Gardner v. Galardi South Enterprises Consulting Inc

Filing 137

ORDER AND OPINION: It is hereby ORDERED that Plaintiff's late-filed Notice of Consent to Join a Collective Action Under the FLSA, (ECF No. 106 ), be STRICKEN from the record. Jackson is not permitted to join this collective action. Signed by Honorable Bruce Howe Hendricks on 2/3/2017. (prou, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
) Civil Action No.: 4:13-cv-03399-BHH
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Plaintiff,
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ORDER AND OPINION
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vs.
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Country Club, Inc. d/b/a Masters
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Gentlemen’s Club,
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Defendant. )
______________________________ )
Jacinda Gardner, individually and on
behalf of all others similarly situated,

This matter is before the Court on Plaintiff’s late-filed Notice of Consent to Join a
Collective Action Under the FLSA. (ECF No. 106.) For the reasons set forth below, the
motion is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Jacinda Gardner is a former dancer at Defendant, the Country Club, Inc.
d/b/a Master’s Gentlemen’s Club, a strip club in Myrtle Beach, South Carolina (the
“Club”). On December 4, 2013, Plaintiff filed this civil action on behalf of herself and “all
similarly situated employees” at the Club for overtime compensation and other relief
against Defendant. Plaintiff alleges that Defendant violated the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and the South Carolina Payment of Wages Act
(“SCPWA”), S.C. Code Ann. §§ 41-10-10, et seq.
On September 8, 2014, Plaintiff moved for conditional class certification and
judicial notice pursuant to § 216(b) of the FLSA, which the Court granted on September
30, 2015. The Court’s September 30, 2015 Order approved the proposed class notice

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submitted by Plaintiff and instructed the parties to comply with the procedures and
deadlines set forth in the full memorandum opinion issued the same day in DeGidio v.
Crazy Horse Saloon and Restaurant, Inc., No. 4:13-cv-2136 (D.S.C.). The DeGidio
opinion set forth a deadline of January 15, 2016 for the filing of Plaintiff consent forms.
Plaintiff subsequently filed an unopposed motion to extend the deadline to file opt-in
notices to March 17, 2016, which the Court granted. (ECF Nos. 90; 91.) Plaintiff’s
counsel filed a notice of consent to joinder form for Desiree Jackson (“Jackson”) on May
6, 2016. (ECF No. 106.) Defendant objects to the notice and argues that the Consent
Form should be stricken from the record. (ECF No. 108.)
DISCUSSION
The FLSA provides that “[n]o employee shall be a party plaintiff to any [FLSA]
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). While the
FLSA outlines the procedure for individuals to join a collective action as potential
plaintiffs under § 256(b), it does not specify when the potential plaintiffs must opt-in to
the action. E.g., Heaps v. Safelite Solutions, LLC, 2011 WL 6749053, at *1–2 (S.D. Ohio
Dec. 22, 2011); see 29 U.S.C. §§ 216(b), 255, 256. Instead, opt-in deadlines are set by
the trial court. Further, the FLSA does not set forth or otherwise prescribe the standard
under which a trial court should consider whether potential plaintiffs may join a collective
action by filing the requisite opt-in consent forms after the stated deadline. Ruggles v.
Wellpoint, Inc., 687 F.Supp.2d 30, 37 (N.D.N.Y. 2009). As noted by the parties, “courts
have generally decided the question by balancing various combinations of the following
factors: (1) whether ‘good cause’ exists for the late submissions; (2) prejudice to the

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defendant; (3) how long after the deadline passed the consent forms were filed; (4)
judicial economy; and (5) the remedial purposes of the FLSA.” Id. (collecting cases).
Having carefully considered and balanced these factors, the Court concludes that
allowing Jackson to join this action when Plaintiff failed to submit the requisite Consent
Form before the March 17, 2016 deadline is not appropriate under the circumstances of
this case.
As an initial matter, the Court is troubled by Plaintiff’s complete failure to offer
any explanation as to why she failed to timely return and file Jackson’s Consent Form.
The Court also questions why Plaintiff filed the Consent Form as a notice of joinder,
rather than properly filing a motion seeking the Court’s leave to file this untimely opt-in
Consent Form. See Fed. R. Civ. P. 6(b)(1)(B) (“When an act may or must be done
within a specified time, the court may, for good cause, extend the time: . . . (B) on
motion made after the time has expired if the party failed to act because of excusable
neglect.”). Plaintiff waited almost two months after the March 17, 2016 deadline had
passed to file the Consent Form. Without any explanation as to the reason for the delay,
the Court must assume there was no “good cause” for it.
Further, the interests of judicial economy are not served by allowing Jackson to
join the pending action. Plaintiff asserts that should Jackson not be allowed to join, “her
only option will be to file an identical, individual claim with the Court.” (ECF No. 111 at
4.) According to Plaintiff, Jackson’s claim would likely then be consolidated with the
present lawsuit under Federal Rule of Civil Procedure 42(a), as both actions would
“involve a common question of law or fact.” (Id.) She argues that waiting for the eventual
consolidation would waste judicial resources. (Id.) Defendant responds that Jackson

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signed a binding arbitration agreement and states that it would file a motion to compel
arbitration should Jackson file an individual claim.1 (ECF No. 112 at 3.) Given the
presence of the arbitration agreement and the federal policy favoring arbitration,2 it is
unlikely that Jackson’s individual claim would be consolidated with this action. Thus,
there is no cause to find that requiring Jackson to pursue her claim individually would
waste judicial resources.
Because denying Jackson participation in the pending action would not cause
unnecessary expense or effort, and Plaintiff has failed to offer any reason for her
significant delay in filing the Consent Form, the Court concludes that excluding Jackson
from this collective action is appropriate. In so finding, the Court recognizes that
Defendant would not be particularly prejudiced by Jackson’s participation in this action
and that the FLSA is a remedial statute that should be given a broad reading.
Nevertheless, for the reasons stated above, the Court finds it is not appropriate to
permit Jackson to join this action under the circumstances of this case.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s late-filed Notice
of Consent to Join a Collective Action Under the FLSA, (ECF No. 106), be STRICKEN
from the record. Jackson is not permitted to join this collective action.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks___
United States District Judge
Greenville, South Carolina
February 3, 2017

1
Defendant has attached the signed arbitration agreement to its brief. (ECF No. 112-1.)
2
Here, the Court draws no conclusions as to the enforceability of the arbitration agreement signed by
Jackson.

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