Kimbrel et al v. DEA Corporation et al [TV3]
Filing
33
MEMORANDUM AND ORDER granting in part and denying in part plaintiffs' 27 Motion for Order Adding Opt-In Plaintiffs, or in the Alternative, Plaintiffs Motion for Permissive Joinder. It is ORDERED that Keyshia Burns, Brandy H ill, and Sara Hassan are added to the conditionally-certified collective action. The Plaintiffs' alternative prayer for relief under Rule 20 of the Federal Rules of Civil Procedure is DENIED AS MOOT. It is ORDERED that any person attempting t o join this collective action following the entry of this Memorandum and Order will be required to demonstrate exceptional good cause rather than just good cause, as part of the five-factor analysis under Heap. Signed by Magistrate Judge C Clifford Shirley, Jr on 3/26/15. (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
LUCHYNA KIMBREL, et al.,
Plaintiffs,
v.
D.E.A. CORPORATION, et al.,
Defendants.
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No. 3:14-CV-161-TAV-CCS
MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and the Order of Referral from Chief District Judge Varlan [Doc. 32].
Now before the Court is Plaintiffs’ Motion for Order Adding Opt-In Plaintiffs, or in the
Alternative, Plaintiffs’ Motion for Permissive Joinder [Doc. 27] and the Defendants’ Response in
Opposition [Doc.27]. The Court finds that this motion is now ripe for adjudication, and for the
reasons stated herein, the Plaintiffs’ Motion will be GRANTED IN PART and DENIED IN
PART.
I.
BACKGROUND
Plaintiffs filed their Complaint in this case on April 22, 2014 and filed an Amended
Complaint on May 19, 2014. After Defendants filed their Answer, the parties filed a Joint
Motion for Conditional Certification of the Fair Labor Standards Act Collective Action. On July
30, 2014, the Chief District Judge entered a Consent Order allowing individuals who desired to
participate/join the subject lawsuit to opt-in within eighty days from July 30, 2014 – i.e. by
October 20 or 26,1 2014. [Docs. 19, 23]. The Defendants were ordered to “provide Plaintiffs,
within thirty (30) days of the entry of [the] Consent Order, a list of name and last known
addresses, for all individuals who performed work at Defendant’s establishment as entertainers
during the three (3) years prior to April 22, 2011 or who are currently so working.” [Doc. 23 at
1].
On November 4, 2014, Keyshia Burns sought to join the collective action. On November
11, 2014, Sara Hassan sought to join the collective action, and on December 8, 2014, Brandy
Hill sought to join the collective action.
II.
POSITIONS OF THE PARTIES
Plaintiffs move the Court to enter an Order adding Ms. Burns, Ms. Hill, and Ms. Hassan
as opt-in plaintiffs to this collective action. Alternatively, Plaintiffs move the Court to permit
Ms. Burns, Ms. Hill, and Ms. Hassan to joint this action pursuant to Rule 20 of the Federal Rules
of Civil Procedure. In support of the requested relief, Plaintiffs state that good cause exists for
allowing these potential plaintiffs to join the class. Plaintiffs assert that Defendants failed to
disclose Ms. Burns or Ms. Hill and failed to provide a correct address for Ms. Hassan, despite the
fact that Ms. Hassan still works for Defendants. Plaintiffs maintain that permitting Ms. Burns,
Ms. Hill, and Ms. Hassan to join the class would not prejudice the Defendants, because: (1) these
potential plaintiffs filed their opt-in forms just outside the deadline and (2) if the Court were to
deny the request to join the collective action, Ms. Burns, Ms. Hill, and Ms. Hassan could still file
individual suits against the Defendants. With regard to their alternative relief, the Plaintiffs
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The Plaintiffs propose that the date for opting in was October 26, 2014, while the Defendants posit that the date
was October 20, 2014. Neither party has expounded upon why their proposed date is correct, and the six-days
difference between the proposed dates does not change the Court’s analysis of the issue.
