United States District Court, D. Arizona
ORDER
DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE.
Plaintiff
filed this Fair Labor Standards Act (“FLSA”)
collective action on January 9, 2018. (Doc. 1.) Six months
later, he moved for conditional class certification. (Doc.
31.) Both parties requested and received extensions of time
in which to file responsive and reply memoranda. (Docs. 34,
35, 37, 38.) As a result, Plaintiff's motion for
conditional class certification became fully briefed, and
therefore ripe for the Court's consideration, on August
3, 2018. (Doc. 39.) On December 21, 2018, the Court issued an
order granting Plaintiff's motion and conditionally
certifying the following class:
All persons who worked as computer help desk workers (or in
other positions with similar job titled or job duties) and
worked more than 40 hours in a given workweek for Defendant
at any time from three years prior to the filing of this
Complaint through the entry of judgment (“the
Collective Members”).
(Doc. 40.) The Court also directed Defendants to provide
Plaintiff with the names, last known mailing addresses, last
known email addresses, and dates of employment for all
potential class members by no later than January 11, 2019.
(Id.)
As
currently formulated, the conditionally certified class
includes computer help desk workers who performed overtime
work from January 9, 2015 through the present. Defendants,
however, have filed a Motion for Clarification/Modification
of Order Granting Conditional Certification (Doc. 41), in
which they correctly note that the statute of limitations for
each plaintiff who opts-in to an FLSA collective action runs
from the date that he or she files a notice of consent to
join the lawsuit, not the date the complaint was filed. 29
U.S.C. § 256; see also Rose v. Wildflower Bread
Co., No. CV09-1348-PHX-JAT, 2011 WL 208044, at *2 (D.
Ariz. Jan. 20, 2011) (“Under the FLSA, the statute of
limitations for each individual party plaintiff is not tolled
until he or she filed a written consent to opt-in to the
action.”). The FLSA imposes a two-year statute of
limitations for unpaid wage claims, and a three-year statute
of limitations in the case of willful violations. 29 U.S.C.
§ 255(a). Defendants therefore ask the Court to modify
the conditionally certified class to include only those
relevant employees who were employed between January 11, 2016
and the present-representing three years from the date
Defendants are required to provide Plaintiff with a list of
potential class members and their contact
information.[1] Defendants contend that such a limitation
is appropriate at this point to avoid the needless
expenditure of time and resources to notify individuals with
time-barred claims and to potentially litigate those claims.
Plaintiff
does not dispute that the statute of limitations for class
members' claims generally runs from the date those
members opt-in to the action. He argues, however, that the
Court should deny Defendants' request for three reasons:
(1) the statute of limitations should be equitably tolled
because Defendants failed to conspicuously post at the
workplace a notice of the FLSA's requirements, as
required by 29 C.F.R. § 516.4; (2) the statute of
limitations should be equitably tolled beginning June 15,
2018 (when Plaintiff filed his motion for conditional class
certification) to account for the time it took for the Court
to issue a decision on the motion; and (3) it is premature to
narrow the potential class because Defendants can raise these
same arguments at a later stage of the litigation. (Doc. 43.)
Plaintiff's arguments are not persuasive.
To the
first point, the Court acknowledges a split in authority
concerning whether an employer's failure to post at the
workplace a notice of the FLSA's requirements, without
more, equitably tolls the statute of limitations. Both
parties cite cases supporting their positions on this point,
and the Ninth Circuit does not appear to have weighed in on
the issue. This Court, however, does not need to resolve this
legal question at this stage to rule on the pending motion
because Plaintiff has done nothing more than speculate that
Defendants did not post the required notice. Nowhere in his
complaint does Plaintiff allege that Defendants failed to
post the notice, nor was the issue raised in the parties'
Joint Proposed Case Management Plan. (Doc. 18.) Plaintiff
likewise offered no evidence in his response brief to support
this factual assertion. Though Plaintiff cites cases in which
the statute of limitations was tolled because of an
employer's failure to post a required FLSA notice, in all
of those cases the plaintiffs at the very least
alleged those facts. Here, Plaintiff has done
nothing more than speculate in a response memorandum.
To the
second point, the Court finds Plaintiff's contention that
the statute of limitations should be tolled beginning on the
date he filed his motion for class certification to be
meritless. First, this District's Local Rules of Practice
(as well as basic notions of fairness) allowed Defendants to
respond to the motion, and for Plaintiff to reply to that
response. Plaintiff offers no explanation as to why equitable
tolling should apply as of the date he filed his motion for
class certification (June 15, 2018), as opposed to the date
the motion became fully briefed (August 3, 2018). Second, in
most cases a motion seeking substantive relief (as opposed,
for example, to a motion seeking an extension of a deadline
or page limit) will not be ruled on by the Court the very day
it becomes ripe for consideration. The Court has other cases
besides this one on its docket, and even if the Court could
immediately direct its attention to any given motion upon the
filing of the reply memorandum, it reasonably takes time to
review the briefs, conduct legal research, consider and weigh
the issues, reach a decision, write a reasoned order, and
have that order docketed and served on the parties. To the
extent Plaintiff argues that the statute of limitations
should be equitably tolled for at least part of the time that
the Court had the fully briefed motion under advisement, he
fails to identify precisely when that tolling should begin.
That is, if Plaintiff is implying that the Court took too
long after August 3, 2018 to rule, he does not propose how
much time would have been reasonable for the Court to take
considering the issues raised in the briefs and the demands
of the rest of the Court's civil and criminal docket.
Lastly,
Plaintiff's argument that it is premature to narrow the
proposed class is not well-taken. Although Defendants could
raise these issues at a later stage of the litigation, that
would happen only after the expenditure of significant
resources on potentially time-barred claims. Moreover,
nothing would prevent Plaintiff from later moving to modify
the temporal scope of the class if discovery produces
evidence that Defendants failed to post the required FLSA
notice. See Summa v. Hofstra Univ., No. CV
07-3307(DRH)(ARL), 2008 WL 3852160, *6 (E.D.N.Y. Aug. 14,
2008) (rejecting plaintiff's equitable tolling argument
at the conditional class certification stage but leaving open
the possibility that the temporal scope of the class could be
modified “should further discovery prove that FLSA
notices were not posted in accordance with the requirements
of law”). Considering Plaintiff's equitable tolling
argument is, at this point, purely speculative, the Court
finds it more appropriate to narrow the class now while
leaving open the possibility that it may be expanded should
discovery produce evidence to back up Plaintiff's
equitable tolling theory. For these reasons, IT IS
ORDERED that Defendants' Motion for
Clarification/Modification of Order Granting Conditional
Certification (Doc. 41) is GRANTED as
follows:
1. The conditionally certified class is modified to include
all persons who worked as computer help desk workers (or in
other positions with similar job titled or job duties) and
worked more than 40 hours in a given workweek for Defendants
at any time from three years prior to January 11, 2019
through the entry of judgment (“the Collective
Members”).
2. By no later than January 11,
2019, Defendants shall produce the names, last
known mailing addresses, last known email addresses, and
dates of employment for all potential class members.
3. The remainder of the Court's prior order granting
Plaintiffs motion for conditional class certification (Doc.
40) remains operative.
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