United States District Court, M.D. Florida, Jacksonville Division
Patricia D. Barksdale United States Magistrate Judge
the Court in this Fair Labor Standards Act
(“FLSA”) case are defense motions to strike three
opt-in consents,  Docs. 167, 179, and responses in
opposition, Docs. 169, 180. The opt-in consents are for
Angela Douglas, Doc. 148, Sheri Gower, Doc. 174, and Lisa
Brown, Doc. 175.
allows an employee to sue an employer to recover unpaid
overtime compensation. 29 U.S.C. § 216(b). For
efficiency in resolving claims by multiple employees, FLSA
permits “any one or more employees for and in behalf of
himself or themselves and other employees similarly
situated” to bring a single action. 29 U.S.C. §
216(b); see Hoffmann-La Roche Inc. v. Sperling, 493
U.S. 165, 170 (1989) (explaining purpose of collective-action
provision). FLSA specifies “[n]o employee shall be a
party plaintiff to any such action unless he gives his
consent in writing … and such consent is filed in the
court in which such action is brought.” 29 U.S.C.
specifies no procedures for collective actions, leaving
courts discretion to manage them. Hipp v. Liberty Nat.
Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001). In
doing so, courts must ensure that joining additional
plaintiffs “is accomplished in an efficient and proper
way, ” i.e., “in a manner that is orderly,
sensible, and not otherwise contrary to statutory commands or
the provisions of the Federal Rules of Civil
Procedure.” Hoffmann-La Roche, 493 U.S. at
Eleventh Circuit suggests a two-tiered approach.
Hipp, 252 F.3d at 1218. At the first stage, a court
decides whether employees should receive a notice and an
opportunity to opt-in to the action. Id.
“Court authorization of notice serves the legitimate
goal of avoiding a multiplicity of duplicative suits and
setting cutoff dates to expedite disposition of the
action.” Hoffmann-LaRoche Inc., 493 U.S. at
action is in that first stage. The Court conditionally
certified this action as a collective one and outlined
procedures for joining additional plaintiffs. Doc. 91. In the
conditional-certification order, the Court directed:
“Plaintiffs shall transmit the Notice of Lawsuit
… and Consent to Sue … to potential class
members no later than December 26,
2018.” Doc. 91 at 10 (emphasis in original).
The Court further directed: “Potential class members
shall opt-in no later than February 11,
2019.” Doc. 91 at 10 (emphasis in original).
ensuing notice to potential opt-in plaintiffs warned,
“The Consent Form must be
received by Plaintiffs' Counsel on or
before [February 11, 2019] for you to participate in this
case. If you fail to return the completed consent form to
Plaintiffs' counsel you may not be able to participate in
this lawsuit.” Doc. 56-6 at 4 (emphasis in original).
The consent form sent to potential opt-in plaintiffs
directed, “PLEASE RETURN THIS FORM VIA MAIL OR
FAX BY [FEBRUARY 11, 2019].” Doc. 56-7 at 3
(emphasis in original); see, e.g., Doc. 174 at 2.
Federal Rule of Civil Procedure 12(f), the defendants ask the
Court to “strike” the assertedly late opt-in
consents of Douglas, Gower, and Brown, essentially asking the
Court to not allow them to join this action as opt-in
plaintiffs because of their delay. Docs. 167, 179.
12(f) provides that a court “may strike from a pleading
an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Rule 7(a) defines a
“pleading” as a complaint; an answer to a
complaint, counterclaim, or crossclaim; a third-party
complaint; and (if the court orders one) a reply to an
12(f) does not apply here. An opt-in consent is the written
consent required by FLSA's collective-action provision,
29 U.S.C. § 216(b), not a pleading under Rule 7(a). Even
if an opt-in consent could be construed as a pleading for
that consenting plaintiff (in essence, a copy of the actual
pleading for that consenting plaintiff), a late opt-in
consent cannot be reasonably described as a “redundant,
” “immaterial, ” “impertinent,
” or “scandalous” matter within a pleading.
Rules 1 and 6(b)(1) apply here. Rule 1 provides that a court
should construe and administer the Federal Rules of Civil
Procedure “to secure the just, speedy, and inexpensive
determination of every action and proceeding.”
Fed.R.Civ.P. 1. Rule 6(b)(1) provides that, “When an
act must be done within a specified time, the court may, for
good cause, extend the time: (A) with or without motion or
notice if the court acts, or if a request is made, before the
original time or its extension expires; or (B) on motion made
after the time has expired if the party failed to act because
of excusable neglect.” For an after-the-fact extension,
Rule 6(b)(1) therefore requires a motion showing excusable
neglect. Mathis v. Adams, 577 Fed.Appx. 966, 967
(11th Cir. 2014). Rule 6(b)(1) “applies generally, when
a more precise rule does not govern the situation.”
Perez v. Wells Fargo N.A., 774 F.3d 1329, 1338 n.8
(11th Cir. 2014).
is a “range of possible explanations for a party's
failure to comply with a court-ordered filing
deadline.” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 387 (1993).
“At one end of the spectrum, a party may be prevented
from complying by forces beyond its control, such as by an
act of God or unforeseeable human intervention.”
Id. “At the other, a party simply may choose
to flout a deadline.” Id. at 387-88. “In
between lie cases where a party may choose to miss a deadline
although for a very good reason, such as to render first aid
to an accident victim discovered on the way to the
courthouse, as well as cases where a party misses a deadline
through inadvertence, miscalculation, or negligence.”
Id. at 388.
empowered to forgive late filings because of “excusable
neglect, ” courts are “permitted, where
appropriate, to accept late filings caused by inadvertence,
mistake, or carelessness, as well as by intervening
circumstances beyond the party's control.” See
Id. (interpreting “excusable neglect” in
Federal Rule of Bankruptcy Procedure 9006(b)(1) and observing
that rule is patterned after Rule 6(b)).
issue of whether neglect is “excusable” is
“at bottom an equitable one.” Id. at
395. Considerations include the danger of prejudice to the
non-movant, the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, and
whether the movant acted in good faith. Advanced
Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1325 (11th
Cir. 1996). In a FLSA action, courts also have considered the
remedial purpose of the law. See, e.g., Ruggles v.
Wellpoint, Inc., 687 F.Supp.2d 30, 37 (N.D.N.Y. 2009);
see also Kelley v. Alamo, 964 F.2d 747, 749-50 (8th
Cir. 1992) (“A generous reading, in favor of those whom
congress intended to benefit from the law, is also
appropriate when considering issues of time limits and
deadlines.”); Weckesser v. Knight ...