Gessele et al v. Jack In The Box Inc
Filing
293
Amended Opinion and Order. The Court GRANTS Defendants Motion 174 for Summary Judgment, DENIES as moot Plaintiffs Motion 276 to Strike, DISMISSES without prejudice Plaintiffs FLSA claims, DISMISSES without prejudice Plaintiffs state-law claims, and DENIES as moot all other pending Motions. See attached 56 page Amended Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JESSICA GESSELE, ASHLEY
GESSELE, NICOLE GESSELE,
TRICIA TETRAULT, and
CHRISTINA LUCHAU, on behalf
of themselves and all others
similarly situated,
Plaintiffs,
v.
JACK IN THE BOX, INC., a
Corporation of Delaware,
Defendant.
JON M. EGAN
240 Sixth Street
Lake Oswego, OR 97034-2931
(503) 697-3427
Attorney for Plaintiffs
DOUGLAS S. PARKER
JENNIFER NETH WARBERG
DON STAIT
Littler Mendelson, P.C.
121 S.W. Morrison Street
Suite 900
Portland, OR 97204
(503) 221-0309
Attorneys for Defendants
1 - AMENDED OPINION AND ORDER
3:10-CV-00960-BR
AMENDED
OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on Defendant’s Motion
(#174) for Summary Judgment and Plaintiffs’ Motion (#276) to
Strike.
For the reasons that follow, the Court GRANTS
Defendant’s Motion for Summary Judgment, DENIES as moot
Plaintiffs’ Motion to Strike, DISMISSES Plaintiffs’ claims
without prejudice.
BACKGROUND
On August 13, 2010, Plaintiffs Jessica Gessele, Ashley
Gessele, Nicole Gessele, and Tricia Tetrault on behalf of all
those similarly situated filed a putative class-action Complaint
in this Court against Defendant Jack in the Box, Inc., for
violation of the minimum-wage and overtime provisions of the Fair
Labor Standards Act (FLSA), 29 U.S.C. §§ 201, et seq., and
various Oregon wage-and-hour laws.
Specifically, Plaintiffs
alleged Defendant (1) failed to pay minimum wages in violation of
the FLSA, (2) failed to pay overtime wages in violation of the
FLSA, (3) failed to pay minimum wages in violation of Oregon
Revised Statute § 653.025, (4) failed to pay overtime wages in
violation of Oregon Revised Statute § 653.261, (5) failed to pay
all wages due after termination of Plaintiffs' employment in
violation of Oregon Revised Statute § 652.140, (6) deducted
unauthorized amounts from Plaintiffs' paychecks in violation of
2 - AMENDED OPINION AND ORDER
Oregon Revised Statute § 652.610, (7) failed to issue wages in
the form required by Oregon Revised Statute § 652.110, and
(8) failed to pay all wages when due as required by Oregon
Revised Statute § 652.120.
On December 15, 2010, Defendant moved to dismiss Plaintiffs'
First through Fifth Claims.
On January 31, 2011, Magistrate
Judge Janice M. Stewart issued Findings and Recommendation in
which she recommended the Court grant Defendant's Motion to
Dismiss.
On April 11, 2011, Senior District Judge Ancer Haggerty
issued an Order adopting the Findings and Recommendation,
granting Defendant's Motion to Dismiss, and granting Plaintiffs
leave to file an Amended Complaint.
On May 16, 2011, Plaintiffs filed a First Amended Complaint
in which they asserted the same claims as in their initial
Complaint but added Christina Luchau as a Plaintiff and included
additional facts to support their claims.
On May 31, 2011, Defendant filed an Answer to Plaintiffs'
First Amended Complaint in which it asserted, among other things,
a statute-of-limitations defense as follows:
"Plaintiffs' claims
are barred in whole, or in part, by applicable statutes of
limitations."
On July 18, 2011, Plaintiffs filed a Motion to Strike
Defendant's Affirmative Defenses.
3 - AMENDED OPINION AND ORDER
In particular, Plaintiffs
moved to strike Defendant's statute-of-limitations defense on the
ground that Defendant did not "identify which claims are
allegedly subject to this affirmative defense, nor in what way
they are supposedly barred. . . .
Plaintiffs therefore cannot
substantially respond to nor pursue discovery on this issue."
On August 30, 2011, Magistrate Judge Stewart heard oral
argument on Plaintiffs' Motion to Strike.
On September 2, 2011, Magistrate Judge Stewart issued an
Opinion in which she concluded, among other things, that
Defendant's statute-of-limitations defense was "merely a
precautionary defense without a sufficient factual basis."
Magistrate Judge Stewart, therefore, granted Plaintiffs' Motion
to Strike as to Defendant's statute-of-limitations defense
"without prejudice to defendant's right to amend its answer."
On December 14, 2011, Magistrate Judge Stewart held a status
conference in which she advised the parties that she was going to
enter an order tolling the statute of limitations “for absent
collective class members” beginning on December 14, 2011, and
continuing “until class certification.”
Tr. 54-55 (#148).
Dec. 14, 2011, Hearing
On December 14, 2011, Magistrate Judge Stewart
also issued the Order (#59) tolling the statute of limitations
for “absent putative class members.”
On March 20, 2012, Plaintiffs filed a Second Amended
Complaint in which Plaintiffs allege Defendant (1) failed to pay
4 - AMENDED OPINION AND ORDER
minimum wages in violation of the FLSA, (2) failed to pay
overtime wages in violation of the FLSA, (3) failed to pay
minimum wages in violation of Oregon Revised Statute § 653.025,
(4) failed to pay overtime wages in violation of Oregon Revised
Statute § 653.261, (5) failed to pay all wages due after
termination of Plaintiffs' employment in violation of Oregon
Revised Statute § 652.140, (6) deducted unauthorized amounts from
Plaintiffs' paychecks in violation of Oregon Revised Statute
§ 652.610, and (7) failed to pay all wages when due as required
by Oregon Revised Statute § 652.120.
On April 12, 2012, Defendant filed an Answer to Plaintiffs'
Second Amended Complaint in which it asserted Affirmative
Defenses that again included the statute of limitations.
As in
Defendant's Answer to Plaintiffs' First Amended Complaint,
Defendant alleged only that "Plaintiffs’ claims are barred in
whole, or in part, by applicable statutes of limitations."
On May 22, 2012, Magistrate Judge Stewart heard oral
argument on various Motions pending at that time.
At the hearing
Plaintiffs made an oral Motion to Dismiss Defendant's Affirmative
Defenses.
The Magistrate Judge granted Plaintiffs’ Motion and
dismissed Defendant's statute-of-limitations defense without
prejudice and with leave to amend.
The Magistrate Judge noted:
I think what is going to happen in this case is at
some point, if the defendant decides that it has,
for example, a valid statute of limitations
defense with a particular class member with
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respect to a particular claim, they're going to
have to seek leave of court to amend and add that
affirmative defense with specific factual
allegations to go forward.
Tr. (#185) at 7 (May 22, 2013).
The Magistrate Judge
specifically declined Plaintiffs' request to dismiss with
prejudice the statute-of-limitations defense against the named
Plaintiffs.
On August 13, 2012, Plaintiffs filed a Motion to Certify
Oregon Rule 23(b)(3) Classes and Alternative Motions to Either
Certify Hybrid FLSA Classes or Certify FLSA 216(b) Collectives.
On October 22, 2012, Defendant filed a Motion to
Amend/Correct Answer in which it requested leave to file an
Amended Answer to Plaintiffs' Second Amended Complaint that,
among other things, did not include a statute-of-limitations
Affirmative Defense.
On December 13, 2012, Plaintiffs filed a Third Motion for
Leave to File Amended Complaint.
On December 20, 2012, Magistrate Judge Stewart issued an
Order granting Defendant's Motion to Amend/Correct Answer.
On
December 27, 2012, Defendant filed its Amended Answer to
Plaintiffs' Second Amended Complaint.
Defendants' Amended Answer
did not include a statute-of-limitations Affirmative Defense.
On January 7, 2013, Magistrate Judge Stewart denied
Plaintiffs' Third Motion for Leave to File Amended Complaint on
the grounds of undue delay and prejudice.
6 - AMENDED OPINION AND ORDER
Specifically, the
Magistrate Judge noted:
Given the amended pleadings, extensive discovery
and motion practice to date, including plaintiffs'
pending motion for class certification, this case
is too far advanced to add two new defendants
(including a representative of a proposed
defendant class), many new claims unrelated to the
pending claims for wage and hour violations,
additional putative class members, and over 50 new
proposed classes and subclasses.
Order (#157)(Jan. 7, 2013).
On January 28, 2013, Magistrate Judge Stewart issued
Findings and Recommendation in which she recommended granting in
part and denying in part Plaintiffs’ Motion to Certify and
specifically recommended conditional certification of Plaintiffs’
proposed FLSA Workers Benefit Fund and Shoe Collectives and
Subcollectives under § 216(b) and certification of Plaintiffs’
proposed Rule 23(b)(3) Oregon Workers Benefit Fund and Shoe
Classes and Subclasses.
On April 1, 2013, Judge Haggerty entered an Order adopting
the January 28, 2013, Findings and Recommendation; conditionally
certifying Plaintiffs' proposed FLSA Workers' Benefit Fund and
Shoe Collectives and Subcollectives under § 216(b);and certifying
Plaintiffs' proposed Rule 23(b)(3) Oregon Workers Benefit Fund
and Shoe Classes and Subclasses.
