Opinion
Civil Action No. 3:04-CV-1191-B.
September 23, 2004
MEMORANDUM ORDER
Before the Court is Defendant DEKRA Emission Check, Inc.'s ("DEKRA") Motion for Partial Summary Judgment, filed September 1, 2004. Having reviewed the pleadings and evidence on file, the Court DENIES Defendant's motion for the reasons set forth in this order.
I. Factual and Procedural History
By this action Plaintiff Michael Cone, on behalf of himself and others similarly situated, seeks to recover damages for back overtime under the Fair Labor Standards Act ("FLSA"). On July 19, 2004, the parties submitted a Joint Status Report pursuant to Judge Lynn's June 7, 2004 order requiring the parties to submit proposals for the contents of a scheduling order. (Joint Status Report, July 19, 2004). Among other proposed dates, the joint report included the following:
4. Proposed time limits to file various types of motions, including dispositive motions: Both parties agree that all summary judgment motions shall be filed by March 1, 2005. Plaintiff shall file any Motion for Notice and/or Conditional Certification by August 31, 2004.
( Id. at ¶ 4). This Court entered a Scheduling Order in this case on August 25, 2004. (Scheduling Order, August 25, 2004). The Scheduling Order established a January 11, 2005 dispositive motion deadline, but it did not include a separate deadline for the filing of motions for notice to potential plaintiffs or for conditional certification. ( Id. at ¶ 3).
On September 1, 2004, Cone filed a Motion for Notice to Potential Plaintiffs and Limited Expedited Discovery ("Motion for Notice"). That same day DEKRA filed a Motion for Partial Summary Judgment, contending that Cone's class claims should be dismissed because: 1) Cone failed to meet the parties' proposed August 31, 2004 deadline for submitting motions for notice to potential plaintiffs; and 2) Cone waived his right to pursue class claims by failing to file a motion for notice within 90 days of filing his class action complaint, as required by Northern District of Texas Local Rule 23.2.
II. Analysis
A. Timeliness of Cone's Motion for Notice
DEKRA argues that all of Cone's class claims should be dismissed because Cone failed to file his Motion for Notice on or before the August 31, 2004 deadline proposed by the parties in their joint status report. That argument rests upon the mistaken notion that proposals contained in a joint report for the contents of a scheduling order are anything but just that — proposals. In each case, the Court gives thoughtful consideration to the parties' proposed dates embodied in their joint status report before issuing a scheduling order. But it is the scheduling order, not the joint status report, that governs the disposition of the action. In this case, the Court attempted to adhere to the schedule requested by the parties and issued its standard scheduling order incorporating many of the parties' proposed deadlines. The Scheduling Order did not, however, set any separate deadline for the filing of motions for notice or conditional certification. Therefore, the August 31, 2004 proposed deadline for the filing of such motions contained in the parties' Joint Status Report was inoperative.
Judge Lynn's June 7, 2004 order requiring the parties to file a report for the contents of the scheduling order is peppered with the word "proposed" and characterizes the parties' submissions as "suggestions." (Order Requiring Scheduling Conference and Report for Contents of Scheduling Order, June 7, 2004).
DEKRA also advances the argument that the Joint Status Report constitutes a binding agreement under Rule 11 of the Texas Rules of Civil Procedure, which Cone breached by not filing his Motion for Notice by the deadline set forth in the Joint Status Report. Even if the Court assumes arguendo that the Joint Status Report were a binding agreement under Texas procedural rules, at most it simply represented the parties' agreement to specific proposed deadlines to be presented to the Court for its consideration. In no way were the parties confined to the deadlines submitted in the joint report in the event the Court declined to incorporate them into the scheduling order.
Nor does the doctrine of judicial estoppel support DEKRA's view. The doctrine is designed to "prevent a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding." Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003) (quoting Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996)). Two conditions must be satisfied before judicial estoppel can attach. First, the position of the party sought to be estopped must be clearly inconsistent with a position previously taken by that party, and second, that party must have convinced the court to accept the previously-held position. Id. Here, Cone's agreement to propose an August 31, 2004 date for the filing of motions for notice is not inconsistent at all, much less "clearly" so, with his later September 1, 2004 filing of his Motion for Notice. Even had the Court accepted the deadline proposed by the parties, Cone's September 1 filing would not have necessarily meant that Cone rejected his earlier-held position that August 31, 2004 would be the deadline; rather, it simply would have meant that he missed that deadline by a day. Nevertheless, even if Cone's actions could be construed as inconsistent, the reality here is that the Court did not adopt the proposed August 31, 2004 deadline in its Scheduling Order. Therefore, Cone's Motion for Notice was not untimely filed, and the doctrine of judicial estoppel simply does not apply.
B. Local Rule 23.2
DEKRA next contends that Cone waived his right to pursue class claims because he failed to file his Motion for Notice within 90 days of filing his class action complaint, as required by Local Rule 23.2. N.D. TEX. L.R. 23.2. But DEKRA has failed to cite to any authority applying that rule to FLSA collective actions. Rule 23 class actions and collective actions under the FLSA are procedurally distinct. LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975) (Rule 23 and FLSA § 216(b) class actions are "mutually exclusive and irreconcilable."); Cash v. Conn Appliances, Inc., 2 F.Supp.2d 884, 897 n. 32 (E.D.Tex. 1997) ("A FLSA collective action differs from a class action brought under Federal Rule of Civil Procedure 23.").
DEKRA does cite to Joseph N. Main P.C. v. Electronic Data Systems Corp., but that case involved a Rule 23 class action, not a collective action under the FLSA. 168 F.R.D. 573, 576 (N.D. Tex. 1996).
Finally, even if Local Rule 23.2 did apply to FLSA collective actions, and even if a deadline of August 31, 2004 were in force, the Court would still not dismiss Cone's class claims because at worst, Cone filed his motion one day late. DEKRA has failed to make a sufficient showing that it has been prejudiced or that the disposition of this case will be delayed or otherwise disrupted as a result of Cone's "late" filing. See Florer v. Elec. Data Sys. Corp., 2004 WL 1562851, at *1-2 (N.D. Tex. July 13, 2004) (quoting Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367 (5th Cir. 1995) ("Under Federal Rule of Civil Procedure 6(b), the district court is granted broad discretion to expand filing deadlines.")). In light of such failure, the Court denies DEKRA's motion.
In its reply DEKRA argues that Cone's failure to confer with opposing counsel before filing his Motion for Notice, as required by Local Rule 7.1, worked to its prejudice because had Cone conferred, DEKRA presumably would not have undertaken the expense and effort to prepare its motion for partial summary judgment. While it is lamentable that Cone failed to include a certificate of conference in its Motion for Notice, Cone could not have reasonably anticipated that his failure to confer would result in DEKRA's filing of a summary judgment motion against him on the ground that he filed his Motion for Notice one day past the parties' proposed August 31, 2004 deadline included in the parties' Joint Status Report, DEKRA chose to move for summary judgment on that basis of its own volition.
III. Conclusion
Based on the foregoing reasons, Defendant's Motion for Partial Summary Judgment is DENIED.
SO ORDERED.