Opinion
CIVIL ACTION NO. 01-2680; SECTION "I" (2)
August 4, 2003
ORDER AND REASONS
This order addresses the following pending motions: (1) Defendants' Motion, Based on Contempt, to Dismiss Belatedly Filed Consents and to Suppress Plaintiffs' Fourth Set of Interrogatories, Record Doc. No. 1536 (hereinafter "Motion to Dismiss Belatedly Filed Consents"). (2) Plaintiffs' Motion to Confirm the Joinder of Plaintiffs with Opt-ins Filed After March 10, 2003, Record Doc. No. 1547. (3) Plaintiffs' Motion for Leave to Permit the Late Filing of a Notice of Consent on Behalf of Johnny Wayne Konkle, Jr., Record Doc. No. 1535.
The court previously denied that portion of the motion in which defendants sought to suppress plaintiffs' fourth set of interrogatories. Record Doc. No. 1554.
Plaintiff, Kelly Marie Camp, was an insurance claims representative employed by one of the defendants. She filed this action, individually and on behalf of those similarly situated, to recover unpaid overtime wages and bonuses from defendants (collectively referred to as "Progressive") under the Fair Labor Standards Act. 29 U.S.C. § 201 et seq.
By order entered on November 8, 2002, I conditionally certified this action as a collective action under the Fair Labor Standards Act and ordered Camp's counsel to give potential plaintiffs notice that they must opt in if they wanted to participate. 29 U.S.C. § 216(b). I set a liberal 120-day deadline, or until March 10, 2003, for potential plaintiffs to file their consents to participate. Record Doc. No. 71. Hundreds of plaintiffs filed consent forms in the record before the deadline.
The notice that was sent out, in a form that was ultimately approved by the court, advised potential plaintiffs in paragraph 4 that they must mail the consent form to Camp's counsel "as soon as possible and in sufficient time to have Plaintiffs' counsel file it with the court on or before March 10, 2003." (Emphasis added.) Plaintiffs' Exh. B, attached to their Motion to Confirm the Joinder of Plaintiffs with Opt-ins Filed After March 10, 2003. In paragraph 6, however, the notice stated that "if you wish to participate in this lawsuit, it is important that you sign, date and mail the attached Consent form as soon as possible, but in any event, NO LATER THAN MARCH 10, 2003." (Capitalization in original; underlined emphasis added.)
Plaintiffs' counsel received 81 consent forms after the March 10, 2003 deadline and filed them in the record without seeking leave of court to do so. Defendants filed a Motion, Based on Contempt, to Dismiss Belatedly Filed Consents. Record Doc. No. 1536. Plaintiffs filed a timely opposition memorandum. Record Doc. No. 1539. Defendants received leave to file a reply memorandum. Record Doc. Nos. 1548, 1549.
Plaintiffs then filed a Motion to Confirm the Joinder of Plaintiffs with Opt-ins Filed After March 10, 2003, in which they made the same arguments they had made in their opposition to defendants' Motion to Dismiss Belatedly Filed Consents. Record Doc. No. 1547. Defendants filed a timely opposition memorandum to plaintiffs' motion, in which they adopted the arguments of their Motion to Dismiss Belatedly Filed Consents. Record Doc. No. 1557.
IT IS ORDERED that Defendants' Motion to Dismiss Belatedly Filed Consents is GRANTED IN PART AND DENIED IN PART and that plaintiffs' Motion to Confirm the Joinder of Plaintiffs with Opt-ins Filed After March 10, 2003 is GRANTED IN PART AND DENIED IN PART, as follows.
The form of notice that was approved by the court and sent to potential plaintiffs is confusing and ambiguous, particularly for a recipient with no legal training or experience. It tells recipients in one paragraph that they must mail the forms in time for them to be filed by March 10, 2003 and in another paragraph that they must mail their forms no later than March 10, 2003. The court will not hold this ambiguity and confusion against those plaintiffs who mailed their forms by March 10, 2003. See Raper v. State. 165 F.R.D. 89, 91-92 (S.D. Iowa 1996) (court should consider particular circumstances, including unfairness or prejudice to the parties and judicial economy, when deciding whether to allow plaintiffs to opt in late); Monroe v. United Air Lines, Inc., 94 F.R.D. 304, 305 (N.D. Ill. 1982) (Seven plaintiffs who sought to opt in within one month after the deadline "appear to have reasonable excuses for failing to meet the timetable. Defendants have not shown any real prospect of prejudice from permitting these additional plaintiffs. Individual discovery for any particular plaintiff is minimal, and trial is still a few months away."). Allowing the 48 plaintiffs whose forms were postmarked on or before March 10, 2003, see Plaintiffs Exh. A to their Motion to Confirm the Joinder of Plaintiffs, to file their forms in this action after that deadline has passed will neither unduly delay the trial date nor unduly prejudice Progressive, and it will promote judicial economy.
