Wicke, Jeremy et al v. L&C Insulations, Inc.
Filing
136
OPINION AND ORDER denying 125 Motion for Leave to Amend Complaint; denying as moot 126 Motion to Certify Class under Rule 23; denying as moot 134 Motion to Stay. Signed by District Judge William M. Conley on 10/8/2013. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JEREMY WICKE, COLE KNUDSON,
and SHAWN SIMMONS,
Plaintiffs,
OPINION & ORDER
v.
12-cv-638-wmc
L&C INSULATION, INC.,
Defendant.
In this lawsuit, plaintiffs Jeremy Wicke, Cole Knudson and Shawn Simmons allege
that defendant L&C Insulation, Inc., violated the rights of its employees under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201, and Wisconsin state law by failing to
calculate overtime correctly and to pay for time spent in training, study, class and travel.
The court recently granted defendant’s motion to dismiss plaintiffs’ state law class claims,
finding that these claims substantially predominate over plaintiffs’ individual federal
claims. (9/18/13 Op. & Order (dkt. #124) 7-9 (citing 28 U.S.C. § 1367(c).) Plaintiffs
now seek leave to amend their complaint to add an FLSA collective action, to certify a
collective action under the FLSA and to renew their motion to certify a class under Rule
23.
(Dkt. ##125, 126.) For the reasons that follow, the court will deny plaintiffs’
motion for leave to amend their complaint to assert an FLSA collective action, rendering
moot plaintiffs’ related motion to certify a class under Rule 23 and a collective action
under the FLSA.1
1
Defendant’s motion to stay briefing on class certification and FLSA collective action
conditional certification (dkt. #134) is also rendered moot by this decision.
PROCEDURAL POSTURE
Plaintiff Jeremy Wicke and former plaintiff John Perry filed the original complaint
in this case on August 31, 2012. (Dkt. #1.) After receiving extensions to answer, move
or otherwise respond, defendant L&C Insulation, Inc., filed a motion to dismiss on
November 21, 2012, asserting, among other arguments, that this court should decline to
exercise its supplemental jurisdiction over the state law class claims. (Br. in Supp. Mot.
to Dismiss Original Compl. (dkt. #14) 17-20.)
Defendant’s motion to dismiss was
mooted by plaintiffs’ filing of an amended complaint on December 12, 2012. (Dkt.
#17.) In response to the amended complaint, defendant renewed its motion to dismiss,
again arguing that the court should decline to exercise its supplemental jurisdiction over
any state law class claims. (Br. in Supp. Mot. to Dismiss 1st Am. Compl. (dkt. #30) 5.)
As a result of confusion about the status of pending motions, the court reset briefing on
the motion to dismiss this first amended complaint. Once again, in its amended brief
submitted on March 8, 2013, defendant urged this court to decline to exercise
jurisdiction over plaintiffs’ pendent state law claims. (Def.’s Am. Br. (dkt. #59) 11; see
also Def.’s Reply (dkt. #65) 18.) On March 27, 2013, plaintiffs filed a second amended
complaint adding two new named plaintiffs, while still not asserting any collective action
under the FLSA.
On September 18, 2013, the court granted defendant’s motion to dismiss in part,
declining to exercise supplemental jurisdiction over plaintiffs’ state law class claims. On
September 20, 2013, over one year after plaintiffs initiated this lawsuit and over 10
months after defendant first asserted an argument against the court’s exercise of
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supplemental jurisdiction over the state law class claims pursuant to 28 U.S.C. § 1367(c),
plaintiffs move for leave to amend their complaint to add an FLSA collective action
claim. (Dkt. #125.)
OPINION
Granting plaintiffs’ motion to amend its complaint would necessarily require
amendment to the scheduling order established for this case. As plaintiffs acknowledge
by simultaneously filing a motion for certification of an FLSA collective action, additional
time would need to be built into the schedule to accommodate FLSA’s two-step collective
action process. See Austin v. Cuna Mut. Ins. Soc’y, 232 F.R.D. 601 (W.D. Wis. 2006).
Accordingly, plaintiffs’ motion for leave to amend the complaint requires a showing of
good cause under Fed. R. Civ. P. 16(b)(4).
Plaintiffs fail to offer any reason, let alone good cause, for their failure to allege a
FLSA collective action in a timely manner, beyond their being unaware of the “need” to
raise such a claim before the court found their state law class action claims predominated
over any individual FLSA claim. This does not constitute good cause.
Even if a showing of good cause under Rule 16 were not required, leave is still
“inappropriate” under Rule 15(a) “where there is undue delay, bad faith, dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, or futility of the amendment.” Villa v. City of Chi., 924 F.2d
629, 632 (7th Cir. 1991) (citing Foman v. Davis, 371 U.S. 178, 183 (1962)). Many of
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these factors are present here. While plaintiffs acted swiftly in seeking leave to amend
after the court issued its decision on the motion to dismiss, plaintiffs have been on notice
since at least November of 2012 of defendant’s intent to challenge the court’s exercise of
supplemental jurisdiction over their alleged state law class claims. Nonetheless, plaintiffs
amended their complaint twice without adding an FLSA collective action despite these
challenges.
Perhaps plaintiffs considered defendant’s argument under 28 U.S.C. §
1367(c) to be a losing one, but it was plaintiffs’ choice to bank on the court rejecting
defendant’s argument rather than timely amending the complaint to add an FLSA
collective action and moot the argument.
The court is sympathetic to plaintiffs’ express concern about prejudicing the
putative class members by potentially limiting the period for which they can receive
relief.
Still, this concern does not justify amending the pleading at this stage.
Any
statute of limitations as to the state law class claims would have been tolled, at least
while they were pending in this lawsuit. See Am. Pipe & Construction Co. v. Utah, 414 U.S.
538, 554 (1974) (holding “that the commencement of a class action suspends the
applicable statute of limitations as to all asserted members of the class who would have
been parties had the suit been permitted to continue as a class action”).2
2
The court also rejects plaintiffs’ argument that concerns about a different court
adjudicating state law class claims warrant this court taking up class claims as part of the
present action. This concern would be true anytime the court denies leave to proceed on
a related claim because of undue delay in bringing the amendment.
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ORDER
IT IS ORDERED that:
1) Plaintiffs’ motion for leave to amend their complaint (dkt. #125) is DENIED;
2) Plaintiffs’ motion to certify a class under Rule 23 and a collective action under
the FLSA (dkt. #126) is DENIED as moot; and
3) Defendant’s motion to stay briefing on class certification and FLSA collection
action certification (dkt. #134) also is DENIED as moot.
Entered this 8th day of October, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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