holding that the plaintiff, a nurse in an exempt program claiming denial of overtime wages, was not similarly situated to nonexempt nursesSummary of this case from Diaz v. Electronics Boutique of America, Inc.
03 Civ. 3746 (DLC).
August 31, 2004
Michael Shen, Esq., Michael Shen Associates, P.C., New York, New York, for the Plaintiff.
Kristin M. Burke, Esq., Daniel Moreland, Esq., Clifton Budd DeMaria, LLP, New York, New York, for the Defendant Lenox Hill Hospital.
Dean L. Silverberg, Esq., Daniel B. Abrahams, Esq., Susan Gross Sholinsky, Esq., Epstein Becker Green, P.C., New York, New York, for the Defendants Access Private Duty Services, Inc. and Louise Weadock.
OPINION AND ORDER
This Opinion addresses motions brought by plaintiff Eulie Davis ("Davis") to amend her complaint and for class certification. Davis brings this action on behalf of herself and others against defendants Access Private Duty Services, Inc. and Louise Weadock (collectively, "Access") and Lenox Hill Hospital ("Lenox Hill") for a refusal to pay overtime wages, improper wage deductions, and the denial of benefits in violation of the Federal Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and the New York Labor Law ("NYLL"), as well as for unjust enrichment and breach of contract. Davis also asserts an individual claim against the defendants for retaliation under Section 215 of the NYLL.
In a separate Opinion issued today ("Davis I"), Davis' ERISA claim and her claim for violations of the overtime pay provisions of the NYLL were dismissed. Remaining in this action are Davis' purported class claims for unjust enrichment and breach of contract, her collective action claim for violations of the FLSA, and her individual claim for retaliation under the NYLL.
Davis now moves to amend her complaint to (1) add fourteen named plaintiffs; (2) certify a class under Rule 23(b)(3), Fed.R.Civ.P.; and (3) expand her unjust enrichment class action claim to include Access. Davis defines the class as "all persons employed by the defendants as private duty nurses who were denied full compensation in pay and benefits, including overtime premium compensation for all hours worked in excess of forty per week . . . at any time after May 23, 1997," and also seeks to circulate a notice of pendency of an FLSA collective action for these same individuals. For the reasons described below, each of the motions are denied with the exception of the request to circulate a notice of pendency of an FLSA collective action to a sub-group of those whom Davis seeks to represent.
It is assumed that the fourteen plaintiffs are intended to be additional class representatives. In her motion, Davis does not address this issue; the caption on her proposed Amended Complaint, however, identifies the fourteen proposed plaintiffs as bringing their claims "individually and on behalf of others similarly situated."
This Opinion incorporates and assumes familiarity with the facts described in Davis I. Only the facts necessary to understand the parties' arguments in connection with the plaintiff's motions to amend and for class certification will be restated here.
Access is a nursing service that provides private registered nurses ("RNs"), licensed practical nurses ("LPNs") and nurse's aids ("NAs") to healthcare facilities. RNs, LPNs, and NAs possess significantly different levels of training and specialization. An Access employee manual dated March 23, 1995 provides job descriptions and qualifications for each category of private duty nurse. According to the manual, to qualify as an RN, the nurse must have graduated from an accredited school of nursing, possess a "minimum of two years professional experience; one year of which must be in an acute care setting," and have at least one year experience in an area of "special care." The manual explains that, as a general matter, an RN is "a highly qualified healthcare provider, who through educational preparation, possesses a distinct body of knowledge and skills." In contrast, LPNs "work under the supervision of the registered nurse . . . [and] may be assigned to give nursing care which does not require the skill and/or judgment of a registered nurse." An LPN must have "at least one year's current and appropriate experience." The NA need only be a high school graduate, and is qualified to "provide companionship . . . assist with personal hygiene, minor housekeeping and other related supportive tasks to the patient."
"Private duty nurse" is the term used in the industry for RNs, LPNs, and NAs who, because of a doctor's order or a patient's choice, provide care for patients beyond that provided by the regular hospital staff.
