Blundell et al v. Home Quality Care Home Health Care Inc et al

Filing 45

Memorandum Opinion and Order granting in part and denying in part 41 Motion to Modify the Magistrate Judge's Order Staying this Case. (Ordered by Magistrate Judge David L. Horan on 1/3/2018) (ykp)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SABRINA A. BLUNDELL, on behalf of
Herself and all others similarly situated,
and ALICIA K. MORGAN, on behalf of
Herself and all others similarly situated,
Plaintiffs,
V.
HOME QUALITY CARE HOME
HEALTH CARE, INC. d/b/a Bethany
Home Health Services, BRADLEY P.
LASSITER, and WYNDALL S.
LANDERS,
Defendants.

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No. 3:17-cv-1990-L-BN

MEMORANDUM OPINION AND ORDER
Background
This case has been referred to the undersigned United States magistrate judge
for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference
from United States District Judge Sam A. Lindsay. See Dkt. No. 18.
On November 29, 2017, the Court determined that, in the interest of justice and
to appropriately control the Court’s docket, this case should be stayed until the
automatic stay as to Defendant Home Quality Care Home Health Care, Inc., d/b/a
Bethany Home Health Services is lifted, either by conclusion of the bankruptcy or an
order from the bankruptcy court granting relief from the automatic stay, and therefore
ordered that, because Plaintiffs Sabrina A. Blundell and Alicia K. Morgan’s claims
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against Defendant Home Quality Care Home Health Care, Inc., d/b/a Bethany Home
Health Services are subject to 11 U.S.C. § 362(a)’s automatic stay protections and, in
an exercise of the Court’s sound discretion, the case should also be stayed as to
Plaintiffs Sabrina A. Blundell and Alicia K. Morgan’s claims against the non-debtor codefendants Bradley P. Lassiter and Wyndall S. Landers, subject to this stay’s being
lifted upon the motion of any party once the 11 U.S.C. § 362 automatic stay is lifted –
either by conclusion of the bankruptcy or an order from the bankruptcy court granting
relief from the automatic stay – and all pending, unexpired deadlines are terminated.
See Dkt. No. 40 (the “Order”).
Plaintiffs have filed a Motion to Modify the Magistrate Judge’s Order Staying
this Case. See Dkt. No. 41 (the “Motion to Modify”). They ask the Court to “modify the
Order staying this lawsuit in order to: (a) toll the statute of limitations under the
federal Fair Labor Standards Act (‘FLSA’) as to all claims of all absent collective action
members against Defendant Home Quality Care Home Health Care, Inc. d/b/a Bethany
Home Health Services (‘Bethany’), Bradley P. Lassiter (‘Lassiter’), and Wyndall S.
Landers (‘Landers’) (collectively ‘Defendants’) for a time period equaling the pendency
of the subject bankruptcy proceeding by Bethany; and (b) require Defendants to
maintain and preserve all data identified in 29 C.F.R. § 516.2 relative to Plaintiffs and
the putative FLSA collective action members in addition to the last known mailing
address, phone number(s), and e-mail address(es) for each of the FLSA putative
collective action members for the time period of July 27, 2014 and forward,” id. at 1-2
(footnote omitted).
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Plaintiffs explain that “[t]he reason for this requested modification is because,
unlike Rule 23 class actions, the FLSA limitations period is not tolled for absent
collective action members upon the filing of the lawsuit. Instead, the limitations period
for FLSA putative collective action members continues to run until each such
individual files a consent to join the lawsuit as an opt-in plaintiff pursuant to 29 U.S.C.
§ 216(b)” and that, “[a]ccordingly, as the Court has stayed this case indefinitely as to
all Defendants during the pendency of Bethany’s bankruptcy action, absent collective
action members will suffer irreparable harm as they will lose their right to seek
recovery of some or all damages from Landers and/or Lassiter due to the running
and/or expiration of their FLSA statute of limitations once this lawsuit resumes.” Id.
at 2.
Plaintiffs’ counsel “represents to the Court that he has found no case law on
point to the issue before this Court – whether equitable tolling should be allowed in
situations where the district court stays a FLSA case against all defendants due to
bankruptcy proceedings of one of the defendants prior to conditional certification and
close of the notice period” – and asserts that “[t]he absence of such case law supports
Plaintiffs’ position that this is a ‘rare and exceptional’ circumstance which warrants
equitable tolling of the FLSA limitations period for absent collective action members.”
Id. at 5. According to Plaintiffs, “[a] review of the docket in this case shows that
Plaintiffs have acted ‘diligently’ and that the delay in putative collective action
members being issued court-ordered notice and the opportunity to opt-into this case
is due to the extraordinary circumstances of Bethany’s bankruptcy filing and this
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Court’s ruling extending the bankruptcy stay provisions to Lassiter and Landers,
Defendants who are not otherwise subject to the Section 362 bankruptcy stay
provision,” and “a ‘strict application’ of the FLSA limitations period in this case by not
tolling the FLSA limitations period would result in the type of ‘harsh’ application of the
limitations period cautioned against by the Fifth Circuit.” Id. at 5-6 (quoting Orozco