On May 7, 2013, Defendant filed a Motion for Leave to Amend
Answer in which Defendant sought to include a statute-oflimitations defense.
Specifically, Defendant asserted the named
7 - AMENDED OPINION AND ORDER
Plaintiffs failed to file written consent forms that are a
prerequisite to commencing a collective action under §§ 216(b)
and 256 of the FLSA and on March 31, 2013, the FLSA's three-year
limitation period expired as to the named Plaintiffs.
According
to Defendant, therefore, for the first time Defendant had a
specific factual basis to support its statute-of-limitations
defense.
Also on May 7, 2013, Defendant filed a Motion for Summary
Judgment as to all of Plaintiffs' claims on the grounds that
Plaintiffs' FLSA claims are barred by the statute of limitations
and this Court may not exercise supplemental jurisdiction over
Plaintiffs' state-law claims.
On May 31, 2013, Plaintiffs filed a Response to Defendant's
Motion for Leave to Amend Answer in which they objected to
Defendant's Motion on numerous grounds.
On June 18, 2013, Magistrate Judge Stewart issued an Opinion
and Order in which she granted Defendant's Motion for Leave to
Amend Answer.
On July 1, 2013, Plaintiffs filed Objections to
the Opinion and Order.
On August 27, 2013, this Court issued an Order affirming
Magistrate Judge Stewart’s Opinion and Order and granted
Defendant’s Motion for Leave to Amend Answer.
On October 16, 2013, the Court entered an Order granting
Plaintiffs additional time to conduct discovery related to the
8 - AMENDED OPINION AND ORDER
statute-of-limitations issues before filing a response to
Defendant’s Motion for Summary Judgment.
Because it was not
clear to the Court how much additional time Plaintiffs were
requesting or what “reasonable parameters the Court should set
for the additional discovery,” the Court directed counsel to
confer and to submit no later than October 28, 2013, a joint
statement setting forth their respective positions regarding the
time necessary to complete the additional discovery as well as a
proposed schedule to complete the briefing on Defendant's Motion
for Summary Judgment.
On October 28, 2013, Defendant filed a Motion for Stay of
Certain Proceedings and for a Status Conference instead of filing
a joint statement.
In its Motion Defendant sought a stay of
proceedings as to Plaintiffs’ Motions that were filed after
Defendant’s Motion (#174) for Summary Judgment; i.e., a stay as
to Plaintiffs’ Motion (#206) to Appoint Class Administrator and
to Authorize Dissemination of Notice to Class and Collective
Members, Plaintiffs’ Motion (#212) for Spoliation Sanctions Re
FLSA Shoe Claims and Defenses, and Plaintiffs’ Alternative Motion
(#214) for Partial Summary Judgment on FLSA Shoe Claims and
Defenses.
On November 7, 2013, the Court held a status conference with
counsel for the purpose of (1) considering and resolving the
amount of time that should be permitted for additional discovery
9 - AMENDED OPINION AND ORDER
related to Defendant's pending Motion (#174) for Summary
Judgment; (2) considering Defendant's Motion (#217) for Stay of
Certain proceedings; and (3) managing the resolution of
Plaintiffs' Motions ## 206, 212, and 214.
On November 7, 2013, the Court also issued an Order that
(1) set January 3, 2014, as the date for Plaintiffs to file
their response to Defendant’s Motion for Summary Judgment and
January 20, 2014, as the date for Defendant to file its Reply;
(2) scheduled oral argument on the parties’ various motions to be
heard on January 30, 2014; and (3) advised the parties they would
not be permitted to file any additional motions without advance
leave of Court.
On November 26, 2013, the parties filed a Joint Statement of
Stipulated Facts in which they noted:
Jack in the Box asserts that the named Plaintiffs’ FLSA
statutes of limitations expired on the following dates:
a. Jessica Gessele: November 23, 2011 (2012 for
willful damages claims)
b. Ashley Gessele: February 8, 2011 (2012 for willful
damages claims)
c. Nicole Gessele: April 1, 2011 (2012 for willful
damages claims)
d. Tricia Tetrault: July 22, 2010 (2011 for willful
damages claims)
e. Christina Luchau: March 31, 2012 (2013 for willful
damages claims)[.]
Jack in the Box received letters from Mr. Egan on behalf of
Plaintiffs asserting various wage claims and citing state
and federal statutes on various dates including on May 3,
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2010 for Jessica Gessele and on July 26, 2010 for other
plaintiffs.
Jack in the Box’s in-house counsel Raymond Pepper and James
Stubblefield had at all relevant times the responsible
knowledge within Jack in the Box of the reasons for the
decision to file the motion for summary judgment at DKT
#175, including the potential availability of an FLSA
defense based on a lack of filed consents.
Joint Statement (#230) at 1.
On November 27, 2013, the parties advised the Court of a
discovery dispute related to defense counsel’s knowledge of the
availability of the FLSA statute-of-limitations defense.
On December 12, 2013, the Court held a hearing on the
parties’ discovery issue.
On December 12, 2013, the Court also
entered an Order (1) setting December 27, 2013, as the date for
Defendant's responses to interrogatories and briefing on any
objections to the interrogatories; (2) setting January 6, 2014,
as the date for Plaintiffs to file any response; (3) scheduling
a further discovery conference on January 10, 2014; (4) extending
Plaintiffs’ deadline to respond to Defendant’s Motion for Summary
Judgment (#174) to January 17, 2014, and Defendant's reply to
February 3, 2014; and (5) striking oral argument set on
January 30, 2014.
On January 6, 2014, Plaintiffs filed a Motion to Compel
Discovery and/or Strike Affirmative Defense in which Plaintiffs
sought an order compelling production of discovery from Defendant
and/or striking Defendant’s affirmative defense of waiver on the
11 - AMENDED OPINION AND ORDER
grounds of Defendant’s “(non)responses and its (non)briefing of
its objections.”
On January 15, 2014, the Court heard oral argument on
Plaintiffs’ Motion to Compel.
On that same day the Court
issued an Order denying Plaintiffs’ Motion to Compel; setting
January 21, 2014, as the date for Plaintiffs to respond to
Defendant’s Motion for Summary Judgment (#174) and January 28,
2014, as the date for Defendant to file its reply; and setting
oral argument on February 10, 2014, regarding Defendant’s Motion.
On February 10, 2014, the Court heard oral argument on
Defendant’s Motion for Summary Judgment.
At oral argument
Plaintiffs made an oral motion to strike certain evidence that
Defendant submitted in support of Defendant’s Reply in support of
its Motion for Summary Judgment, and the Court permitted
Plaintiffs to file a written motion to strike.
Accordingly, on
February 11, 2014, Plaintiffs filed their Motion to Strike
various Declarations and their attachments.
The Court took Motion #174 and Motion #276 under advisement
on February 14, 2014.
DEFENDANT’S MOTION (#174) FOR SUMMARY JUDGMENT
I.
Standards.
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
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judgment as a matter of law.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . .
Id.
"This burden is not a light one.
The non-moving party must do more than show there is some
'metaphysical doubt' as to the material facts at issue."
In re
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
Sluimer
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).
A “mere
disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
13 - AMENDED OPINION AND ORDER
judgment.”
Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-
1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
II.
Id.
Parties’ Assertions.
Defendant moves for summary judgment on the grounds that the
named Plaintiffs failed to file written consent forms as required
by the FLSA; more than three years have passed since the claims
against Defendant accrued, and, therefore, the named Plaintiffs’
claims are now barred by the FLSA statute of limitations; and the
Court may not exercise supplemental jurisdiction over Plaintiffs’
state-law claims because this Court never acquired jurisdiction
over Plaintiffs’ federal claims.
Plaintiffs, in turn, contend (1) genuine disputes of
material fact exist as to when Plaintiffs’ claims accrued;
(2) Plaintiffs need not file written consents or, in the
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alternative, Plaintiffs gave written consent; (3) Plaintiffs
filed this action in a dual capacity, and, therefore, their
individual claims are not foreclosed by the consent issue; and
(4) equitable considerations should preclude the Court from
finding Plaintiffs’ claims are barred as untimely.
III. FLSA Generally.
As noted, Plaintiffs brought their federal wage- and-hour
claims under 29 U.S.C. § 216(b) of the FLSA.
“The FLSA regulates minimum wage, overtime pay, equal pay,
and child labor, and prohibits employers from retaliating against
employees who exercise their rights under the Act.”
Fontes v.
Drywood Plus, Inc., No. CV–13–1901–PHX–LOA, 2013 WL 6228652, at
*4 (D. Ariz. Dec. 2, 2013)(citing Dellinger v. Sci. Applications
Int’l Corp., 649 F.3d 226, 227–29 (4th Cir. 2011).
The FLSA
provides no employer “shall employ any of his employees who in a
workweek is engaged in commerce . . . or is employed in an
enterprise engaged in commerce . . . for a workweek longer than
forty hours unless such employee receives compensation” for hours
worked beyond the forty-hour floor “at a rate not less than one
and one half times” the rate at which he or she is regularly
employed.
