Opinion
CAUSE NO. 2:18-CV-72 DRL-JEM
2022-09-12
Joy MCCOLLEY, Plaintiff, v. CASEY'S GENERAL STORES, INC., Defendant.
Charles Gershbaum, PHV, Pro Hac Vice, David A. Roth, PHV, Pro Hac Vice, Marc S. Hepworth, PHV, Pro Hac Vice, Rebecca S. Predovan, PHV, Pro Hac Vice, Hepworth Gershbaum & Roth PLLC, New York, NY, Michael J. Palitz, PHV, Pro Hac Vice, Shavitz Law Group PA, New York, NY, Gregg I. Shavitz, PHV, Pro Hac Vice, Logan A. Pardell, PHV, Pro Hac Vice, Shavitz Law Group PA, Boca Raton, FL, Richard E. Shevitz, Scott D. Gilchrist, Cohen & Malad LLP, Indianapolis, IN, for Plaintiff. Brian L. Mosby, Littler Mendelson PC, Indianapolis, IN, Andrew J. Voss, PHV, Pro Hac Vice, John H. Lassetter, Lyndsey M. Marcelino, PHV, Pro Hac Vice, Littler Mendelson PC, Minneapolis, MN, for Defendant.
Charles Gershbaum, PHV, Pro Hac Vice, David A. Roth, PHV, Pro Hac Vice, Marc S. Hepworth, PHV, Pro Hac Vice, Rebecca S. Predovan, PHV, Pro Hac Vice, Hepworth Gershbaum & Roth PLLC, New York, NY, Michael J. Palitz, PHV, Pro Hac Vice, Shavitz Law Group PA, New York, NY, Gregg I. Shavitz, PHV, Pro Hac Vice, Logan A. Pardell, PHV, Pro Hac Vice, Shavitz Law Group PA, Boca Raton, FL, Richard E. Shevitz, Scott D. Gilchrist, Cohen & Malad LLP, Indianapolis, IN, for Plaintiff. Brian L. Mosby, Littler Mendelson PC, Indianapolis, IN, Andrew J. Voss, PHV, Pro Hac Vice, John H. Lassetter, Lyndsey M. Marcelino, PHV, Pro Hac Vice, Littler Mendelson PC, Minneapolis, MN, for Defendant.
OPINION AND ORDER
Damon R. Leichty, United States District Judge
Joy McColley (and others similarly situated) allege that Casey's General Stores, Inc. violated the Fair Labor Standards Act (FLSA) by failing to pay overtime wages for work in excess of forty hours per week. She requested conditional certification on November 16, 2018. After the case's reassignment to this presider on January 25, 2021, the court granted the motion on March 31, 2021.
Favoring a more complete record, the court deferred the question of whether the limitations period for any claims would need to be equitably tolled given the more than two-year interval to this certification decision occasioned by the district's caseload, the COVID-19 pandemic, and the case's reassignment to two judges, including eventually to this presider. Ms. McColley, acting for the collective action, now seeks to toll the statute of limitations for the collective's FLSA claims—beginning March 9, 2019 and until September 25, 2021, the end of the notice period.
This collective action includes 1,916 opt-in members, of which 1,264 are conceivably impacted by the statute of limitations. That said, only 1,100 have responded to a survey to aid the court's consideration of this motion. Even accounting for this survey, the court denies the motion. The law reserves equitable tolling for extraordinary circumstances, and no evidence on this record shows these opt-in members diligently pursued their rights during their limitation periods.
BACKGROUND
Casey's General Store and its wholly owned subsidiaries, Casey's Marketing Company and Casey's Retail Company, operate over 2,000 convenience stores across the United States, including the Casey's store in Griffith, Indiana, where Joy McColley worked as a store manager from approximately February 2014 to January 2017. As store manager, she was classified as exempt from overtime. She says she regularly worked over forty hours per workweek.
A store manager's duties ranged from manual "associate-type" work to more managerial work. Ms. McColley claims that, despite her title and classification as exempt, she and other collective action members performed primarily manual "associate-type" work in excess of forty hours per workweek, without receiving overtime. She says Casey's practice of not paying overtime violated FLSA.
After commencing suit on February 16, 2018, Ms. McColley filed an amended complaint. The parties first engaged in discovery focused on conditional certification. All the while she filed notices that various individuals wished to opt into the suit.