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argue that Ms. Burns, Ms. Hill, and Ms. Hassan should be permitted to join the class because
they fulfill the criteria of Fed. R. Civ. P. 20(a)(1).
The Defendants respond that Ms. Burns, Ms. Hill, and Ms. Hassan failed to meet the
deadline set by the Court. The Defendants maintain that permitting these three plaintiffs to join
would “create the possibility of an endless flow of potential [p]laintiffs contrary to the spirit and
intent of this Court’s Order . . . .” [Doc. 31 at 2]. The Defendants do not address Plaintiffs’
allegation that Defendants did not disclose Ms. Burns or Ms. Hill, but with regard to Ms. Hassan,
the Defendants note that she moved residences twice within a three-week period. Defendants
contend that they cannot be expected to keep current information under such circumstances.
Defendants argue that they will be prejudiced by the addition of these potential plaintiffs,
because permitting them to join would increase the number of plaintiffs and potentially lead to
additional discovery. Defendants note that this case was pending approximately six months prior
to the deadline for opting-in, and they maintain that Ms. Burns, Ms. Hill, and Ms. Hassan had
adequate time to opt-in to the litigation.
III.
ANALYSIS
The Court of Appeals for the Sixth Circuit has not directly considered the issue before the
Court. However, the District Court for the Southern District of Ohio, which is within the Sixth
Circuit, has described the state of the law well, explaining:
The FLSA provides the procedure for potential plaintiffs to opt-in
to a collective action but does not specify when the potential
plaintiff must opt-in. See 29 U.S.C. §§ 216(b), 255, 256.
Consequently, deadlines to opt-in are established by the trial court.
The FLSA also does not “provide a standard under which a court
should consider whether to include opt-in plaintiffs whose consent
forms are filed after the court-imposed deadline has passed.”
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Ruggles v. Wellpoint, Inc., 687 F. Supp. 2d 30, 37 (N.D.N.Y.
2009).
Although the caselaw on this issue is wide-ranging, 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
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. (citing Ayers v. SGS Control Servs., Inc., 2007 WL 3171342, at
*4–5 (S.D.N.Y. Oct. 9, 2007) (requiring that late opt-in plaintiffs
show good cause for their untimely consent filings), Robinson–
Smith v. Gov’t Empl. Ins. Co., 424 F. Supp. 2d 117, 123–24
(D.D.C. 2006) (considering the potential prejudice to the defendant
and the purposes of the FLSA), Raper v. State of Iowa, 165 F.R.D.
89, 92 (S.D. Iowa 1996) (considering potential prejudice to the
defendant and judicial economy), Monroe v. United Air Lines,
Inc., 94 F.R.D. 304, 305 (N.D. Ill. 1982) (considering how long
after the deadline the consent forms were filed); but see Reyes v.
Texas Ezpawn, L.P., 459 F. Supp. 2d 546, 566–67 (S.D. Tex.
2006) (dismissing plaintiffs who filed consent forms after the optin period without any discussion of the above factors)).
Heaps v. Safelite Solutions, LLC, No. 2:10-CV-729, 2011 WL 6749053, at *1 (S.D. Ohio Dec.
22, 2011).
Consistent with the above, the Court in Hurt v. Commerce Energy, Inc., 2014 WL
494571, No. 1:12-CV-758 (N.D. Ohio Feb. 6, 2014), recently considered five factors in
determining to permit late opt-ins: “(1) whether good cause exists for the untimeliness; (2)
prejudice to the defendant; (3) how late the opt-in notices are; (4) judicial economy; and (5) the
remedial purposes of the FLSA.” Id. at *1. Despite the Plaintiffs offering no good cause for the
untimeliness, the court in Hurt found that the late opt-ins should be permitted to join the
collective action because less than a month had passed since the opt-in deadline, judicial
economy would be served by permitting one action, the addition of the late opt-ins would not
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overly burden the defendants, and the remedial purpose of the FLSA would be served by
permitting the late opt-ins to join the collective action. Id. at *1-2.
