Opinion
1:20-cv-882 (MRB)
03-07-2022
ADAM QUINCY STANG, on behalf of himself and all others similarly situated, Plaintiff, v. PAYCOR, INC., Defendant.
Mikael Rojas* OUTTEN & GOLDEN LLP Melissa Stewart* Chauniqua D. Young* OUTTEN & GOLDEN LLP Drew Legando (Bar No. 84209) Trial Attorney MERRIMAN LEGANDO WILLIAMS & KLANG, LLC *Admitted pro hac vice Attorneys for Plaintiff and the Collective and putative Class
Mikael Rojas* OUTTEN & GOLDEN LLP Melissa Stewart* Chauniqua D. Young* OUTTEN & GOLDEN LLP Drew Legando (Bar No. 84209) Trial Attorney MERRIMAN LEGANDO WILLIAMS & KLANG, LLC *Admitted pro hac vice Attorneys for Plaintiff and the Collective and putative Class
PLAINTIFF'S POSITION REGARDING THE FORM OF COURT-AUTHORIZED NOTICE
Hon. Michael R. Barrett
INTRODUCTION
The issue before the Court is whether Defendant Paycor should be permitted to rewrite the notice period specified in the Court-Authorized Notice Form approved by the Court in its February 7, 2022 Order, even though Defendant failed to make any objection to it in multiple prior briefs related to Plaintiff's conditional certification motion. While Defendant might assert that the current notice period would allow individuals whose statute of limitations period has expired to participate in the action, the proper course is to allow such individuals to file their consent to join form and address Defendant's arguments once the collective is known. At that point, the Court could also consider whether those claims should be equitably tolled, which is a fact-specific inquiry better reserved for the post-opt-in period. See Feustel v. CareerStaff Unlimited, Inc., No. 14 Civ. 0264, 2015 WL 13022173, at *2 (S.D. Ohio Mar. 26, 2015) (Barrett, J.). Plaintiff respectfully requests that the Court deny Defendant's request.
PROCEDURAL BACKGROUND
Plaintiff Adam Quincy Stang filed this class and collective action on November 3, 2020, under the federal Fair Labor Standards Act (“FLSA”) and the Ohio Minimum Fair Wage Standards Act (“OMFWSA”) to recover unpaid overtime compensation for himself and similarly situated co-workers. ECF No. 1 (Complaint). Plaintiff filed the First Amended Complaint on February 1, 2021, ECF No. 9, and filed his Motion for Court-Authorized Collective Notice and Supporting Memorandum of Law (“Motion for Notice”) on March 9, 2021. ECF No. 14.
Attached to his Motion for Notice, Plaintiff included a Proposed Court-Authorized Notice Form to be distributed to putative opt-in plaintiffs under the FLSA's collective action mechanism. ECF No. 14-8 (“Proposed Notice Form”); see also Motion for Notice at 12-16 (describing the Proposed Notice Form). The Motion and the Proposed Notice Form designated the “notice period” - i.e., the employment period covering potentially eligible opt-in plaintiffs - as “November 3, 2017 to the present.” ECF No. 14 at 12; ECF No. 14-8 at 2 & 3. Plaintiff set the commencement of the notice period as November 3, 2017, because that date marks three years prior to the filing of Plaintiff's initial complaint. ECF No. 1.
Paycor filed an opposition to Plaintiff's Motion for Notice, ECF No. 18, including redlined edits to the Proposed Notice Form, ECF No. 18-2, and a Sur-Reply in Opposition to Plaintiff's Motion for Notice, ECF No. 21-1. Paycor failed to object to Plaintiff's proposed notice period in any of its papers. See generally ECF No. 18, ECF No. 18-2, ECF No. 21-1. The Court granted Plaintiff's Motion for Notice on February 7, 2022, and, with one minor revision, approved Plaintiff's Proposed Notice Form, including the notice period. ECF No. 24.
ARGUMENT
The Court was well within its authority to grant the notice period Plaintiff requested. As a threshold matter, Paycor failed to object to the Notice period when it had the opportunity to do so, thereby waiving its right to challenge it now. C.f. Planned Parenthood Sw. Ohio Region v. Yost, No. 19 Civ. 118, 2020 WL 40143, at *2 (S.D. Ohio Jan. 2, 2020) (Barrett, J.) (“Motions for reconsideration do not allow the losing party . . . to raise new legal theories that should have been raised earlier.”) (emphasis in original). Defendant should not now be allowed to raise new arguments that should have been raised earlier.
Second, courts permit notice to be distributed for claims dating back three years from the filing of the complaint, “with the understanding that challenges to the timeliness of any individual plaintiff's actions, including arguments in favor of equitable tolling, may be entertained at a later date.” Filho v. OTG Management., LLC, No. 19 Civ. 8287, 2021 WL 1191817, at *9 (S.D.N.Y. Mar. 30, 2021) (quoting Hamadou v. Hess Corp., 915 F.Supp.2d 651, 668 (S.D.N.Y. 2013); see also, e.g., Slamna v. API Restaurant Corp., Civ. No. 757, 2013 WL 3340290, at *4 (S.D.N.Y. July 2, 2013) (also approving FLSA collective notice to individuals employed by the defendant three years prior to the filing of the action); Bittencourt v. Ferrara Bakery & Cafe Inc., 310 F.R.D. 106, 116-17 (S.D.N.Y. 2015) (same).
As this Court has explained, after the opt-in period has concluded, the Court could consider any argument as to whether the statute of limitations period has expired or that the claims should be equitably tolled. See Engel v. Burlington Coat Factory Direct Corp., Civ. No. 11-759, 2013 WL 5177184, at *2-3 (S.D. Ohio Sept. 12, 2013) (Barret, J.) (granting equitable tolling for the period of time between the filing of the Motion for Conditional Certification [] until sixty days after the opt-in plaintiffs receive notice of this lawsuit.”). Plaintiff intends to seek equitable tolling, as necessary, after the opt-in period concludes and Plaintiff's counsel is able to asses which, if any, opt-in plaintiffs are entitled to equitable tolling of their claims.
Defendant's counsel may cite to this Court's order in Sprague v. Universal Transportation Systems LLC, No. 18 Civ. 165, ECF No. 39 (S.D. Ohio Feb. 24, 2020) (Barrett, J.) for the proposition that the notice period should be limited to three years from the date of the Court's conditional certification order. Id. at 8-9. Sprague, however, is not dispositive because the plaintiff there agreed to the limited notice period. Id. at 8 (“Plaintiff agrees that if a three-year limitations period is used, the date listed on the notice should be changed to three years before the date the notice is actually issued.”). Sprague also affirmed the proposition that courts should consider arguments as to equitable tolling once the collective is known. Id. at 9-10.
Should the Court decide to revise the notice period, Plaintiff respectfully submits that the Court should permit the notice period to begin three years prior to the filing of the Motion for Notice (March 3, 2018). See Gambrell v. Rumpke Transportation Co. LLC, No. 20 Civ. 801, 2021 WL 4453632, at *4 (S.D. Ohio Sept. 29, 2021) (Barrett, J.) (approving notice to putative opt-in plaintiffs employed at the defendant dating back “three (3) years preceding the filing of this Motion and continuing through the final disposition of this case”).
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court deny Paycor's belated effort to re-write the notice period, or in the alternative, grant Plaintiff's request for a Notice Period that begins three years from the date of his motion for conditional certification.