Wright et al v. Waste Pro USA Inc et al

Filing 212

ORDER finding as moot 151 toll statute of limitations; granting 191 Motion equitable tolling; granting 193 Motion conditional certification. Details set forth in order. Signed by Honorable David C Norton on 4/16/2020.(eric, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Daniel Hansen, individually and on behalf
of all others similarly situated,
Plaintiff,
vs.
Waste Pro of South Carolina, Inc.,
Defendant.

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No. 2:17-cv-02654-DCN
ORDER

The following matter is before the court on plaintiff Daniel Hansen’s (“Hansen”)
first and second motions for equitable tolling, ECF Nos. 151 and 191, and motion for
conditional class certification, ECF No. 193. For the reasons set forth below, the court
finds as moot the first motion for equitable tolling, grants the second motion for equitable
tolling, and grants the motion for conditional class certification.
I. BACKGROUND
The procedural history of this case is quite convoluted. However, because the
nature of that procedural history is directly relevant to the court’s resolution of the instant
motions, the court recounts it here in some detail. Hansen, a Waste Pro employee in
South Carolina, and Anthony Wright (“Wright”), a Waste Pro employee in Florida,
originally filed this lawsuit with the court on October 2, 2017 against three separate
Waste Pro entities: defendant Waste Pro of South Carolina, Inc. (“Waste Pro SC”);
Waste Pro of Florida, Inc. (“Waste Pro FL”); and Waste Pro USA, Inc. (“Waste Pro
USA”). The first amended complaint joined Kenneth Privette (“Privette”), a Waste Pro
employee in North Carolina, as a plaintiff and Waste Pro of North Carolina, Inc. (“Waste
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Pro NC”) as a defendant.1 In their second amended complaint, deemed filed on
December 6, 2017, the original plaintiffs brought the following causes of action: (1)
violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.; (2)
violation of the South Carolina Payment of Wages Act (“SCPWA”), South Carolina
Code §§ 41-10-10, et seq.; and (3) violation of the North Carolina Wage and Hour Act
(“NCWHA”), North Carolina General Statutes §§ 95-25.1, et seq.. ECF No. 30-2.
On December 20, 2017, Waste Pro USA and Waste Pro FL filed motions to
dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to
state a claim and sought the dismissal of plaintiffs’ North Carolina claim based on
preemption. ECF Nos. 37 and 38. Waste Pro SC and Waste Pro NC filed nearly
identical motions to dismiss the same day but declined to assert lack of personal
jurisdiction as a ground for their motions. ECF Nos. 39 and 40. On February 12, 2018,
the court ordered the parties to conduct jurisdictional discovery and submit supplemental
briefing on the issue of personal jurisdiction. ECF No. 57. On August 22, 2018, while
the parties were engaged in jurisdictional discovery, the original plaintiffs filed a motion
to conditionally certify a class with respect to their FLSA collective action claim. ECF
No. 99. The court declined to consider the issue of conditional class certification until all
jurisdictional issues were resolved. Jurisdictional discovery proceeded until February
2019 because various discovery disputes and jurisdictional issues arose between the
parties, some of which necessitated resolution by the court. On April 16, 2019, the

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The court collectively refers to Hansen, Wright, and Privette as the “original
plaintiffs.”
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original plaintiffs filed a motion to toll the statute of limitations during the pendency of
their motion for conditional class certification. ECF No. 151.
After the close of jurisdictional discovery, the court considered the thendefendants’ motion to dismiss, and on July 25, 2019, the court filed an order granting
Waste Pro USA and Waste Pro FL’s motions to dismiss for lack of personal jurisdiction
and dismissing those defendants from the case. Accordingly, the court dismissed all
plaintiffs who were not employed by the remaining defendants, Waste Pro SC and Waste
Pro NC. Because he was an employee of Waste Pro FL, the court dismissed Wright from
the case. The court further found that the original plaintiffs lacked standing to jointly
assert claims against Waste Pro SC and Waste Pro NC and ordered the original plaintiffs
to file an amended complaint in which the plaintiffs employed by Waste Pro NC (the
“North Carolina plaintiffs”) would proceed against Waste Pro NC or the plaintiffs
employed by Waste Pro SC (the “South Carolina plaintiffs”) would proceed against
Waste Pro SC.
Instead, on August 9, 2019, the North Carolina and South Carolina plaintiffs
collectively filed their Third Amended Complaint, ECF No. 173, which proceeded jointly
against both Waste Pro SC and Waste Pro NC. On August 23, 2019, Waste Pro SC and
Waste Pro NC filed a motion to dismiss the Third Amended Complaint. ECF No. 178.
On November 12, 2019, the court denied the motion to dismiss but ordered the plaintiffs
to sever the matter into two separate lawsuits. The court also ordered the plaintiffs to
refile their motions for conditional class certification and equitable tolling with respect to
each lawsuit. The plaintiffs subsequently severed the matter into two separate lawsuits:

