Opinion
Case No. 99 C 123
May 16, 2002
MEMORANDUM AND ORDER
The present case involves overtime compensation and retaliatory discharge claims under the Fair Labor Standards Act ("FLSA"). The Court previously denied three motions in this case: John H. Harkins and related persons' ("Plaintiffs") Amended Motion for Judicial Notice regarding the findings of the U.S. Department of Labor; Defendant Showboat Marina Casino Partnership's, and Defendant Harrah's Operating Company's joint Motion for Summary Judgment; and Defendant Riverboat Services, Inc.'s Motion for Summary Judgment. (Ct. Mem. and Order, Jan. 24, 2002.) The Court now has two new motions from Defendants Harrah's and Showboat before it: a renewed motion for partial summary judgment against a number of plaintiffs alleging their overtime wage claims are time-barred and a motion to strike the written consents of four individual and to bar them from being added as party plaintiffs in this matter. The Court GRANTS Defendants' Renewed Motion for Partial Summary Judgment and GRANTS Defendants' Motion to Strike and Bar the proposed persons as plaintiffs.
Background
Plaintiffs were hired by Defendants as marine crew members of a casino riverboat, the M/V Showboat, docked on Lake Michigan in East Chicago, Indiana. Plaintiffs' complaint arises out of the maximum hours provision of the FLSA, 29 U.S.C. § 207(a), which provides for overtime compensation when employees work in excess of forty hours per week. Plaintiffs Harkins and Stofcik filed a suit for back pay on January 12, 1999; they filed an amended complaint on February 3, 1999 to name additional plaintiffs and state the new plaintiffs' claims. On February 11, 1999, thirteen of the fourteen Plaintiffs who were still employed by Defendants were discharged from employment. On March 2, 1999, the terminated Plaintiffs filed a Third Amended Complaint that added another plaintiff and claims for discriminatory discharge under the retaliatory discharge provision of FLSA, 29 U.S.C. § 215(a)(3). On April 21, 1999, Plaintiffs filed a Fourth Amended Complaint and named Showboat as a defendant.
Defendants' Renewed Motion for Partial Summary Judgment Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment. "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on tile, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence that supports his complaint. Id. "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-34 (1986). In determining the existence of any genuine issue of material fact, the court must draw all reasonable inferences in the light most favorable to the non-movant. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
Analysis
Depending upon the particular nature of the alleged violation, the ELSA mandates a two-year or three-year statute of limitations. 29 U.S.C. § 255(a) (the statute of limitations for an action seeking overtime compensation is two years and in cases of willful violation of the FLSA it is three years). In a collective action to recover unpaid overtime wages, the ELSA explicitly establishes no employee shall be a party plaintiff unless the proposed plaintiff provides a written consent to join the suit and that consent is filed with the court. 29 U.S.C. § 216(b). Specifically, Section 216(b) states:
An action to recover [unpaid overtime or minimum wages, or damages for discriminatory discharge] may be maintained against a employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and on behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.Id. (emphasis added).
Therefore, an individual plaintiff's claim for overtime wages commences in a collective action only when both (1) the plaintiff files his or her written consent with the court and (2) the complaint is amended to include the plaintiff and the plaintiff's properly pleaded claim. 29 U.S.C. § 256(a); Fed.R.Civ.P. 8. Until the plaintiff has filed the statutorily-mandated written consent, the plaintiff has not joined the collective action, even if the plaintiff is named in the complaint. Gordon v. Trace Ambulance, Inc., No. 00 C 7912, 2001 WL 587854, at *1 (N.D.Ill. Feb. 23, 2001) ("[N]o individual in a FLSA suit can become a party plaintiff or be bound by a judgment unless she opts into the class by filing a written consent. . . . Without these written consents, [title Plaintiff] is prohibited from maintaining and prosecuting this action on behalf of a class of similarly situated employees."); Songu-Mbriwa v. Davis Memorial Goodwill Indus., 144 F.R.D. 1, 2 (D.D.C. 1992); Groshek v. Babcock and Wilcox Tubular Products Division, 425 F. Supp. 232, 233 (E.D. Wis. 1977) (to become a plaintiff in an FLSA action, each employee was required to file consent forms with the court).