In 1994, Lenox Hill contracted with Access to assume certain employer functions, including payment of wages, with respect to all private duty nurses at Lenox Hill. In November 1994, Access announced the implementation of the "Elite Corps" program for interested RNs. The Elite Corps program was not open to LPNs and NAs. According to Access, Elite Corps RNs would be guaranteed a minimum number of shifts per week at a set salary, in exchange for which they would be exempt from the overtime compensation requirements of the FLSA. Elite Corps RNs would also be eligible for extra vacation and other bonuses. See Davis I.
In contrast, non-Elite Corps employees received compensation at the rate of time and one-half for hours worked beyond forty per week.
Despite statements by Access that Elite Corps RNs would be paid a weekly salary, issues of fact remain as to whether the Elite Corps RNs were in fact paid on an hourly basis. See Davis I. It also appears that Elite Corps RNs were subject to the same paycheck deductions as the other private duty nurses. Id. The Elite Corps program was disbanded in December 2003.
In her complaint, Davis alleges she was employed as an RN by Access from November 1983 through December 27, 2001. In her declaration in opposition to this motion she clarifies that she worked as a private duty nurse at Lenox Hill from 1983 until 1994, at which time she joined Access.
Davis commenced this action on May 23, 2003. In her complaint, Davis sought class certification of her state law claims pursuant to Rule 23(b)(2), Fed.R.Civ.P., for all similarly situated persons, including LPNs, RNs, and NAs, who worked at Access at any time after May 23, 1997. Davis also sought to represent herself and all similarly situated Access employees who filed consents to join her FLSA claim.
An initial conference in this action was scheduled for August 22, 2003. The parties requested adjournment of the conference on several occasions so that they might consult with each other on class certification issues. For example, in a letter dated October 9, 2003, Davis asked for another adjournment so that the parties could "discuss whether or not the numerosity prong of a class action would be met in this case."
The initial pretrial conference was held on October 23. The conference principally centered on an evaluation of Davis' class action claim. As a member of the Elite Corps, Davis' employment at Access was subject to policies that were not applicable to non-Elite Corps employees. Concern was expressed over Davis' ability to represent fairly the LPNs, NAs and non-Elite Corps RNs in a class action lawsuit. It appeared, however, based on the facts presented by the parties in their pleadings and at the conference, that a class action brought solely on behalf of the Elite Corps RNs would fail to meet the numerosity requirement of Rule 23(a), Fed.R.Civ.P. Davis' counsel was asked to consider whether a joinder action with other Elite Corps RNs might not be a preferable approach to litigating this case.
At the conclusion of the conference, the Court adopted a joint scheduling order proposed by the parties setting March 26, 2004 as the last day for class discovery. The Court asked the parties to consider the concerns raised at the conference and instructed them to return on December 19 to explore further the class certification issues following initial discovery. The class certification motion was scheduled to be filed on April 23.
At the December 19 conference, Davis' counsel reaffirmed his desire to pursue a class action on behalf of all private duty nurses employed by Access, but agreed to take targeted class discovery to determine whether all private duty nurses were similarly situated. The defendants were ordered to produce payroll records and the parties were ordered to make certain witnesses available for depositions. The parties were reminded that March 26, 2004 was a firm date for the close of class discovery.
In one of several interrogatories served on Davis during the class discovery period, the defendants asked her to identify "all other similarly situated plaintiffs who have signed an `opt in' election . . . or who may be joined to this action, including companions [i.e., Nurse's Aids]." Davis did not identify any NAs. On the last day of class discovery, the defendants deposed Davis on the class certification issues. At her deposition, Davis indicated that all putative class members who had signed notices to join the litigation had been or were currently members of Access' Elite Corps.
On February 5, 2004, Access sought leave to file and filed an Amended Answer. Davis did not oppose the motion. Access' Amended Answer adds a counterclaim for defamation arising from documents produced by Lenox Hill during discovery.
