Figgs v. Kirby Corporation et al

Filing 81

OPINON AND ORDER denying 74 Motion to Strike Late File Opt-In Notices.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
RALPH FIGGS, Individually and on
behalf of all others similarly situated
V.
KIRBY CORPORATION,
and KIRBY INLAND MARINE, LP

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CIVIL ACTION NO. G-11-306

OPINION AND ORDER
On August 17, 2012, the Kirby Defendants (Kirby) filed a “Motion to Strike Late Filed
Opt-In Notices” in an effort to preclude from this potential FLSA collective action seven Plaintiffs
who filed Opt-In Notices after the February 27, 2012, deadline. Were the Motion to be granted,
these seven Plaintiffs would be forced to file a separate FLSA case which, if filed here, would
most likely be consolidated with this case. Cf. Raper v. Iowa, 165 F.R.D. 89, 92 (S.D. Iowa
1996)

Allowing their joinder here will not result in any meaningful prejudice to the Defendants,

in fact, if Plaintiffs’ allegations are to be believed, the Defendants have already engaged in
discovery with two of the seven tardy opt-ins. Cf. Monroe v. United Airlines, Inc., 94 F.R.D.
304, 305 (N.D. Ill. 1982)

No determination of liability has yet been made, so the Court sees

no benefit in excluding these seven Plaintiffs; indeed, the desire to achieve “judicial economy,”
favors their inclusion.
Kirby argues that these seven Plaintiffs should be required to show “excusable neglect” to
merit inclusion and cites to three cases so holding. Even if the Court were to concede these cases
are binding, which it does not, each of the cases can be distinguished. In each case the language
of the Opt-In Notice warned untimely filers that they “will not be able to participate” in the

lawsuit; that language imposes a barrier to inclusion which is not present in this case. The Notice
in this case cautions late filers that they “may lose the right to participate ... in this lawsuit.”
Here, the language can be read to commit the decision to include late filers to the sound discretion
of the Court and, in the opinion of this Court, the proper exercise of that discretion is to include
the seven Plaintiffs as members of the potential class.
It is, therefore, ORDERED that the “Motion to Strike Late Filed Opt-In Notices”
(Instrument no. 74) is DENIED.
DONE at Galveston, Texas, this

3rd

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day of October, 2012.