Opinion
Civil Action 20-cv-00099-DDD-STV
01-27-2022
MARTIN J. FLANNERY, Plaintiff, v. BOXER F2, L.P., Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak, United States Magistrate Judge
This matter comes before the Court on Plaintiff's Motion for Permission to Amend the Complaint [#99], Defendant's First Motion for Partial Summary Judgment [#78], and Defendant's Second Motion for Partial Summary Judgment [#88] (the “Motions”). The Motions have been referred to this Court. [## 82, 89, 100] The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that Defendant's First Motion for Partial Summary Judgment [#78] and Defendant's Second Motion for Partial Summary Judgment [#88] be GRANTED and that Plaintiff's Motion for Permission to Amend the Complaint [#99] be DENIED.
I. MOTION TO AMEND
This Fair Labor Standards Act action was initiated on January 13, 2020. [#1] Plaintiff filed amendments to his Complaint on March 16, 2020; April 24, 2020; July 6, 2020; and August 24, 2020. [## 7, 10, 14, 16] On January 12, 2021, this Court entered a Scheduling Order, which set the deadline for amendment of the pleadings as January 31, 2021. [#43]
On October 29, 2021, Plaintiff filed the instant Motion for Permission to Amend the Complaint. [#99] Defendant filed a response [#102] and Plaintiff filed a reply [#110].
Plaintiff initially filed his Motion for Permission to Amend the Complaint on October 7, 2021. [#95] That motion was denied without prejudice for failure to comply with this Court's Local Rules. [#97]
A. Legal Standard
After the deadline for the amendment of pleadings established by a scheduling order has expired, a party seeking leave to amend “must demonstrate (1) good cause for seeking modification under Fed.R.Civ.P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard” for amending pleadings. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014)).
Federal Rule of Civil Procedure 16(b)(4) allows modification of a scheduling order “only for good cause and with the judge's consent.” “Demonstrating good cause under the rule ‘requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.'” Strope v. Collins, 315 Fed.Appx. 57, 61 (10th Cir. 2009) (quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006)); see also Lehman Bros. Holdings Inc. v. Universal Am. Mortg. Co., 300 F.R.D. 678, 681 (D. Colo. 2014).
“In practice, this standard requires the movant to show the scheduling deadlines cannot be met despite [the movant's] diligent efforts.” Gorsuch, Ltd., 771 F.3d at 1240 (alteration in original) (quotations omitted). “Rule 16's good cause requirement may be satisfied, for example, if a plaintiff learns new information through discovery or if the underlying law has changed.” Id. On the other hand, “[i]f the plaintiff knew of the underlying conduct but simply failed to raise tort claims, . . . the claims are barred.” Id.
Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court is to freely allow amendment of the pleadings “when justice so requires.” The grant or denial of an opportunity to amend is within the discretion of the Court, but “outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kemer, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
B. Analysis
The instant Motion was filed on October 29, 2021 [#99]-nine months after the January 31, 2021 deadline for amendment of pleadings [#43]. Accordingly, Plaintiff must demonstrate that his proposed amendments satisfy both the good cause requirement of Rule 16(b)(4) and the Rule 15(a) standard for amending pleadings.
