Opinion
1:20-cv-00882-MRB
03-07-2022
ADAM QUINCY STANG, on behalf of himself and all others similarly situated, Plaintiff, v. PAYCOR, INC., Defendant.
Katharine C. Weber (0042126) Ryan M. Martin (0082385) JACKSON LEWIS P.C. Attorneys for Defendant
Katharine C. Weber (0042126)
Ryan M. Martin (0082385)
JACKSON LEWIS P.C.
Attorneys for Defendant
DEFENDANT'S STATEMENT OF POSITION REGARDING NOTICE PERIOD
Michael R. Barrett, Judge.
After attempting to resolve the issue themselves, the parties have been unable to agree on the appropriate opt-in period for this FLSA collective action case. Plaintiffs contend that the opt-in period should be three years from the date the case was filed. Defendant contends that the opt-in period should be three years from the date of the Court's order granting conditional certification due to the applicable FLSA statute of limitations period. For the reasons below, the notice period should not extend beyond three years prior to the date of the Court's Order Granting Conditional Certification.
This Court has regularly utilized the FLSA”s three-year limitations period in order to determine the appropriate look-back period for purposes of sending notice of a collective action. Bailey v. Black Tie Mgmt. Co. LLC, No. 2:19-CV-1677, 2019 U.S Dist. LEXIS 196115, at *21 (S.D. Ohio Nov. 12, 2019). Courts in the Sixth Circuit have found that class certification is appropriately limited to three years prior to the date of approval of the notice, and not the filing of the lawsuit. Crescenzo v. O-Tex Pumping, LLC, No. 15-CV-2851, 2016 U.S. Dist. LEXIS 78012, at *5 (S.D. Ohio June 15, 2016). See also Atkinson v. TeleTech Holdings, Inc., No. 3:14-cv-253, 2015 U.S. Dist. LEXIS 23630, at *18 (S.D. Ohio Feb. 26, 2015) (“In [amending § 216(b)], Congress expressed the concern that an opt-in plaintiff should not be able to escape the statute of limitations bearing on his cause of action by claiming that the limitations period was tolled by the filing of the original complaint) (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1106 (11th Cir. 1996)).
This Court has recognized these principles and recently held that the notice period start date should be calculated three years from the date of the order granting a plaintiff's motion for conditional certification, rather than the date the lawsuit was filed. Sprague v. Universal Transportation Systems LLC, No. 1:18-cv-00165, at **8-9 (S.D. Ohio Feb. 24, 2020). The Court could not have been clearer:
This Court has regularly used a three-year limitations in the notice promulgated to the class.” Id. (citing Bailey v. Black Tie Mgmt. Co. LLC, No. 2:19-CV-1677, 2019 WL 5884353, at *7 (S.D. Ohio Nov. 12, 2019); see also Atkinson v. TeleTech Holdings, No. 3:14-CV-253, 2015 WL 853234 at * 2 (S.D. Ohio Feb. 26, 2015) (“Because the statute of limitations on an FLSA claim continues to run until written consent is filed with the court, it is important that notice of the collective action be given to all potential opt-in plaintiffs as soon as practicable so they can decide whether to participate in the lawsuit.”). In addition, “[c]ourts in the Sixth Circuit have found that class certification is appropriately limited to three years prior to the date of approval of the notice, and not the filing of the lawsuit.” Crescenzo v. O-Tex Pumping, LLC, No. 15-CV-2851, 2016 WL 3277226, at *5 (S.D. Ohio June 15, 2016) (citing Atkinson, 2015 WL 853234, at *3)).Id. at *8.
Moreover, this matter was never fully briefed by either side. The applicable statute of limitations period is the applicable statute of limitations period, and there can be no argument that Defendant has waived any timeliness objections on that ground. In addition, Plaintiffs completely changed their proposed class mid-stream during briefing and, in response, Defendant requested that Plaintiffs be required to re-file their motion so that the applicable issues could be addressed in a more fulsome manner. In any event, Plaintiffs have not moved to toll the limitations period against the FLSA claims of potential opt-in plaintiffs. Even if they had, it is improper to equitably toll the claims of potential opt-in plaintiffs who are not yet before the Court. Id. at *9 (citing Brittmon v. Upreach, LLC, 285 F.Supp.3d 1033, 1046 (S.D. Ohio 2018)). It makes little sense to provide notice to potential opt-ins employed outside of the applicable limitations period. The notice period should therefore remain the established three years prior to the date of approval of the notice, and not the filing of the lawsuit.
Defendant appreciates the Court's consideration of this issue.