DEPALMA et al v. SCOTTS MIRACLE-GRO
Filing
217
OPINION. Signed by Judge Kevin McNulty on 5/21/2019. (sms)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DOMINICK DEPALMA and JOSEPH
LESZCZYNSKI, individually and on
behalf of all other similarly situated
current and former employees,
Civ. No. 13-7740 (KM) (JAD)
OPINION
Plaintiffs,
V.
THE SCOTTS COMPLANY, LLC,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Now before this Court is the motion of defendant the Scotts Company
LLC (“Scotts”) for partial summary judgment in this collective action with
respect to named plaintiffs Dominick Depalma and Joseph Leszczynski. (The
parties’ cross-motions for summary judgment as to all plaintiffs will be dealt
with in a separate opinion.) For the reasons explained herein, I will grant in
part and deny in part Scotts’ motion for partial summary judgment as to
named plaintiffs Depalma and Leszczynski.
I.
Background
On December 20, 2013, named plaintiffs Depalma and Leszczynski,
through their counsel, filed a “Class Action Complaint and Demand for a Jury
Trial.” (DE 1). On February 4, 2014, the named plaintiffs filed their “First
Amended Collective Action Complaint and Demand for Jury Trial.” (DE 5). In
both the original and amended complaint, the named plaintiffs alleged a single
claim for violation of the FLSA’s overtime requirement. (DE 1, 5).
Among the factual allegations of the Amended Complaint are two
statements relevant to this motion: (1) “Plaintiff Depalma hereby consents to be
1
a party to this action, pursuant to 29 U.S.C.
§
216(b)” and (2) “Plaintiff
Leszczynski hereby consents to be a party to this action, pursuant to 29 U.S.C.
§
2 16(b).” (DE 5,
¶J
10, 12).’
A little more than a month after the named plaintiffs filed the Amended
Complaint, on January 27, 2017, the first opt-in filed a notice of consent to
become a party-Plaintiff. (DE 3). Others followed.
As I will discuss infra, neither Depalma nor Leszczynski has filed a
written notice of consent at any time in this litigation. (DE 1—2 16).
On February 26, 2014, Scotts filed an Answer to the Amended
Complaint. Among its defenses, Scotts asserted that certain putative plaintiffs
had not filed written consents:
“Some or all of the purported daims in the Complaint are barred
as to such claims asserted on behalf of Plaintiffs and/or putative
Collective Action Members, if any, who do not give their consent in
wnting to become party plaintiffs and/or whose express
consent is not filed with the Court.”
written
(Answer to Amended Complaint, DE 17,
¶
6).
Between March 13, 2014 and January 12, 2015, four additional opt-ins
filed notices of consent to become a party plaintiff. (DE 21, 26, 29, 36).2
After a period of limited discovery, on March 20, 2015, named plaintiffs
moved for conditional certification of a collective action. (DE 43). On March 31,
2016, this Court granted Plaintiff’s motion and conditionally certified the class.
(DE 67).
On April 15, 2016, this Court approved the plaintiffs’ submitted FLSA
Notice. (DE 70). By July 22, 2016, approximately 100 opt-ins had filed their
consent forms. (See DE 72—106).
The same statements are in the factual allegations of the original, class
action complaint. (DE 1, ¶3f 10, 12).
During that period, on April 21, 2014, this case was reassigned from the
retiring Judge Dennis M. Cavanaugh to me. (DE 25).
2
Although it is of no matter here, several of those opt-ins have since withdrawn.
(See e.g. 140 145). Others have been dismissed for being nonresponsive, (DE 156,
3
—
2
On August 4, 2016, Magistrate Judge Dickson granted the named
plaintiffs’ motion to equitably toll the statute of limitations for the putative
collective action members from March 20, 2015 until ten days after the Court
decided the named plaintiffs’ motion for certification. (DE 107). Scotts appealed
to this district court. (DIE 110).
On September 19, 2016, Magistrate Judge Dickson’s Joint Case
Management Order permitted the parties to obtain written and deposition
discovery from 20 opt-ins. (DIE 116).
On Januan’ 20, 2017, this Court filed an opinion (DIE 120) and order (DE
121) denying Scotts’ appeal of Magistrate Judge Dickson’s opinion granting
equitable tolling.
On November 12, 2018, both parties made several filings. Among them
was Scotts’ motion for summary judgment as to all plaintiffs. (DE 174) The
named plaintiffs filed their own motion for summary judgment. (DE 177).
Scotts also filed the motion now before the Court, this motion for partial
summary judgment as to named plaintiffs Dominick Depalma and Joseph
Leszczynski. (DE 180). The motion included Scotts’ Statement of Material
Facts, pursuant to Loc. Civ. R. 56.1. (180-3). As discussed in n. 5, infra, the
named plaintiffs did not submit a response to Scotts’ Statement of Material
Facts. The named plaintiffs filed a memorandum in opposition to the motion,
(DE 192), and Scotts filed a reply. (DIE 195).
Plaintiff Depalma’s employment with Scotts ended on or about October
20, 2013. (DE l80-3). Plaintiff Leszczynski’s employment with Scotts ended on
or about June 21, 2013. (Id. at
¶
4).