Plaintiff has attached his proposed amended complaint to the Motion. [#99-2] The proposed complaint appears to add claims for “Slander, Libel, Fraud and Perjury in unemployment hearings against Plaintiff” and “Slander[ing] Plaintiff to prospective employers after leaving their employ.” [## 99-1 at 7-8; 99-2 at 5-6]
As explanation for the delay in seeking an amendment of the Complaint, Plaintiff states:
Plaintiff has recently learned, in the last two weeks in conference calls from the Pro Se Clinic attorney's recommendations, that there are significant damages from the Slander, Libel, Perjury, Fraud and the forging of documents significantly financially the past earned monies and moving forward with new employers or running his own business.[#99 at 1] But Plaintiff does not explain why he waited nearly two years to contact the Pro Se Clinic to discuss his claims. Indeed, this Court advised Plaintiff that he may qualify for assistance from the Federal Pro Se Clinic-and provided him contact information for the Clinic-on at least three occasions: January 14, 2020; March 24, 2020; and March 1, 2021. [## 4, 9, 55]
Plaintiff also appears to take issue with certain aspects of the discovery process in this matter, but it is unclear to the Court how that relates to Plaintiff's delay in requesting amendment of the pleadings. [See #99 at 1]
Plaintiff also states-in his reply-that “[o]nly recently did the Plaintiff become aware the Defendant[] had continued to damage the plaintiff far beyond the Theft of wages earned and tips rightfully earned.” [#110 at 1] But it appears that Plaintiff was aware of the facts underlying his proposed new claims prior to the expiration of the deadline to amend the pleadings. In particular, Plaintiff's claims related to the Colorado Department of Labor hearing were asserted in a previous version of the Complaint and were then dismissed by Senior United States District Judge Lewis T. Babcock. [#17] Plaintiff's proposed claim for slander also relates to actions dating as far back as 2018. [See #99-2 at 3]
The Court additionally notes that the substance of Plaintiff's claims for perjury have not changed, and thus it appears that he has not cured the deficiencies identified by Judge Babcock. [See #17]
Plaintiff does not identify any barrier to his acquisition of the facts related to these claims and thus fails to demonstrate good cause for why the proposed claims could not have been asserted prior to the expiration of the deadline for the amendment of pleadings. See Gorsuch, Ltd., 771 F.3d at 1240 (“If the plaintiff knew of the underlying conduct but simply failed to raise tort claims, . . . the claims are barred.”); State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984) (“Where the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial.”); Turan v. Edgar, No. 13-cv-01827-LTB-MJW, 2015 WL 729349, at *3 (D. Colo. Feb. 19, 2015) (finding no good cause for proposed amendment where plaintiff “identified no newly discovered facts to justify her delay in seeking amendment, only ‘newly discovered legal theories'”).
Plaintiff states in his reply that “[j]ust a month ago” he spoke with a former coworker and friend and “Plaintiff has this witness to the yearly continued Slander against the Plaintiff continuing possibly to this day.” [#110 at 1] But, again, this does not explain why Plaintiff could not have acquired information from this individual through diligent efforts prior to the expiration of the deadline.
To the degree that Plaintiff argues that the alleged slander is ongoing-and thus amendment is appropriate on that ground-this argument too fails. As an initial matter, Plaintiff did not present this argument in his Motion, and this Court is not bound to consider arguments raised for the first time in a reply. United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) (“[A]rguments raised for the first time in a reply brief are generally deemed waived.”). Moreover, Plaintiff's proposed amended complaint does not contain any facts related to ongoing or recent slander. [See generally #99-2; see also id. at 3 (stating only that “[f]or all the Plaintiff knows the Defendants could be Slandering him to this day.”)]
Even if Plaintiff had been able to demonstrate good cause under Rule 16 for his untimely filing, the Motion should still be denied pursuant to Rule 15. Initially, the Court notes that Plaintiff may have unduly delayed in bringing this amendment. As detailed above, Plaintiff has not explained when he obtained information about the new claims, or why he did not consult with the Federal Pro Se Clinic earlier. Moreover, although proceeding pro se, Plaintiff has demonstrated that he understands how to request extensions of case deadlines. [See ## 48 (request by Plaintiff for extension of case deadlines); 57 (request by Plaintiff for extension of time to respond)]
In any event, allowing amendment at this late date would cause Defendant undue prejudice. Discovery has been completed [#43 (setting discovery deadline as July 15, 2021)] and dispositive motions have been filed [## 43 (setting dispositive motions deadline as August 1, 2021); 78 (Motion for Summary Judgment); 88 (Motion for Summary Judgment)]. Adding new claims nearly two years into this action would essentially begin this case anew. Doing so at this stage of the litigation would unduly prejudice Defendant. Krumme v. WestPoint Stevens, Inc., 143 F.3d 71, 88 (2d Cir. 1998) (affirming district court's denial of a motion to amend as the case “was near resolution and discovery had been completed”); Mohammed v. Holder, No. 07-cv-02697-MSK-BNB, 2013 WL 4949282, at *6 (D. Colo. Sept. 13, 2013) (finding that allowing amendment would result in undue burden on defendants where “[d]iscovery of the plaintiff's individual claim is substantially complete, and the matter is poised for the filing of dispositive motions and, if appropriate, a trial setting, ” and “allow[ing] the requested amendment would greatly expand the issues presented under the existing complaint” (emphasis omitted)).