29 U.S.C. § 207(a)(1).
Section 216(b) of the FLSA further provides:
Any employer who violates the provisions of
section 206 or section 207 of [the FLSA] shall be
liable to the employee or employees affected in
the amount of their unpaid minimum wages, or their
15 - AMENDED OPINION AND ORDER
unpaid overtime compensation, as the case may be,
and in an additional equal amount as liquidated
damages.
Section 216(b) also provides for a private right of action:
An action to recover the liability prescribed
. . . may be maintained against any employer . . .
in any Federal or State court of competent
jurisdiction 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.
In addition, § 255(a) of the FLSA contains the following
statute of limitations:
[I]f the cause of action accrues on or after
May 14, 1947, . . . such action shall be forever
barred unless commenced within two years after the
cause of action accrued, except that a cause of
action arising out of a willful violation may be
commenced within three years after the cause of
action accrued.
Accordingly, actions for violations of the FLSA must be commenced
two years after the claim accrues or three years after the claim
accrues if the defendant’s violation is “willful.”
Finally, § 256 of the FLSA provides:
In determining when an action is commenced for the
purposes of section 255 of this title, an action
. . . under the Fair Labor Standards Act . . .
shall be considered to be commenced on the date
when the complaint is filed; except that in the
case of a collective or class action instituted
under the Fair Labor Standards Act . . . it shall
be considered to be commenced in the case of any
individual claimant -(a) on the date when the complaint is filed,
16 - AMENDED OPINION AND ORDER
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.
Emphasis added.
IV.
There is not a genuine dispute of material fact as to when
Plaintiffs’ claims accrued.
As noted, Defendant contends Plaintiffs failed to file
written consents as required under § 216(b) within three years1
of Plaintiffs’ termination, and, therefore, their claims are
barred by the limitations period set out in § 255(a).
Specifically, Defendant contends Plaintiffs’ claims accrued no
later than the dates on which Plaintiffs received their final
paychecks:
Tricia Tetrault - 7/11/08
Ashley Gessele – 12/26/08
Nicole Gessele – 3/20/09
Jessica Gessele – 11/23/09
Christina Luchau – 3/30/10.2
1
Plaintiffs allege Defendant willfully violated the FLSA.
Defendant, therefore, analyzes Plaintiffs’ claims for purposes of
this Motion under the three-year limitations period for willful
violations of the FLSA.
2
Plaintiffs suggest the Affidavit of Jim Stubblefield
setting out these dates is insufficient. Plaintiffs’ issues with
that Affidavit are not well-taken for a number of reasons,
including the fact that Plaintiffs included allegations in their
First Amended Complaint (#34) at ¶ 18 that support these dates.
17 - AMENDED OPINION AND ORDER
Plaintiffs, in turn, contend a “discovery rule” applies to
FLSA claims, and, therefore, their claims did not begin to accrue
until February 2012 when they knew or had reason to know about
the bases for all of their FLSA injuries at issue in this action.
A.
The FLSA does not contain a discovery rule.
The regulations governing the FLSA note courts have
held “a cause of action under the Fair Labor Standards Act for
unpaid minimum wages or unpaid overtime compensation and for
liquidated damages ‘accrues’ when the employer fails to pay the
required compensation for any workweek at the regular pay day for
the period in which the workweek ends.”
29 C.F.R. § 790.21(b).
The parties do not cite nor could this Court find any provision
in the regulations for a discovery rule.
Plaintiffs,
nevertheless, assert a discovery rule applies to accrual of an
FLSA action.
To support their position Plaintiffs cite James v.
Fenske in which the court held “[an FLSA] claim accrues when
plaintiff knows or has reason to know of the injury which is the
basis of the action.”
2012 WL 694351, at *5 (D. Colo. Mar. 1,
2012)(citing Oliver v. Layrisson, No. 95–cv–0003, 1995 WL 250450,
at *3 (E.D. La. Apr. 27, 1995)).
Oliver, however, relies on a
Fifth Circuit case (Lavellee v. Listi, 611 F.2d 1129, 1131 (5th
Cir. 1980)) that cites the standard for accrual of a cause of
action brought under § 1983 rather than the FLSA.
The Court could not find any case other than James in
18 - AMENDED OPINION AND ORDER
which a court applied a discovery rule to the FLSA.
As noted,
the regulations provide an FLSA claim accrues when the employer
fails to pay the required compensation for any workweek at the
regular payday for the period in which the workweek ends.
In
addition, numerous courts, including the Ninth Circuit, have held
an FLSA cause of action accrues every payday an employer fails to
comply with the FLSA.
See, e.g., Keating-Traynor v. AC Square,
343 F. App’x 214, 215 (9th Cir. 2009)(“The statute of limitations
for an FLSA claim accrues the day the employee's paycheck is
normally issued, but isn't.”); Nakahata v. New York-Presbyterian
Healthcare Sys., Inc., 723 F.3d 192, 198 (2d Cir. 2013)(“The
cause of action for FLSA and NYLL claims accrues on the next
regular payday following the work period when services are
rendered.”)(citing 29 C.F.R. § 790.21(b)); Frye v. Baptist
Memorial Hosp., Inc., 495 F. App’x 669, 675 (6th Cir. 2012)(“An
FLSA cause of action accrues at each regular payday immediately
following the work period during which the services were rendered
for which the wage or overtime compensation is claimed.”).
Moreover, district courts in the Ninth Circuit, including courts
in this District, have reached the same conclusion.
See, e.g.,
Groce v. Claudat, No. 09CV01630 BTM WMC, 2013 WL 1828555 (S.D.
Cal. Apr. 30, 2013); Black v. Colaska Inc., No. C07-823JLR, 2008
WL 4681567 (W.D. Wash. Oct. 20, 2008); Goudie v. Cable Commc’ns,
Inc., No. 08-CV-507-AC, 2008 WL 4628394 (D. Or. Oct. 14, 2008);
19 - AMENDED OPINION AND ORDER
Long v. Idaho Rural Water Assoc., Inc., No. CV05-303-S-EJL, 2007
WL 1366534 (D. Idaho, Mar. 29, 2007).
In the absence of any clear authority from the Ninth
Circuit that a discovery rule applies to claims under the FLSA
and in light of the weight of authority holding a claim for
relief under the FLSA accrues “at each regular payday,” the Court
concludes the discovery rule does not apply to claims under the
FLSA.
Accordingly, Plaintiffs’ claims accrued when Defendant
allegedly failed to pay compensation owed to Plaintiffs for any
workweek at the regular payday for the period in which the
workweek ended and the limitations period began to run on the
date of Plaintiffs’ final paychecks.
B.
Even if a discovery rule applies, Plaintiffs’ FLSA
claims are untimely.
Even if a discovery rule applies in FLSA cases,
Plaintiffs have not established they did not “discover” their
FLSA claims until the February 2012 deposition of Gene James.
Courts applying Oregon’s discovery rule have explained:
[T]he applicable statute of limitations begins to
run when a plaintiff “‘knows or in the exercise of
reasonable care should have known facts which
would make a reasonable person aware of a
substantial possibility that each of the three
elements [of legally cognizable harm] (harm,
causation, and tortious conduct) exists.’” Widing
v. Schwabe, Williamson & Wyatt, 154 Or. App. 276,
282–83 (1998)(quoting Gaston v. Parsons, 318 Or.
247, 256 (1994)); Greene v. Legacy Emanuel Hosp.
& Health Care Ctr., 335 Or. 115, 123 (2002). A
“mere suspicion” of a claim is insufficient to
start the limitations period. Gaston, 318 Or. at
20 - AMENDED OPINION AND ORDER
256. [However,] “the rule delays the running of
the limitations period only until the plaintiff
knows or should know that some harm has been
incurred and that a claim exists.” Widing, 154
Or. App. at 283–84. This is an objective inquiry.
Id. at 283. A plaintiff does not need to identify
a particular theory of recovery or know to a
certainty that each element of the claim exists.
Gaston, 318 Or. at 255 & n.8.
Bechler v. Macaluso, No. CV 08–3059–CL, 2010 WL 2034635, at *13
(D. Or. May 14, 2010).
Plaintiffs contend their final pay stubs “would not
necessarily give [them] the knowledge of th[e] particular
violations.”
Specifically, Plaintiffs assert:
The violations at issue in this case are
insidious—not every deduction from an employee’s
wages violates the FLSA. In particular, an
employer’s deduction of money from an employee’s
paycheck to pay to a third party is only illegal
if the employer directly or indirectly benefits
from the transaction.
* * *
The two key facts in Plaintiffs’ shoe claims are
the $2 kickback and the $5,000 medical indemnity
that Jack in the Box receives from the shoe
manufacturer. Those are direct benefits that Jack
in the Box received from the vendor in the
transaction, and it does not advertise them to its
employees. Plaintiffs’ counsel did not discover
these kickback or medical indemnity benefits until
Gene James (Jack in the Box’s Director of Asset
Protection) blurted them out during his
February 6, 2012 deposition. The named Plaintiffs
did not learn about these benefits until preparing
for their depositions shortly thereafter.
Pls.’ Resp. at 5-6.
As Defendant points out, however, Plaintiffs included
21 - AMENDED OPINION AND ORDER
allegations related to Defendant’s slip-resistant shoe program
(Shoes for Crews) in their initial Complaint filed in August
2010.