On November 16, 2018, Ms. McColley filed a motion for conditional certification under FLSA. After extensions to briefing, the motion became ripe for ruling on January 8, 2019. Again throughout this process, she filed notices that various individuals wished to opt into the suit, though the case had not yet been approved as a collective action.
On May 1, 2019, the case was reassigned from one judge to another in this district with a decision on this motion still to be deliberated. Eight months later, while the motion still pended and now just on the eve of the COVID-19 pandemic, Ms. McColley filed a motion to toll the statute of limitations equitably. This subsequent motion became ripe on February 4, 2020. Both motions then sat undecided throughout the remainder of 2020 and during the height of the pandemic.
That is until January 25, 2021, when the case was reassigned here. After reviewing all briefing, the court promptly conducted oral argument on March 9, 2021. The court approved conditional certification on March 31, 2021. During the motion's pendency, Ms. McColley filed notices about various individuals who wished to opt into the collective action.
In ruling, the court denied the motion for equitable tolling as premature until the record could be developed to ensure that a ruling would not be merely advisory and that a reasonable assessment could be made whether and for whom equitable tolling should be considered. The case thus pressed on. After receiving a proposed FLSA notice and objections, the court held a hearing in June 2021 and ordered notice to be sent to putative members by July 27, 2021. Opt-in notices continued to come.
Today this collective action includes 1,916 opt-in members—with 1,264 members seemingly impacted by the statute of limitations. The collective gathered survey information from 1,100 opt-in members. Of these, 1,056 opt-ins reported that the first time they heard about this lawsuit was when they received the court's notice after conditional certification, and 11 more learned derivatively from another person after the notice. Aside from 164 individuals who never responded to the survey, the remaining 33 opt-ins knew about the lawsuit before receiving the FLSA notice but declined to join. Some 83 individuals consented to join this action even before the collective action notice went out.
DISCUSSION
FLSA allows employees to sue their employer for unpaid overtime compensation, either individually or through a collective action. 29 U.S.C. § 216(b). The law requires an action to begin within two years after the claim accrues, unless the violation is willful in which case the term extends to three years. 29 U.S.C. § 255(a). In extraordinary circumstances, the court may equitably toll the statute of limitations and allow a plaintiff to proceed with an otherwise untimely claim. See Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). This relief is only available when the person (1) diligently pursues her rights and (2) extraordinary circumstances preclude the exercise of her rights. Id.
This is the issue today. Ms. McColley argues that she diligently pursued her FLSA claims but that the 26-month delay in conditional certification was an extraordinary circumstance that prevented opt-in members from joining the collective. Casey's says Ms. McColley's diligence doesn't matter—only the diligence of the opt-in members matters—and they weren't diligent in pursuing their rights. Casey's also argues that the 26-month turnaround wasn't extraordinary or even the real reason for the delayed decision by the group of opt-in members to join this collective action.
A. Conditional Certification and Notice under FLSA.
FLSA allows an employee to sue for unpaid overtime through a collective action with other "similarly situated" employees. 29 U.S.C. § 216(b); Alvarez v. City of Chi, 605 F.3d 445, 448 (7th Cir. 2010); Hayes v. Thor Motor Coach, Inc., 502 F. Supp.3d 1342, 1345 (N.D. Ind. 2020). A collective action mirrors yet differs from a class action. See Fed. R. Civ. P. 23. A class action includes all putative plaintiffs that meet the class's definition unless they opt out, whereas individuals who want to become part of a collective action must affirmatively opt-in. See Alvarez, 605 F.3d at 448; see also Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771 (7th Cir. 2013). FLSA says as much: "[n]o 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).
The court has discretion to facilitate notice of a conditional collective action to those "similarly situated" to the named plaintiff, here Ms. McColley. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). "The twin goals of collective actions are enforcement and efficiency: enforcement of the FLSA, by preventing violations of the overtime-pay requirements and by enabling employees to pool resources when seeking redress for violations; and efficiency in the resolution of disputes, by resolving in a single action common issues arising from the same alleged illegal activity." Bigger v. Facebook, Inc., 947 F.3d 1043, 1049 (7th Cir. 2020). FLSA fosters these goals by permitting collective actions for similarly situated employees. See id.
At the same time, the court "must be scrupulous to respect judicial neutrality," avoiding even the appearance of endorsing the action's merits. Hoffmann-La Roche, 493 U.S. at 174, 110 S.Ct. 482. Collective actions present certain risks too—restructuring litigation leverage and increasing pressure to settle, no matter the action's merits, and soliciting claims in a manner that differs from the court's role of facilitating notice for case management purposes, see id., appreciating that efficiency may mean weeding out those who opt into the suit later if this isn't done at the expense of neutrality or abuse of an improper collective action notice, Bigger, 947 F.3d at 1050.