v. Anamia’s Tex-Mex Inc., No. 3:15-cv-2800-L-BK, 2016 WL 6311237, at *1 (N.D. Tex.
Oct. 6, 2016), rec. adopted, 2016 WL 6277843 (N.D. Tex. Oct. 27, 2016); United States
v. Patterson, 211 F.3d 927, 931 (5th Cir. 2000)). Invoking Federal Rules of Civil
Procedure 60(a) and 60(b)(6) in support of their requests, Plaintiffs explain that they
“believe the Court did not intend to cut off the ability of FLSA putative collective action
members to assert their claims for damages against Lassiter and Landers in issuing
its Order.” Id. at 8.
As to their second request, Plaintiffs assert that, “[f]urthermore, unless
Defendants are ordered to retain and preserve the data requested herein, issuing
notice to putative collective action members and/or having access to records relative
to their damage calculations may be lost or destroyed.” Id. at 2.
Through the Motion to Modify, “Plaintiffs, on behalf of themselves and the
putative collective action members, ask that [the Court] modify the Order to toll the
FLSA statute of limitations and require Defendants to maintain and preserve the
requested data” and that, “[i]n the event the Court declines to grant that relief, ... that
the Court modify the Order so as to permit the case to resume against Lassiter and
Landers while severing the claims against Bethany.” Id. (footnote omitted).
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Lassiter and Landers respond that no extraordinary circumstances are present
to justify Rule 60(b)(6) relief, where “[n]o change in facts or circumstances has occurred
since the briefing was completed with respect to the Briefs Regarding Suggestion of
Bankruptcy filed by Plaintiffs (Dkt. 35) and Defendants (Dkt. 37)”; “[t]he fact that the
statute of limitations is running for individuals who are not parties to the case has
been true since the date Plaintiffs decided to file their lawsuit, since Bethany filed a
suggestion of bankruptcy, and since the briefing referenced above was completed”; and
“Plaintiffs were not concerned about the running of the statute of limitations at that
time.” Dkt. No. 43 at 1-2 (emphasis omitted).
But “Defendants will agree to maintain any data in their possession, custody,
and control and do not oppose that portion of Plaintiffs’ Motion” to Modify. Id. at 2.
Plaintiffs reply that “Defendants’ Response appears to advance the argument
that an order may only be modified under the following limited circumstances: (1)
mistake, (2) newly discovered evidence, (3) fraud, (4) a void or satisfied judgment or (5)
any other reason that justifies relief after a showing of extraordinary circumstances,”
but Plaintiffs contend that “this Court has broad discretion under Rule 60 to modify
its order and may do so either upon motion or sua sponte, with or without notice.” Dkt.
No. 44 at 1-2.
Plaintiffs explain that they “hold a good-faith belief that, in issuing its order, the
Court did not intend to deny the FLSA putative collective action members the ability
to assert their claims for damages against non-debtor defendants Lassiter and
Landers” and that, “[s]hould this be the case, this Court would not be bound by the
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‘limited circumstances’ suggested in Defendants’ Response” but, rather, “the plain
language of [Rule 60(a)] allows district courts to modify orders based on oversights
either ‘on motion or on its own, with or without notice.’” Id. at 3-4 (quoting FED. R. CIV.
P. 60(a)).
Plaintiffs also argue that, while Defendants further argue “that (1) before an
order may be modified under FRCP 60(b)(6), there must be ‘a showing of extraordinary
circumstances’ and (2) that ‘[n]o extraordinary circumstances are present here,’”
“Plaintiffs specifically set forth in their Motion to Modify the ‘rare and exceptional
circumstances’ which exist in this case to justify equitable tolling.” Id. (quoting Dkt.
No. 43 at 1-2; citing Dkt. No. 41 at 5-7).
Finally, Plaintiffs explain that, “[i]n addition to the rare and exceptional
circumstance expressly set forth in Plaintiffs’ Motion to Modify, Plaintiffs’ motion also
sets forth an additional extraordinary circumstance by implication.” Id. at 4 (emphasis
omitted). “Namely, Plaintiffs asserted in their motion that, should the Court deny
Plaintiffs’ [Motion to Modify], Plaintiffs’ recourse would be to seek relief from the
automatic stay from the bankruptcy court for the specific purpose of preserving the
opt-in plaintiffs’ FLSA claims given the running of the statute of limitations,” but that
“Plaintiffs respectfully assert that a better use of judicial resources would be for this
Court to modify the Order to toll the FLSA limitations period as to the claims of all
absent collective action members for a time period equaling the pendency of the subject
bankruptcy proceeding by defendant Bethany,” which “would also reduce legal fees for
both Plaintiffs and Defendants.” Id.
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Legal Standards
Federal Rule of Civil Procedure 60(b) provides that, “[o]n motion and just terms,
the court may relieve a party or its legal representative from a final judgment, order,
or proceeding” for a variety of enumerated reasons. FED. R. CIV. P. 60(b). “[T]he Rule’s
catchall category, subdivision (b)(6) ... permits a court to reopen a judgment for ‘any
other reason that justifies relief.’” Buck v. Davis, 137 S. Ct. 759, 777 (2017) (quoting
FED. R. CIV. P. 60(b)(6)).
“Rule 60(b) vests wide discretion in courts, but ... Rule 60(b)(6) is available only
in ‘extraordinary circumstances,’” Id.; accord Diaz v. Stephens, 374 (5th Cir. 2013).
