Mayhew v. Loved Ones In Home Health Care, LLC et al
Filing
304
MEMORANDUM OPINION & ORDER denying 298 MOTION by Pamela Mayhew, Betsy Farnsworth to Toll Statute of Limitations, as more fully set forth herein. Signed by Judge John T. Copenhaver, Jr. on 7/18/2019. (cc: counsel of record) (kew)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
PAMELA MAYHEW, BETSY FARNSWORTH,
on behalf of themselves and others
similarly situated,
Plaintiffs,
v.
Civil Action no. 2:17-cv-03844
LOVED ONES IN HOME CARE, LLC,
and DONNA SKEEN,
Defendants.
MEMORANDUM OPINION & ORDER
Pending is plaintiffs’ motion to toll the statute of
limitations in their action under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., filed June 28, 2019.
I.
Background
On July 28, 2017, plaintiff Pamela Mayhew initiated an
individual FLSA action related to pay practices of defendant
Loved Ones In Home Care, LLC (“Loved Ones”) regarding their
payment of overtime wages.
ECF No. 1.
On August 30, 2017, Ms.
Mayhew filed her first amended complaint expanding her prior
claims to include a collective action under the FLSA.
6.
ECF No.
Betsy Farnsworth joined this action as a named plaintiff in
the second amended complaint, filed October 31, 2017.
ECF No.
17.
While this matter was being litigated, Loved Ones
entered into a settlement with the Department of Labor (“DOL”)
in which they provided certain employees DOL settlement offers.
On December 1, 2017, the court conditionally certified
the collective action in this case pursuant to Ms. Mayhew’s
August 30, 2017 motion for conditional class certification.
Nos. 5, 23.
ECF
Defendants, instead of issuing notice to the class,
moved, on December 11, 2017, to limit the conditional collective
action certification on the grounds that it was too broad.
No. 27.
ECF
After full briefing, the court ordered, on February 23,
2018, that the collective action be limited to current and
former Loved Ones home health aides who worked in both the
private care program and the Medicaid waiver program (“hybrid
aides”) during the same pay period at any time between July 28,
2014 and May 31, 2017.
ECF No. 54, at 4.
A proposed notice of the collective action was filed
by the plaintiffs on March 5, 2018 and was approved by the court
on March 6, 2018.
ECF Nos. 66, 67.
The Notice set a June 1,
2018 deadline for potential plaintiffs to mail consents to sue.
Id.
In total, 103 plaintiffs have opted into this action.
2
On August 30, 2018, plaintiffs moved to reissue the
March 6, 2018 FLSA notice and reopen the opt-in period on the
grounds that “Defendants were directly communicating materially
false information to their employees about the lawsuit and those
employees’ rights . . . . [which] created significant confusion
within the potential plaintiff population and . . . directly led
to the failure of many potential plaintiffs to opt-in to the
action.”
ECF No. 221, at 3.
As a part of the relief sought in
that motion, plaintiffs asked for a “tolling of the statute of
limitations necessary to counter the effects of Defendants’
improper communications with class members.”
Id. at 14.
In a
subsequent motion by plaintiffs for leave to file consents
outside of the opt-in period, filed October 12, 2018, they
essentially brief why the plaintiffs are entitled to a tolling
of the statute of limitations, which relief was requested in
plaintiffs’ previous motion of August 30, 2018.
1
ECF No. 234.1
The court notes that with respect to those individuals who were
the subject of plaintiffs’ motion for leave to file late
consents, plaintiffs acknowledge that “the relief requested in
the Motion to Reissue the FLSA Notice will not necessarily inure
to the benefit of the plaintiffs whose consents are not yet
filed since Defendants’ bad conduct did not affect that result.”
ECF No. 234, at 6.
Plaintiffs also state in that same motion
that “Counsel will make individual arguments to toll the statute
of limitations for those plaintiffs,” which counsel has not done
until the subject motion of June 28, 2019. Id.
3
The court denied plaintiffs’ motion to reissue notice
and reopen the opt-in period in its December 27, 2018 memorandum
opinion and order.
The court found that the “March 6, 2018
Notice . . . resolved any of the confusion caused by the
misleading communications made by defendants in the DOL
settlement.”
ECF No. 257, at 10-11.
The court did not address
the statute of limitations issue inasmuch as the court denied
the plaintiffs’ motion in which that relief was sought.
On January 23, 2019, the court permitted plaintiffs to
file a third amended complaint to include allegations of
wrongdoing stemming from certain arbitration agreements
presented by the defendants to the plaintiffs.
ECF No. 263.
The third amended complaint was deemed filed that same day.
After the third amended complaint was filed, the court entered a
new schedule by which this matter would proceed, setting the
discovery deadline for April 26, 2019, the dispositive motions
deadline for May 16, 2019, the pretrial conference for July 12,
2019, and trial for August 27, 2018.
ECF No. 277.
On June 10, 2019, the court granted plaintiffs’
December 12, 2018 motion for final FLSA collective action
certification.