On March 31, after the close of class discovery, Davis filed the instant motion to amend her complaint. Davis asserts that her primary incentive in filing this motion is to give all members of the class bringing unjust enrichment and breach of contract claims the opportunity to have their claims relate back to the date on which Davis filed this action. According to Davis, "the main difference for prospective plaintiffs between amending the complaint and filing a separate complaint and then consolidating, would be the additional time that the prospective plaintiffs would have on their claims, other than under the FLSA, because their claims would relate back to the filing date of Ms. Davis' original complaint."
On April 27, Davis filed a motion for class certification pursuant to Rule 23(b)(3), Fed.R.Civ.P. Davis states that she contacted Access and Lenox Hill on April 27 and 28, respectively, to ask whether they wished to conduct class discovery on the proposed new plaintiffs. The defendants declined. On May 4, the defendants moved for judgment on the pleadings and/or summary judgment on all of Davis' claims. That motion is addressed inDavis I. Discussion
A. Motion to Amend
Davis seeks to (1) add fourteen named plaintiffs; (2) add a Rule 23(b)(3) basis for class certification; and (3) expand her unjust enrichment class action claim to include Access. Of the fourteen proposed new plaintiffs, seven are RNs who worked in the Elite Corps at least part of their time at Access; one is an RN who never worked in the Elite Corps; five are NAs and one is an LPN.
Davis claims that she contacted the defendants on February 17 and again on March 15 to "discuss with them the major changes, including additional plaintiffs and different basis for class certification." Davis asked the defendants to stipulate to the amended complaint, but the defendants refused.
Once a responsive pleading has been served, a party may amend its pleadings "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Rule 15(a), Fed.R.Civ.P. Courts may refuse to grant leave to amend on grounds such as undue delay or prejudice, bad faith, or futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). An amendment causes undue prejudice where it would "(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction." Block v. First Blood Assocs., 988 F.2d 344, 350-51 (2d Cir. 1993); see also Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 283 (2d Cir. 2000).
Davis has not shown that her motion to amend is timely, or that amendment of her claims would not unfairly prejudice the defendants. Class discovery has closed. Davis waited until five days after the close of class discovery to file her motion to amend the complaint and to add seven named plaintiffs who are not Elite Corps RNs. There is no justification for this delay. Davis has been aware since the filing of this lawsuit of the obstacles facing her class claims. Both the defendants and the Court alerted Davis to the hurdles she faced in meeting the numerosity requirement for a class action on behalf of the Elite Corps RNs, and in meeting the typicality and commonality requirements for a broader class if she were the sole named plaintiff. The defendants raised these issues several times before the first court conference; these same concerns were reiterated at the October 24 and December 19 conferences.
The defendants have not had an opportunity to take class discovery of the fourteen new named plaintiffs, and in particular the seven who could represent RNs who were not in the Elite Corps, LPNs and NAs. According to the defendants, class discovery confirmed that Davis could only properly assert claims, if at all, on behalf of present and former Elite Corps RNs. Although asked on numerous occasions about her plans to join other Access employees to her action, Davis consistently represented, including in her deposition and in her answer to an interrogatory, that all putative class members who had submitted notices to join her lawsuit were RNs who were or had been members of Access' Elite Corps. The defendants therefore limited the scope of their class discovery to that potential class, which consisted of less than twenty Elite Corps RNs over the last six years. Had Davis timely filed her motion to amend, the scope of class discovery could have been significantly broader.
Davis' purported class action was originally filed pursuant to Rule 23(b)(2), which raises significantly different issues with respect to the propriety of class certification. A class may be certified under Rule 23(b)(2) if the defendants have acted or refused to act on grounds generally applicable to the class, "thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Rule 23(b)(2), Fed.R.Civ.P. In contrast, class certification under Rule 23(b)(3) requires a finding that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Rule 23(b)(3), Fed.R.Civ.P.
Accordingly, Davis has not shown that her motion to amend the complaint is timely, or that granting it would not cause unfair prejudice to the defendants. Davis' proposed amendments would change the nature of the claims in this case and would require the defendants to "expend significant additional resources to conduct discovery and prepare for trial." Block, 988 F.2d at 350-51.