Accordingly, the court DENIES IN PART defendants' motion to dismiss the belatedly filed consents and GRANTS IN PART plaintiffs' motion to confirm the joinder of those 48 plaintiffs listed on Plaintiff's Exh. A, who mailed their consent forms on or before March 10, 2003 and whose consents were filed after that date.
On the other hand, the court GRANTS IN PART defendants' motion to dismiss the 33 plaintiffs whose consents were postmarked after March 10, 2003. The notice that all plaintiffs received plainly stated that those who wanted to opt in must, at the latest, mail their consent forms by March 10, 2003. Plaintiffs have not shown good cause for the court to modify its scheduling order to permit consents mailed after that date to be filed. Fed.R.Civ.P. 16(b). In re Food Lion, Inc.. 151 F.3d 1029, 1998 WL 322682, at *10 (4th Cir. 1998) (unpubl. decision avail. on Westlaw). Accordingly, IT IS ORDERED that the following plaintiffs are dismissed from this action without prejudice:
1. Felicia Nix, 2. Lisa A. Wilson, 3. Eileen Spagnoli, 4. Loren J. Lyons, 5. Matt Ehrlich, 6. W. Scott Rhodes, 7. Amixaday Garcia, 8. Daniel Kovis, 9. Frank LeMond, 10. Conya Davis, 11. Vetra I. Harrison, 12. Karen St. Onge, 13. Garrett Murphree, 14. Jarrett Bailey, 15. Vanessa Lasack, 16. Krista Reavis Larkins, 17. Stewart H. Ireland, III, 18. Connie Ortiz, 19. Sean A. Lindo, 20. David Rorie, 21. Christopher Clement, 22. Peter Loftsgordon, 23. Claudia Flynn, 24. Rose Ann Burford, 25. Gina Cannata, 26. Donnell McNeal, 27. Pierre Fray, 28. Shirley J. McNulty-Gittings, 29. Annette Kaplowitz, 30. David A. Binting, 31. Catrina L. Parson, 32. Christine M. Maloney and 33. Christopher Steer.IT IS FURTHER ORDERED that any other plaintiffs who mailed their consent forms to plaintiffs' counsel after March 10, 2003 and who filed their consents after plaintiffs filed their motion to confirm joinder, if any, are also dismissed from this action. Plaintiffs' counsel must advise the court by letter if any additional plaintiffs fall into this category and the court will enter an order dismissing them without prejudice.
Plaintiffs contend that they have the option to file separate, individual lawsuits if they do not opt in to this collective action.Schneider v. City of Springfield, No. C-3-96-062, 1998 WL 1572763, at *2 (S.D. Ohio Nov. 16, 1998) (Rice, C.J.); Rapen 165 F.R.D. at 92; Monroe, 94 F.R.D. at 305. Accordingly, the court dismisses these 33 plaintiffs without prejudice.
Plaintiffs also filed a Motion for Leave to Permit the Late Filing of a Notice of Consent on Behalf of Johnny Wayne Konkle, Jr. Record Doc. No. 1535. Defendants filed a timely opposition memorandum. Record Doc. No. 1538. Plaintiffs received leave to file a reply memorandum. Record Doc. Nos. 1562, 1563.
Konkle was a Progressive employee who admittedly received the notice of the collective action in the last quarter of 2002 and considered joining it. Plaintiffs argue in this motion, supported by Konkle's affidavit, that Konkle was threatened by his immediate supervisor at Progressive with discrimination in his employment advancement if he opted into the lawsuit and that he therefore chose not to opt in before the deadline. He states that he is no longer employed by Progressive and now wishes to opt in. Defendants have provided the court with an affidavit from Konkle's supervisor at Progressive that categorically denies Konkle's allegations.
Plaintiffs have not shown good cause for the court to modify its scheduling order to permit Konkle to opt in more than two months after the deadline, when he admittedly learned of the captioned lawsuit well before the end of 2002. The notice sent to all potential plaintiffs specifically stated that federal law prohibits Progressive from retaliating or discriminating in any way against plaintiffs who exercise their rights under the Fair Labor Standards Act. The notice also gave the address and telephone number of Camp's counsel and stated that recipients could contact counsel if they had any questions. There is no evidence that Konkle took advantage of this readily available information.
Under these circumstances, the court will not alter its 120-day deadline, which was designed both to give potential plaintiffs sufficient time to make an informed and timely decision whether to opt in and to allow the court to manage and expedite the disposition of this case for the benefit of all parties. In re Food Lion. Inc., 1998 WL 322682, at * 10. To enlarge the deadline for Konkle would invite a flood of motions and affidavits from potential plaintiffs who received ample notice of the deadline to opt in and who have since changed their minds, followed by competing affidavits from Progressive's representatives, and would lead to further delay as the court considered the merits of each motion. As I have previously noted in other orders entered in this case, discovery has already been unduly delayed. I will not expand the pool of plaintiffs beyond the 48 permitted above, who had good cause for their lateness, and risk further delays in this already lengthy case.
Accordingly, plaintiffs' Motion for Leave to Permit the Late Filing of a Notice of Consent on Behalf of Johnny Wayne Konkle, Jr. is DENIED.