Specifically, Plaintiffs alleged in that Complaint that
“[a]t all relevant times, JACK IN THE BOX required its employees
to purchase a specific type of shoes from a specific company
(called Shoes for Crews) and that they re-purchase new pairs of
said shoes from time to time, and willfully deducted the price of
said shoes from the pay of its employees without meeting the
statutory requirements to do so.”
Compl. at ¶ 7.
Plaintiffs
also alleged “the evidence available to date strongly suggests
additional wage and hour violations have taken place,” which
resulted in Defendant failing to pay Plaintiffs the federal
minimum wage due to “nonpayments and deductions.”
¶¶ 12, 19.
Compl. at
Plaintiffs included the same allegations in their
May 16, 2011, First Amended Complaint.
Finally, in their
March 20, 2012, Second Amended Complaint Plaintiffs included
additional factual allegations to support their claims, but the
substance of the allegations did not change and the claims
(violation of the FLSA) remained the same.
In addition, Plaintiffs stated in their April 15, 2011,
Reply in support of their Motion to Compel that they had
“discovered from other sources” that Shoes for Crews pays the
first $5,000 of any workers’-compensation claim by an employee
who slips while wearing Shoes for Crews shoes.
22 - AMENDED OPINION AND ORDER
This statement
undermines Plaintiffs’ assertion that they did not know about the
rebates (or kickbacks) from Shoes for Crews until James mentioned
them at his February 2012 deposition.
Thus, on this record the Court concludes even if
Plaintiffs did not know the exact parameters of their FLSA claims
related to Shoes for Crews or the medical indemnity benefits
until James’s February 2012 deposition, they were aware as early
as August 2010 that “some harm” had been incurred and that a
claim existed under the FLSA related to the shoe program and
other deductions.
V.
Plaintiffs were required to file written consents and
Plaintiffs’ FLSA claims could not commence until the written
consents were filed.
Defendant contends it is entitled to summary judgment as to
Plaintiffs’ FLSA claims because Plaintiffs were required to file
written consents with this Court pursuant to §§ 216(b) and 256 of
the FLSA, and Plaintiffs did not file those consents within three
years of their final paydays or paychecks.
Plaintiffs assert Defendants are not entitled to summary
judgment because (1) named plaintiffs are not required to file
written consents under the FLSA; (2) Plaintiffs filed this case
in a dual capacity as individuals and as a collective action, and
written consents are not required for FLSA claims brought as
individuals; and (3) Plaintiffs gave Defendant constructive
notice of Plaintiffs’ FLSA claims.
23 - AMENDED OPINION AND ORDER
A.
Named plaintiffs are required to file written consents
to commence an FLSA collective action.
As noted, § 216(b) of the FLSA provides for a private
right of action:
Any employer who violates the provisions of
section 206 or section 207 of [the FLSA]
shall be liable to the employee or employees
affected in the amount of their unpaid
minimum wages, or their unpaid overtime
compensation, as the case may be, and in an
additional equal amount as liquidated
damages. . . . An action to recover the
liability prescribed in either of the
preceding sentences may be maintained against
any employer (including a public agency) in
any Federal or State court of competent
jurisdiction 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.
Emphasis added.
In addition, § 256 of the FLSA provides:
In determining when an action is commenced for the
purposes of section 255 of this title, an action
. . . under the Fair Labor Standards Act . . .
shall be considered to be commenced on the date
when the complaint is filed; except that in the
case of a collective or class action instituted
under the Fair Labor Standards Act . . ., 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
24 - AMENDED OPINION AND ORDER
(b) if such written consent was not so filed
. . . on the subsequent date on which such
written consent is filed in the court in
which the action was commenced.
Emphasis added.
Although the Ninth Circuit has not directly addressed
the issue, other circuit courts as well as district courts within
the Ninth Circuit have dismissed FLSA collective-action claims
when named plaintiffs have not filed timely consents.
For
example, in Frye v. Baptist Memorial Hospital, Inc., the court
affirmed the district court’s dismissal of the FLSA collective
action because the named plaintiff failed to file a written
consent with the court within the FLSA’s limitations period.
F. App’x 669, 677 (11th Cir. 2012).
495
It was undisputed that the
plaintiff’s last payday was April 27, 2007, and that he failed to
file a written consent to collective action in the district court
within three years of his final paycheck.
Id. at 675.
The
plaintiff, like Plaintiffs here, asserted the FLSA does not
require named plaintiffs to file written consents.
The Eleventh
Circuit, however, rejected that argument:
[T]he plain language of § 256(a) does
[require named plaintiffs to file written
consents]. That provision unambiguously
provides that collective actions “shall be
considered to be commenced” for statute-oflimitations purposes “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.” Id.
§ 256(a)(emphasis added). If any doubt
25 - AMENDED OPINION AND ORDER
remains, subsection (b) confirms the
written-consent requirement by providing that
an FLSA collective action commences “on the
subsequent date on which such written consent
is filed.” Id. § 256(b). Accordingly,
courts construe the above language to do what
it says: require a named plaintiff in a
collective action to file a written consent
to join the collective action.
Id.
The plaintiff in Frye (again, like Plaintiffs here) relied
on Arias v. United States Service Industry, Inc., No. 93–2261,
1994 WL 193901, at *1 (D.D.C. May 4, 1994), to support his
assertion that named plaintiffs are not required to file written
consents.
The Eleventh Circuit, however, pointed out that
[Arias,] which did not involve a statute-oflimitations issue under § 256, cited only one
authority in concluding that 29 U.S.C.
§ 216(b) did not require named plaintiffs to
file written consents: Allen v. Atlantic
Richfield Co., 724 F.2d 1131 (5th Cir. 1984).3
Yet Allen involved plaintiffs asserting
individual claims - subject to different FLSA
commencement rules - rather than joining a
collective action. Id. at 1135 (“This suit
consists of a number of individual actions,
not a collective or class action subject to
sections [216(b)] and 256.”); see 29 U.S.C.
§ 256 (providing that an individual action
“shall be considered to be commenced on the
date when the complaint is filed”); Morelock
v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir.
1978)(explaining that the written-consent
requirements of §§ 216(b) and 256 apply only
to representative actions). Arias thus does
not persuade us to depart from § 256's
express written-consent requirement for
collective actions.
Id. at 675-76.
3
Plaintiffs here also rely on Allen.
26 - AMENDED OPINION AND ORDER
Here Plaintiffs point to several cases from a variety
of courts outside of the Ninth Circuit to support their assertion
that named plaintiffs do not have to file written consents.
Those cases, however, do not address the issue raised here or, in
any event, are distinguishable.
For example, Knepper v. Rite Aid
Corporation did not involve the issue of written consents.
F.3d 249 (3d Cir. 2012).
675
The court in that case concluded
federal jurisdiction was not precluded as to class actions
asserting claims under state statutory wage-and-overtime laws
paralleling the FLSA, that the FLSA does not preempt various
state wage-and-hour laws, and certification of class actions in
which plaintiffs assert claims under the state statutes does not
violate the Rules Enabling Act.
Cir. 2012).
675 F.3d 249, 261, 264-65 (3d
Although Knepper included a general discussion of
the legislative history of the opt-in provision of the FLSA, it
did not explicitly address the written-consent issue.
In Symczyk v. Genesis HealthCare Corporation the Third
Circuit stated without analysis:
To qualify for relief under the FLSA, a party
plaintiff must “commence” his cause of action
before the statute of limitations applying to his
individual claim has lapsed. Sperling v.
Hoffmann–La Roche, Inc., 24 F.3d 463, 469 (3d Cir.
1994). For a named plaintiff, the action
commences on the date the complaint is filed.
29 U.S.C. § 256(a). For an opt-in plaintiff,
however, the action commences only upon filing of
a written consent. Id. § 256(b).
656 F.3d 189, 200 (3d Cir. 2011), reversed on other grounds by
27 - AMENDED OPINION AND ORDER
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013).
In
Symczyk, however, the issue was whether an FLSA collective action
became moot when the named plaintiff received a Rule 68 offer in
full satisfaction of her individual claim before she moved for
conditional certification and before any other plaintiffs had
opted-in to the action.
Although Plaintiffs cite a number of
other cases from district courts in the Third Circuit, those
cases rely on Symczyk, do not engage in any analysis of the
assertions related to the named plaintiffs in those cases, and
involve the issue of equitable tolling.
Plaintiffs also cite a number of cases from courts
outside of the Third Circuit, but none of those cases were
decided by courts in the Ninth Circuit and some of the cases have
been addressed and distinguished by Frye.
Plaintiffs rely on Allen.
For example,
As the Eleventh Circuit noted in Frye,
however, Allen involved plaintiffs who asserted individual claims
(which are subject to different FLSA commencement rules) rather
than plaintiffs who joined a collective action.
724 F.3d at 1135
(“This suit consists of a number of individual actions, not a
collective or class action subject to sections [216(b)] and
256.”).
Plaintiffs also rely on Arias, but that case did not
involve a statute-of-limitations issue under § 256 and the court
cited only Allen to support its conclusion.
Plaintiffs also rely on Anderson v. Montgomery Ward &
28 - AMENDED OPINION AND ORDER
Company, Inc., 852 F.2d 1008, 1018-19 (7th Cir. 1988).
Anderson,
however, was an age-discrimination case rather than an FLSA
action.
Although the ADEA incorporates the provisions of
§ 216(b) as to collective actions, courts have held “[s]ection
256 is not incorporated by reference into the ADEA, and therefore
[the commencement of an action only after written consents is
not] applicable to age discrimination suits.”