Thus, for the reasons stated above, the Court respectfully RECOMMENDS that Plaintiff's Motion for Permission to File Amended Complaint [#99] be DENIED.
II. MOTIONS FOR SUMMARY JUDGMENT
The Court thus turns to Defendant's Motions for Summary Judgment. On June 14, 2021, Defendant filed its First Motion for Partial Summary Judgment seeking to dismiss Plaintiff's FLSA claims regarding paychecks issued to Plaintiff from August 5, 2016 to December 23, 2016, and arguing that those claims are time-barred by the FLSA's statute of limitations. [## 78 at 2; 78-1 at 3] Plaintiff has filed a response [#80] and Defendant has filed a reply [#83]. Because Plaintiff did not include a separate statement of facts in his response, as required by the Court's Practice Standards, on July 15, 2021, the Court ordered Plaintiff to file a supplement to his response. [#84] Plaintiff then filed a document labeled “Plaintiff's Addendum Secondary Response to Defendants Motion For Partial Summary Judgment” (“Plaintiff's Addendum”) which still did not include a separate statement of facts. [#85] Plaintiff's Addendum purported to dispute “Defendant's claim[s].” [Id. at 2-5] But rather than providing evidence that could challenge Defendant's allegedly undisputed facts, Plaintiff merely stated that his claims are subject to equitable tolling and that Defendants are committing “Continuing Default.” [Id.]
On July 27, 2021, Defendant filed its Second Motion for Partial Summary Judgment, seeking to dismiss Plaintiff's claim for unpaid wages from the paycheck issued on January 6, 2017, and arguing that Plaintiff's claim for this paycheck is also time-barred by the FLSA's statute of limitations. [#88 at 2] Plaintiff then filed a document labeled “Plaintiff's Third Response to Defendant[']s Motion for Partial Summary Judgment.” [#92] Defendant filed a reply. [#93]
The undisputed facts are drawn from Defendant's separate statement of facts [## 78; 88], exhibits filed with Defendant's Motions [## 78-1; 88-1], and Plaintiff's responses to the Motions [## 80, 85, 92]. The statements of undisputed facts in Defendant's First and Second Motions are identical, except that the Second Motion contains additional facts regarding the date the Complaint was filed. [Compare #78 with #88] These undisputed facts are supported by evidence submitted by Defendant. [## 78; 78-1; 88; 88-1] Plaintiff did not prepare a separate statement of facts in his responses, nor did he specifically respond to Defendant's statements of facts. And while Plaintiff's Addendum purports to dispute “Defendant's claim[s], ” as indicated above, Plaintiff's support for this dispute merely indicates that Plaintiff's claims are subject to equitable tolling and that Defendants are committing “Continuing Default.” [#85 at 2-5]
Defendant owns and operates the Elevation Hotel and Spa (the “Hotel”) located in Crested Butte, Colorado. [#88 at ¶¶ 3-4] Plaintiff was employed by Defendant to work in the Hotel bar from July 21, 2016, through December 30, 2016. [Id. at ¶¶ 5, 7] During Plaintiff's employment, Defendant issued twelve earning statements to Plaintiff. [Id. at ¶ 12] The earning statements detailed the amount paid to Plaintiff each pay period and the date on which the payment was issued. [Id. at ¶¶ 9, 11, 12] Plaintiff received his first paycheck on August 5, 2016, and received a paycheck every two weeks thereafter until his final paycheck was issued on January 6, 2017. [Id. at ¶¶ 8, 12] Plaintiff alleges that Defendant improperly “changed and removed at least 30 hours” of time worked by Plaintiff each week, thereby depriving Plaintiff of thirty hours of overtime for each week. [#16-1 at 2] Plaintiff further alleges that Defendant improperly withheld a portion of the tips owed to Plaintiff. [Id.]