164), or have dismissed their claims by joint stipulation because they are barred
under the statute of limitations. (DIE 171).
Both of those briefs were filed the same day. It appears that the parties had
engaged in an e-mail exchange before filing their briefs. (See Ex. A, DIE 180-5).
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Neither named plaintiff has “furnished, with its opposition papers, a responsive
statement of material facts, addressing each paragraph of the movant’s statement,
indicating agreement or disagreement and, if not agreed, stating each material fact in
dispute and citing to the other affidavits and other documents submitted in
connection with the motion” as required under Loc. Civ. R. 56.1. “lAlny material fact
4
3
II.
Discussion
a. Legal standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant 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); see also Anderson v. Liberty Lobby, Inc., 477 u.s. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kreschollek v. S. Stevedoring Co.,
223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment,
a court must construe all facts and inferences in the light most favorable to the
nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d
386, 393 (3d Cir. 1998). The moving party bears the burden of establishing
that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477
U.s. 317, 322—23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[W]ith respect to an
issue on which the nonmoving party bears the burden of proof
...
the burden
on the moving party may be discharged by ‘showing’—that is, pointing out to
the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. a Zenith Radio Corp., 475
U.s. 574, 586, 106 5. Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party
must present actual evidence that creates a genuine issue as to a material fact
for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth
types of evidence on which nonmoving party must rely to support its assertion
that genuine issues of material fact exist). “[Ujnsupported allegations
...
and
pleadings are insufficient to repel summary judgment.” Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Nonuest
not disputed shall be deemed undisputed for purposes of the summary judgment
motion.” Id. Rather than merely deeming Scotts’ proffered facts to be undisputed, I
summarize them and determine whether they are supported by evidence. (DE 180-3).
4
Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created
a genuine issue of material fact if it has provided sufficient evidence to allow a
jury to find in its favor at trial.”). If the nonmoving party has failed “to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial,
there can be ‘no genuine issue of material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Katz v. Aetna Cas. & Stir. Co., 972 P.2d 53,
55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322—23).
In deciding a motion for summan judgment, the courts role is not to
evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.
Ct. 2505. Credibility determinations are the province of the fact finder. Big
Apple BMW, Inc. v. BMWof N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).
The summary judgment standard, however, does not operate in a
vacuum. “[I]n ruling on a motion for summary judgment, the judge must view
the evidence presented through the prism of the substantive evidentiary
burden.” Anderson u. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505,
2513, 91 L. Ed. 2d 202 (1986). That “evidentiary burden” is discussed in the
following section.
b. Analysis
Scotts argues that named plaintiffs Depalma and Leszczynski should be
dismissed from this case for failure to file consents to join the collective action.
Scotts has a point, if only a procedural one. The named plaintiffs, qua named
plaintiffs, should be dismissed from the collective action. See Section II.b.i,
infra. Still, they may remain in the action, asserting their claims on their own
behalf under the FLSA. See Section II.b.ii, infra.
i. Failure to file consents
Scotts argues that, because named plaintiffs Depalma and Leszczynski
did not file consent forms, they must be dismissed from this action for failure
5
to comply with FLSA. (DE 180, P. 5—7). Named plaintiffs reply that, by filing the
Amended Complaint, they did meet the consent requirement. (DE 192, p. 5—8).
An FLSA claim must be commenced within two years after accrual (three
years in the case of a willful violation). 29 U.S.C.
§
255(a). To commence a
claim, an individual may file a complaint or alternatively may file a consent to
join a collective action.
§
256(a)-(b)
The statute authorizes employees to file collective actions for unpaid
wages. See 29 U.S.C.
§
216. “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.
§
2 16(b). Courts have interpreted 29 U.S.C.
§
216 (b) to require that each
employee, including the named plaintiff “manifest his written consent to
become a party plaintiff and have that consent filed with the Court” in order to
be part of the collective action. Matuska v. NMTC, Inc., No. CIV.A. 10-3529 JAP,
2012 WL 1533779, at *3 (D.N.J. Apr. 30, 2012) (internal citations omitted).6
Judge Posner explains:
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
See, e.g., Acosta v. Tyson Foods, Inc., 800 F.3d 468, 472 (8th Cir. 2015)
(“[Named plaintiff] was required to file a written consent to proceed as a party plaintiff.
Because he failed to do so before the statute of limitations expired, the district court
should have dismissed Acosta’s claim under the FLSA.”); Harkins v. Riverboat Servs.,
Inc., 385 F.3d 1099, 1101 (7th Cir. 2004); In re Food Lion, Inc., 151 F.3d 1029 (4th Cir.
1998) (“Redundant though it may seem to require consents from the named plaintiffs
in a class action, the district court did not abuse its discretion in ordering such
consents nor in dismissing the appellants claims which exceeded the limitations
period when no consents were filed within the applicable three year period.”); Ochoa v.