Morelock v. NCR
Corp., 586 F.2d 1096, 1103 (6th Cir. 1978).
Plaintiffs also rely on Tate v. Showboat Marina Casino
Partnership, No. 02 C 3432, 2002 WL 31253843 (N.D. Ill. Oct. 8,
2002), in which the court held “[t]he lone exception to [the FLSA
written consent] requirement is for the named plaintiff, who need
not file a separate signed consent to join the lawsuit that he
himself filed.”
Id., at *1.
On reconsideration, however, the
court significantly revised that holding and concluded
“regardless whether signed consents are necessary for named
plaintiffs to join a representative action, Section 256 makes
clear that even for named plaintiffs signed consents are required
to mark the commencement of the action.”
Tate v. Showboat Marina
Casino Partnership, No. 02 C 3432, 2002 WL 31443124, at *6 (N.D.
Ill. Oct. 31, 2002).
The court’s analysis in the revised Tate
decision is illuminating:
The courts have split on the issue whether
plaintiffs named in the lawsuit need to file
separate signed consents to join the lawsuit.
Several courts have suggested that requiring named
29 - AMENDED OPINION AND ORDER
plaintiffs to file a signed consent to join the
lawsuit would be redundant. . . . Other courts
have held that the requirement for individual
signed consents to joint the lawsuit applies even
to named plaintiffs.
The source of the split in authority on this issue
may lie with the dual purpose of the signed
consent requirement under the FLSA. One purpose
behind the signed consent requirement is to ensure
adequate notice to an employer of exactly who is
joining a lawsuit against it. See Allen, 724 F.2d
at 1134 (“The clear intent . . . was 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.”); . . . . But with respect to
plaintiffs already named in the lawsuit, filing
separate consents obviously would not afford any
further notice to an employer. Thus, as this
Court suggested, it would seem anomalous to
require a named plaintiff to file a signed consent
simply “to join the lawsuit that he himself
filed.” Tate, 2002 WL 31253843, at *1
The other purpose served by the signed consent
requirement is to mark the commencement of the
action for purposes of the statute of limitations.
This purpose is embodied in Section 256.
* * *
The language of Section 256 is clear: in a
representative action, a plaintiff's case is
deemed to have commenced only when his or her own
signed consent has been filed. . . . Thus,
regardless whether signed consents are necessary
for named plaintiffs to join a representative
action, Section 256 makes clear that even for
named plaintiffs signed consents are required to
mark the commencement of the action.
Id., at *5-*6 (citations omitted)(emphasis in original).
Accordingly, the court in Tate concluded on reconsideration that
written consents by named plaintiffs are required in order for an
30 - AMENDED OPINION AND ORDER
FLSA collective action to commence.
Defendant cites a number of cases by district courts in
the Ninth Circuit in which courts dismissed FLSA collectiveaction claims when the named plaintiffs did not file timely
written consents.
For example, in Cancilla v. Ecolab, Inc.,
No. C 12–03001 CRB, 2013 WL 1365939 (N.D. Cal. Apr. 3, 2013), the
court held an FLSA collective action does not commence until the
named plaintiff files a written consent.
Id., at *2.
The court
granted the defendant’s motion for summary judgment and dismissed
the FLSA collective action because the plaintiff did not file a
written consent within the limitations period, and, therefore,
the FLSA collective action did not commence within the
limitations period and was barred as untimely.
Id., at *4.
The
court relied on Frye as well as Harkins v. Riverboat Services,
Inc., 385 F.3d 1099, 1101 (7th Cir. 2004).
In Harkins the court
concluded:
[I]f 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. The rule requiring written, filed
consent is important because a party is bound by
whatever judgment is eventually entered in the
case. . . . We are inclined to interpret the
statute literally.
385 F.3d at 1101.
See also Chavez v. Lumber Liquidators, Inc.,
No. C–09–04812 SC, 2011 WL 809453 (N.D. Cal. Mar. 2, 2011)(same).
Defendant also relies on Ketchum v. City of Vallejo, in
31 - AMENDED OPINION AND ORDER
which the court held
[w]hen a “collective action” is filed under
§ 216(b) all plaintiffs, including named
plaintiffs are required to file a consent to suit
form with the court in which the action is
brought. A “collective action” is not deemed
commenced with respect to each individual
plaintiff until his or her consent has been filed.
523 F. Supp. 2d 1150, 1155 (E.D. Cal. 2007)(citations omitted).
The court cautioned the plaintiffs that “because this action has
yet to be properly commenced, the statute of limitations will
continue to run until Plaintiffs file their consent to suit forms
with this court.”
Id. at 1159.
Similarly, in Bonilla v. Las Vegas Cigar Company the
court held
[w]hen plaintiffs have filed a “collective
action,” under § 216(b), all plaintiffs, including
named plaintiffs, must file a consent to suit with
the court in which the action is brought.
Although the consents may be filed after the
complaint, the action is not deemed commenced with
respect to each individual plaintiff until his or
her consent has been filed.
61 F. Supp. 2d 1129, 1132-33 (D. Nev. 1999).
The court noted:
It is indeed redundant and unusual to make
named plaintiffs file their consents with the
Court. Notwithstanding the fact that the
statutory requirements are repetitive or
wasteful, they are the unambiguous
requirements which Congress has duly
enacted. . . . It is not for the courts to
rewrite statutes which they find unwise
. . . . Moreover, the requirements are
hardly onerous or burdensome. All Plaintiffs
were required to do is file their consents
with the Court.
32 - AMENDED OPINION AND ORDER
Id. at 1139 (citations omitted).
The court in Thomas v. Talyst, Inc., No. C07-202JLR,
2008 WL 570806 (W.D. Wash. Feb. 28, 2008), agreed with the
sentiment expressed in Bonilla.
The court noted:
The requirement to file a consent with the
court, or sign the complaint, is hardly
onerous or burdensome. Regardless, wasteful
or not, wise or not, it is not for the courts
to rewrite unambiguous statutory language.
In Harkins v. Riverboat Servs., Inc., 385
F.3d 1099 (7th Cir. 2004), the Seventh
Circuit reached the same conclusion. The
trial court had dismissed the overtime claims
of 18 of the 21 named plaintiffs in a FLSA
collective action because no written consents
by them to join in the suit had been filed
with the court before the statute of
limitations expired. On appeal, plaintiffs'
counsel argued that since all 18 were
actually named as plaintiffs in the complaint
and participated in discovery, their consent
to be parties could be presumed such that the
failure to file written consents for them was
a harmless technicality. The Seventh Circuit
disagreed because “[t]he statute is
unambiguous: if you haven't given your
written consent to join the suit, or you have
but it hasn't been filed with the court,
you're not a party.” Id. at 1101.
Id., at *4 (quotations and citations omitted).
This Court finds persuasive the reasoning of the cases
cited by Defendant.
In particular, the Court agrees with the
analysis in the revised Tate decision and, therefore, adopts the
reasoning of that court.
of § 256 is clear:
Thus, the Court concludes the language
In a representative action a plaintiff's case
is deemed to have commenced only when his or her written consent
33 - AMENDED OPINION AND ORDER
has been filed.
Named plaintiffs, therefore, are required to
file written consents with the court to commence an FLSA
collective action even if written consents are not necessary for
named plaintiffs to join a collective action.
Accordingly, the Court concludes Plaintiffs were
required to file written consents with this Court to commence
their FLSA collective-action claims, and those claims did not
commence until such consents were filed in September 2013.
B.
Plaintiffs have not established they brought this
action in a dual capacity.
Plaintiffs argue even if written consents were required
to commence their FLSA collective-action claims, Plaintiffs filed
their FLSA claims in a dual capacity (i.e., they filed as
individuals and as collective representatives).
Because written
consents by named plaintiffs are not required to commence FLSA
individual claims, Plaintiffs maintain their claims brought in
their individual capacity are still viable.
Defendant asserts Plaintiffs did not make any
suggestion in any of their Complaints or briefings on
certification that they were proceeding in dual or individual
capacities until after May 2013 when Defendant asserted
Plaintiffs failed to file timely written consents.
Defendant
notes Plaintiffs in each of their Complaints have stated in the
caption that the action is a “Collective and Class Allegation
Complaint.”
In addition, although all of Plaintiffs’ Complaints
34 - AMENDED OPINION AND ORDER
purport to be brought by named Plaintiffs “suing on behalf of
themselves and all others similarly situated,” none of the
Complaints have clearly set out individualized claims.
Instead
all of Plaintiffs’ claims have been styled as “Collective and
Class Allegation[s].”
Although Plaintiffs assert in their
Response to Defendant’s Motion that the “common facts” sections
of their Complaints have reflected an individualized intent,
Plaintiffs, nevertheless, state in their introduction to the
“common facts” section of the Second Amended Complaint that
“Plaintiffs base this collective and class action on three
categories of violations.”
Second Am. Compl. at ¶ 6.
Moreover,
as Defendant notes, Plaintiffs did not state in their briefs
related to the issue of class certification that they intended to
proceed on an individual or dual-capacity basis.