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the lawsuit to which this order pertains and Privette v. Waste Pro of North Carolina, 2:19cv-3221-DCN.
In this lawsuit, Hansen brings claims under the FLSA and the SCWPA against
Waste Pro SC individually and on a collective and class-wide basis. Hansen is a former
waste disposal driver for Waste Pro SC who claims that Waste Pro SC’s company-wide
policies deprived him and other similarly situated current and former waste disposal
drivers of wages for hours actually worked. According to Hansen, Waste Pro SC did this
in the following ways: (1) failing to pay its drivers time and one-half for each hour
worked in excess of 40 hours per workweek, (2) erroneously calculating drivers’
prevailing hourly rate; (3) requiring a certain number of hours before allotting day-rate
pay; (4) requiring drivers to perform pre-shift and post-shift duties while not clocked in;
and (5) automatically deducting thirty minutes for lunch breaks that defendants knew
drivers worked through. Hansen brings this action on behalf of all other similarly
situated non-exempt waste disposal drivers who were paid a day rate and who have been
employed by Waste Pro SC at any time from September 29, 2014 through the final
disposition of this matter.2 To date, twenty additional plaintiffs have opted-in to
Hansen’s FLSA collective action (together with Hansen, “plaintiffs”).

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The operative complaint defines the FLSA collective action members as waste
disposal drivers who were subjected to the same allegedly unlawful policies as Hansen
“at any time from September 29, 2014, through the final disposition of this matter.” ECF
No. 192, Fourth Amend. Compl. ¶ 6. However, the relevant statute of limitations for
plaintiffs’ FLSA claim is, at most, three years, and the original plaintiffs filed this lawsuit
on October 2, 2017. Therefore, the FLSA collective action class should extend back to
October 2, 2014, not September 29, 2014. Plaintiffs recognize as much in their motion
for conditional certification, which defines the requested class as waste disposal drivers
who worked for Waste Pro SC at any time from October 2, 2014 to the present. See ECF
No. 193 at 1.
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Prior to the severance, the original plaintiffs filed a motion for conditional class
certification on August 22, 2018, ECF No. 99, and a motion for equitable tolling on April
16, 2019, ECF No. 151.3 Pursuant to the court’s November 12 severance order, Hansen
re-filed these motions to reflect the current posture of the lawsuit. Hansen filed his
motions for equitable tolling and conditional class certification on November 15, 2019.
ECF Nos. 191 and 193, respectively. Waste Pro SC responded to the motion for
equitable tolling on December 2, 2019, ECF No. 198, and to the motion for conditional
class certification on December 10, 2019, ECF No. 200. Hansen replied with respect to
the motion for equitable tolling on December 9, 2019, ECF No. 199, and with respect to
the motion for conditional class certification on December 19, 2019, ECF No. 203. On
March 24, 2020, the court held a telephonic hearing on the instant motions. Thus, these
matters are now ripe for the court’s review.
II. DISCUSSION
A. Motion for Class Certification
The parties dispute both whether plaintiffs should be conditionally certified as a
class with respect to the FLSA claim and, in the event the court does so certify, the nature
and scope of the resulting notice. The court addresses each issue in turn.
1. Conditional Certification
Plaintiffs request that the court conditionally certify them as a class under their
FLSA collective claim action and permit notice to be sent to all similarly situated