In balancing these interests, the court cannot forget the purpose of conditional certification. It exists to organize the collective efficiently and to facilitate notice of the opportunity to join the suit for enforcement of FLSA's remedy, but not to render legal advice about a claim in the first place or to solicit such a claim. Court intervention in the notice process "is distinguishable in form and function from the solicitation of claims." Hoffmann-La Roche, 493 U.S. at 174, 110 S.Ct. 482; accord Bigger, 947 F.3d at 1049. By facilitating notice, the court can ensure that it is timely, accurate, and neutral. See Hoffmann-La Roche, 493 U.S. at 171-72, 110 S.Ct. 482. The notice provides employees instructions for joining the suit, but only if they wish, see 29 U.S.C. § 216(b), and assuming their claims have not been barred, see 29 U.S.C. § 255(a).
The notice here likewise reflects this purpose: "The purpose of this notice is to inform you of the lawsuit, and instruct you on the procedure for joining this case, should you choose to do so." [ECF 156 Ex. A].
"[E]very such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255(a).
Conditional certification "does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court." Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 75, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). This statutorily-required consent, added decades ago as a requirement in 1947, has "the purpose of limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers of the burden of representative actions." Hoffmann-La Roche, 493 U.S. at 173, 110 S.Ct. 482.
The notice's purpose thus isn't to solicit claims. Nor is it to resurrect claims that have reposed. It likewise isn't the sole metric for determining whether a putative member of the collective has exercised diligence in pursuing his claim. Though unnamed members of a class action benefit from a tolling rule, Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 551-52, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), by congressional choice "the claims of potential members of an FLSA collective action are not tolled until they file opt-in notices," Hollins v. Regency Corp., 867 F.3d 830, 834 (7th Cir. 2017); accord Smith v. Prof'l Transp., Inc., 5 F.4th 700, 703 (7th Cir. 2021). Collective action members aren't presumed in—they must opt in. See 29 U.S.C. § 216(b); Alvarez, 605 F.3d at 448. Even then, their FLSA claims are asserted in their own right. See Hoffmann-La Roche, 493 U.S. at 173, 110 S.Ct. 482; Charles Alan Wright et al., Federal Practice and Procedure § 1807 (2022).
B. Equitable Tolling as an Individualized Request.
Conditional certification permits the named plaintiffs to bring their claims of liability and damages as a group based on largely representative, rather than personal, evidence, Pierce v. Wyndham Vacation Resorts, Inc., 922 F.3d 741, 745 (6th Cir. 2019), at least until the collective becomes subject to decertification, see Espenscheid, 705 F.3d at 773. This case has moved beyond conditional certification, and equitable tolling in this time and sphere is a personal not representative extension of fairness and grace in the face of an otherwise individualized application of the statute of limitations.
An employee who has a FLSA claim has choices—file his own claim, join a collective action, or forego the claim altogether. The clock to exercise his right continues to tick until he files suit or opts to join a collective action, so approved by the court. See 29 U.S.C. §§ 216(b), 256(b). Even when joining a collective, "each FLSA claimant has the right to be present in court to advance [his] own claim." Charles Alan Wright et al., Federal Practice and Procedure § 1807 (2022). It makes little sense then to evaluate a claimant's argument against a limitations defense today as anything but personal.
Equitable tolling of a limitations period is an extraordinary remedy. Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir. 2016). An individual is entitled to equitable tolling only if he can demonstrate two elements: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way to prevent timely filing. See Menominee Indian Tribe v. United States, 577 U.S. 250, 256, 136 S.Ct. 750, 193 L.Ed.2d 652 (2016); Holland, 560 U.S. at 649, 130 S.Ct. 2549. The court, in exercising its equitable powers, "must be governed by rules and precedents no less than the courts of law," proving flexible on a case-by-case basis, avoiding "mechanical" rules, and following a tradition that "relieve[s] hardships [that], from time to time, arise from a hard and fast adherence" to more absolute legal rules that, if strictly applied, might invite the "evils of archaic rigidity." Holland, 560 U.S. at 649-50, 130 S.Ct. 2549 (quotations and citations omitted).