In Plaintiffs’ initial Complaint they did not seek
relief for themselves, but instead for all members of the class:
Plaintiffs request that the Court award such
damages as set forth above and in amounts to be
proven at trial; award the attorney fees, costs
and expenses of suit of Plaintiffs and the other
Collective and Class members; order Defendant to
pay pre-judgment and post-judgment interest on all
amounts due to Plaintiffs and the other Class
members as a result of their state law claims;
enter an order enjoining Defendant from committing
similar violations in future; and order such
further or alternative relief as the Court deems
appropriate.
Compl. at 20.
Plaintiffs also titled their initial Complaint as
“Collective and Class Allegation Complaint.”
35 - AMENDED OPINION AND ORDER
Each of the claims
in Plaintiffs’ initial Complaint contained an allegation that
Plaintiffs and the “collective members” are entitled to recovery.
As noted, Plaintiffs’ First Amended Complaint is titled a
“Collective and Class Allegation Complaint.”
Each of the FLSA
allegations in Plaintiffs’ First Amended Complaint contains an
assertion that only the “[c]ollective members” are entitled to
relief.
Finally, the requests for relief remain the same as
those in Plaintiffs’ initial Complaint and those requests for
relief are on a class-wide basis rather than on an individual
basis.
Plaintiffs’ Second Amended Complaint also is titled a
“Collective and Class Allegation Complaint,” and its allegations
contain either an assertion that only the “Collective members”
are entitled to relief or that “Plaintiffs and the FLSA . . .
Collective members” are entitled to relief.
Finally, the
requests for relief in Plaintiffs’ Second Amended Complaint
remain the same as that in the first two Complaints, and those
requests are also on a class-wide basis rather than on an
individual basis.
In other district court cases in the Ninth Circuit,
courts have concluded similar allegations did not indicate an
action was brought in a dual capacity.
For example, in Bonilla
the court noted:
Plaintiffs' Complaint uses the language “and other
employees of Las Vegas Cigar Company similarly
36 - AMENDED OPINION AND ORDER
situated” nine times in a four-page complaint.
The phrase is used in the caption, and in three
different paragraphs of the Complaint. Most
importantly, and unlike the situation in Allen,
Plaintiffs seek recovery not only for themselves,
but for others similarly situated in their prayer
for relief. Gray, 436 F.2d at 655 (finding no
collective action where action not brought for
benefit of unnamed plaintiffs, or in name of
plaintiff suing in representative capacity).
61 F. Supp. 2d at 1139 (citation omitted).
Similarly, in Thomas
the court concluded the plaintiff “never made his intention known
to convert his collective action for overtime pay into an
individual action until the three-year statute of limitations for
willful FLSA violations expired.”
2008 WL 570806, at *4.
The
court noted:
There is no question that Mr. Thomas intended for
this case to proceed as a FLSA collective action.
Mr. Thomas filed his complaint, entitled “FLSA
Collective Action,” on “behalf of himself and
other employees and former employees similarly
situated to him for overtime compensation and
other relief under the FLSA.” Complaint (Dkt. #1)
¶ 2. The complaint contains a “Class Facts”
section and alleges that “Defendant violated the
overtime provisions of the FLSA . . . by
directing, suffering or permitting work by class
members in excess of 40 hours per week for which
they were not paid overtime,” and that
“Defendant's violations were willful, thereby
entitling plaintiff and members of the proposed
class to a three-year statute of limitations.”
Id. ¶¶ 8-12, 14-15. “[I]ndividually and on behalf
of the class,” Mr. Thomas sought three forms of
relief: (1) “Court-approved notices to putative
class members pursuant to 29 U.S.C. § 216(b);”
(2) “Certification of a collective action pursuant
to 29 U.S.C. § 216(b);” and (3) overtime and other
damages. Id. at 3. . . . He asserted a wholly
individual FLSA action for the first time in
response to Talyst's motion for summary judgment
37 - AMENDED OPINION AND ORDER
and, even then, the captions on his papers read
“FLSA Class Action.”
Id., at *2.
In Faust v. Comcast Cable Communications Management,
LLC, cited by Plaintiffs, the court concluded the plaintiffs did
not provide sufficient notice that it was a dual-capacity FLSA
action when
Plaintiffs' Complaint . . . 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).” . . .
Further, Count I, the only count to allege a
violation of the FLSA, is captioned specifically
as a collective action. 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.
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
sufficient to put the employer and the Court on
notice of an individually-filed action.
No. WMN–10–2336, 2013 WL 5587291, at *8 (D. Md. Oct. 9, 2013).
The Court concludes Plaintiffs, like the plaintiffs in
Bonilla, Thomas, and Faust, have not established they brought
38 - AMENDED OPINION AND ORDER
FLSA claims in an individual, a dual capacity, or any other way
than as an FLSA collective action.
C.
Constructive notice is insufficient under the FLSA.
Finally, Plaintiffs assert even though they did not
file written consents with the Court until September 2013, they
gave Defendant constructive notice of their FLSA claims and of
this action, which Plaintiffs contend should be sufficient to
satisfy the written-consent requirement.
Specifically,
Plaintiffs rely on letters signed by Jon Egan, Plaintiffs’
counsel, and sent to Defendant in May 2010.
In those letters
Egan provided Defendant with “ORS 652.150 written notice of
nonpayment and ORS 652.200 written notice of a wage claim and
demand that you pay my client the” wages due and owing.
e.g., Docket # 187, Ex. 1 at 1.
See,
Attached to those letters were
Plaintiffs’ signed Authorization[s] for the Release of Personnel
Records.
It is questionable whether Plaintiffs’ signed
authorizations for the release of their personnel records in
connection with state-law wage claims are sufficient to
constitute the required written consents to become a party to an
FLSA collective action because there is not any indication in
those documents of any FLSA claims.
As noted, those letters
referenced only state wage-and-hour claims.
In addition to the
forms signed by Plaintiffs, there were authorizations for
39 - AMENDED OPINION AND ORDER
Defendant to release Plaintiffs’ personnel records without any
statement that Plaintiffs were bringing or joining in an FLSA
collective action.
Moreover, even if Plaintiffs’ authorizations for
Defendant to release their personnel records were construed as
written consents under the FLSA, Plaintiffs did not file the
authorizations with the Court until May 31, 2013, which is more
than three years after the final paycheck of the last named
Plaintiff to receive a paycheck (Christina Luchau) and well over
three years after the final paychecks of the other named
Plaintiffs.
Finally, even if the May 2010 authorization forms
signed by the named Plaintiffs constituted written consent and
were filed with the Court within three years of their final
paychecks, several courts have rejected the argument that
constructive notice of an FLSA collective action is sufficient to
satisfy the written-consent requirement.
For example, in Harkins
v. Riverboat Services, Inc., the Seventh Circuit concluded:
In a collective (or, as it is sometimes called, a
representative) action under the FLSA, . . . .
[n]o 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). . . . The plaintiffs' counsel
asks us to overlook the failure to comply with the
statute. He argues that since all 18 were
actually named as plaintiffs in the complaint and
participated in discovery, their consent to be
parties can be presumed and so the failure to file
40 - AMENDED OPINION AND ORDER
written consents for them was harmless, a mere
failure to comply with a technicality.
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. . . . We are
inclined to interpret the statute literally. No
appellate decision does otherwise.
385 F.3d at 1101.
As noted, in Bonilla the court stated
[i]t is indeed redundant and unusual to make named
plaintiffs file their consents with the Court.
Notwithstanding the fact that the statutory
requirements are repetitive or wasteful, they are
the unambiguous requirements which Congress has
duly enacted. . . . It is not for the courts to
rewrite statutes which they find unwise.
61 F. Supp. 2d at 1139.
Similarly, in Thomas the court noted
“[t]he requirement to file a consent with the court, or sign the
complaint, is hardly onerous or burdensome.
Regardless, wasteful
or not, wise or not, it is not for the courts to rewrite
unambiguous statutory language.”
2008 WL 570806, at *4.
The Court agrees with the analysis in Bonilla, Thomas,
and Harkins and concludes the language of § 216(b) and § 256 is
unambiguous:
An FLSA collective action does not commence until
the plaintiffs give written consent and those written consents
are filed with the Court.
Perhaps the written consent
requirement is repetitive as other courts have noted, but it is
unambiguously required by the FLSA to commence a collective
action.
41 - AMENDED OPINION AND ORDER
In summary, on this record the Court concludes Plaintiffs
failed to file the required written consents with the Court
within the limitations period, and, therefore, their FLSA
collective action was not commenced within the limitations
period.
Accordingly, unless equitable tolling or estoppel
applies, Plaintiffs’ FLSA action is time-barred.
VI.
Equitable Considerations.
Plaintiffs contend even if they were required to file
written consents to commence their FLSA action, “equitable
considerations” should toll the limitations period.
Plaintiffs
assert in their Response that
[v]arious equitable exceptions to the statute of
limitations have been called different names by
different courts according to the particular facts
of the cases in which they were applied, such as
(inter alia) waiver, estoppel, tolling, fraudulent
concealment, continuous accrual, continuing
violation, laches, unclean hands, in pari delicto,
and the discovery rule.
Resp. at 20.
At oral argument, however, Plaintiff agreed the
Ninth Circuit applies only two equitable doctrines to toll the
FLSA limitations period:
estoppel.
See
(1) equitable tolling and (2) equitable
Stattcop v. Kaiser Found. Hosp., 820 F.2d 1044
(9th Cir. 1987).
A.
Equitable Tolling.
