Opinion
CIVIL NO. 6:17-CV-00323-ADA
05-26-2020
HEATHER ENGLISH, Joe Hawley, Robin Broussard, Plaintiffs, v. TEXAS FARM BUREAU BUSINESS CORPORATION, Texas Farm Bureau Casualty Insurance Company, Texas Farm Bureau Mutual Insurance Company, Texas Farm Bureau Underwriters, Farm Bureau County Mutual Insurance Company of Texas, Southern Farm Bureau Life Insurance Company, Texas Farm Bureau, Defendants.
Avi Moshenberg, Nicholas Robert Lawson, William Benjamin Thomas, McDowell Hetherington, LLP, Kelly E. Cook, Pro Hac Vice, Wyly & Cook, PLLC, Brian Alan Abramson, Sean H. McCarthy, Williams Kherkher Hart Boundas, LLP, Daniel O. Goforth, Goforth King Moshenberg LLP, John Eddie Williams, Jr., Williams Hart Boundas Easterby LLP, Houston, TX, for Plaintiffs. Julie A. Springer, Matt C. Wood, Sara E. Janes, Weisbart Springer Hayes, LLP, Austin, TX, for Defendants Texas Farm Bureau Business Corporation, Texas Farm Bureau Casualty Insurance Company, Texas Farm Bureau Mutual Insurance Company, Texas Farm Bureau Underwriters, Farm Bureau County Mutual Insurance Company of Texas, Texas Farm Bureau. Aaron Stenzler Weiss, Irma Reboso Solares, Stephanie A. Fichera, Carlton Fields, P.A., Miami, FL, Cathleen Bell Bremmer, Pro Hac Vice, Carlton Fields Jorden Burt, P.A., Tampa, FL, Markham R. Leventhal, Carlton Fields, P.A., Washington, DC, for Defendant Southern Farm Bureau Life Insurance Company.
Avi Moshenberg, Nicholas Robert Lawson, William Benjamin Thomas, McDowell Hetherington, LLP, Kelly E. Cook, Pro Hac Vice, Wyly & Cook, PLLC, Brian Alan Abramson, Sean H. McCarthy, Williams Kherkher Hart Boundas, LLP, Daniel O. Goforth, Goforth King Moshenberg LLP, John Eddie Williams, Jr., Williams Hart Boundas Easterby LLP, Houston, TX, for Plaintiffs.
Julie A. Springer, Matt C. Wood, Sara E. Janes, Weisbart Springer Hayes, LLP, Austin, TX, for Defendants Texas Farm Bureau Business Corporation, Texas Farm Bureau Casualty Insurance Company, Texas Farm Bureau Mutual Insurance Company, Texas Farm Bureau Underwriters, Farm Bureau County Mutual Insurance Company of Texas, Texas Farm Bureau.
Aaron Stenzler Weiss, Irma Reboso Solares, Stephanie A. Fichera, Carlton Fields, P.A., Miami, FL, Cathleen Bell Bremmer, Pro Hac Vice, Carlton Fields Jorden Burt, P.A., Tampa, FL, Markham R. Leventhal, Carlton Fields, P.A., Washington, DC, for Defendant Southern Farm Bureau Life Insurance Company.
ORDER GRANTING DEFENDANTS' MOTION TO STRIKE UNTIMELY CONSENTS TO JOIN COLLECTIVE ACTION
ALAN D. ALBRIGHT, UNITED STATES DISTRICT JUDGE
Before the Court is Defendants' Opposed Motion to Strike Untimely Consents to Join Collective Action. ECF No. 155. For the following reasons, the Motion is GRANTED .
I. BACKGROUND
On March 29, 2019, this Court conditionally certified a Fair Labor Standards Act collective action and outlined requirements governing notice to potential class members. ECF No. 111. One such requirement was that potential opt-ins had only sixty days to join this suit absent a showing of good cause:
Class members may opt in to this collective action only if: (1) they have mailed, faxed, or e-mailed their Consent Form to Plaintiffs' counsel within sixty days after the Notice and Consent Forms are transmitted by Plaintiffs' counsel; or (2) they show good cause for delay.