In the instant case, the Court first finds that good cause exists for the untimeliness. The
Defendants’ failure to disclose Ms. Burns and Ms. Hill supports finding good cause for the delay.
The Court also finds that the failure to provide an up-to-date address for Ms. Hassan supports
finding good cause for the delay. While the Court is not prepared to find that an employer is
charged with constantly updating its records to reflect a change of address, the Defendant has
failed to demonstrate what diligence it exercised to ensure that the addresses it provided for
current employers were current.
Second, the Court finds that there is little danger of prejudice to the Defendants. The
Defendants argue that the addition of Ms. Burns, Ms. Hill, and Ms. Hassan will increase the
number of members of the collective action by approximately fifty percent. However, the
addition of these potential plaintiffs will have virtually no effect on the Defendants’ potential
liability, because even if they are not permitted to opt-in, they could either join the suit under
Rule 20 or file their own suit. To the contrary, it appears that, to a degree, the Defendants would
be prejudiced by these potential plaintiffs not joining the class, because the Defendants would
potentially be charged with defending separate suits. Further, the Court finds that any discovery
relating to these three additional plaintiffs would be a de minimis burden.
Moreover, the Defendants have not pointed the Court to any evidence that would support
their parade of horrible argument that potential plaintiffs will continue to present themselves and
attempt to opt-in to this action. To ensure that such does not occur, the Court will not accept any
additional opt-in plaintiffs in this case, absent a showing of extraordinary good cause.
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Third, the Court finds that, regardless of whether the Court employs the opt-in deadline
as calculated by the Plaintiffs or the opt-in deadline as calculated by the Defendants, Ms. Burns,
Ms. Hill, and Ms. Hassan’s elections to opt-in were only a few weeks late. The Court finds that
such brief delay weighs in favor of permitting Ms. Burns, Ms. Hill, and Ms. Hassan to join the
collective action.
Fourth, the Court finds that permitting Ms. Burns, Ms. Hill, and Ms. Hassan to join the
collective action will further judicial economy, because the Court will not be required to
supervise and dispose of separate, but essentially identical, cases.
Finally, the Court finds that permitting Ms. Burns, Ms. Hill, and Ms. Hassan to join the
collective action is consistent with the remedial purposes of the FLSA. As the court in Heaps
explained: “[A] generous reading, in favor of those whom congress intended to benefit from the
law, is also appropriate when considering issues of time limits and deadlines.” 2011 WL
6749053, at *2 (quoting Kelley v. Alamo, 964 F.2d 747, 750 (8th Cir. 1992)).
Based upon the foregoing, the Court finds that the Plaintiffs’ request to permit Ms. Burns,
Ms. Hill, and Ms. Hassan to join this collective action is well-taken and it will be granted.
Because Ms. Burns, Ms. Hill, and Ms. Hassan are going to be permitted to join the collective
action, the Court finds that the Plaintiffs’ request for alternative relief under Rule 20 of the
Federal Rules of Civil Procedure is now moot.
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IV.
CONCLUSION
For the reasons stated herein, Plaintiffs’ Motion for Order Adding Opt-In Plaintiffs, or in
the Alternative, Plaintiffs’ Motion for Permissive Joinder [Doc. 27] is GRANTED IN PART
and DENIED IN PART, as follows:
1. It is ORDERED that Keyshia Burns, Brandy Hill, and Sara Hassan are added to the
conditionally-certified collective action;
2. The Plaintiffs’ alternative prayer for relief under Rule 20 of the Federal Rules of Civil
Procedure is DENIED AS MOOT; and
3. It is ORDERED that any person attempting to join this collective action following the
entry of this Memorandum and Order will be required to demonstrate exceptional good
cause rather than just good cause, as part of the five-factor analysis under Heap.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge
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