Plaintiff's paychecks were issued on the following dates: August 5, 2016; August 19, 2016; September 2, 2016; September 16, 2016; September 30, 2016; October 14, 2016; October 28, 2016; November 10, 2016; November 25, 2016; December 9, 2016; December 23, 2016; and January 6, 2017. [#88 at ¶ 12]
On December 30, 2019, Plaintiff mailed his initial complaint in this matter to the United States District Court in Durango, Colorado, via the United States Postal Service Priority Mail. [## 1; 88 at ¶ 16] On the envelope used to mail the Complaint to Durango, the United States Postal Service included an expected delivery date of January 4, 2020. [#1 at 11] The record does not indicate when the Durango Court received the initial complaint. [#88 at ¶ 18] However, on January 9, 2020, the Durango Court mailed the initial complaint to the United States District Court in Denver, Colorado. [## 1 at 12; 88 at ¶ 17] The initial complaint was file stamped by the Denver Court on January 13, 2020, and this action was initiated. [##1; 88 at ¶ 19]
Plaintiff claims that he filed the initial complaint with the Durango Court on December 28, 2019. [#16-1 at 1] However, the envelope filed with the initial complaint indicates it was mailed on December 30, 2019. [#1 at 11]
The operative, Second Amended Complaint (the “Complaint”) was filed on August 24, 2020, and asserts four claims for relief. [#16-1 at 3-4] Claims One and Two allege unpaid compensation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. [Id.] Claim Three asserts that Defendant committed perjury in state administrative proceedings concerning unemployment benefits. [Id. at 4] Claim Four alleges employment discrimination based on gender. [Id.] Upon initial review of the Complaint, Senior United States District Judge Lewis T. Babcock dismissed Claims Three and Four. [#17]
In his responses to the Motions, Plaintiff also alleges slander, libel, fraud, and perjury, and he asserts claims for unemployment benefits. [## 80 at 3; 85 at 2; 92 at 6] However, the only claims identified in the Complaint are those for FLSA violations, sexual discrimination, and perjury. [#16-1 at 3-4] And, as mentioned above, the discrimination and perjury claims have been dismissed. [#17] Plaintiff cannot raise new claims in his summary judgment responses. Peoples v. Long, No. 1:20-cv-02116-RBJ-NYW, 2020 WL 9076288, at *10 (D. Colo. Dec. 16, 2020), report and recommendation adopted 2021 WL 1085424 (D. Colo. March 22, 2021) (stating “neither plaintiff's newly asserted First Amendment claim nor the allegations to support it appear in the complaint, and he cannot amend his pleading through his response to” defendant's motion). And this Court has recommended denying Plaintiff's late effort to amend the pleadings. See Section I supra.
B. Standard of Review
Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact, which the movant may do “simply by pointing out to the court a lack of evidence . . . on an essential element of the nonmovant's claim” when the movant does not bear the burden of persuasion at trial. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998). If the movant carries this initial burden, the burden then shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial.” Id. at 671 (quotation omitted).
“[A] ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury. See Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). In reviewing a motion for summary judgment, the Court “view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the non-moving party.” See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110 (citing Haines, 404 U.S. at 520-21). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang, 525 F.3d at 927 n.1.
C. Analysis
In the instant Motions, Defendant argues that it is entitled to summary judgment on Plaintiff's FLSA claims because those claims are time-barred by the statute of limitations. [## 78, 88] An FLSA claim based upon denial of compensation accrues when compensation was denied. Philips v. Carpet Direct Corp., No. 16-cv-02438-MEH, 2017 WL 121630, at *7 (D. Colo. Jan. 10, 2010); accord Shu Qin Xu v. Wai Mei Ho, 111 F.Supp.3d 274, 277 (E.D.N.Y. 2015) (“A cause of action under the FLSA accrues on the regular payday immediately following the work period for which services were rendered and not properly compensated.”). The FLSA imposes a two-year statute of limitations unless the defendant's violations are shown to be willful, in which case a three-year period applies. See 29 U.S.C. § 255(a). To fall under the three-year statute of limitations period, the plaintiff must show that “the employer either knew or showed reckless disregard for the matter of whether its conduct violated the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). In the Motions, Defendant conducts its analysis using the three year statute of limitations. [## 78 at 9; 88 at 9] Thus, for purposes of this Recommendation, the Court also will evaluate Plaintiff's claims using the FLSA's three-year statute of limitations.