B. Rule 23 Class Certification
Davis does not identify the claims for which she seeks class certification under Rule 23(b)(3). As described below, collective actions pursuant to the FLSA are governed by a different legal standard than class actions brought under Rule 23. It will be assumed that Davis' motion is directed at her non-FLSA claims, specifically her unjust enrichment and breach of contract claims.
As explained in the discussion of the requirements for class certification that follows, Davis cannot represent a class that includes employees other than Elite Corps RNs, and there are too few Elite Corps RNs to justify certification of a class. Even assuming that Davis had wished to preserve the basis under which she originally sought class certification of her non-FLSA claims, that is, Rule 23(b)(2), certification on that basis would be denied for her failure, inter alia, to meet the threshold requirements of Rule 23(a), Fed.R.Civ.P.
In her motion for class certification, Davis argues only that the purported class meets the requirements of Rule 23(b)(3). She makes no arguments relating to class certification under Rule 23(b)(2).
Certification of a Rule 23(b)(2) class would also be denied for her failure to meet the specific requirements of Rule 23(b)(2). To certify a class under Rule 23(b)(2), a court must find that the equitable relief sought by the plaintiff predominates over any claims for monetary relief. Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 164 (2d Cir. 2001). In making this assessment, a court should satisfy itself that "(1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits." Id. Davis' predominant claim in this action is for the recovery of unpaid benefits. She has not claimed that she would seek declaratory relief in the absence of any monetary recovery. Therefore, this action may not be maintained under Rule 23(b)(2). See Spann v. AOL Time Warner, Inc., 219 F.R.D. 307, 322 (S.D.N.Y. 2003).
1. Rule 23(a)
A plaintiff seeking certification of a class must demonstrate that the proposed class action fulfills the four requirements of Rule 23(a). See In re Visa Check/MasterMoney, 280 F.3d 124, 132 (2d Cir. 2001). Rule 23(a) states that class members may act as class representatives only if
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses or the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.See Rule 23(a), Fed.R.Civ.P. In reviewing a motion for class certification, the question is not whether the plaintiff has "stated a cause of action or will prevail on the merits, but whether the requirements of Rule 23 are met." Eisen v. Carlisle Jacquelin, 417 U.S. 156, 178 (1974) (citation omitted).
To satisfy the numerosity requirement under Rule 23(a), a plaintiff must show that joinder is "impracticable," not that it is "impossible." Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Numerosity is presumed when a class consists of forty or more members. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
Davis' putative class consists of all former and present private duty nurses who worked at Access after May 23, 1997. As will be discussed, Davis cannot adequately represent such a class. If the class is limited to those Access employees who are similarly situated to Davis — that is, RNs who were members of Access' Elite Corps program — approximately twenty Access employees would be eligible to join this class action. Davis has not shown that joinder is impractical.
Davis contends that the number may be as high as thirty-one.
The commonality requirement of Rule 23(a) requires a plaintiff to show that the action raises an issue of law or fact that is common to the proposed class. Robinson, 267 F.3d at 155;Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (per curiam). The breach of contract and unjust enrichment claims advanced by Davis do not present common issues of law or fact with respect to members of the purported class. As proposed, the class would encompass Elite Corps RNs, non-Elite Corps RNs, LPNs, and NAs, categories of employees whose jobs were governed by different pay and benefits policies. The gravamen of Davis' claims is that Access willfully and falsely informed her and other members of the Elite Corps RNs that they were exempt from the overtime provisions of the FLSA, and that they made certain guarantees with respect to bonuses and minimum work hours that they never intended to fulfill. At most, Davis' claims implicate common issues of law or fact only with respect to the RNs who participated in Access' Elite Corps program.
The typicality requirement of Rule 23(a) "requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability."Robinson, 267 F.3d at 155; Marisol, 126 F.3d at 376. Class certification may not be granted "where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation." Baffa v. Donaldson, Lufkin Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000) (citation omitted).