“[I]n determining whether extraordinary circumstances are present, a court may
consider a wide range of factors. These may include, in an appropriate case, ‘the risk
of injustice to the parties’ and ‘the risk of undermining the public’s confidence in the
judicial process.’” Buck, 137 S. Ct. at 778; see also Edward H. Bohlin Co., Inc. v.
Banning Co., Inc., 6 F.3d 350, 357 (5th Cir. 1993) (“As for a motion under clause (6),
the movant must show the initial judgment to have been manifestly unjust.” (internal
quotations and citation omitted)).
Federal Rule of Civil Procedure 60(a) provides that “[t]he court may correct a
clerical mistake or a mistake arising from oversight or omission whenever one is found
in a judgment, order, or other part of the record” and that “[t]he court may do so on
motion or on its own, with or without notice.” FED. R. CIV. P. 60(a). “A Rule 60(a)
motion is appropriate where the record makes apparent that the court intended one
thing but by merely clerical mistake or oversight did another” – but “Rule 60(a) does
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not confer a perpetual right to apply different legal rules or different factual analyses
to a case,” and “the error addressed by a proper Rule 60(a) motion must not be one of
judgment or even of misidentification, but merely of recitation.” NewCSI, Inc. v.
Staffing 360 Solutions, Inc., 865 F.3d 251, 263 (5th Cir. 2017) (internal quotation
marks and citations omitted).
Federal Rule of Civil Procedure 54(b) provides that, in a case involving multiple
claims or parties, “any order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties ...
may be revised at any time before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.” FED. R. CIV. P. 54(b). “Under Rule 54(b), ‘the
trial court is free to reconsider and reverse its decision for any reason it deems
sufficient, even in the absence of new evidence or an intervening change in or
clarification of the substantive law.’” Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th
Cir. 2017) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185
(5th Cir. 1990) (citing FED. R. CIV. P. 54(b)), abrogated on other grounds, Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1995)).
Analysis
Taking up Plaintiffs’ second request first, the Court will, without opposition,
ORDER that Defendant Home Quality Care Home Health Care, Inc. d/b/a Bethany
Home Health Services, Bradley P. Lassiter, and Wyndall S. Landers maintain and
preserve all data identified in 29 C.F.R. § 516.2 relative to Plaintiffs Sabrina A.
Blundell and Alicia K. Morgan and the putative FLSA collective action members – to
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the extent that the data is in Defendants’ possession, custody, and control – along with
the last known mailing address, phone number(s), and e-mail address(es) for each of
the FLSA putative collective action members for the time period of July 27, 2014 and
forward.
As to Plaintiffs’ first request, this case has not proceeded to conditional
certification as a 29 U.S.C. § 216(b) collective action. 29 U.S.C. § 216(b) provides that
a FLSA action “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.”
“Thus, the FLSA allows an employee to bring a claim on behalf of other
similarly-situated employees, but the other employees do not become plaintiffs in the
action unless and until they consent in writing.” Sandoz v. Cingular Wireless LLC, 553
F.3d 913, 915 (5th Cir. 2008) (footnote omitted). As such, under Section 216(b), “no
person can become a party plaintiff and no person will be bound by or may benefit from
judgment unless he has affirmatively ‘opted into’ the class; that is, given his written,
filed consent.” Id. at 916 (internal quotation marks omitted).
And, even at the conditional certification stage, “[t]he 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
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court, § 216(b),” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013), and, for
the Court to decide to conditionally certify a collective action and authorize notice, the
plaintiff must establish that there are other potential class members who are
“similarly situated in their job requirements and pay provisions,” Marshall v.
Eyemasters of Tex., Ltd., 272 F.R.D. 447, 449 (N.D. Tex. 2011) (internal quotations
omitted).
But “individuals who are already aware of the suit and want to join as plaintiffs
need not wait until collective-action certification to do so. Courts may allow such
parties to join before the case has been certified as a collective action.” Muhammad v.
GBJ, Inc., Civ. A. No. H-10-2816, 2011 WL 2357369, at *1 (S.D. Tex. June 10, 2011).
The only plaintiffs before the Court in this case are Sabrina A. Blundell and
Alicia K. Morgan, who now ask the Court to toll the FLSA’s statute of limitations as
to all claims of all absent collective action members against Bethany, Lassiter, and
Landers.
The United States Court of Appeals for the Fifth Circuit “strictly construes the
FLSA’s limitations provision, allowing equitable tolling only” in limited circumstances.
Orozco, 2016 WL 6311237, at *1. Against the backdrop of the governing law as to 29
U.S.C. § 216(b) laid out above, Plaintiffs have not established rare and exceptional
circumstances to justify ordering their requested equitable tolling, such as “that
potential opt-in plaintiffs were unaware of their rights, barred from asserting their
rights, or have been diligently pursuing their rights but have been prevented from