Ms. McColley argues for a different standard in reply after arguing under this traditional rubric in its opening motion. Its pivot was waived. See Darif v. Holder, 739 F.3d 329, 336 (7th Cir. 2014) ("arguments raised for the first time in a reply brief are waived").
That said, no matter whether the court might concur that the time to conditional certification occasioned by the circumstances facing this district before this presider's receipt of the case was more unusual than not (a question left undecided), equitable tolling is not a singular inquiry. See Menominee Indian Tribe, 577 U.S. at 256, 136 S.Ct. 750. The law "characterize[s] equitable tolling's two components as 'elements,' not merely factors of indeterminate or commensurable weight." Id. (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Equity has been guided just so in practice too, rejecting requests for equitable tolling when a litigant failed to satisfy one prong without addressing whether he satisfied the other. See id.; see, e.g., Lawrence v. Florida, 549 U.S. 327, 336-337, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (rejecting equitable tolling without addressing diligence because habeas petitioner could not show extraordinary circumstances); Pace, 544 U.S. at 418, 125 S.Ct. 1807 (without resolving litigant's argument that he had shown extraordinary circumstances, finding that "he would not be entitled to relief because he has not established the requisite diligence"). The sense of fairness that leads to tolling the statute of limitations thus cannot be driven by the presence of an arguably extraordinary circumstance alone.
The court addresses only diligence today. The standard for equitable tolling focuses on an individual's diligence, not that of another putative or named plaintiff. First, that is particularly sound in a FLSA collective action when each individual must choose to join the collective by affirmatively filing a notice expressing that wish, or alternatively filing his own suit within the limitations period, see 29 U.S.C. §§ 216(b), 256(b), rather than being presumed to be a member as soon as the action commences, such as occurs in class action suits. The right to pursue or join a FLSA suit remains personal. Ms. McColley's argument invites the court, without evidence of individual diligence, to favor an arbitrary date rather than the date expressly adopted by Congress for when an opt-in member's claim commences—that is, when he files his written consent. See 29 U.S.C. § 216(b). That the court won't do absent the individual's reasonable diligence in the face of extraordinary circumstances.
Second, the law casts the doctrine of equitable tolling in individual terms. "[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland, 560 U.S. at 649, 130 S.Ct. 2549 (emphases added; quotations and citation omitted). This isn't to say that equitable tolling could never be decided on representative grounds, but today's case isn't such an instance. The right to sue, the right to join a FLSA collective, indeed the right to be present in court to pursue his own claim even after joining a collective—they all remain by law individual rights, see supra, and nothing in the law suggests that equity should shift this perspective to analyze only the named plaintiff's diligence in a representative way rather than each opt-in member's diligence.
Third, and to that very point, looking to a named plaintiff's diligence in a FLSA action could excuse opt-in members from diligently pursuing their rights just because the named plaintiff pursued hers, thereby turning an extraordinary remedy into a vast wormhole that could routinely bypass the statute of limitations and congressional intent. See Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013) (equitable tolling is "rarely granted"). A putative member of the collective, indeed hundreds of them, could entirely sit on their hands and exercise zero diligence only to join months or years later merely because one employee pursued her rights with diligence, rewarding the idle with a benefit that they should not enjoy and redistributing the leverage of a collective quite out-side the repose that the statute of limitations in part is intended to confer. See Gildersleeve v. New Mexico Mining Co., 161 U.S. 573, 578, 16 S.Ct. 663, 40 L.Ed. 812 (1896) ("courts of equity uniformly decline to assist a person who has slept upon his rights").
For example, rather than put old claims properly to rest, such an analysis could potentially resurrect claims that have no business enjoying the grace of equity. A putative member could have received less pay than owed, consulted with counsel, fully evaluated a legitimate claim, decided to forego a suit for any number of reasons, even been told by counsel about the limitations period, and consciously permitted the statute of limitations to run, only to decide more than two years later to change his mind and hitch his wagon to a collective action that allowed him to skirt Congress's wisdom of a two-year limitations for prototypical FLSA claims and a three-year limitations for willful violations. See 29 U.S.C. § 255(a). It would be anathema to extend equity under such circumstances; but focusing only on the named plaintiff's diligence would do this very thing and gloss over this putative member's idleness, indeed his informed choice. That is no small lesson when Ms. McColley says this decision could impact 93,000 workweeks.