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Although the original motion for equitable tolling is still pending before the
court, it has been superseded by Hansen’s subsequent motion for equitable tolling. The
court therefore finds the first motion for equitable tolling, ECF No. 151, to be moot and
considers only Hansen’s subsequent motion for equitable tolling, ECF No. 191.
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potential class members. For the reasons discussed below, the court grants the motion
and permits notice to be sent to potential class members by means consistent with the
findings and instructions of this order.
Under the FLSA, a plaintiff may institute a collective action against his or her
employer on behalf of herself and other similarly situated employees. Section 216(b) of
the FLSA states
An action . . . 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.
29 U.S.C. § 216(b). The mechanism outlined in § 216(b) is designed to facilitate the
efficient adjudication of similar claims by “similarly situated” employees by permitting
the consolidation of individual claims and the pooling of resources in prosecuting such
actions against their employers. See Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165,
170 (1989); LaFleur v. Dollar Tree Stores, Inc., 30 F. Supp. 3d 463, 467 (E.D. Va. 2014).
In deciding whether the named plaintiff in an FLSA action is “similarly situated” to other
potential plaintiffs, courts generally employ a two-stage approach. Purdham v. Fairfax
Cnty. Pub. Sch., 629 F. Supp. 2d 544, 547 (E.D. Va. 2009) (quoting Parker v. Rowland
Express, Inc., 492 F. Supp. 2d 1159, 1164 (D. Minn. 2007)); see also Pelczynski v.
Orange Lake Country Club, Inc., 284 F.R.D. 364, 367 (D.S.C. 2012).
The first step in this process, which is the subject of the instant motion, is the
“notice” or “conditional certification” stage. Purdham, 629 F. Supp. 2d at 547. With
regard to this conditional certification stage, “[t]he Supreme Court has held that, in order
to expedite the manner in which collective actions under the FLSA are assembled,
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‘district courts have discretion[,] in appropriate cases[,] to implement . . . § 216(b) . . . by
facilitating notice to potential plaintiffs.’” Id. (quoting Hoffmann–La Roche, Inc., 493
U.S. at 169); see also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013)
(citation omitted) (“‘[C]onditional certification’ does not produce a class with an
independent legal status, or join additional parties to the action. The sole consequence of
conditional certification is the sending of court-approved written notice to employees,
who in turn become parties to a collective action only by filing written consent with the
court.” (citing § 216(b))). The court’s facilitating role is important, the Supreme Court
has noted, because the remedial purpose of § 216(b) “depend[s] on employees receiving
accurate and timely notice concerning the pendency of the collective action, so that they
can make informed decisions about whether to participate.” Hoffmann–La Roche, Inc.,
493 U.S. at 170.
At this stage, a plaintiff must demonstrate that the proposed class members are
“similarly situated” and that notice is “appropriate.” Purdham, 629 F. Supp. 2d at 548.
Notice is “appropriate” where the proposed class members’ claims “share common
underlying facts and do not require substantial individualized determinations for each
class member.” MacGregor v. Farmers Ins. Exch., 2012 WL 2974679, at *2 (D.S.C. July
20, 2012). A plaintiff’s burden at this initial stage is lenient, “requiring only a modest
factual showing sufficient to demonstrate that [the plaintiff] and potential plaintiffs
together were victims of a common policy or plan that violated the law.” Purdham, 629
F. Supp. 2d at 548. “At the notice stage, plaintiffs must simply demonstrate that there is
‘some identifiable factual nexus which binds the named plaintiffs and the potential class
members together.’” Turner v. BFI Waste Servs., LLC, 268 F. Supp. 3d 831, 841 (D.S.C.

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2017) (citing Heagney v. Eur. Am. Bank, 122 F.R.D. 125, 127 (E.D.N.Y. 1988)); Morgan
v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008) (“[P]laintiff has the
burden of showing a ‘reasonable basis’ for his claim that there are other similarly situated
employees.”). A plaintiff need not demonstrate that potential class members’ claims are
identical, only that plaintiff and potential class members were victims of a common
policy or scheme that violated the law. Schmidt v. Charleston Collision Holdings Corp.,
2015 WL 3767436, at *11 (D.S.C. June 17, 2015). Courts determine whether conditional
certification is warranted by examining the parties’ pleadings and affidavits. Id. at *3.4
Although “the merits of plaintiffs’ challenge are irrelevant in determining whether
the proposed class members are similarly situated,” Gordon v. TBC Retail Grp., Inc., 134
F. Supp. 3d 1027, 1036 (D.S.C. 2015), the court finds it worthwhile to provide an
overview of the relevant FLSA provisions. Plaintiffs seek to conditionally certify a class
under their FLSA claim based on two alleged FLSA violations: Waste Pro SC’s failure to
pay a mandated overtime rate of one and one half times drivers’ regular pay rate and
Waste Pro SC’s requirement that drivers work a certain number of hours before allotting
day-rate pay. See ECF No. 194. Plaintiffs allege that “Defendant failed to compensate

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“Second, after the court has conditionally certified the class, the potential class
members have been identified and notified, and discovery has been completed, ‘a
defendant may then move to decertify the collective action, pointing to a more developed
record to support its contention that the plaintiffs are not similarly situated . . . .’” Regan
v. City of Charleston, S.C., 2014 WL 3530135, at *3 (D.S.C. July 16, 2014) (quoting
Pelczynski, 284 F.R.D. at 368). At this “decertification stage,” the court applies a
heightened, fact-specific standard to the “similarly situated” analysis and considers
various additional factors, including: (1) the disparate factual and employment settings of
the individual plaintiffs; (2) the various defenses available to defendants that appear to be
individual to each plaintiff; and (3) fairness and procedural considerations. Id. at *3.
Because plaintiffs’ motion requests conditional class certification, the court does not
reach the second step.
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all Waste Disposal Drivers at a time and one-half rate for those hours that they worked
over forty [] each week.” ECF No. 193 at 9. Indeed, the FLSA generally requires
employers to compensate employees at the overtime rate for all work performed over 40
hours per week. See 29 U.S.C. § 207(a)(1); see also Roy v. Cty. of Lexington, 141 F.3d
533, 538 (4th Cir. 1998); Flood v. New Hanover Cty., 125 F.3d 249, 251 (4th Cir. 1997)
(“As a general rule, the FLSA provides that an employer may not employ an employee
for a workweek longer than forty hours unless it pays its employee one and one-half
times the employee's ‘regular rate’ for all hours in excess of forty.”). Employees are due
overtime compensation regardless of whether they receive compensation on an hourly
rate, 29 C.F.R. § 778.110, or a day rate, 29 C.F.R. § 778.112.
Further, plaintiffs allege that they were required to work a certain number of
hours before they were eligible to receive their day-rate pay. Such a practice would also
be a violation of the FLSA under 29 C.F.R. § 778.112, which requires that a day rate be
calculated “without regard to the number of hours worked in the day. . . .” Thus, for the
court to conditionally certify the plaintiffs and potential opt-in plaintiffs as a class in this
case, plaintiffs must make a “modest showing”, through their pleadings and affidavits,
that they and potential class members were victims of a common scheme or policy that
violated these FLSA mandates.
Hansen has presented four declarations as evidence that he and potential class
members are “similarly situated.” The declarations are from Hansen, and former Waste
Pro SC disposal drivers and opt-in plaintiffs Charles Brown (“Brown”), Darrell
Bomeisler (“Bomeisler”), and Christopher Montero (“Montero”). Three of the
declarations contain testimony that plaintiffs were victims of a common policy prevalent