Again, Davis' claims are not typical of those of the proposed class. According to Access, Elite Corps RNs — but not other RNs or LPNs and NAs — were exempt from the overtime provisions of the FLSA. Elite Corps RNs were also guaranteed minimum work hours and accrued certain vacation benefits at a faster rate than other Access employees. Former members of the Elite Corps program thus possess materially different claims and are subject to unique defenses such that Davis' claims and the interests of a broader class than one composed solely of Elite Corps RNs are not "so inter-related that the interests of the class members will be fairly protected in their absence."Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (citation omitted).
To satisfy the adequacy requirement of Rule 23(a), a class representative must "possess the same interest and suffer the same injury as the class members." Amchem Prods., 521 U.S. at 625-26. The adequacy criteria tend to merge with the commonality and typicality requirements, although courts chiefly inquire whether the named plaintiff's interests are antagonistic to those of the class, and whether class counsel is competent. See Amchem Prods., 521 U.S. at 626 n. 20; General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13 (1982); Baffa, 222 F.3d at 60.
Davis does not possess the same interests and has not suffered the same injuries as other members of the purported class. She has not shown that she would be an appropriate representative of her broadly defined class either at trial or in settlement discussions. Given this deficiency, it is unnecessary to address the defendants' assertion that Davis also faces a counterclaim for defamation that will present her with unique litigation issues and undermine her ability to serve as a class representative. The fact that the defendants have not disputed the competency of class counsel is not, standing alone, sufficient to satisfy the requirements of Rule 23(a).
Had the other requirements of Rule 23(a) been met in this action, it would be necessary to address the competency of putative class counsel.
In sum, Davis' motion to certify a Rule 23(b)(3) class for her non-FLSA claims is denied. As a consequence, her subsidiary motion to expand the class claim for unjust enrichment to include Access is also denied.
C. Collective Action Pursuant to the FLSA
1. Class Members
Davis also seeks to bring this action on behalf of herself and others who were denied overtime compensation in violation of the FLSA. The consent procedures of the FLSA permit one or more employees to pursue an action in a representative capacity for "other employees similarly situated." 29 U.S.C. § 216(b) ("Section 216(b)"). Section 216(b) states, in relevant part, that an action to recover damages under the FLSA:
may be maintained against any employer . . . 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.29 U.S.C. § 216(b) (emphasis added). In contrast to class actions brought pursuant to Rule 23(b)(3), a "collective action" to recover benefits under the FLSA requires similarly situated class members to opt-in to the case. See id. The requirements of Rule 23 do not apply to FLSA actions and no showing of numerosity, commonality, typicality and adequacy of representation need be made. See Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81, 84 (S.D.N.Y. 2001);Foster v. The Food Emporium, No. 99 Civ. 3860 (CM), 2000 WL 1737858, at *1 (S.D.N.Y. Apr. 26, 2000). In order to maintain a collective action under the FLSA, a named plaintiff bears the burden of showing that she is sufficiently "similarly situated" to the opt-in plaintiffs such that the case may proceed as a collective action. Foster, 2000 WL 1737858, at *1. The test is whether there is a "factual nexus" between the claims of the named plaintiff and those who have chosen to opt-in to the action. Id.
"Although cases frequently make loose reference to certifying [FLSA] collective actions, neither the Federal Rules nor the FLSA requires that a motion for certification be made. Nevertheless, a district judge should be concerned about fair notice and other protections for parties who are not directly before the court." Ansoumana, 201 F.R.D. at 84 n. 1 (citation omitted).
Apart from Davis, twelve Access employees have filed opt-in notices with the Clerk of Court. Of the twelve, only seven are RNs who worked in the Elite Corps during at least part of their employment at Access. As already discussed, the claims asserted by Davis in this lawsuit are representative only of other Elite Corps RNs. Davis has not met her burden of showing that she is similarly situated to Access employees who did not participate in the Elite Corps. Davis can only present a "factual nexus" between her claims and those of other Elite Corps RNs. Accordingly, an FLSA collective action will only be authorized for Elite Corps RNs and only the seven Elite Corps RNs who have filed opt-in notices will be permitted to pursue their FLSA claims in this lawsuit. Davis will be permitted to send a notice of pendency of the collective action to Elite Corps RNs.