Pearson Educ., Inc., No. 1 1-CV-1382 DMC-JAD, 2012 WL 95340, at *2 (D.N.J. Jan. 12,
2012) (internal citations omitted). (“Until Plaintiff files a written consent form with this
Court, he is not considered joined to a collective action and the statute of limitations
on [hisi claims is not tolled.”); Perella v. Colonial Transit, Inc., 148 F.R.D. 147, 149
(W.D.Pa.l991), affd, 977 F.2d 569 (3d Cir.l992) (“The statutory language makes clear
that the filing of the consent may come after the filing of the complaint, but that a
claim is not asserted, for purposes of the statute of limitations, until both the
complaint and the claimant’s individual written consent are filed.”).
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6
your consent. The rule requiring written, filed consent is important
because a party is bound by whatever judgment is eventually
entered in the case, and if he is distrustful of the capacity of the
“class” counsel to win a judgment he won’t consent to join the suit.
We are inclined to interpret the statute literally. No appellate
decision does otherwise.
Harkmns v. Riverboat Sen’s., Inc., 385 F.3d 1099, 1101(7th Cir. 2004). While
the statute does not elaborate on the form of the written consent, “courts have
shown considerable flexibility as long as the signed document indicates
consent to join the lawsuit.” Manning v. Gold Belt Falcon, LLC, 817 F. Supp. 2d
451, 454 (D.N.J. 2011). Many documents are permitted under this flexible
standard, so long as they are signed. See e.g., Butler v. DirectSAT USA, LLC, 55
F. Supp. 3d 793, 800 (D. Md. 2014) (holding that consent was filed as signed
interrogatory answers and a signed declaration); Ketchum v. City of Vallejo, No.
S—05—1098, 2007 WL 4356137, at *2 (E.D. Cal. 2007) (holding that consent
was filed when the named plaintiffs filed declarations indicating their intent to
be plaintiffs in the action); Bonilla v. Las Vegas Cigar Co., 61 F.Supp.2d 1129,
1139 (D.Nev. 1999) (noting that plaintiffs could have “simply signjed] the
Complaint”).
Here, the named plaintiffs assert that, because the Amended Complaint
contains statements that the named plaintiffs consented to the action under
§
2 16(b), they have properly filed their consent. Had the named plaintiffs actually
signed the Amended Complaint, I would be more inclined to agree. But it is an
accepted principle of collective action litigation that the named plaintiffs must
manifest their written consent to be a party to the collective action. These
plaintiffs did not. Moreover, the collective action complaint was filed over five
years ago, so any such consent, if filed now, would be well outside the statute
of limitations.
The named plaintiffs must therefore be dismissed from this collective
action.
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ii. Individual claims
In the alternative, the named plaintiffs argue that they may nevertheless
proceed with individual claims despite their failure to file signed consents. I
agree. Section 216(b) “gives employees the right to bring a private cause of
action on their own behalf as well as “on behalf of other ‘employees similarly
situated’ for specified violations of the FLSA.” Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 69, 133 S. Ct. 1523, 1527 (2013) (emphasis added).
There is no reason that a plaintiff cannot file an individual claim, join a
collective action, or both, within the same complaint. “Where the record reveals
an intent to file an individual claim, and the individual claim is timely filed, it
should be allowed to continue, notwithstanding the individual plaintiffs failure
to timely file a consent to join the collective action.” Jun Yin v. Hanami
Westwood, Inc., 2016 U.S. Dist. Lexis 180730 at *21 (D.N.J. December 30,
2016) (Vazquez, J.) (internal citations omitted) (allowing named plaintiffs to
proceed individually when the named plaintiffs brought the action “on behalf of
themselves and all others similarly situated”); see also Smith u. Cent. Sec.
Bureau, Inc., 231 F. Supp. 2d 455, 461 (W.D. Va. 2002) (“[Plaintiff] instituted
the action “individually and on behalf of others.” The plain language of the
aforementioned language is open only to one interpretation, namely, that
[plaintiff] was attempting to proceed in a dual capacity.”).
In this action, on the first page of the Amended Complaint, plaintiffs
Depalma and Leszczynski represent themselves as bringing suit “individually
and on behalf of all other similarly situated employees.” (DES, p. 1). I follow
Jun Yin and Smith in finding that these plaintiffs manifested a clear intent to
bring their claims in a dual capacity. In their non-representative capacity as
individuals (which did not require the filing of a consent form), they filed their
individual claims timely.
8
Scotts counters that it would not be fair to allow named plaintiffs to
proceed on an individual basis when they had made the “strategic choice” to
pursue this case as a collective action for four years. (DE 195, p. 9). However,
Scotts was put on notice that named plaintiffs had brought an individual claim
by the plain text of the Amended Complaint. Further, Scotts’ fairness argument
is not very persuasive—Scotts itself made the strategic choice not to raise this
issue until four years into the litigation.
III.
Conclusion
For the reasons set forth above, I will grant in part and deny in part
Scotts’ motion (DE 180) for partial summary judgment. Named plaintiffs
Depalma and Leszczynski are hereby removed as members of the collective
action but may proceed in this litigation with their individual FLSA claims.
An appropriate order follows.
Dated: May 21, 2019
Kevi McNulty
United States District Judge
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