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throughout Waste Pro SC of requiring waste disposal drivers to work a certain number of
hours before being eligible for their day-rate pay. For example, Brown testified in his
declaration that his manager “advised me that I was not eligible to receive my day rate
unless I worked a certain number of hours in the day.” ECF No. 194-2 at 20. Bomeisler,
in his declaration, similarly testified that “[s]everal Route Supervisors” advised him that
he would not be eligible to receive his day-rate pay “unless [he] worked a certain number
of hours during the day.” Id. at 17; see also id. at 27, Decl. of Montero (“Route
Supervisors Scott Floyd and Phillip Sadler advised me that I was not eligible to receive
my day rate unless I worked at least four [] hours during the day.”).
The declarations also contain evidence that Waste Pro SC’s overtime-pay policy
violated the FLSA’s overtime pay provision. Bomeisler testified that he was “not
compensated at a time and one-half rate for all of the hours that [he] work[ed] over forty
each week.” Id. at 17. Montero’s declaration includes testimony that “Waste Pro
compensated [him] at a half-time rate for the hours that [he] worked over forty [] each
week.” Id. at 28. The declarations of Brown and Hansen include similar testimony.
Therefore, the court finds that plaintiffs have made a “modest showing” that they were
the victims of a common unlawful scheme or policy during their employment at Waste
Pro SC.5 The evidence contained in the presented declarations are more than sufficient to

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The law is clear that the court determines whether to conditionally certify a class
under the FLSA based on the pleadings and affidavits before it. Therefore, in
determining whether plaintiffs have made a sufficient showing for conditional
certification, the court only considers the pleadings and the declarations plaintiffs have
presented.
In addition to the pleadings and affidavits, plaintiffs cite to a number of
documents that are not relevant to the current lawsuit and do not involve the current
defendants. For example, plaintiffs present testimony from trials against other Waste Pro
entities as evidence that plaintiffs in this case are similarly situated. The court doubts the
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meet the lenient standard for conditional class certification. See Turner, 268 F. Supp. 3d
at 841 (finding a sufficient showing where plaintiffs presented three declarations of
former employees that alleged common FLSA violations).
In response, Waste Pro SC asserts several arguments. First, Waste Pro SC argues
that the resolution of each of the plaintiffs’ claims will require individualized treatment
because each is governed by a different limitations period and each alleges violations by
his or her individual superior. The law, however, is clear that the plaintiffs need not
demonstrate that their claims are identical, only that they were victims of a common
policy or scheme that violated the law. Schmidt, 2015 WL 3767436, at *11. The fact
that an allegedly company-wide policy was enforced by individual managers does not
render plaintiffs’ claims under such a policy too individualized for conditional class
certification. Of course, each plaintiff’s claim arises from his or her own set of individual
facts, but plaintiffs have made a “modest showing” that each individualized claim is
rooted in the same allegedly unlawful policy, which is what the standard requires.
Moreover, this court has found that an inquiry into the individualized nature of each
plaintiff’s claim can more accurately be assessed at the de-certification stage. Turner,
268 F. Supp. 3d at 842 (“After plaintiffs have the benefit of opt-in discovery, if
[defendant] chooses to file a motion to decertify the class, the court will at that point
examine the claims in-depth to determine if the regular rate claim would require too
many individualized inquiries to withstand class certification.”).

