B. Statute of Limitations Defendants argue the statute of limitations that applies to claims for overtime wages and liquidated damages under the FLSA bars some of the opt-in plaintiffs from recovering any damages in this case, and limits the damages available to other opt-in plaintiffs based on the date each opt-in plaintiff elected to join this suit. [1] [2] Claims for overtime wages under the FLSA are subject to a two year statute of limitations unless the plaintiff can prove the employer committed willful violations. 29 U.S.C. § 255(a). If the plaintiff establishes that the violations were willful, a three year limitations period applies. Id. “[A] claim for unpaid overtime under the FLSA accrues at the end of each pay period when it is not paid.” Cook v. United States, 855 F.2d 848, 851 (2d Cir.1988) An action is deemed commenced: WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 289 of 520 PageID 925 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 (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. § 255(a). 10 “In determining when an action is commenced by the Secretary of Labor under this subsection for the purposes of the statutes of limitations provided in section 6(a) of the Portal-to-Portal Act of 1947 [29 U.S.C. 255(a)], it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action.” 29 U.S.C. § 216(c); 29 C.F.R. § 790.

The FLSA limitations period is extended an additional year for violations that are willful. 29 U.S.C. § 255(a). There is no evidence that would prove any alleged violations by Defendant of the FLSA were willful.

Accordingly, Stone filed her consent in writing on March 30, 2015; therefore none of the causes of action arising from the nine (9) paydays on which Defendant violated Stone’s FLSA rights are time-barred. Even if this Court held that Stone’s March 30, 2013 affidavit does not satisfy the timely written consent requirement under 29 U.S.C. §§ 255(a); 256, Stone’s March 22, 2016 formal consent form unquestionably does satisfy the requirement. Without any tolling of the statute of limitations, each of the aforementioned nine (9) causes of action that accrued on the nine separate paydays would become time-barred three years after each payday.

Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 14 of 17 15 Additionally, Count I should be dismissed as the facts Plaintiff present show that the statute of limitations for her FLSA claim have expired and she has failed to properly plead any circumstances under which it could be extended. E.g. Schmidt 770 F.3d 241; 29 U.S.C. §255(a); see also Ashcroft 555 U.S. at 678. Further, Plaintiff was an exempt computer employee under the FLSA as shown by the facts averred by Plaintiff.

(See Dkt. No. 20; 29 U.S.C. § 255(a); see Compl. ¶ 251.)

(See Dkt. No. 20; 29 U.S.C. § 255(a); see Compl. ¶ 251.)

Servs. LLC, No. 10 Civ. 0983 (PAC), 2011 U.S. Dist. LEXIS 2533, at *7 16 29 U.S.C. § 255(a). 17 N.Y. Lab. L. §§ 198(3), 663(3).

Case 1:10-cv-03503-JSR Document 21 Filed 07/27/10 Page 30 of 32 24 New York state law and, thus, is part of the state class action. See 29 U.S.C. § 255(a); N.Y. Lab. Law § 663(3).27 This overlap of claims means that if Plaintiffs were compelled to individually arbitrate their FLSA overtime claims they necessarily would also be arbitrating their state class action claims. Furthermore, Plaintiffs undoubtedly would be foreclosed by principles of collateral estoppel from subsequently pursuing their class action claim for overtime or participating in any class recovery on the state overtime claims.28 The fact that the class claim for overtime would be collaterally estopped by an arbitral decision on the FLSA overtime claim should demonstrate that the FLSA claim is the subject of the class action claim.

Id. Consequently, several plaintiffs’ claims were either entirely or partially time barred under 29 U.S.C. § 255(a). Id.