“Equitable tolling is extended sparingly and only where
claimants exercise diligence in preserving their legal rights.”
Smith v. Bimbo Bakeries USA, Inc., No. CV 12–1689–CAS (JWX), 2013
42 - AMENDED OPINION AND ORDER
WL 4479294, at *5 n.3 (C.D. Cal. Aug. 19, 2013)(quotation
omitted).
In Kwai Fun Wong v. Beebe the Ninth Circuit explained:
[L]ong-settled equitable-tolling principles
instruct that generally, a litigant seeking
equitable tolling bears the burden of establishing
two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstances stood in his way. As to the first
element, the standard for reasonable diligence
does not require an overzealous or extreme pursuit
of any and every avenue of relief. It requires
the effort that a reasonable person might be
expected to deliver under his or her particular
circumstances. Central to the analysis is whether
the plaintiff was without any fault in pursuing
his claim.
With regard to the second showing, “a garden
variety claim of excusable neglect, such as a
simple miscalculation that leads a lawyer to miss
a filing deadline, does not warrant equitable
tolling.” Holland, 130 S. Ct. at 2564 (internal
quotation marks and citations omitted). Instead,
a litigant must show that extraordinary
circumstances were the cause of his untimeliness
and . . . made it impossible to file the document
on time. Accordingly, equitable tolling is
typically granted when litigants are unable to
file timely documents as a result of external
circumstances beyond their direct control.
732 F.3d 1030, 1052 (9th Cir. 2013)(quotations and citations
omitted).
Plaintiffs assert Defendant failed to allege specific
underlying facts to support its statute-of-limitations defense,
and, therefore, Defendant either waived the defense or misled
Plaintiffs as to the nature of the defense.
The record, however,
reflects Defendant asserted the statue-of-limitations defense
early and continued to assert it at various times throughout this
43 - AMENDED OPINION AND ORDER
litigation.
hearing:
Magistrate Judge Stewart noted at the May 22, 2012,
“I think what is going to happen in this case is at
some point, if the defendant decides that it has, for example, a
valid statute of limitations defense with a particular class
member with respect to a particular claim, they're going to have
to seek leave of court to amend and add that affirmative defense
with specific factual allegations to go forward.”
At that
hearing defense counsel specifically requested the limitations
defense be dismissed without prejudice, which is an indication
that at some point Defendant believed there would be a factual
basis for the defense and Defendant wanted to preserve it.
Magistrate Judge granted that request.
The
At oral argument on
Defendant’s Motion for Summary Judgment before this Court,
defense counsel represented to the Court that Defendant was not
“looking at” the written-consent issue before May 2012.
Tr. 98.
Counsel also represented to the Court that in the fall of 2011 or
before May 2012 Defendant “didn’t know if [it] had any statute of
limitations facts.”
Tr. 100.
As the court noted in Faust, “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].’”
2013 WL 5587291, at *4 (quoting Frye v.
Baptist Memorial Hosp., Inc., No. 07–2708, 2011 WL 1595458, at *8
44 - AMENDED OPINION AND ORDER
(W.D. Tenn. Apr. 27, 2011)).
On this record the Court concludes Plaintiffs have not
established Defendant waived the limitations defense or that
extraordinary circumstances were the cause of Plaintiffs’
untimely filing of written consents.
B.
Equitable Tolling Based on Plaintiffs’ Ignorance.
Plaintiffs also argue for equitable estoppel or tolling
on the ground that “Plaintiffs are faultless.”
Specifically,
Plaintiffs assert they were ignorant of the law because they are
not attorneys.
Plaintiffs, however, have been represented by
counsel since at least May 2010 when Egan sent the Oregon wageand-hour demand letters to Defendant on behalf of Plaintiffs.
The Ninth Circuit has explained:
The doctrine of equitable tolling “has been
consistently applied to excuse a claimant's
failure to comply with the time limitations where
she had neither actual nor constructive notice of
the filing period.” Leorna, 105 F.3d at 551. “If
a reasonable plaintiff would not have known of the
existence of a possible claim within the
limitations period, then equitable tolling will
serve to extend the statute of limitations . . .
until the plaintiff can gather what information he
needs.”
* * *
However, “once a claimant retains counsel, tolling
ceases because she has gained the means of
knowledge of her rights and can be charged with
constructive knowledge of the law's requirements.”
Leorna, 105 F.3d at 551.
Leong, 347 F.3d at 1123.
See also Syntrix Biosystems, Inc. v.
45 - AMENDED OPINION AND ORDER
Illumina, Inc., No. C10–5870 BHS, 2013 WL 364722, at *4 (W.D.
Wash. Jan. 30, 2013)(“Equitable tolling focuses on a plaintiff's
excusable ignorance and lack of prejudice to the defendant.
However, once a claimant retains counsel, tolling ceases because
she has gained the means of knowledge of her rights and can be
charged with constructive knowledge of the law's requirements”
(quotations omitted)).
On this record the Court concludes Plaintiffs’ personal
lack of legal knowledge cannot support equitable tolling because
Plaintiffs were represented by counsel well before the statute of
limitations passed, and, therefore, Plaintiffs are charged with
constructive knowledge of the FLSA’s written-consent requirements
and statute of limitations.
C.
Equitable Tolling Based on FLSA Posters.
Plaintiffs also assert the statute of limitations
should be equitably tolled because Defendant did not post “the
mandatory FLSA posters in any of its Oregon stores during the
time that Plaintiffs worked there.”
Based on a number of cases
from other districts, Plaintiffs assert Defendant’s failure to
display posters advising employees of their FLSA rights tolls the
running of any limitations period.
The cases on which Plaintiffs
rely, however, all involve unrepresented plaintiffs who were
unaware of their rights under the FLSA due to their employers’
alleged failure to put up the posters and whose claims became
46 - AMENDED OPINION AND ORDER
untimely before the plaintiffs retained counsel.
Here it is undisputed that Plaintiffs last worked at
Defendant’s restaurants no later than the following dates:
Tricia Tetrault, July 11, 2008; Ashley Gessele December 26, 2008;
Nicole Gessele, March 20, 2009; Jessica Gessele, November 23,
2009; and Christina Luchau, March 30, 2010.
The record also
reflects each of these Plaintiffs was represented by counsel no
later than May 2010 (i.e., at the time that Egan sent Defendant
the demand for wages pursuant to Oregon’s wage-and-hour laws).
Because they were represented, Plaintiffs had constructive
knowledge of the FLSA limitations period and written-consent
requirement no later than May 2010.
As one court explained:
[T]he Court assumes that the failure to post
[FLSA] notice[s], in other circumstances, might
result in equitable tolling. But not here.
In this case, plaintiff retained an attorney in
the spring of 1998 to advise him regarding his
proposed employment contract with defendants which
included, among other things, his post - July 1,
1998 compensation. Once he did so, any failure to
post the required notice became immaterial. This
is no more than a common sense application of the
basic principles that equitable tolling is
reserved for situations in which “a plaintiff has
been ‘prevented in some extraordinary way from
exercising his rights’” and that it is available
“only so long as the plaintiff has exercised
reasonable care and diligence.” Once the
plaintiff hired a lawyer to advise him concerning
his employment situation, the means of knowledge
of his rights were at his disposal. . . . The
FLSA claim therefore will be dismissed.
47 - AMENDED OPINION AND ORDER
Patraker v. Council on Env’t of New York City, 2003 WL 22703522,
at *2 (S.D.N.Y. Nov. 17, 2003)(citations omitted).
See also
Stallcop v. Kaiser Founds. Hosps., 820 F.2d 1044, 1050 (9th Cir.
1987)(court concluded equitable tolling did not apply when the
plaintiff consulted counsel before the limitations period
expired).
The Court concludes on this record that Plaintiffs have
not established any basis for equitable tolling arising from the
alleged failure of Defendant to put up posters at Plaintiffs’
work.
D.
Equitable Tolling Related to Efforts to Discover the
Limitations Defense.
As noted, Plaintiffs contend they should be excused
from the limitations period because Egan sought to ascertain the
basis for Defendant’s limitations defense, but the underlying
factual basis for the defense was not disclosed until May 2013.
Plaintiffs rely on Adams v. Inter-Con Sec. Systems, Inc., 242
F.R.D. 530 (N.D. Cal. 2007), in which the court concluded
equitable tolling was appropriate because the defendant’s
misconduct induced the plaintiff’s failure to meet the writtenconsent deadline.
Specifically, the defendant refused to provide
the potential class-plaintiffs’ contact information to the named
plaintiffs.
Id. at 543.
Adams, however, is distinguishable.
Here Defendant did not withhold any information that was
otherwise unavailable to Plaintiffs’ counsel.
48 - AMENDED OPINION AND ORDER
In fact,
Plaintiffs were aware or through counsel should have been aware
of (1) their final pay dates, (2) the applicable limitations
period, and (3) the written-consent requirement.
As Magistrate
Judge Stewart noted, the lack of any written consents filed in
this matter “was just as apparent to plaintiffs.
Plaintiffs
could have filed their individual opt-in consent forms with (or
at any time after) the filing of their Complaint.”
The Court concludes Plaintiffs have not established any
basis for equitable tolling of the limitations period related to
their efforts to discover Defendant’s factual basis for the
limitations defense.
E.
Equitable tolling by Magistrate Judge Stewart.