relevance of this evidence but need not consider the issue because plaintiffs’ pleadings
and affidavits demonstrate that plaintiffs and potential class members are “similarly
situated” under the lenient conditional-certification standard.
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Further, Waste Pro SC argues that plaintiffs’ evidence does not make a modest
showing with respect to the scope of the notice plaintiffs request. In other words, Waste
Pro SC argues that because the declarations are from employees who worked at a specific
location or at a specific time, they do not provide support for plaintiffs’ allegations of
FLSA violations at other locations and at different times. Therefore, Waste Pro SC
argues, the declarations do not justify sending notice to waste disposal drivers who
worked in other locations during different time periods. Waste Pro SC points out, for
example, that the presented declarations contain the testimony of drivers who exclusively
worked out of its Summerville location. Therefore, it argues, the declarations cannot
provide support for conditional certification with respect to waste disposal drivers who
worked in other Waste Pro SC locations. This argument improperly elevates the standard
for conditional class certification. All that is required for conditional class certification is
that plaintiffs make a modest factual showing that they and potential class members are
similarly situated with respect to their FLSA claim. To require plaintiffs to make a
modest factual showing with respect to every location and every time period covered by
the allegations would remove all modesty from such a showing. Indeed, courts have
found that evidence with respect to a single location or single time period is sufficient for
a showing of a company-wide violation.6 See, e.g., Barreda v. Prospect Airport Servs.,

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In support of its argument, Waste Pro SC relies on Mullis v. Wings Over
Spartanburg, LLC, 2017 WL 749362 (D.S.C. Feb. 27, 2017). In that case, the court
limited a conditional class of food and beverage service employees to one restaurant
location where all the evidence presented by plaintiffs was specific to that location.
However, the court based the limitation on the fact that “there [wa]s no evidence
whatsoever that the other ten Wild Wing restaurants also use [the violating policy].” Id.
at *3. Here, plaintiffs’ declarations include testimony that drivers in other locations were
governed by the same unlawful policy that the declarants allege governed their work.
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Inc., 2008 WL 7431307, at *2 (N.D. Ill. Nov. 26, 2008) (“The fact that the only affidavits
submitted in support of this finding come from [one location] does not diminish the
nationwide applicability of the offending policy.”). Therefore, the court grants plaintiffs’
motion to conditionally certify a class under their FLSA collective action.
2. Notice
Now that the court has conditionally certified a class under plaintiffs’ FLSA
collective action, it must address the resulting notice to potential class members.
Plaintiffs request that court-facilitated notice be sent to all “current and former Waste
Disposal Drivers, who were/are employed by Defendant, Waste Pro of South Carolina,
Inc., and who were/are paid on a job/day rate basis, within the last three [] years prior to
the filing of the Original Complaint [filed on 10/2/17].” ECF No. 193 at 1. At the
hearing, the parties contingently agreed upon several aspects of the notice in the event
that the court found conditional certification appropriate. Therefore, the court addresses
only those aspects of the notice that are disputed by the parties in their papers and trusts
that the parties can work out the remaining logistics not addressed by this order amongst
themselves.
a. Scope of the Notice
As it argued with respect to the merits of plaintiffs’ request for conditional
certification, Waste Pro SC argues with respect to the resulting notice that plaintiffs have
not presented sufficient evidence to include in the conditional class Waste Pro SC
disposal drivers who worked out of locations, and during time periods, distinct from the

Moreover, the court agrees with the rationale of other courts who have found evidence of
one location sufficient for a “modest showing” of an unlawful company-wide policy.
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declarants. As such, Waste Pro SC argues that the notice should be limited in location
and in time based on the evidence plaintiffs present in the declarations. For the same
reasons discussed above with respect to the conditional class certification, the court
rejects Waste Pro SC’s argument and authorizes notice to be sent to waste disposal
drivers in accordance with the parameters of the requested conditional class as set forth in
plaintiffs’ motion for conditional certification. See ECF No. 193 at 1.
b. Methods of Distribution
Plaintiffs ask that notice be sent through the U.S. Mail, by email, and by text
message. Waste Pro SC objects to the distribution of the notice via text and email,
arguing that such means are inappropriate, repetitive, and susceptible to abuse. Courts in
this district have found email to be an effective means of distribution that furthers the
FLSA’s broad remedial purpose. See Turner, 268 F. Supp. 3d at 842; Regan v. City of
Hanahan, 2017 WL 1386334, at *3 (D.S.C. Apr. 18, 2017); Irine v. Destination Wild
Dunes Mgmt., Inc., 132 F. Supp. 3d 707, 711 (D.S.C. 2015); see also Lewis v.
Huntington Nat. Bank, 2011 WL 8960489, at *2 (S.D. Ohio June 20, 2011) (“The
addresses on file for [former employees] may or may not continue to be accurate, and
using a second mode of communication will help ensure that all of these potential
plaintiffs will receive at least one copy of the Notice Package.”); Butler v. Direct SAT
USA, LLC, 876 F. Supp.2d 560, 575 (D. Md. 2012) (noting that communication through
e-mail is now the “norm.”). Therefore, the court authorizes email as a method of
distribution.
Likewise, courts in this district have utilized text messaging as an effective
method of notice distribution. See Irine, 132 F. Supp. 3d at 711 (“[T]ext messaging