ECF No. 293.
Therein, the court stated that the
class consists of current and former Loved Ones home health
aides who worked in both the private care program and the
4
Medicaid waiver program (“hybrid aides”) during the same pay
period at any time between July 28, 2014 and May 31, 2017.
Id.
at 5.
Plaintiffs then filed the subject motion to toll the
statute of limitations.
In their memorandum in support of the
motion, plaintiffs state that “the court should toll the statute
of limitations on each individual claim[] to a date that does
not unduly and artificially deprive Plaintiffs of wages they
earned.”
ECF No. 298, at 15.
Plaintiff does not specify for
what period the statute of limitations should be tolled.
II.
Analysis
The Court of Appeals for the Fourth Circuit has held
that equitable tolling of the statute of limitations in FLSA
cases is available in two instances: when (1) “the plaintiffs
were prevented from asserting their claims by some kind of
wrongful conduct on the part of the defendant,” or (2)
“extraordinary circumstances beyond plaintiffs’ control made it
impossible to file the claims on time.”
Cruz v. Maypa, 773 F.3d
138, 146 (4th Cir. 2014) (quoting Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000)).
“Equitable tolling is a rare remedy
available only where the plaintiff has ‘exercise[d] due
diligence in preserving [her] legal rights.’”
5
Id. at 145
(quoting Chao v. Va. Dep’t of Transp., 291 F.3d 276, 283) (4th
Cir. 2002)).
Here, plaintiffs again complain of the DOL settlement
meetings conducted by the defendants with collective action
plaintiffs.
Plaintiffs also contend that, inasmuch as the
statute of limitations continued to run while the court
considered defendants’ motion to alter the scope of the
conditionally certified class, from December 11, 2017 until
February 23, 2018, plaintiffs’ potential recovery was diminished
or eliminated entirely by the delay in issuing notice to the
potential plaintiffs.
See Pl.’s Mot., ECF No. 298, at 12-13.
Plaintiffs claim that this amounts to “extraordinary
circumstances” under Cruz.
Plaintiffs note that the United States District Court
for the District of Colorado tolled the statute of limitations
in an FLSA action because the defendant “[was] in sole
possession of the names and . . . addresses of all potential
Opt-in Plaintiffs . . . . [and] allowing Opt-in Plaintiffs’
claims to diminish or expire due to circumstances beyond their
direct control would be particularly unjust.”
Stransky v.
HealthONE of Denver, Inc., 868 F. Supp. 2d 1178, 1181-82 (D.
Colo. 2012).
The court in Stransky also noted that defendant’s
6
failure to claim that it would be prejudiced by such a tolling
contributed to its decision.
Id. at 1182.
As an initial matter, the court observes that it has
previously found that the Notice issued on March 6, 2018 cured
any confusing or misleading communications made by defendants to
potential opt-in plaintiffs at the DOL settlement meetings.
In
light of that finding, plaintiffs’ argument that “Defendant
effectively precluded those plaintiffs from learning that they
could participate in this action by filing a consent to opt-in”
is not persuasive.
Next, the plaintiffs are concerned about the delay in
the issuance of the notice of the FLSA action, but that delay
occurred as a result of the unduly broad scope of the class
presented by the plaintiffs and initially adopted by the court.
The defendants justifiably moved, on December 11, 2017, to
narrow the collective class, which motion was granted on
February 23, 2018.
Courts in this circuit have denied equitable tolling
when plaintiffs have “failed to exercise due diligence in
preserving their legal rights . . . . [and] on the grounds that
procedural delays were not extraordinary in nature.”
Harbourt
v. PPE Casino Resorts Md., LLC, No. CCB-16-339, 2017 WL 281992,
at *3 (D. Md. Jan. 23, 2017) (internal quotations and citations
7
omitted); see, e.g., Chao, 291 F.3d at 283–84 (reversing lower
court’s granting of equitable tolling upon finding plaintiff
sought to avoid “then-known potential consequences of her
actions” in failing to exercise due diligence); MacGregor v.
Farmers Ins. Exch., No. 2:10-CV-03088, 2011 WL 2731227, at *2
(D.S.C. July 13, 2011) (denying equitable tolling request
because defendant’s motion to dismiss was “not out of the
ordinary,” nor was the four-month time frame of the court’s
consideration).
The plaintiffs sought tolling prior to the court’s
order of December 27, 2018, the ruling in which made it
unnecessary to address tolling.
The court then fixed by order
entered February 22, 2019, the remaining schedule of events as
set forth on page 4.
The plaintiffs waited until two weeks
before the final pretrial conference on July 12, 2019 to again
raise the tolling issue.
Further, the plaintiffs knew of all
the “extraordinary” circumstances complained of in their motion
well before that juncture.
Additionally, unlike Stransky, a tolling of the
statute of limitations would prejudice the defendants in this
matter.