Plaintiff argues for several contradicting statute of limitations dates in his filings. Plaintiff first states that the statute of limitations is dependent on the last filing and hearing date with the Department of Labor. [#16-1 at 2] He then states that the statute of limitations is based on the unemployment appeal verdict. [#80 at 3] Lastly, he argues that the statute of limitations began to run on June 22, 2017. [## 85 at 2; 92 at 3] Plaintiff provides no citations or explanation regarding these dates, and the Court is unable to find any authority stating that any of these dates should be used in this FLSA statute of limitations analysis.
Under the FLSA, “[a]n action is ‘commenced' on the date the complaint is filed” with the court. Coldwell v. Ritecorp Env't Prop. Sol., No. 16-cv-01998-NYW, 2017 WL 1737715 at *11 (D. Colo. May 4, 2017) (citing 29 U.S.C. § 256). In the instant matter, there is a dispute regarding when the Complaint was filed. In the First Motion, Defendant adopts December 28, 2019-the date Plaintiff argues he mailed his initial complaint [#16-1 at 1]-as the date the complaint was filed and conducts its FLSA analysis using that date. [#78 at 2] In the Second Motion, Defendant contends that the Complaint was actually filed on January 13, 2020-the day the Complaint was filed at the United States District Court in Denver-and conducts the FLSA analysis using that date. [#88 at 8-9] The Court will consider each Motion in turn.
1. Defendant's First Motion For Partial Summary Judgment
In the First Motion, Defendant uses December 28, 2019 as the date this action was “commenced” for the purpose of determining whether Plaintiff's claims are barred by the FLSA's statute of limitations. [#78 at 2] Defendant thus argues that Plaintiff's claims based on the paychecks issued between August 5, 2016, and December 23, 2016, are barred by the three-year statute of limitations, which would have run on these claims, at the latest, by December 23, 2019. [See generally #78 at 2] The Court agrees.
Although Defendant uses this date for the purpose of the analysis, it does not concede that this is the accurate filing date, nor does it waive its right to assert a different filing date. [#78 at 2]
Based on this filing date, the only paycheck that falls within the statute of limitations is Plaintiff's final paycheck, issued on January 6, 2017. [#78 at 2] This final paycheck is addressed in Defendant's Second Motion for Partial Summary Judgment, which the Court will discuss infra.
In response, Plaintiff argues that the statute of limitations should be extended for two reasons. [## 85 at 2; 92 at 2-5] First, Plaintiff argues that “Defendant has committed Continuing Default against the Plaintiff extending the statute of limitations from the last action of Continuing Default by Defendants.” [Id.] Plaintiff does not explain what he means by “Continuing Default, ” does not identify the alleged “last action, ” and does not provide any facts or evidence to support his argument. [Id.] Moreover, Plaintiff provides no authority, and the Court knows of no authority, that applies the concept of continuing default to FLSA claims analogous to those in the instant case.
Second, Plaintiff argues that the statute of limitations should be equitably tolled. [## 85 at 2; 92 at 2-5] Under certain circumstances, equitable tolling can be used to pause the running of the statute of limitations for a claim. Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014). “Federal courts have typically extended equitable relief only sparingly.” U.S. v. Clymore, 245 F.3d 1195, 1199 (10th Cir. 2001) (quotation omitted). Thus, the Tenth Circuit has applied equitable tolling in civil actions only “when the defendant's conduct rises to the level of active deception, where a plaintiff has been lulled into inaction by a defendant, and ‘[l]ikewise, if a plaintiff is actively misled or has in some extraordinary way been prevented from asserting his or her rights.'” Id. (quoting Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir. 1996)). A complainant bears the burden to prove circumstances that justify tolling the statute of limitations. Olson v. Fed. Mine Safety and Health Review Comm'n, 381 F.3d 1007, 1014 (10th Cir. 2004) (collecting cases).
Plaintiff's responses fail to make any argument regarding equitable tolling.However, elsewhere in the responses, Plaintiff alleges that Defendant withheld Plaintiff's payroll information until November 1, 2016. [#80 at 2] But Plaintiff does not explain why he then waited more than three years from the date of receiving the payroll information- until December 2019-to file a complaint. Thus, to the degree that Plaintiff is arguing that Defendant's delay in providing him payroll information justifies extending the statute of limitations, Plaintiff's argument fails because he has not shown that he diligently pursued his claims in a timely manner. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (stating courts are “much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.” (citation omitted)). And, other than generally asserting a delay, Plaintiff does not allege facts to suggest that Defendant misled, deceived, or otherwise “lulled [him] into inaction.” Clymore, 245 F.3d at 1199. Accordingly, Plaintiff does not meet his high burden of showing that the statute of limitations should be equitably tolled. Olson, 381 F.3d at 1014.
