Walkinshaw et al v. Catholic Health Initiatives
MEMORANDUM AND ORDER - Plaintiffs' Motion to Approve Electronic Submission of Consent Forms and for Additional Tolling, Filing 269 , is granted in part and denied in part as set forth in greater detail herein. Ordered by Judge Brian C. Buescher. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NICHOLE WALKINSHAW, et al.,
MEMORANDUM AND ORDER
SAINT ELIZABETH REGIONAL MEDICAL
CENTER, COMMONSPIRIT HEALTH f/k/a
CATHOLIC HEALTH INITIATIVES, and CHI
NEBRASKA f/k/a CHI HEALTH,
This case involves Plaintiffs, nurses employed by Defendants, claiming they have been
improperly compensated under federal and state labor laws. The Court previously held that
Plaintiffs should be granted conditional collective-action certification under the FLSA and ordered
certain procedures for providing notice to and allowing the opting in of potential collective-action
members. The case now comes before the Court on Plaintiffs’ Motion to Approve Electronic
Submission of Consent Forms and for Additional Tolling related to a supplemental group of
potential collective-action members. Filing 269. For the reasons stated herein, the Court grants in
part and denies in part Plaintiffs’ motion.
On December 17, 2020, the Court granted Plaintiffs’ Motion for Conditional Collective
Action Certification, Filing 98, under the Fair Labor Standards Act (“FLSA”); approved a sixtyday opt-in period for potential collective members; and permitted notice to be disseminated to
potential collective members by email. Filing 179 at 21-26. Potential plaintiffs could submit notice
of their intention to join the lawsuit by mailing, emailing, or faxing a consent-to-join form. See
Filing 137-13 at 3 (proposed notice approved by court). The Court ordered Defendants to provide
a list of all potential collective-action members to Plaintiffs’ counsel within seven business days
of the date of its order. Filing 179 at 29. Defendants provided a list on December 30, 2020, and
Plaintiffs sent notice on January 12, 2021. Filing 184; Filing 188. On January 28, 2021, Defendants
produced a revised collective list including additional potential members and Plaintiffs sent notice
to those individuals on February 1, 2021. Filing 196; Filing 199. On July 7, 2021, Defendants
produced another supplemental list of potential collective-action members who were not
previously provided notice. Filing 267 at 1. It is this supplemental group of potential plaintiffs that
is at issue in the present motion.
The parties have agreed to a sixty-day supplemental notice period to inform the latest group
of potential collective members who were not included in the original notice. Filing 267 at 1-2.
Although the parties agree that supplemental notice should be sent to this group of potential
plaintiffs, they disagree on two aspects of the procedure: 1) should those receiving the
supplemental notice be permitted to opt into the case via an online electronic submission form?
and 2) should the statute of limitations on those individuals’ FLSA claims be tolled during the
supplemental notice period?
A. Online Opt-In Submission
Plaintiffs argue that, although an online opt-in option was not permitted for the first groups
of potential collective members, the Court should allow the supplemental group to join the suit in
this manner. Filing 270 at 3. Plaintiffs point to this Court’s prior order permitting the dissemination
of electronic notice and argue the Court’s approval of electronic notification procedures means it
should also now allow an online opt-in procedure. Filing 270 at 3-4. They also argue that because
Defendants’ actions in failing to disclose a full list of potential plaintiffs necessitated the
supplemental notice, they should be penalized by allowing expanded consent-to-join procedures.
Filing 270 at 5. Defendants argue a new form of notice is not warranted and would place the
supplemental group of potential plaintiffs in a different position than the original group of
plaintiffs. Filing 271 at 5-8. The Court agrees with Defendants.
The Court previously authorized Plaintiffs to provide electronic notice to potential
collective members and establish an informative website. Filing 179 at 21-26, 29; Filing 137-13 at
3. The Court also permitted collective-action members to submit their consent-to-join forms by
mail, fax, or email. Filing 137-13 at 2-3. Plaintiffs now seek to allow the supplemental group of
potential plaintiffs to opt in via an online submission form on their informative website in addition
to email submission. The Court sees no reason to treat the supplemental group of potential
plaintiffs differently than the original group. Plaintiffs allude to (but do not substantiate) recent
delays in postal service, Filing 273 at 3 & n.1; Filing 274-1, but this is hardly a reason for
permitting a new form of electronic consent-form submission; potential plaintiffs will still be
permitted to mail in their forms and thus any issues with delayed mailings would not be alleviated.
As with the original group of potential collective-action members, the supplemental group has the
option to submit their consent-to-join forms electronically by email in addition to fax and mail
submission. This allows potential plaintiffs a variety of submission methods, including an
electronic option, while placing them on equal footing with those in the group that received the
original opt-in notice in January 2021. Plaintiffs’ motion for an additional electronic submission
option via their website is denied.
B. Equitable Tolling
Plaintiffs also ask the Court to toll the FLSA statute of limitations for the supplemental
group of potential collective-action plaintiffs. Filing 270 at 6-8. Defendants agree that some degree
of equitable tolling is warranted, Filing 271 at 8, and thus previously agreed to toll the statute of
limitations as to the supplemental group of plaintiffs through August 17, 2021. Filing 267 at 3.
Defendants disagree with continuing to toll the statute of limitations beyond this date, however.
Filing 271 at 8-10. They argue Plaintiffs should have sent the supplemental notice in July when
Defendants provided the supplemental list of potential plaintiffs rather than filing the present
motion. Filing 271 at 8-9. The Court finds tolling is warranted.
Equitable tolling “requires a litigant to establish ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.’” Smithrud v. City of St.
Paul, 746 F.3d 391, 396 (8th Cir. 2014) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.
Ct. 1807, 161 L. Ed .2d 669 (2005)). Plaintiffs have met that burden here; because they did not
receive the supplemental list of potential collective-action members until months after sending the
original notice, such potential members could not have been included in the original notice. See,
e.g., Baden-Winterwood v. Life Time Fitness, 484 F. Supp. 2d 822, 829 (S.D. Ohio 2007)
(equitably tolling FLSA statute of limitations due to delays by both parties in mailing opt-in
notices). Upon recognizing the omission and receiving the supplemental list, Plaintiffs diligently
filed the present motion to resolve disputed issues relating to the notice.
Members of the supplemental opt-in group should not be harmed by the delay in receiving
notice that was beyond their control. Rather, the supplemental group of potential plaintiffs should
be put in the same position as if they had been included in the original notice group.1 Thus, for any
There is no evidence that Defendants acted in bad faith in failing to disclose the supplemental group of plaintiffs
with the original opt-in list or that Plaintiffs have acted in bad faith in filing the present motion. Thus, the Court
declines the invitation to penalize either side by means of its ruling on the present motion.
potential plaintiff of the supplemental notice group who files an opt-in form, his or her FLSA
claims must be tolled from the date original notice was sent, January 12, 2021, until the date he or
she files a consent-to-join form or until expiration of the supplemental opt-in period, whichever is
earlier. Plaintiffs’ motion for tolling for the supplemental group of potential collective-action
members is therefore granted.
For the reasons stated herein, the Court orders that the statute of limitations be tolled as to
the supplemental group of potential collective-action members’ FLSA claims but that such
potential plaintiffs not be permitted to submit consent-to-join forms via an online website portal.
IT IS ORDERED:
1. Plaintiffs’ Motion to Approve Electronic Submission of Consent Forms and for Additional
Tolling, Filing 269, is granted in part and denied in part as set forth in greater detail herein.
Dated this 6th day of October, 2021.
BY THE COURT:
Brian C. Buescher
United States District Judge
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