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appears eminently reasonable to the Court. This has become a much more mobile society
with one’s email address and cell phone serving as the most consistent and reliable
method of communication”); Regan, 2017 WL 1386334, at *3 (“text messaging is
reasonable because, in today’s mobile society, individuals are likely to retain their mobile
numbers and email addresses even when they move . . . .”). Therefore, the court
authorizes text messaging as a means of notice distribution.
c. Reminder Notice
Plaintiffs ask that the court authorize the sending of a reminder notice if responses
are not received from potential class members within a certain time frame. This court has
a practice of allowing such reminder notices. See Turner, 268 F. Supp. 3d at 842
(authorizing reminder notices). Therefore, the court authorizes the sending of one
follow-up notice reminder via U.S. mail, email, and/or test message 30 days after the
initial notice is sent to all potential class members who do not respond to plaintiffs’ first
attempt at notice.
d. Notice Period
Plaintiffs ask for a ninety-day notice period. District courts in the Fourth Circuit
generally authorize opt-in periods between thirty and ninety days. See Mullis, 2017 WL
749362 at *4 (authorizing forty-five-day notice period); Schmidt, 2015 WL 3767436 at
*10 (authorizing sixty-day notice period); Byard v. Verizon W. Virginia, Inc., 287 F.R.D.
365, 373 (N.D.W. Va. 2012) (authorizing sixty-day notice period); Steinberg v. TQ
Logistics, Inc., 2011 WL 1335191, at *6 (D.S.C. Apr. 7, 2011) (same). Given the
circumstances of this case, the court finds that a sixty-day notice period is appropriate
here and thus authorizes the same.

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e. Notice Discovery
The opt-in provision of the FLSA allows for the discovery of identifying
information with respect to putative class members. Parties dispute the scope of
discovery that should be authorized. Plaintiffs ask to discover potential class members’
names, addresses, telephone numbers, email address, and social security numbers. Waste
Pro SC agrees to turn over the names and addresses of waste disposal drivers within the
conditional class but objects to the remaining discovery requests. Based on the analysis
above, the court authorizes plaintiffs to discover the names, addresses, telephone
numbers, and email addresses of potential class members, consistent with the parameters
of the conditional class plaintiffs outline in their motion for conditionally certification.
However, the court denies discovery with respect to plaintiffs’ request for
potential class members’ social security numbers. Plaintiffs request discovery of social
security numbers for the purpose of locating potential class members whose addresses
have changed since their employment. With respect to these potential class members,
plaintiffs plan to utilize the national change of address database, which can reveal
person’s current address through the input of their social security number. Because of the
heightened privacy concerns that social security numbers implicate and because the use
of email and text message mitigates the potential harm of a changed address, the court
denies this request.
Finally, plaintiffs ask for the scope of discovery to reflect a three-year statute of
limitations period. Waste Pro SC objects and asks the court to limit the scope of
discovery to waste disposal drivers employed within the last two years. Under the FLSA,
the limitations period is generally two years but can extend to three years where a

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defendant’s violation was willful. See 29 U.S.C. § 255(a). Here, plaintiffs allege willful
behavior and have not had the benefit of discovery to test that allegation. Therefore, the
court authorizes discovery with respect to a three-year limitations period, meaning that
plaintiffs can discover information about waste disposal drivers who were employed by
Waste Pro SC at any time from October 2, 2014 to the present.
f. Third-Party Administrator
Waste Pro SC requests that a third-party administrator send notice to the
conditional class and that plaintiffs be required to bear the third-party administrator’s
cost. This court has found that “the privacy of potential class members weighs in favor
of requiring a third-party administrator” and that plaintiffs should generally bear those
costs. Lynch v. Dining Concepts Grp., LLC, 2015 WL 5916212, at *7 (D.S.C. Oct. 8,
2015); see also Mullis, 2017 WL 749362, at *3. Therefore, the court orders that parties
meet and confer to agree on a suitable third-party administrator and discuss the issue of
payment. If the parties cannot reach a solution amongst themselves, either party can file
a motion, and the court will resolve the dispute at that time.
B. Motion for Equitable Tolling
In their motion for equitable tolling, plaintiffs request that the court toll the statute
of limitations on their FLSA claim from August 22, 2018, the day the original plaintiffs
filed the initial motion for conditional class certification, until the date on which the court
conditionally certifies a class under the plaintiffs’ FLSA collective action, i.e., the date of
this order. Plaintiffs argue that they satisfy the Fourth Circuit’s test for equitable tolling
in FLSA collective actions because “extraordinary circumstances” have delayed the
conditional certification of their claim. The court agrees.