Plaintiffs also assert the limitations period was
equitably tolled by Magistrate Judge Stewart on December 14,
2011, and, therefore, Plaintiffs’ written consents were not
untimely.
The transcript of the December 14, 2011, hearing
before Magistrate Judge Stewart, Tr. (#148) at 54, and in the
subsequent Order (#59) she issued, however, make clear that
Magistrate Judge Stewart tolled the limitations period only “for
absent putative collective class members.”
The Magistrate
Judge’s Order, therefore, did not apply to named Plaintiffs, who
were not “absent” from this matter as of December 14, 2011.
The Court, therefore, concludes Magistrate Judge
Stewart did not toll the limitations period for Plaintiffs, and
49 - AMENDED OPINION AND ORDER
her December 14, 2011, Order does not equitably toll the
limitations period for the named Plaintiffs.
F.
Equitable Estoppel.
The Ninth Circuit explained in Estate of Amaro v. City
of Oakland:
[T]his court has held that equitable estoppel
applies to bar a statute of limitations defense
“when a plaintiff who knows of his cause of action
reasonably relies on the defendant's statements or
conduct in failing to bring suit.” Stitt v.
Williams, 919 F.2d 516, 522 (9th Cir. 1990)
(emphasis added). Therefore, the focus of the
equitable estoppel analysis is not whether the
plaintiff knew she had a cause of action - or even
pursued some other form of litigation based on
that knowledge - but whether the defendant's
fraudulent concealment or misrepresentation
deprived the plaintiff of a full understanding of
the true facts, and thus, dissuaded the plaintiff
from filing the claim at issue within the
limitations period.
653 F.3d 808, 813 (9th Cir. 2011).
To determine whether equitable estoppel applies,
courts consider several factors, “such as whether
the plaintiff actually relied on the defendant's
representations, whether such reliance was
reasonable, whether there is evidence that the
defendant's purpose was improper, whether the
defendant had actual or constructive knowledge
that its conduct was deceptive, and whether the
purposes of the statute of limitations have been
satisfied.” Id. (citing Santa Maria v. Pacific
Bell, 202 F.3d 1170, 1177 (9th Cir. 2000)).
Tompkins v. Union Pac. R. Co., No. 2:12–cv–01481 JAM–GGH, 2013 WL
904897, at *3 (E.D. Cal. Mar. 8, 2013).
Plaintiffs assert they did not know the basis for
Defendant’s statute-of-limitations defense until the Defendant
50 - AMENDED OPINION AND ORDER
filed its Motion to Amend its Answer on May 7, 2013, which was
after the limitations period had passed.
Plaintiffs, however, do
not assert that not knowing the basis for Defendant’s limitations
defense prevented Plaintiffs from filing their written consents.4
The cases on which Plaintiffs rely for the application
of equitable estoppel are distinguishable because in those cases
specific actions by the defendant caused the plaintiff’s failure
to act.
For example, in Westinghouse Elec. v. James Stewart,
Co., 336 F.2d 777 (9th Cir. 1964), a supplier promised to tell
the general contractor if the subcontractor failed to pay.
When
the supplier failed to do so, the court held whether the supplier
might be estopped from proceeding against the general contractor
was a question for the jury.
In M.N.O. v. Magana, 2006 WL 559214
(D. Or. March 6, 2006), physical threats by persons in authority
positions discouraged the plaintiff from coming forward.
Here Defendant did not promise or suggest it would
advise Plaintiffs about its defensive intentions or that it would
not pursue the limitations defense.
To the contrary, at the May
22, 2012, hearing before Judge Stewart, defense counsel clearly
stated Defendant wanted to preserve the ability to assert the
limitations defense against the named Plaintiffs at a later date
4
To the extent that Plaintiffs assert they did not file
their written consents because Defendant waived the limitations
defense, the Court has rejected Plaintiffs’ waiver argument as
noted in its analysis of equitable tolling.
51 - AMENDED OPINION AND ORDER
and requested the court to dismiss that (insufficiently pleaded)
defense without prejudice for that reason.
did so.
The Magistrate Judge
Thus, Plaintiffs have failed to establish any facts from
which the Court could find Defendant had a duty to advise
Plaintiffs of the written-consent requirement.
Plaintiffs also
failed to show that any action by Defendant misled Plaintiffs as
to Plaintiffs’ final pay date, the FLSA’s statute of limitations,
the written-consent requirement, or Defendant’s intent to assert
a limitations defense.
Plaintiffs also assert Defendant attempted to “run out
the clock” in this action by extending matters until the
March 31, 2013, limitations deadline had passed.
The record,
however, reflects Plaintiffs’ decision to engage in extensive
pre-certification discovery and in a class- certification process
involving two theories under Federal Rule of Civil Procedure 23
and the FLSA collective action itself extended the litigation
during this same time.
The Court does not find any evidence that
Defendant deliberately delayed these proceedings for this purpose
at any stage.
Finally, although, as Plaintiffs point out, equitable
estoppel and tolling issues are often questions for the jury,
such matters may be decided by the Court when the factual context
makes those claims implausible to a degree that no reasonable
juror could conclude estoppel was warranted.
52 - AMENDED OPINION AND ORDER
See, e.g., Cal.
Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc.,
818 F.2d 1466, 1468 (9th Cir. 1987); Guerrero v. Gates, 442 F.3d
697, 706 (9th Cir. 2003).
Here the Court finds the factual context of Plaintiffs’
equitable tolling and estoppel claims makes them implausible
primarily because Defendant had no duty to inform Plaintiffs’
counsel of the statute-of-limitations requirement under these
circumstances.
Thus, the Court concludes as a matter of law that
equitable tolling and equitable estoppel do not apply to the
statute of limitations in this matter.
In summary, the Court concludes Plaintiffs were required to
file written consents with the Court to commence their FLSA
collective action; Plaintiffs did not file written consents until
after the applicable limitations period; Plaintiffs’ FLSA
collective-action claims, therefore, are untimely; and neither
equitable tolling nor equitable estoppel apply.
Accordingly, the Court grants Defendant’s Motion for Summary
Judgment as to Plaintiffs’ FLSA claims.
Because the Court has
concluded it never obtained jurisdiction over Plaintiffs’ FLSA
claims, the Court dismisses those claims without prejudice.
VII. Plaintiffs’ State-Law Claims.
Plaintiffs also bring wage-and-hour claims under state law.
The sole basis for this Court’s jurisdiction asserted by
Plaintiffs, however, was federal-question jurisdiction arising
53 - AMENDED OPINION AND ORDER
from Plaintiffs’ FLSA claims.
Defendant points out that the Court may exercise
supplemental jurisdiction only when the Court first has original
jurisdiction.
See Hunter v. United Van Lines, 746 F.2d 635, 649
(9th Cir. 1984)("[I]t makes no sense to speak of [supplemental]
jurisdiction until after a court has independently acquired
jurisdiction over a federal cause of action.").
Because
Plaintiffs' federal claims never "commenced" under the FLSA,
Defendant asserts this Court has never properly had original
jurisdiction over those claims, and, therefore, the Court cannot
exercise supplemental jurisdiction over Plaintiffs' state-law
claims.
See Herman Family Rev. Trust v. Teddy Bear , 254 F.3d
802, 806 (9th Cir. 2001)(supplemental jurisdiction may only be
invoked after a court has established original jurisdiction).
See also Orozco v. Borenstein , 2012 U.S. Dist. LEXIS 122642 (D.
Ariz. Aug. 28, 2012)("Because we have dismissed the federal claim
as moot, we have no original jurisdiction upon which supplemental
jurisdiction could attach.
Accordingly, the state law claims are
also dismissed.").
The Court agrees.
Because the Court never had original
jurisdiction over the federal claims in this matter, it cannot
exercise supplemental jurisdiction over Plaintiffs’ state-law
claims.
Accordingly, the Court grants Defendant’s Motion for
Summary Judgment as to Plaintiffs’ state-law claims and dismisses
54 - AMENDED OPINION AND ORDER
without prejudice Plaintiffs’ state-law claims for lack of
jurisdiction.
PLAINTIFFS’ MOTION (#276) TO STRIKE
Plaintiffs move to strike the Declarations of Lee Estes,
Alison Layfield, Wendy Sanderlin, and Douglas Parker filed by
Defendant in support of its Reply to its Motion for Summary
Judgment.
In its Response to Plaintiffs’ Motion to Strike, Defendant
withdraws the Declarations of Lee Estes, Alison Layfield, and
Wendy Sanderlin.
The Parker Declaration contains excerpts of
Plaintiffs’ deposition testimony and signature pages of
Plaintiffs’ Declarations.
Because the Court did not rely on the
evidence in the Parker Declaration in deciding Defendant’s Motion
for Summary Judgment, the Court denies as moot Plaintiffs’ Motion
to Strike.
CONCLUSION
For these reasons, the Court GRANTS Defendant’s Motion
(#174) for Summary Judgment, DENIES as moot Plaintiffs’ Motion
(#276) to Strike, DISMISSES without prejudice Plaintiffs’ FLSA
claims, DISMISSES without prejudice Plaintiffs’ state-law claims,
55 - AMENDED OPINION AND ORDER
and DENIES as moot all other pending Motions.
IT IS SO ORDERED.
DATED this 15th day of May, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
56 - AMENDED OPINION AND ORDER
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