An FLSA collective action is deemed commenced for an individual plaintiff "on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court." 29 U.S.C. § 256(a); see also Songu Mbriwa v. Davis Memorial Goodwill Indus., 144 F.R.D. 1, 2 (D.D.C. 1992) ("Until a plaintiff, even a named plaintiff, has filed a written consent, he has not joined in the class action, at least for statute of limitations purposes."). "Section 256 is expressly conjunctive. it requires that plaintiffs in a collective action, including the named plaintiffs, file a written consent and that suit is not 'commenced' for statute of limitations purposes until such consent is filed." Salazar v. Brown, No. G87-961, 1996 WL 302673, at *10 (W.D.Mich. April 9, 1996); see also Gordon, 2001 WL 587854, at *1, n. 1. Thus, written consents not filed with the complaint do not relate back. See also 29 U.S.C. § 256(b).
In the present case, Plaintiff filed suit "as a collective action under 29 U.S.C. § 216(b) on behalf of the named co-plaintiffs and all other employees similarly situated." (Compl. Counts I and III, ¶¶ 1 (emphasis added).) Further, Plaintiff alleged Defendants "willfully" failed to compensate them for overtime wages, and thus the applicable statute of limitations period is three years. (Compl. Count I, ¶ 8 and Count III, ¶ 3); 29 U.S.C. § 255(a). However, only three plaintiffs (David Williams, Lekesa Hill Hunter and Lisa Hill) who seek overtime wages have filed the requisite written consents to join this lawsuit. Therefore, since the plaintiffs at issue were terminated by February 1999 and the three-year period of limitations for willful overtime violations expired on February 2002, the remaining plaintiffs' claims for overtime wages are now time-barred.
In the absence of written consents, courts have barred collective FLSA actions by named plaintiffs due to the statute of limitations. Gordon, 2001 WL 587854; Salazar, 1996 WL 302673, at *10-12 ("Under any construction of the statute, plaintiffs' claim under the FLSA cannot be characterized as anything other than a collective FLSA action requiring named plaintiffs to file written consents to toll the statute of limitations."); Wertheim v. Arizona, No. 92-453, 1993 WL 603552, at *8 (D.Ariz. Sept. 20, 1993) ("Section 256(a) requires a party named in a [FLSA] complaint to also file a written consent before the statute of limitations ceases to run."); Groshek, 425 F. Supp. at 232, 234; Lombardi v. Altemose Constr. Co., 69 F.R.D. 410, 411 (E.D.Pa. 1975) (the court denied plaintiff's motion to maintain a collective action because no consents were filed with the court); Kulik v. Superior Pipe Specialties Co., 203 F. Supp. 938, 941 (E.D.Ill. 1962) (the court found a named plaintiff attempting to file a collective FLSA claim was required to file a consent to toll the running of the statute of limitations; the filing of the complaint alone was inadequate); contra Schwertfeger v. Village of Sauk Village, No. 99 C 6456, 2000 WL 224746, at *1 (N.D.Ill. Feb.23, 2000) (the court ruled the title plaintiff who filed the FLSA suit was not required to file a written consent).
Plaintiffs' counsel claims Defendant deposed each of the twenty-one plaintiffs and thus cannot now claim surprise or injury by the presence of the plaintiffs who failed to file written consents. Counsel is correct that Defendant was aware of the existence of the possible plaintiffs; however, counsel admitted it was aware of its duty to submit to the Court the written consents of those persons who wished to participate in, and be bound by, the action. Further, Plaintiffs' counsel stated to the Court it had filed these requisite consents.
In the parties' appearance before Magistrate Denlow on March 22, 2000, Defendant stated "we've had a lot of plaintiffs dropping out of this lawsuit" and asked Plaintiffs' counsel to confirm it had filed a Section 216(b) consent to sue for each of the individual plaintiffs, as mandated by Section 216(b). (Tr. of Mot. Hr'g, March 22, 2000; see Pl. Resp. Mot. Partial Summ. J. Ex. A-1.) Plaintiffs' counsel responded this would not be a problem and stated "[t]here are only three plaintiffs that have dropped out. Everybody else has consented to join." Id. The Court asked Plaintiffs' counsel if it had been serving Defendant with copies of the consent to sue. Id. Plaintiff asserted it had submitted "[e]verything" and confirmed "there should be no question as to who had consented and who has not consented." Id. Further, the Court can reasonably conclude Plaintiffs' counsel recognized the need to file both an amended complaint and written consent, since counsel filed the written consents of Williams, Hill and Hunter to join this litigation for the recovery of overtime wages and cited specifically to Section 216(b). In addition, as discussed below, Plaintiffs' counsel recently collected written consents from four additional proposed plaintiffs who wish to join the litigation; such compliance with the Section 216(b) procedures for an individual to opt into collective wage actions acknowledges the mandatory scheme's significance and conclusiveness.