Plaintiff's entire reference to equitable tolling reads as follows: “Defendant has committed Equitable Tolling against the Plaintiff extending the statute of limitations from the last action of Equitable Tolling by Defendants. As Equitable tolling is a basic legal concept that applies broadly to any and all legal actions, the statute of limitations does not begin until June 22, 2017.” [#85 at 2; see also #92-5]
Indeed, even if the Court were to toll the statute of limitations until Defendant provided Plaintiff with the payroll information on November 1, 2016, this would not help Plaintiff because the Complaint was filed more than three years after that date.
Thus, because Defendant has established that Plaintiff received the paychecks from August 5, 2016 to December 23, 2016 more than three years before the action was commenced-and because plaintiff has failed to establish that “continuing default” or equitable tolling apply-this Court respectfully RECOMMENDS that Defendant's First Motion for Partial Summary Judgment [#78] be GRANTED.
2. Defendant's Second Motion For Partial Summary Judgment
At issue in Defendant's Second Motion for Partial Summary Judgment is whether Plaintiff's final paycheck-issued on January 6, 2017-is time-barred by the FLSA's three year statute of limitations. [See generally #88] To evaluate this argument, the Court must determine when Plaintiff's FLSA action was “commenced.” 29 U.S.C. § 255(a) (setting forth the statute of limitations for FLSA actions and stating that actions are barred if not “commenced” within either the two-year or three-year statutory period).
A civil action is commenced in federal court, by “filing a complaint with the court.” Fed.R.Civ.P. 3; see also Coldwell, 2017 WL 1737715, at *11 (stating that under the FLSA, “[a]n action is ‘commenced' on the date the complaint is filed” with the court”). And a “paper . . . is filed by delivering it: (A) to the clerk; or (B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk.” Fed.R.Civ.P. 5(d)(2). “For statute of limitations purposes, some courts have interpreted Rule 5(d) to make the date the Court Clerk receives the complaint the filing date.” Tanne v. Comm'n of Internal Revenue Serv., No. 2:15-cv-00296-RJS-EJF, 2016 WL 1242986, at *1 (D. Utah Mar. 9, 2016) (emphasis added) (citing Jarrett v. U.S. Sprint Commc'ns Co., 22 F.3d 256, 259 (10th Cir. 1994); Scott v. U.S. Veteran's Admin., 929 F.2d 146, 147 (5th Cir. 1991); Cintron v. Union Pac. R.R. Co., 813 F.2d 917, 921 (9th Cir. 1987)); see generally 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1153 (4th ed.). And courts have held that the receipt date controls regardless of the date the Clerk actually files the complaint. Chavez v. Wackenhut Corr. Corp., No. CIV 08-696 BB/RHS, 2011 WL 13291089, at *2 (D.N.M. Jan. 14, 2011) (stating that if the Complaint was received before the expiration of the limitations period it is timely, “even if the Complaint was not date-stamped until after the limitations period expired”).
Defendant argues that the Complaint should be deemed “received” on the date it was file stamped, January 13, 2020. [#88 at 8] That date is outside of the statute of limitations, which ran on January 6, 2017. [#88 at 9]; see also Philips, 2017 WL 121630, at *7 (claim accrues when compensation denied). Plaintiff does not respond to this argument in any of his briefing, nor does he present argument identifying a different filing date. [See ## 80, 85, 92] This failure alone is sufficient grounds for granting Defendant's Second Motion. See Hinsdale v. City of Liberal, Kan., 19 Fed.Appx. 749, 768-69 (10th Cir. 2001) (affirming summary judgment for defendants on a claim that plaintiff abandoned by failing to address it in his response to defendants' motion for summary judgment); Hutton v. Woodall, 70 F.Supp.3d 1235, 1239 (D. Colo. 2014) (finding claims abandoned at the summary judgment stage when the plaintiff failed to address the defendant's summary judgment arguments).