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joining the action due to reasons beyond their control,” Mejia v. Brothers Petroleum,
LLC, Civ. A. No. 12-2842, 2014 WL 3853580, at *2 (E.D. La. Aug. 4, 2014).
The Court determines that modifying the Court’s Order under Rules 54(b) or
60(b) is not warranted under the circumstances.
And, as Defendants point out, Plaintiffs did not raise these issues until now.
There was no mistake in the Court’s Order arising from oversight or omission to which
a Rule 60(a) motion is properly addressed, where “granting the [Motion to Modify]
would require the [Court] either to adjudicate an issue it has not previously reached
or to make a substantive modification to a prior adjudication.” Rivera v. PNS Stores,
Inc., 647 F.3d 188, 199 (5th Cir. 2011). This is not a circumstance in which “the record
makes it clear that an issue was actually litigated and decided but was incorrectly
recorded in or inadvertently omitted from the judgment,” such that the Court “can
correct the [Order] under Rule 60(a).” Id.
For these reasons, the Court will deny Plaintiffs’ request to either modify the
Order to toll the FLSA statute of limitations or permit the case to resume against
Lassiter and Landers while severing the claims against Bethany.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part Plaintiffs Sabrina A. Blundell and Alicia K. Morgan’s Motion to
Modify the Magistrate Judge’s Order Staying this Case [Dkt. No. 41].
SO ORDERED.

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DATED: January 3, 2018

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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