Moreover, the requirement of written consent forms in FLSA litigation serves an important function in actions that often introduce or excuse numerous individual plaintiffs. The purpose of the consent forms is "to make . . . uncertain plaintiffs certain, and actual participants, so that defendants could know the parties and the charges with which they were to be faced." Deley v. Atlantic Box Lumber Corp., 119 F. Supp. 727, 728 (D.N.J. 1954). The FLSA written consent form requirement clearly accommodates employers by making them aware of what allegations they face and from whom the allegations originate. Prior to its amendment by Section 216(b), parties in collective or representative actions brought under the FLSA often approached trial confused or surprised by changing plaintiffs and evolving factual allegations. The clear intent of Section 216(b) was to make class members who wished to participate in, and be bound by, the litigation identify themselves for the benefit of the defendant by formally filing written consents. For instance, in the present matter, proposed plaintiff John Benjamin was named as a plaintiff in this matter on February 11, 1999; on February 22, 1999, he voluntarily withdrew himself as a plaintiff; on April 1, 2002, he filed his written consent to rejoin this matter for the recovery of overtime wages. Mr. Benjamin's history illustrates the need for written consents to provide unambiguous notice and stability in ELSA actions.
Finally, Plaintiff was on notice of the danger Plaintiff faced in failing to file written consents. In its Answer to the Fourth Amended Complaint, Defendant satisfactorily pleaded a statute of limitations defense to warrant a dismissal due to the lack of timely filed consents. See Armstrong v. Rubin, 298 N.Y.S.2d 325, 31 A.D.2d 913 (N.Y.App.Div. 1969) (trial judge erred in Permitting permitted plaintiffs' counsel to file consents nunc pro tunc at trial when counsel had retained the consents in his file and more than two years passed since accrual of the causes). "[T]he limitation [defense) was pleaded in the answer in clear and adequate language sufficient to give the non-filing plaintiffs notice of each and every aspect of that defense, and there was no need whatever specifically to plead the failure to file consents." Id.
The statutory requirement to file a written consent has not been waived in this matter and Plaintiffs' counsel is not somehow absolved of its duties under the FLSA. While "[t]he statutory requirement that named plaintiffs file consents is unusual", it is an explicit statutory mandate. Salazar, 1996 WL 302673, at *11. The FLSA clearly and unambiguously requires plaintiffs to act proactively, i.e. file a written consent; interested and effected individuals must affirmatively enter the litigation by this administrative action.
Plaintiffs' counsel asserts where a FLSA overtime wage complaint is amended to include additional plaintiff's in a collective action under Section 216(b), those plaintiffs need not file separate written consents. Counsel suggests Anderson v. Montgomery Ward, 852 F.2d 1008, 1018-19 (7th Cir. 1988), supports this argument; however, Anderson is inapplicable in the present case. In Anderson, the Seventh Circuit addressed a claim of wrongful termination by a class of plaintiffs who claimed their termination violated the Age Discrimination in Employment Act ("ADEA"). None of the Anderson plaintiffs claimed a violation of the FLSA, nor did they assert unpaid overtime wage claims. Further, the court there primarily analyzed the administrative remedies and procedures mandated in ADEA litigation, pursuant to Title VII of the Civil Rights Act, which are not present here. Id. at 1017-19. Finally, the cases the court relied upon in Anderson are distinguishable and distinct from the present matter. Id. at 1018. Neither Allen v. Atlantic Richfield Co., 724 F.2d 1311 (5th Cir. 1984), nor Morelock v. NCR Corp., 586 D.2d 1096 (6th Cir. 1978), was a collective action and thus the FLSA's requirement for written consents was not an issue. Further, as in Anderson, Morelock was an ADEA action and not an FLSA action. Finally, the Anderson court cited to LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975); however, in LaChapelle, the Fifth Circuit held Section 216(b) precludes pure class actions pursuant to Rule 23 and the plaintiff could not circumvent the FLSA consent requirement by invoking Rule 23 in an ADEA class action. Therefore, Plaintiffs' counsel's reliance on Anderson is misplaced and fails to revive the barred claims.
Defendants' Motion to Strike and Bar
Defendants also have moved to strike the written consents of four individuals (John Benjamin, Mevlina Gonzalez, John Torres and William Torres) and to bar them from being added as party plaintiffs in the present collective action.