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The FLSA provides for a two-year limitations period or, where a defendant’s
violation is willful, a three-year limitations period. 29 U.S.C. § 255(a). Subject to
certain exceptions, an action is commenced under the FLSA on the date the complaint is
filed. 29 U.S.C. § 256. In the case of a collective action, if an individual claimant’s
name does not appear on the initial complaint, the plaintiff’s action is commenced when
he or she files written consent to join the action. 29 U.S.C. § 256(b). The FLSA 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. 29 U.S.C.
§§ 216(b) and 256. Because potential opt-in plaintiffs may not receive notice of their
right to join the collective action until it has been conditionally certified, courts regularly
toll the FLSA statute of limitations where extraordinary circumstances cause delays in the
court’s conditional certification of the action.
“[A]ny 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.” Chao v. Virginia Dep’t of Transp., 291
F.3d 276, 283 (4th Cir. 2002) (citing Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000)). In the Fourth Circuit, equitable tolling is appropriate in two circumstances: (1)
where the adverse party’s misconduct caused the missed deadline, see Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990), or (2) where “extraordinary circumstances
beyond the plaintiffs’ control made” timely filing impossible. Hutchinson, 209 F.3d at
330. “Under the second scenario, plaintiffs bear the burden of demonstrating that: (1)
they diligently pursued their rights and (2) some extraordinary circumstance prevented

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timely filing.” MacGregor v. Farmers Ins. Exch., 2011 WL 2731227, at *1 (D.S.C. July
13, 2011).
While a high barrier to overcome, courts have regularly found that a significant
delay in a court’s consideration of a motion for conditional class certification constitutes
an “extraordinary circumstance” that warrants tolling. See Weckesser v. Knight
Enterprises S.E., LLC, 2018 WL 4087931, at *3–4 (D.S.C. Aug. 27, 2018) (tolling the
statute of limitations where the court’s consideration of a motion for conditional class
certification was delayed for over a year by an interlocutory appeal); Harris v. NPC Int’l,
Inc., 2016 WL 3636067, at *4 (W.D. Tenn. June 29, 2016) (tolling the statute of
limitations where preliminary and jurisdictional disputes delayed the court’s
consideration of a motion for conditional class certification for three years); Lorenzo v.
Prime Commc’ns, L.P., 2014 WL 3366073 (E.D.N.C. July 9, 2014) (tolling the statute of
limitations where plaintiffs’ motion for conditional certification was delayed by, among
other things, “motions for arbitration and related appeals”); Ruffin v. Entm’t of the E.
Panhandle, 2012 WL 28192, at *2 (N.D. W. Va. Jan. 5, 2012) (“Several courts have
allowed equitable tolling of FLSA claims where the case’s litigation posture has delayed
the court’s consideration of the motion for conditional certification and notice.”)
(collecting cases).
The district court in Harris explained the good sense of invoking the exceptional
remedy of equitable tolling in the context of FLSA collective actions:
In collective wage and employment cases, courts regularly grant equitable
tolling so that plaintiffs may assert their claims despite the kinds of delays
inherent in such litigation. The logic of this is clear upon considering the
fact that the defendant initially is the party in sole possession of the names
and last known physical addresses of all potential opt-in Plaintiffs. Without
the possibility of equitable tolling, the value of FLSA collective actions
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would routinely be diminished to the point of being unfeasible—as the
potential recovery for the plaintiff class continuously lessens as cases are
delayed.
2016 WL 3636067, at *4 (internal citations omitted). Courts have noted that where the
resolution of a motion for conditional certification is delayed, the claims of potential
plaintiffs “die daily.” Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 260 (S.D.N.Y. 1997).
Here, the original plaintiffs filed their motion for conditional certification on
August 22, 2018. ECF No. 99. At that time, the parties were engaged in court-ordered
jurisdictional discovery. On April 16, 2019, the original plaintiffs filed their first motion
for equitable tolling. In response, defendants argued that that issues of certification and
tolling were premature given the pending motions to dismiss. The court agreed and
declined to address the motions for class certification and for equitable tolling until after
it resolved the then-pending jurisdictional issues. On July 25, 2019, almost a year after
the original plaintiffs filed a motion for conditional class certification, the court resolved
the jurisdictional issues before it and dismissed Waste Pro USA and Waste Pro FL from
the case. Before it considered the still-pending motions for equitable tolling and
conditional class certification, however, the court resolved a final jurisdictional issue on
November 14, 2019, which was necessitated by the Third Amended Complaint’s
misjoinder of the parties. Suffice it to say that the jurisdictional issues and preliminary
disputes between the parties have been both numerous and divisive and have delayed this
court’s consideration of the motion for conditional class certification.
In opposition to equitable tolling, Waste Pro SC relies on the high standard
generally applicable to requests to equitably toll statutes of limitations and argues that the
circumstances here are not “extraordinary.” Specifically, Waste Pro SC relies heavily on