Id. at 20.
Plaintiffs reported that notice was delivered on April 22, 2019. ECF No. 117. Pursuant to the Court's Order, the period for class members to opt-in to the collective action closed on June 21, 2019. By that deadline, at least 160 agents signed and filed consents. ECF Nos. 1, 13–14, 16, 47, 56–63, 65, 69, 73, 112–13, 119, 122, 124–29, 131–33.
Seven individuals filed opt-in notices after the deadline. ECF Nos. 134, 135, 146, 148, 151, 154. At the time of filing, none showed good cause for delay. Defendants move to strike the four latest opt-ins as untimely (collectively "Late Opt-Ins"). Defs' Mot. to Strike, ECF No. 155.
II. DISCUSSION
Although the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. ("FLSA") provides an opt-in procedure for collective actions, it does not specify when a person must opt-in or submit a written notice of consent to join a case. See 29 U.S.C. §§ 216(b), 255, 256. The court sets the opt-in deadline and has discretion in its enforcement. See, e.g., Coronado v. D.N.W. Houston, Inc. , CIV.A. H-13-2179, 2014 WL 6674292, at *2 (S.D. Tex. Nov. 24, 2014).
Courts generally consider several factors when determining whether to permit an untimely opt-in to join a collective action, including (1) whether "good cause" exists for the late submissions; (2) prejudice to the defendant; (3) how long after the deadline passed the consent forms were filed; (4) judicial economy; and (5) the remedial purposes of the FLSA. Coronado , 2014 WL 6674292, at *2 ; see also Ruggles v. Wellpoint, Inc. , 687 F. Supp. 2d 30, 37 (N.D.N.Y. 2009). Both parties argue the factors weigh in favor of their respective positions. Ultimately, the Court agrees with the Defendants.
A. Plaintiffs Fail to Establish Good Cause for Their Late Filed Consents
Plaintiffs have not established that good cause exists to excuse the late consents. The Late Opt-ins did not attempt to provide good cause until Defendants moved to strike them from the class. In their response, Plaintiffs attached declarations that purport to establish good cause for delay. Those reasons were unpersuasive.
Kenneth Baxter opted in over a month late because he "believed the overtime suit did not apply to him because his contracts ... stated he was an independent contractor with no employee rights." Decl. of Kenneth Baxter, ECF No. 156-4. But the notice was specifically addressed to "all former and independent contractors" of Defendants and discusses the basis of the lawsuit is the alleged "misclassifi[cation] [of] the insurance agents as independent contractors ..." ECF No. 114-1 (language approved by text order April 12, 2019). Over 120 other agents who received the same notice timely opted in. Mr. Baxter's purported misunderstanding does not constitute good cause. See Russell v. Il. Bell Tel. Co. , No. 08 Civ. 1871 (MFK), 2009 U.S. Dist. LEXIS 131170, at *11 (N.D. Ill. June 17, 2009) (dismissing claim for failure to show good cause when would-be opt-in "initially made an assumption (unwarranted by the terms of the notice) that she was ineligible and thus did not submit it until after she learned otherwise from a co-worker .... Due diligence required [her] to, at a minimum, consult with the attorneys for plaintiffs identified on the notice in timely fashion.").
Bradley Lehmberg opted in almost two months late "because he feared Farm Bureau's retaliation." Decl. of Bradley Lehmberg, ECF No. 156-1. This Court has previously held that "an individual's unsupported fear of retaliation is not sufficient to establish good cause." Ferguson v. Texas Farm Bureau , No. 6-17-CV-00111-ADA, 2019 WL 6609696, at *3 (W.D. Tex. Dec. 5, 2019) ; see also Moya v. Pilgrim's Pride Corp. , No. CIV A 06-1249, 2006 WL 3486739, at *2–3 (E.D. Pa. Nov. 30, 2006) (finding that an opt-in plaintiff's fear of retaliation was not good cause); Evans v. Lowe's Home Centers, Inc. , No. 3:CV-03-438, 2005 U.S. Dist. LEXIS 45137, at *4, 2005 WL 6742284, at *1 (M.D. Pa. Mar. 3, 2005) ("fear of retaliation [does not] excuse untimely return of opt-in notice."). Additionally, the very Notice that Mr. Lehmberg received informing him of his potential rights made clear the FLSA prohibits retaliation:
Retaliation Prohibited
The FLSA prohibits anyone from discriminating or retaliating against you if you choose to take part in this case.
