United States District Court, D. Arizona
Robert P. Cottman, et al., Plaintiffs,
David G. Naskrent, et al., Defendants.
Dominic W. Lanza United States District Judge
before the Court is Plaintiffs' Motion for Leave to File
Late the Revised Consent Form and Opt-In Notice (Doc. 63).
For the following reasons, the Court grants the motion.
background facts of this civil action under the Fair Labor
Standards Act are described in broad strokes in the
Court's Order conditionally certifying a collective
action, pursuant to 29 U.S.C. 216(b), of all delivery drivers
employed by Rosati's Pizza (“Rosati's”)
on or after May 24, 2014. (Doc. 57.) The Court found that
Plaintiffs “submitted declarations . . . that aver that
Defendants did not pay an hourly salary but instead paid
drivers cash per pizza delivered, often resulting in a salary
below minimum wage, ” that the “policy applied to
every delivery driver employed by Rosatti's, ” and
that the affidavits submitted by Defendants “do not
actually serve to rebut the bulk of Plaintiffs'
allegations.” (Id. at 5.) The Court further
found that Plaintiffs introduced sufficient evidence
“to support the allegation that Defendants failed to
compensate drivers for overtime hours worked.”
(Id.) The Court therefore concluded that
“there is sufficient evidence in the record to conclude
that Plaintiffs and potential opt-in plaintiffs were victims
of a single decision, plan, or policy, ” such that it
was appropriate to certify an FLSA collective action.
(Id. at 6 (internal quotation marks omitted).)
However, the Court determined that the applicable statute of
limitations narrowed the group of similarly situated
employees proposed by Plaintiffs-who sought a collective
action for “all current and former delivery drivers of
Defendants who worked at any point from January 1, 2007
through the present date” (Doc. 26 at 2; id.
at Ex. E)-to only those drivers employed by Rosati's on
or after May 24, 2014. (Doc. 57 at 6-7.)
Court noted that Plaintiffs had attached a proposed Notice of
Opportunity to Opt-In to Lawsuit (“Notice”) and
an Opt-In Consent Form (“Consent”) to their
Motion to Certify. (Doc. 57 at 9 (citing Doc. 26 at Ex. E,
F).) Although Defendants had not objected to the contents of
these forms, the Court ordered Plaintiffs to “submit a
revised proposed Notice and Consent form to the Court no
later than October 5, 2018” to incorporate the
substance of the Court's Order, adding that “[t]he
final Notice to potential plaintiffs and consent to become
party plaintiff should be mailed no later than 14 days after
the Court issues final authorization of the Proposed
Notice.” (Id. at 10.)
so good. Unfortunately, Plaintiffs failed to submit their
revised proposed Notice and Consent by the October 5, 2018
deadline. The parties do not dispute that on October 25,
2018, Plaintiffs' counsel telephoned Defendants'
counsel to explain that Plaintiffs' counsel had made some
kind of mistake causing the deadline to lapse unheeded and to
request a stipulation to file the revised forms, and that
Defendants' counsel refused the request. (Doc. 66 at
2-3.) The following day, on October 26, 2018, Plaintiffs'
counsel filed the Motion presently before the Court,
attributing the missed deadline to “a clerical error,
” as the deadline had been “inadvertently
calendered [sic] as October 25 rather than October 5, ”
and taking “personal responsibility for the oversight
of the deadline.” (Doc. 63 at 2.) Defendants filed a
Response opposing the Motion on November 9, 2018 (Doc. 66),
and Plaintiffs filed a Reply on November 16, 2018 (Doc. 67).
6(b)(1)(B) of the Federal Rules of Civil Procedure provides
that “[w]hen an act may or must be done within a
specified time, the court may, for good cause, extend the
time . . . on motion made after the time has expired if the
party failed to act because of excusable neglect.” The
Supreme Court has explained that “excusable neglect,
” in this context, can encompass mistakes and
carelessness: “Congress plainly contemplated that the
courts would be permitted, where appropriate, to accept late
filings caused by inadvertence, mistake, or carelessness, as
well as by intervening circumstances beyond the party's
control.” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 388
the neglect is “excusable” is a flexible
standard, “at bottom an equitable one, taking account
of all relevant circumstances surrounding the party's
omission.” Id. at 395. At a minimum, courts
assessing whether neglect is “excusable” must
consider four factors: “ the danger of prejudice to
the [non-moving party],  the length of the delay and its
potential impact on judicial proceedings,  the reason for
the delay, including whether it was within the reasonable
control of the movant, and  whether the movant acted in
good faith.” Id. Failure to consider all four
factors constitutes an abuse of discretion. Lemoge v.
United States, 587 F.3d 1188, 1192-93 (9th Cir. 2009).
No. single factor is determinative. Bateman v. U.S.
Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000);
Briones v. Riviera Hotel & Casino, 116 F.3d 379,
382 n.2 (9th Cir. 1997).
assessing whether a failure to act was caused by
“excusable neglect, ” a court may not impose per
se rules. Pincay v. Andrews, 389 F.3d 853, 855 (9th
Cir. 2004) (“We now hold that per se rules are not
consistent with Pioneer . . . .”). There can
be “no rigid legal rule against late filings
attributable to any particular type of negligence.”
Id. at 860 (affirming that a paralegal's
calendaring error was “excusable negligence.”).
Even when the reason for the delay is weak, where the
equities favor excusing the negligence, the court must do so.
Bateman, 231 F.3d at 1224-25 (reason for delay was
travel, jet lag, and the time it took to sort through mail).
district court has considered and weighed all four
Pioneer factors, and any other factors it deems
appropriate on a case-by-case basis, the court has broad
discretion to grant or deny the motion. Pincay, 389
F.3d at 859 (“[T]he decision whether to grant or deny
an extension of time . . . should be entrusted to the
discretion of the district court because the district court
is in [the best position] to evaluate factors such as whether
the lawyer had otherwise been diligent, the propensity of the
other side to capitalize on petty mistakes, the quality of
representation of the lawyers . . ., and the likelihood of
injustice if the appeal was not allowed.”).
Court first considers the danger of prejudice to Defendants.
This factor weighs strongly in favor of Plaintiffs because
Defendants suffered no prejudice under the circumstances.
Plaintiffs originally filed proposed Notice and Consent forms
in November 2017 (see Doc. 26-1) and the Court
spelled out, in its September 11, 2018 Order, the narrow
revisions that needed to be made before Plaintiffs were to
refile them (see Doc. 57). Thus, Defendants knew
exactly what the revised filings would contain. Defendants
cannot claim to have altered their strategy in any way due to
the delay. Lemoge, 587 F.3d at 1196 (“The
[non-movant] does not indicate how it would have changed its
strategy . . ., or that a different strategy would have
benefitted [it].”). The only prejudice Defendants can
claim is the loss of a “quick but unmerited victory,
the loss of which ...