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this court’s decision in MacGregor v. Farmers Ins. Exch., 2011 WL 2731227, at *1
(D.S.C. July 13, 2011), where the court declined an FLSA plaintiff’s request to equitably
toll the FLSA’s statute of limitations. The circumstances in that case clearly did not
warrant equitable tolling. There, the defendant filed a motion to dismiss on March 3, the
plaintiffs filed a motion for conditional class certification on March 4, and the court
declined to equitably toll the limitations period on July 13. The court found that its
resolution of a motion to dismiss four months after the motion’s filing did not constitute
an “extraordinary circumstance”: “[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.” Id. at *2 (D.S.C. July 13, 2011). Here, however, there is
“more” and dramatically so. The original plaintiffs filed their motion for conditional
class certification on August 22, 2018, over nineteen months prior to the date of this
order—more than a year and a half longer than the delay the MacGregor court
considered. Further, the tortuous procedural history of this case tells a story much more
tangled and protracted than the filing of a simple motion to dismiss, as the court faced in
MacGregor. Moreover, the court in MacGregor declined the plaintiffs’ request without
prejudice, noting, “If, at some later date, extraordinary circumstances of delay arise,
plaintiffs may refile their request . . . .” Id. This case presents just such extraordinary
circumstances.
Additionally, Waste Pro SC contends that equitable tolling is inappropriate
because plaintiffs have not diligently pursued their rights. Specifically, Waste Pro SC
argues that the delay in the court’s consideration of the motion to conditionally certify
“falls squarely on [plaintiffs’] shoulders” because “[p]laintiff[s] created the jurisdictional

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quagmire by forum shopping.” ECF No. 198 at 1 and 3. There are two problems with
Waste Pro SC’s argument, one in fact and one in law. As a factual matter, plaintiffs do
not ask the court to toll the limitations period from the date that the jurisdictional disputes
began; instead, plaintiffs request only that the court to toll the limitations period from the
date on which the original plaintiffs filed their motion for conditional certification. The
original plaintiffs filed this suit on October 2, 2017 against Waste Pro SC, Waste Pro FL,
and Waste Pro USA. On December 20, 2017, all defendants filed motions to dismiss.
On February 12, 2018, the court ordered the parties to conduct jurisdictional discovery.
Six months into jurisdictional discovery, the original plaintiffs filed their motion for
conditional certification. Plaintiffs’ motion for equitable tolling asks the court to toll the
statute of limitations from to the date on which the original plaintiffs filed the motion for
conditional certification, not from the date on which the jurisdictional dispute began. In
other words, plaintiffs ask the court to toll the limitations period from a date that is eight
months after the defendants filed their motions to dismiss and six months after the court
ordered the parties to conduct jurisdictional discovery. Thus, if the court grants the
motion for equitable tolling, it would not toll the limitations period for the majority of the
delay caused by the jurisdictional dispute.
Further, defendants cite to no law for the proposition that the original plaintiffs’
inclusion of non-jurisdictional defendants amounts to a less than diligent pursuit of their
rights. In fact, the relevant case law reveals that the opposite is true. See Irwin v. Dept.
of Veterans, 498 U.S. 89 (1990) (finding equitable tolling appropriate “in situations
where the claimant has actively pursued his judicial remedies by filing a defective
pleading during the statutory period”); see also Stickle v. SCIWestern Mkt. Support Ctr.,

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L.P., 2008 WL 4446539, at *8 (D. Ariz. Sept. 30, 2008) (equitably tolling the limitations
period during the pendency of motions to dismiss, even though the court granted the
motions to dismiss with respect to some defendants). To be sure, the original plaintiffs’
inclusion of defendants over which this court did not have jurisdiction is in no small part
responsible for the snail’s pace at which this litigation has proceeded. However, the court
finds that the strategic misstep by the original plaintiffs does not justify turning a blind
eye to the procedural nullification of the potentially meritorious claims of putative class
members who have yet to receive notice of this collective action. In other words, the
court declines to deny potential opt-in plaintiffs their day in court because of the
misguided litigation strategies of the original plaintiffs. And, the court feels compelled to
point out, defendants are not blameless in the delay of this litigation either. Moreover,
plaintiffs are in the correct forum with respect to the current defendant, Waste Pro SC,
and there is no evidence that plaintiffs have been less than diligent in seeking conditional
class certification, which is the issue currently before the court.
Moreover, the court notes that Waste Pro SC will not be prejudiced by the toll
because it received notice that plaintiffs brought this suit as a collective action under the
FLSA on the date of the original filing. Plaintiffs, on the other hand, would be prejudiced
by the significant delay in the court’s consideration of the motion for conditional class
certification because the claims of potential plaintiffs have “die[d] daily” in the interim.
Hoffmann, 982 F. Supp. at 260. Therefore, the court grants plaintiffs’ motion to
equitably toll the limitations period.

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III. CONCLUSION
For the foregoing reasons the court FINDS AS MOOT the first motion for
equitable tolling, GRANTS the motion to for conditional class certification, and
GRANTS the second motion for equitable tolling.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
April 13, 2020
Charleston, South Carolina

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