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Edwards v. CIS Services, LLC

United States District Court, M.D. Florida, Jacksonville Division

August 28, 2019

Iatrice Edwards, Plaintiff,
v.
CIS Services, LLC, etc., Defendants.

          ORDER

          Patricia D. Barksdale United States Magistrate Judge

         Before the Court in this Fair Labor Standards Act (“FLSA”) case are defense motions to strike three opt-in consents, [1] Docs. 167, 179, and responses in opposition, Docs. 169, 180.[2] The opt-in consents are for Angela Douglas, Doc. 148, Sheri Gower, [3]Doc. 174, and Lisa Brown, Doc. 175.

         FLSA 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. § 216(b).

         FLSA 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 170-71.

         The 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 172.

         This 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).

         The 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.

         Citing 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.

         Rule 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 answer.

         Rule 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.

         Instead, 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).

         There 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.

         When 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)).

         The 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 ...


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