On February 20, 2001, discovery closed in this matter. On November 26, 2001, Plaintiffs' counsel filed the written consents of Gonzalez and the Torreses to join the litigation for the recovery of overtime wages; on April 1, 2002, counsel filed the written consent of Benjamin to rejoin this matter. There are no specific factual allegations in the Fourth Amended Complaint concerning any of these consenting plaintiffs because Plaintiffs' counsel never sought or obtained leave from the Court to amend the complaint to include these FLSA claims. Plaintiffs' counsel previously had added numerous individual plaintiffs to this litigation and then amended the complaints to reflect their joinder; however, counsel has not moved for leave to file a Fifth Amended Complaint to add these four individuals and their claims. See Salazar, 1996 WL 302673, at *13-14.
As stated above, Section 216(b) is phrased in the negative, i.e. no individual may be a party plaintiff to a collective action unless he or she files a written consent with the court; the act of filing a written consent alone does not automatically join an individual to the lawsuit. Rather, Section 216(b) operates in conjunction with Rule 8 of the Federal Rules of Civil Procedure and requires the employee to name the individual plaintiff and allege his or her cause of action in the complaint and that individual plaintiff must file a written consent with the court. Fed.R.Civ.P. 8 ("A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment.") The filing of a written consent in and of itself is insufficient to join this lawsuit. "The court emphasizes to plaintiffs' counsel that it is 'necessary' under the Federal Rules of Civil Procedure to plead facts in the complaint regarding the FLSA claims asserted by the prospective parties who filed consents." Salazar, 1996 WL 302673, at *14.
Further, while Plaintiffs' counsel has not indicated a desire to amend its complaint to include these four individuals and their claims, the Court would deny leave to file such a Fifth Amended Complaint. Discovery has been closed for over fourteen months. Summary judgment has already been filed and ruled upon by the Court. Plaintiffs' counsel apparently knows of the need to amend his complaint to reflect added plaintiffs and claims, since he previously had amended the complaint three times to add such relevant and requisite information. This case is on the eve of trial. Thus, an attempt to amend the complaint to join these individuals would be untimely and prejudicial; Plaintiffs' tardiness would unduly prejudice Defendants and require Defendants to engage in additional discovery relating to these new plaintiffs and their claims. See Fed.R.Civ.P. 15(a) (the district court need not allow an amendment when there is undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, or when the amendment would be futile); see also Bethany Pharmacal Co., Inc. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001) (affirming the denial of leave to amend because of undue delay where discovery was closed and defendant had filed its motion for summary judgment); Sanders v. Venture Stores, Inc., 56 F.3d 771, 773-74 (7th Cir. 1995) (leave to amend would force the opposing party to relitigate the dispute on new basis and to endure additional and costly discovery, resulting in undue delay and prejudice); Cleveland v. Porca Co., 38 F.3d 289, 297 (7th Cir. 1994) (affirming the denial of leave to amend because the movants sought to add a new claim after discovery had been completed and the summary judgment motions briefed); Johnson v. Methodist Med. Ctr. of Ill., 10 F.3d 1300, 1303-04 (7th Cir. 1993) (refusing the amendment because it would add new actors and new actions, thus taking the opposing party by surprise, forcing it to perform additional discovery, and essentially requiring it to engage in a new suit on different issues, four years after the original action was filed), cert. denied, 511 U.S. 1107 (1994); Kleinhans v. Lisle Savings Profit Sharing Trust, 810 F.2d 618, 625 (7th Cir. 1987) (finding no abuse of discretion in denying motion to amend complaint where motion was filed after discovery was completed and after defendant had moved for summary judgment, without adequate explanation for the delay); Textor v. Board of Regents of N. Ill. Univ., 711 F.2d 1387, 1391 (7th Cir. 1983); Fry v. UAL Corp., 895 F. Supp. 1018, 1051 (N.D.Ill. 1995).
CONCLUSION
For the above reasons, the Court GRANTS Defendants' Renewed Motion for Partial Summary Judgment. The Court grants summary judgment for Defendants as to the overtime wage claims of Plaintiffs John H. Harkins; Peter Stofcik, Jr.; Wallie Del Toro; Ofelia Cuevas; Ray Giustolisi; Howard Cannon; Michael S. Metevia; Brian J. Sauvey; Daniel T. O'Brien; Kelly B. Williams; Louis E. Kelley; Darrin Benton; Shayn Keeton; Dennis Arnold; Robert Williamson; Nick Rosetta; Tammie Jablonski; and Kevin Struzik.
In addition the Court GRANTS Defendants' Motion to Strike and Bar. The Court strikes the written consents of John Benjamin, Mevlina Gonzalez, John Torres and William Torres and bars them from being added as party plaintiffs in the present case.