Fourth, blithely extending the grace of equitable tolling to a whole swath of putative members who offer no record of their own diligence would do more injustice than good to FLSA's plain command that the named plaintiff be "similarly situated" to those within the collective. 29 U.S.C. § 216(b). Ms. McColley invites the court to analyze the two elements of equitable tolling with a split lens: her actions in assessing diligence, and their circumstances in assessing their extraordinary headwinds. Nothing in law or equity makes sense of this proposal. She sued on February 16, 2018, without seeming worry about the statute of limitations; but she seeks for others equitable tolling beginning March 9, 2019. This has no bearing on her rights at all. It concerns only a certain measure of opt-in members. Indeed, though she may be similarly situated in that she and other opt-in members share "common issues of law and fact arising from the same [unlawful] activity," Hoffmann-La Roche, 493 U.S. at 170, 110 S.Ct. 482, she would not seem realistically representative of these members for purposes of a limitations defense, or exception to that defense, if she exercised diligence and they did not. Because the opt-in members seek the benefit of equitable tolling, it is only equitable that they satisfy the doctrine's two requirements.
Ms. McColley proposes the tolling period begin a mere two months after the conditional certification motion became fully-briefed and ripe for decision (that is, March 9, 2019); but no matter this particular court's prompt pace in decision, that would be on average an unusual federal metric for turnaround. Moreover, she moved for equitable tolling on January 14, 2020, so March 9, 2019, just on its face, seems more generous than equitable.
Fifth, this isn't a complicated claim. The declarations supporting conditional certification showed that putative collective members (1) worked for Casey's as salaried store managers, (2) regularly worked more than forty hours per week, (3) were not paid overtime compensation, and (4) primarily performed non-managerial tasks. Employees who worked over forty hours per week and never received overtime in their paychecks, even being thoughtful of the average socioeconomics and sophistication of convenience store managers at Casey's, would know to conduct some reasonable inquiry whether their wages were right if they weren't paid overtime. See Sandoz v. Cingular Wireless, LLC, 700 F. Appx. 317, 321 (5th Cir. 2017) (same). People aren't so casual with their pay as to ignore this. A cause of action for overtime pay accrues when the employee received less than required by FLSA, regardless of whether the employee has completed a qualitative assessment that a viable claim might be pursued. See 29 U.S.C. § 255(a); see also Figueroa v. Dist. of Columbia, 633 F.3d 1129, 1132 (D.C. 2011). Nothing on this record indicates that only the named plaintiff had unique information to identify a claim that should make her diligence the operative lens. Ignorance of the law isn't an excuse, and not putting two and two together to understand, or at least to inquire, whether a rather straightforward claim might exist isn't an excuse either. See Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006) ("Mistakes of law or ignorance of proper legal procedures are not extraordinary circumstances warranting invocation of the doctrine of equitable tolling."); Powers v. Centennial Communications Corp., 2010 WL 746776, at *4, 2010 U.S. Dist. LEXIS 18397, 10 (N.D. Ind. Feb. 26, 2010) ("Most employees know when their employer is cheating them on overtime.").
The court appreciates that on rare occasion another district decision or two in this circuit may not have spelled out this rationale and seemingly have exercised equitable tolling on the basis of only the named plaintiff's diligence, though on close read they appear not to have been presented in argument with the precise question whether the proper lens is each individual's diligence, or that of the named plaintiff. See, e.g., Koch v. Jerry W. Bailey Trucking, Inc., 482 F. Supp.3d 784, 799 (N.D. Ind. 2020) (finding without competing argument that "those [opt-in plaintiffs] whose putative class representatives and their counsel are diligently and timely pursuing the claims should also not be penalized" and citing a New York district case that summarily concluded the same). Appreciating that flexible case-by-case considerations might too move such decisions in equity, the court finds the sounder wisdom in an individualized inquiry of diligence, and in the greater weight of authority, particularly so in the FLSA action as presented here today. See Sandoz, 700 F. Appx. at 320-21 (rejecting idea that opt-in members in FLSA action could exercise no diligence and enjoy equitable tolling); Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 364 (W.D. Wis. July 25, 2014) (reserving question of diligence for opt-in members in FLSA case); Calloway v. AT&T Corp., 419 F. Supp.3d 1031, 1037 (N.D. Ill. 2019) ("on the diligence requirement, the question will be whether the later-filing plaintiffs were diligent in pursuing their claims"); Soto v. Wings 'R Us Romeoville, Inc., 2016 WL 4701444, at *11, 2016 U.S. Dist. LEXIS 121223, 36 (N.D. Ill. Sept. 8, 2016) ("the question is whether the putative class members have been diligent"); Sylvester v. Wintrust Fin. Corp., 2014 WL 10416989, at *3, 2014 U.S. Dist. LEXIS 135907, 9-10 (N.D. Ill. Sept. 26, 2014) (rejecting argument that individual opt-in members exercised diligence because they promptly joined after receiving notice).