Although Davis seeks to add fourteen plaintiffs to this action, only twelve current and former Access employees have filed consent forms to join this lawsuit. They are:
— Isidora A. Gallego, Elite Corps RN, Access employee from 1987 to the present, opt-in filed on February 13, 2004.
— Tracey M. Glazebrook, Elite Corps RN, Access employee from June 1987 to the present, opt-in filed on February 13, 2004.
— Claudette Marshall, Elite Corps RN, Access employee in 1994, and from 1996 to 2001, opt-in filed on March 2, 2004.
— Anne V. McKnight, Elite Corps RN, Access employee from June 1987 to the present, opt-in filed on February 13, 2004.
— Merle Moore, Elite Corps RN, Access employee from 1986 to the present, opt-in filed on February 19, 2004.
— Misty Scalfarotto, Elite Corps RN, Access employee from May 1974 to August 2002, opt-in filed on March 2, 2004.
— Hyacinth Wiggan-James, Elite Corps RN, Access employee from 1980 to the present, opt-in filed on February 13, 2004.
— Mary Shortt, Non-Elite Corps RN, Access employee from 1991 to the present, opt-in filed on March 12, 2004.
— Ruth Rapada, LPN, Access employee from 1980 to the present, opt-in filed on April 1, 2004.
— Greta Blackman, NA, Access employee from September 2001 to October 2002, opt-in filed on April 1, 2004.
— Johnnie L. Brown, NA Access employee from October 1994 to July 2001, opt-in filed on April 1, 2004.
— Telethia McKenzie, NA, Access employee from may 1004 to March 2003, opt-in filed on April 1, 2004.
Should other Elite Corps RNs file timely consents to join this lawsuit, they will also be permitted to pursue FLSA claims.
The defendants contend that the number of Elite Corps RNs are too few and the program too old to justify the expense and burden of notification. They point out that there were only twenty Elite Corps RNs and that the program ceased in 2003. Whether large or small, the group of eligible plaintiffs have a right to notice of these claims and an opportunity to join this action.
2. Date of Commencement of Action
Defendants argue that this action is governed by the FLSA's two-year statute of limitations and therefore is barred. According to the defendants, Davis' failure properly to file her consent to join the instant action until December 4, 2003 bars all but 23 days of her FLSA claim. Defendants further maintain that even those 23 days are barred by her failure to serve the defendants until May 23, 2004.
Although the defendants briefly argue in their opposition to the motion for class certification that the majority of Davis' FLSA claim is barred by the statute of limitations, the defendants' principal arguments in this regard are contained in their motion for judgment on the pleadings and summary judgment, which is addressed in Davis I. A determination of the date on which this action is deemed to have commenced, however, is critical to Davis' motions to amend and for certification of a FLSA collective action. As such, the statute of limitations issue is addressed in this Opinion.
Davis' employment with Access was terminated on December 27, 2001.
In their reply to this motion, the defendants state that, by facsimile dated May 23, 2004, Davis finally provided to defendants "what purports to be the Plaintiff's consent." The defendants argue, however, that the purported consent "contains no case caption and it is not clear what action Plaintiff is consenting to join." To date, Davis has not filed with the Clerk of Court an affidavit of service with respect to her consent form.
As an initial matter, whether this action is governed by a two or three year statute of limitations is an issue of fact. Although the statute of limitations for violation of the FLSA is ordinarily two years, it is extended to three years for willful violations. 29 U.S.C. § 255(a); Brock v. Superior Care, Inc., 840 F.2d 1054, 1061 (2d Cir. 1988). A willful violation exists when an employer knew or recklessly disregarded the fact that its conduct violated the FLSA. McLoughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988); Brock, 840 F.2d at 1062. "Willfulness cannot be found on the basis of mere negligence or `on a completely good faith but incorrect assumption that a pay plan complied with the FLSA in all respects.'" Boekemeier v. Fourth Universalist Society in City of New York, 86 F. Supp. 2d 280, 288 (S.D.N.Y. 2000) (citing McLaughlin, 486 U.S. at 135). Whether the defendants knew or recklessly disregarded the fact that a failure to pay Elite Corps RNs overtime violated the FLSA — thereby extending the statute of limitations to three years — is a disputed issue of fact and must be decided by a jury.