Defendants state that they have worked together with
plaintiffs to calculate potential damages for the opt-in
plaintiffs.
Defs.’ Resp., ECF No. 299, at 2.
8
Defendants
allegedly have borne the cost, exceeding $20,000, of developing
those calculations, which were based on “a number of separate
possible scenarios that this Court might chose [sic] to apply.
However, one of the alternative scenarios was not a ruling
tolling the statute of limitations.”
original).
Id. (emphasis in
It is unknown the extent to which tolling the
statute of limitations here would unfairly prejudice the
defendants; however, at the very least, some additional
discovery would be required, which would necessitate postponing
the August trial in a case that has been pending in this court
since August 2017.
For these reasons, the court finds that extraordinary
circumstances do not exist that would merit the tolling
requested.
Plaintiffs also state that defendants have engaged in
“wrongful conduct” which “misled the court into believing its
FLSA problems ended in May 2017,” and warrants the tolling of
the statute of limitations.
Pls.’ Mot., ECF No. 298, at 14.
Specifically, the plaintiffs contend that the defendants misled
the court by stating in its response to Ms. Mayhew’s August 30,
2017 motion for conditional certification that Loved Ones
“amended its pay practices in May 2017” and that the “purported
class should be limited in nature . . . for the period November
9
12, 2015 to May 1, 2017.”
12).
Id. at 13 (quoting ECF No. 8, at 8,
Plaintiffs now assert that “records produced by Defendant
itself show overtime violations continuing for several months .
. . after Defendant told this court and the DOL it had corrected
its FLSA practices.”
Id.
Plaintiffs cite an attached exhibit
which they claim shows continuing FLSA violations with respect
to a single person, Ms. Linda Harris, who is also one of the 103
plaintiffs in this case.
ECF No. 298-1.
According to
plaintiffs, the exhibit is a “report prepared by Gray, Griffith
& Mays for the Roane County Magistrate Court Civil Action No.
19-M44C-0015, Linda Harris v. Loved Ones in Home Care, . . . .
[and was] prepared from data produced by Defendants for an optin Plaintiff [Linda Harris] in this action who knew she had been
deprived of overtime wages [(amounting to approximately $300)]
after May 31, 2017.”
Pls.’ Mot., ECF No. 298, at 5 n.1
(emphasis in original).
Plaintiffs claim that inasmuch as
discovery was not permitted regarding Loved Ones’ payroll data
after May 31, 2017,2 they will never know whether these FLSA
2
The court entered, on March 8, 2018, a “Joint Order Setting
Terms and Conditions of Discovery and Extending the Discovery
Deadline” in which the parties agreed that defendants would
produce the payroll journals and timesheets for the period July
28, 2014 to May 31, 2017 for each employee who opted into this
collective action by filing a consent to sue. ECF No. 71.
10
violations that occurred beyond May 2017 extended to other
plaintiffs.
Pls.’ Mot., ECF No. 298 at 14.
While it is unclear when plaintiffs became aware of
the exhibit that led to the allegation that Loved Ones continued
to violate the overtime pay provisions of the FLSA after May 31,
2017, plaintiffs did not make such an allegation in this case
until the subject motion of June 28, 2019.
In the third amended
complaint, which was deemed filed on January 28, 2019,
plaintiffs allege that Loved Ones changed their pay practices in
May 2017 and that May 2017 was the date of the last FLSA
violation.
Third Am. Compl., ECF No. 264, ¶¶ 24-25.
Additionally, the court finally certified this collective action
on June 10, 2019, pursuant to plaintiffs’ December 12, 2018
motion, and stated that the last date of FLSA violations was May
31, 2017.
ECF No. 293, at 5.
Further, Ms. Mayhew states in her
August 30, 2017 motion for conditional certification and
apparently without any prompting by the defendants: “It is
particularly significant to this motion that Defendants
corrected their illegal pay practices in May 2017.
The FLSA
statute of limitations is now running and for each day that
passes until they sign onto a collection action, unpaid workers
are losing an additional day of overtime wages.”
9.
ECF No. 5, at
The court’s orders of February 23, 2018 and June 10, 2019,
11
in which it conditionally and finally certified the class,
comported with the plaintiffs’ allegation that Loved Ones’ last
FLSA violation was in May 2017.
The wrongful conduct alleged at this stage of the case
affects but one known person, Ms. Harris, who is the plaintiff
in the state court action.
While the facts and causes of action
in the state magistrate court action between Ms. Harris and
Loved Ones are not set forth by the parties, the potential for
some recovery by her in that proceeding lessens the harm of
declining to toll the statute of limitations here.
In view of
the limited known impact of the alleged wrongful conduct, as
well as the late stage of this litigation, the court declines to
toll the statute of limitations.
III. Conclusion
In light of the foregoing, it is ORDERED that
plaintiffs’ motion to toll the statute of limitations be, and
hereby is, denied.
The Clerk is directed to forward copies of this order
to all counsel of record.
ENTER: July 18, 2019
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