C. Evidence of Reasonable Diligence.
This record presents scant evidence of any diligence. Ms. McColley only focuses on when the court approved the collective and when notice arrived in the hands of opt-in members. The notice's purpose isn't to solicit claims, much less to resurrect time-barred claims, but instead to alert individuals of the option—and that's what it is recognizing the need for neutrality and the goals of efficiency and enforcement—to participate in an organized collective. This record provides no facts that would permit the court to conclude that any one opt-in member exercised reasonable diligence in pursuing his rights. This record offers no facts that show what any one member did to pursue his rights before deciding to file a written notice consenting to join this suit. In short, the timing of the notice, at least on this scant record, isn't an excuse or alone a reasonable metric for diligence.
To that point, numerous individuals—approximately 83 in fact—filed consents to join the collective even before the court ruled on the certification motion. Nothing explains why other putative members had not similarly or diligently pursued their rights, either vis-à-vis this action or even by filing one of their own. Nothing explains why any putative member could not exercise his rights to pursue a claim by exercising even the same modicum of diligence as Ms. McColley or these other 83 individuals. Instead, 33 individuals knew about the lawsuit before receiving the FLSA notice but declined to join then. That isn't reasonable diligence by any definition. Another 164 individuals never responded to the survey, so also provide nothing to consider by way of reasonable diligence.
Of the remainder, 1,056 opt-in members report that they first heard about this lawsuit when they received notice after the court's conditional certification order, and 11 more learned derivatively from another person after the notice. Though this might reflect some measure of action in deciding whether to exercise an option to join the collective, this fact alone falls well short of demonstrating diligence in pursuing their rights in the first place and during the more than two years (presumably that or longer) since their cause of action accrued, or explaining why an already-exhausted claim should now be resurrected merely because they later received a collective action notice.
The court's previous opinion also explained that a ruling on the prior motion to toll the limitations period would not be made, albeit then on a premature basis, "without knowing whether a particular plaintiff or group of plaintiffs knew about this action but forewent the opportunity to join, whether the [collective] notice served as the first word of the opportunity to opt in, or a great many other facts that this record lacks" [ECF 131 at 12 (emphases added)]. The record today has but marginally changed.
Ms. McColley underscores the circumstances under which the conditional certification motion pended, including COVID-19, the district's workload, the case's reassignment twice, until eventually this presider received the case and ruled rather promptly, but these facts pertain only to whether extraordinary circumstances existed. By law, that alone cannot drive the application of equitable tolling. See Menominee Indian Tribe, 577 U.S. at 256, 136 S.Ct. 750. There must be evidence of reasonable diligence. This record doesn't present such evidence.
For instance, on this record COVID-19 never prevented a member from filing a suit or filing a consent to join the collective despite his reasonable efforts. Not one putative member explains that COVID-19, perhaps long COVID, prevented him from knowing he had a claim or pursuing the procedures to advance one, even with the individual's reasonable diligence. See Carranza v. VBFS, Inc., 2021 WL 1233546, at *6, 2021 U.S. Dist. LEXIS 64885, 17 (S.D.N.Y. Apr. 2, 2021) ("FLSA is a federal statute and courts in this District have been reluctant to enact broad-sweeping pandemic accommodations, choosing instead to focus on the specific hardships of individual parties"). Despite COVID-19, this presider has conducted live proceedings since July 4, 2020—even during the pandemic's seeming height—and there has never been a bar to filing cases or consents even during the winter pauses for trials. If individuals wanted, they could have pursued their rights—if they only exercised reasonable diligence.
The court understands that this ruling may seem to have influential effects on this collective, particularly in a FLSA arena that is remedial in nature, see Hoffmann-La Roche, 493 U.S. at 173, 110 S.Ct. 482, but equitable tolling is an extraordinary remedy and cannot be exercised absent evidence of reasonable diligence. The result might be different if the facts were different, but this motion offers no evidence of different facts.
CONCLUSION
For these reasons, the court DENIES the motion for equitable tolling [ECF 219].
SO ORDERED.