But even an independent assessment of Defendant's argument does not save Plaintiff's claim, because the evidence before the Court does not create a genuine issue of material fact as to the date the Complaint was received by the Clerk. The Complaint bears a file stamp indicating that it was filed by the Clerk on January 13, 2020. [#1 at 1] Plaintiff presents no evidence to suggest that the Clerk received the Complaint prior to that date. Indeed, although the Complaint was mailed by Plaintiff to the Durango courthouse prior to January 13, 2020, the Clerk's office for the entire District of Colorado is located in Denver, Colorado. Frequently Asked Questions, http://www.cod.uscourts.gov/CourtOperations/ FAQs.aspx#gi2 (last visited Jan. 27, 2022). And the information available on the District of Colorado website explicitly directs filings to be made to the Clerk's office in Denver. Id. Moreover, the envelope in which Plaintiff's Complaint was mailed to Denver bears a return address not for the Clerk's office, but for a magistrate judge's chambers. [#1 at 12] And although a complaint may be filed by delivering it to a judge, the judge must “agree[] to accept it for filing, . . . note the filing date on the paper and promptly send it to the clerk.” Fed.R.Civ.P. 5(d)(2). No. evidence indicates that a judge agreed to accept Plaintiff's Complaint or noted a filing date within the statute of limitations.
The Court takes judicial notice of the procedures for filing a complaint contained on the District of Colorado website. See Fed.R.Evid. 201(b) (stating that judicial notice may be taken of a fact that is “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot readily be questioned”); O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (“It is not uncommon for courts to take judicial notice of factual information found on the world wide web.”); New Mexico v. Bureau of Land Mgmt., 565 F.3d 683, 702 (10th Cir. 2009) (stating courts may take judicial notice of government websites).
Nor does the fact that Plaintiff mailed the Complaint on December 30, 2019 save his claim. Although the District of Colorado recognizes the prisoner mailbox rule, which allows prisoners' complaints to be “deemed filed with the [c]ourt on the date in which the inmate delivers the filing to the prison system” to be mailed, this rule is only applicable to actions filed by incarcerated individuals, not “civil actions commenced by non-incarcerated individuals.” Lash v. Trujillo, No. 04-cv-00868-MSK-BNB, 2005 WL 1924426 at *1-2 (D. Colo. Aug. 10, 2005). Given that Plaintiff is not incarcerated, the mailbox rule is not applicable. [#16 at 2]
Plaintiff does not specifically address his equitable tolling argument to the filing date or argue that the statute of limitations should be tolled from the time the complaint arrived in Durango, and he has therefore failed to satisfy his burden with respect to any such equitable tolling argument. [See #92 at 3 (arguing for equitable tolling only until June 22, 2017)] But even assuming that tolling may apply to the period from January 9, 2020 to January 13, 2020, such tolling does not save Plaintiff's claim because the statute of limitations ran on January 6, 2020, and there is no evidence that the Complaint was received in Durango by that date. Tanne v. Comm'n of Internal Revenue Serv., No. 2:15-cv-00296-RJS-EJF, 2016 WL 1242986, at *2-3 (D. Utah Mar. 9, 2016) (finding that there was no evidence to demonstrate that the Clerk received plaintiffs' complaint prior to April 20, 2015-the day the Clerk mailed plaintiffs a deficiency letter-and, accordingly, holding that the complaint was deemed to be constructively filed on that date); see also Ostuni v. Wa Wa's Mart, No. 3:12-CV-0714, 2012 WL 2154187, at *5-7 (M.D. Penn. June 13, 2012) (finding complaint untimely where plaintiff mailed it to the wrong courthouse, but recognizing that equitable tolling might apply to the period from incorrect submission to the complaint being returned by mail to the plaintiff).
Accordingly, the Court concludes that no genuine dispute of material fact exists as to a filing date of January 13, 2020, and finds that Plaintiff's Complaint is barred by the statute of limitations. The Court therefore RECOMMENDS that Defendant's Second Motion for Partial Summary Judgment be GRANTED.
III. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that:
(1) Plaintiff's Motion for Permission to Amend the Complaint [#99] be DENIED; (2) Defendant's First Motion for Partial Summary Judgment [#78] be GRANTED, (3) Defendant's Second Motion for Partial Summary Judgment [#88] be GRANTED, and (4) Judgment enter in favor of Defendant. 20