Regardless of whether a two or three year statute of limitations applies to this case, the date upon which Davis' action was commenced must be resolved. An action for loss of overtime pay in violation of the FLSA
shall be considered to be commenced on the date when the complaint is filed; except that in the case of a collective or class action. . . . it shall be considered to be commenced in the case of any individual claimant —
(a) 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 in which the action is brought; or
(b) if such written consent was not so filed or if his name did not so appear — on the subsequent date on which such written consent is filed in the court in which the action was commenced."29 U.S.C. § 256 (emphasis supplied). Somewhat surprisingly, Davis did not file her consent to join this lawsuit on the date on which she filed her complaint. Accordingly, to the extent that Davis wishes to pursue this action as a collective action, the date on which the statute of limitations is tolled will depend on the date on which Davis' consent to join was properly filed with the Clerk of Court.
Davis filed this action on May 23, 2003. Davis originally submitted her consent form to the Clerk of Court on July 23, but the form was returned to her attorney on the same day for failure to comply with the Local Rules for the Southern District of New York. On August 20, Davis again sent her consent form to the Clerk of Court, which was forwarded to this Court for lack of compliance. The Court returned the consent form to Davis' attorney at a conference held on October 24. On November 18, Davis resent her consent form to the Clerk of Court, but it was again returned for failure to comply with the Local Rules of this district. On December 2, Davis mailed another consent form to the Clerk of Court with a cover letter requesting that it be filed with the "original date it was submitted for (August 20, 2003)." The Clerk of Court accepted Davis' consent for filing on December 4.
Plaintiff's counsel represents that his office received the deficient consent form on July 28.
Davis claims that her consent form should be deemed filed on August 20, 2003. Davis' consent form was repeatedly rejected for its failure to comply with the Local Rules of this district. Davis does not claim that the Clerk of Court erroneously refused to accept her July 23, August 20, or November 18 filings, and has provided no excuse for her failure to comply with the rules of this district. Since this Court retained her deficient August 20 filing until it could return it to her counsel at the October 24 conference, she will be given a credit of 55 days, that is, the number of days her consent form was in the possession of the Court. Accordingly, Davis' consent to join this lawsuit will be deemed filed on October 10, 2003.
Defendants' argument that Davis' consent form should be deemed filed on May 23, 2004 — the date on which the defendants claim they were finally served with Davis' consent form — is rejected. The defendants were on notice from the inception of this lawsuit that Davis intended to commence a collective action pursuant to the FLSA, and that she had engaged in multiple attempts to file her consent form. Court conferences were held in this case on October 24 and December 19, 2003; telephone conferences were held on February 26 and April 22, 2004. At each conference, Davis' counsel discussed the nature of her claims and her intent to pursue this lawsuit on behalf of herself and others. At the October 24 conference, Davis' counsel explicitly discussed his deficient filing of Davis' consent to join. Davis' counsel acknowledged that the filing of the consent to join was necessary to toll the statute of limitations, and represented that he would be refiling Davis' consent with the Clerk of Court immediately.
The plaintiff's motions to amend and for class certification of her state law claims are denied. The claims brought on behalf of Mary Shortt, Ruth Rapada, Greta Blackman, Johnnie L. Brown, and Telethia McKenzie are dismissed from this lawsuit. The application to maintain a collective action pursuant to the FLSA is granted with respect to plaintiffs Isidora A. Gallego, Tracey M. Glazebrook, Claudette Marshall, Anne V. McKnight, Merle Moore, Misty Scalfarotto, Hyacinth Wiggan-James. Davis' FLSA claim is deemed to have been filed as of October 10, 2003. Davis' request to send a notice of pendency of the FLSA collective action is granted to the extent that it concerns Elite Corps RNs.