MacGregor et al v. Farmers Insurance Exchange

Filing 50

ORDER denying re 34 MOTION Toll Statute of Limitations for Claims Asserting Violations of the FLSA filed by Debra Carnahan, David MacGregor, Christopher J Fluri, James Cantrell Signed by Chief Judge David C Norton on 7/13/2011. (jsch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
DAVID MACGREGOR, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
FARMERS INSURANCE EXCHANCE,
)
)
Defendant.
)
______________________________________ )

Civil No. 2:10-CV-03088

ORDER

This matter is before the court on plaintiffs’ motion to toll the statute of
limitations of the Fair Labor Standards Act (“FLSA”) for putative opt-in plaintiffs.
For the reasons set forth below, the court denies plaintiffs’ request.
I. BACKGROUND
Plaintiffs David MacGregor, James Cantrell, and Debra Carnahan filed their
original complaint against defendant Farmers Insurance Exchange (“FIE”) on
December 3, 2010. Chris Fluri filed his Notice of Consent to Opt In to the lawsuit on
January 13, 2011. On January 31, 2011, FIE filed its first motion to dismiss. On
February 14, 2011, plaintiffs filed an amended complaint, and on March 3, 2011,
defendant filed another motion to dismiss.
Plaintiffs filed a motion for conditional certification on March 4, 2011. The
parties jointly moved to stay defendant’s deadline for responding to plaintiffs’
conditional certification motion until the court addressed defendant’s motion to
dismiss. Plaintiffs responded to the motion to dismiss on March 21, 2011, and
defendant replied on March 31, 2011. This court held a hearing on defendant’s

1

motion to dismiss and partially denied and partially granted the motion on June 16,
2011. Plaintiffs filed the present motion on March 24, 2011.
II. DISCUSSION
Plaintiffs request that this court “toll the statute of limitations for the putative
opt-in plaintiffs . . . until 30 days after the Court rules on defendant’s partial motion
to dismiss” because judicial delay could unjustly deprive potential claimants from the
right to participate in the suit. Pls.’ Mot. 2.
Equitable tolling is appropriate in two circumstances: (1) the adverse party’s
misconduct caused the missed deadline, see Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 96 (1990), and (2) “extraordinary circumstances beyond the plaintiffs’
control made” timely filing impossible. Harris v. Hutchinson, 209 F.3d 325, 330 (4th
Cir. 2000). Plaintiffs have not alleged misconduct by defendant. Under the second
scenario, plaintiffs bear the burden of demonstrating that: (1) they diligently pursued
their rights and (2) some extraordinary circumstance prevented timely filing. Holland
v. Florida, 130 S. Ct. 2549, 2562 (2010); Green v. Johnson, 515 F.3d 290, 304 (4th
Cir. 2008). “Any invocation of equity to relieve the strict application of a statute of
limitations must be guarded and infrequent, lest circumstances of individualized
hardship supplant the rules of clearly drafted statutes.” Harris, 209 F.3d at 330; see
also Jackson v. Kelly, ---F.3d----, 2011 WL 1534571, at *11 (4th Cir. Apr. 25, 2011)
(“Federal courts extend equitable relief only sparingly . . . reserv[ing tolling] for those
rare instances where – due to circumstances external to the party’s own conduct – it
would be unconscionable to enforce the limitation period against the party and gross
injustice would result.”).

2

The FLSA, 29 U.S.C. §§ 216(b) and 256, requires that the statute of
limitations continue to run for a potential claimant in an FLSA collective action until
he or she consents in writing to become a party plaintiff. “Congress contemplated a
gap between the time a collective action is initiated and the time the statute of
limitations is tolled by the filing of an opt-in consent.” Noble v. Serco, No. 08-0076,
2009 WL 3254143, at* 2 (E.D. Ky. Oct. 7, 2009). “Congress knew when it enacted
29 U.S.C. § 256 that time would lapse between the filing of the collective action
complaint by the named plaintiff and the filing of written consents by the opt-in
plaintiffs, yet it chose not to provide for tolling of the limitations period.” Woodard
v. FedEx Freight East, Inc., No. 06-1968, 2008 WL 471552, at *16 (M.D. Pa. Feb.
19, 2008). Congress could have avoided the foreseeable delay of good faith motions
and judicial decision-making by patterning the statute of limitations for the FLSA
after that of Rule 23 for class actions; however, they did not do so. The fact that a
statute creates procedural requirements that limit some potential claimants’
participation in a suit, standing alone, is insufficient to toll the statute of limitations.
Plaintiffs argue that defendant’s motion to dismiss combined with the above
mentioned procedural requirements constitute “extraordinary circumstances” in
which tolling would be appropriate. Several courts have held that equitable tolling is
warranted while dispositive motions are pending before the court. See e.g., AntonioMorales v. Bimbo’s Best Produce, Inc., No. 08-5105, 2009 WL 1591172 (E.D. La.
Apr. 20, 2009) (tolling the statute of limitations for an FLSA collective action during
the pendency of a procedurally required stay for § 1595 claims); see also Owens v.
Bethlehem Mines Corp., 630 F.Supp. 309 (S.D.W. Va. 1986) (tolling statute of

3

limitations where certification was not ruled upon by the court for over a year). The
majority of cases cited by plaintiffs, however, present more compelling circumstances
than those of this case.
Defendant has only filed a motion to dismiss the complaint and a motion to
dismiss the amended complaint. The final brief on the motion to dismiss the
amended complaint was filed on March 31, 2011, and the court partially granted and
partially denied the motion on June 16, 2011. A motion to dismiss is not out of the
ordinary, nor is the time frame in which the court considered the motion; both are far
from “extraordinary” without more.
If, at some later date, extraordinary circumstances of delay arise, plaintiffs
may refile their request; however at this time, the court will not “alter the express
terms of the statute” because of hardships the statute’s defined procedure may create.
Atkins v. General Motors Corp., 701 F.2d 1124, 1130 n.5 (5th Cir. 1983).
III. CONCLUSION
For the foregoing reasons, the court DENIES plaintiffs’ motion to toll the
statute of limitations.
AND IT IS SO ORDERED.

________________________________________
DAVID C. NORTON
CHIEF UNITED STATES DISTRICT JUDGE
July 13, 2011
Charleston, South Carolina

4