
operation of a statute of limitations, bears the burden of showing that she is entitled to equitable
tolling." Motley, 295 F.3d at 824; Firstcom, Inc., 555 F.3d at 675. This generally involves
"establishing two elements: (1) that [she] has been pursuing [her] rights diligently, and (2) that
some extraordinary circumstance stood in [its] way." Riddle, 523 F.3d at 857 (quoting Walker v.
Norris, 436 F.3d 1026, 1032 (8th Cir.2006)).
The court sees no reason to toll the statute of limitations for Plaintiffs individual claims.
See Perkins v. S. New England Tel. Co., No. CIV.A. 3:07-CV-967JC, 2009 WL 3754097, at *6
(D. Conn. Nov. 4, 2009). Plaintiff has not identified any circumstance that prevented her, a Saint
Louis University Law Professor, from filing her consent to be a party to this action. That is, the
circumstances that prevented Plaintiff from filing her consent to the FLSA were not "truly
beyond the control of [Plaintiff]. .. ." See Pecoraro, 435 F.3d at 875 (quotation omitted);
Firstcom, Inc., 555 F.3d at 675 . Rather, Plaintiffs failure to file a consent seems to be "garden
variety" claims of excusable neglect. Jenkins v. Mabus, 646 F.3d 1023, 1028 (8th Cir. 2011);
Frazier v. Vi/sack, 419 F. App'x 686, 689 (8th Cir. 2011). Accordingly, the doctrine of equitable
tolling does not apply.
3. Waiver of Statute of Limitations
Finally, Plaintiff argues that Defendant waived statute of limitations by not naming this
as a defense. (ECF No. 73 at 9-11). Defendant's Thirteenth Additional Defense in its Answer to
Plaintiffs Amended Collective and Class Action states, in pertinent part, "The Amended
Complaint and each claim for relief alleged therein, is barred in whole or in part by the
applicable statute of limitations and/or deadlines for initiating a claim." (ECF No. 41 at 17).
The Court holds that this language was sufficient to notify Plaintiff that Defendant would be
asserting a statute of limitations defense. Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 361 (8th
Cir. 1997) ("[W]hile a limitations defense must be asserted in a responsive pleading, it 'need not
be articulated with any rigorous degree of specificity, and is sufficiently raised for purposes of
Rule 8 by its bare assertion. ")(intemal quotations omitted); Fed. R. Civ. P. 8(c). Although
Defendant' s "boilerplate language does not cite the specific statute applicable here, it
nevertheless satisfies the requirement of [Rule] 8(c) that affirmative defenses be pleaded." Zotos,
121 F.3d at 361 (citation omitted).
Because Plaintiffs FLSA federal claim was not timely filed, the Court dismisses Count I
Because the Court has dismissed Plaintiffs FLSA claim, Plaintiffs Renewed Motion for
Conditional Class Certification and Court-Authorized Notice Pursuant to §216(b) of the FLSA
(ECF No. 53) is denied as moot.
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment as to
Count I (ECF No. 65) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Renewed Motion for Conditional Class
Certification and Court-Authorized Notice Pursuant to §216(b) of the FLSA (ECF No. 53) is
DENIED as moot.
IT IS FINALLY ORDERED that the Court dismisses, without prejudice Plaintiffs
state law claims for lack of subject matter jurisdiction.
Dated this 15th day of January, 2016.
UNITED STATES DISTRICT JUDGE
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