ECF No. 114-1. If Mr. Lehmberg had questions and concerns about retaliation, he could have contacted counsel and been reassured he was protected under the FLSA. Further, over 160 other opt-ins—who may themselves have feared retaliation—timely filed consents. Thus, Mr. Lehmberg's contention that he was fearful of potential retaliation by Defendants is insufficient to establish good cause.
Xavier Villalobos opted in about two and a half months late. He states that he was out on sick leave during a five-month period that included the notice period and that his ailments prevented him from opting in. Decl. of Xavier Villalobos, ECF No. 156-2. He also states that "Farm Bureau insisted he skip doctors' appointments to work more," which suggests he was working during at least some of that period. Although whether good cause exists here appears to be a closer call than the other three Late Opt-Ins', the Court is hesitant to find good cause from this scant declaration. The declaration fails to attempt a showing of diligence or even vaguely describe how the "ailments" prevented him from timely returning a short consent.
Lauren Ward filed her consent nearly three months after the deadline because "the notice got lost." Decl. of Lauren Ward, ECF No. 156-3. Losing notice is generally not good cause. See, e.g., Saleem v. Corp. Transp. Grp., Ltd. , No. 12-cv-8459-JMF, 2013 WL 6331874, *2, 2013 U.S. Dist. LEXIS 172104, *11–12 (S.D.N.Y. Dec. 5, 2013) (striking two late opt-in plaintiffs whose wives respectively misplaced the consent form and forgot to mail it because these failures "to keep track of their own affairs do not constitute good cause"); Moya , 2006 WL 3486739 at *2 (finding no good cause when notice got mixed up with junk mail because "notice was within [would-be opt-in's] control. Had she ‘cleaned out’ the junk mail earlier, she could have avoided the delay in the return of the notice."). And without more detail, the Court cannot even entertain any suggestion that the way in which this notice was lost could constitute good cause. Therefore, the Court finds no good cause exists for Ms. Ward's late opt-in.
The Court finds that no Late Opt-In presents good cause for their untimely consent. Defendants argue that the Court's analysis should end there for two reasons. First, the Late Opt-Ins requested the sixty-day deadline and the good cause requirement, but they filed after the deadline without conferring with Defendants, moving for leave to file past the deadline, and offering good cause for delay. Defs' Mot. to Strike at 4. Plaintiffs respond that leave of court is not required to file untimely consents because requesting leave is impractical given that the statute of limitations is tolled upon filing a consent to a collective action. See Pl.'s Rsp at 4–5, ECF No. 156 ("A statute like the FLSA—designed to protect workers—cannot require putative opt-ins to seek leave and wait for a ruling before filing their consent forms. Otherwise, such a leave requirement would reduce or eviscerate the unpaid wage claims of opt-ins."). This overlooks, however, several permissible alternatives such as attaching the consent to a motion for leave and requesting that the period be tolled between the motion for leave and its approval. While the Court is sympathetic to the Late Opt-Ins' goal of preserving as much recoverable time as possible, leave of court is customary when requesting deviations from Court orders. And without a motion for leave, Plaintiffs offer good cause only in response to a motion to strike, which is not what the conditional certification order contemplates. Moreover, motions for leave are not unprecedented in the FLSA late opt-in context, which undermines the suggestion that filing such a motion would be "impractical" or is not required. See, e.g., Radford v. Pevator Companies, Ltd. , No. CV H-17-3381, 2019 WL 338128 (S.D. Tex. Jan. 28, 2019) (plaintiff's counsel filed motion for leave and conferred with defendant's counsel; no prior order specifically requiring good cause); Ruggles , 687 F. Supp. 2d at 37 (plaintiff's counsel filed motion for leave; no prior order specifically requiring good cause).
Another possibility—although perhaps not ideal—would have been for the Late Opt-Ins to file a separate lawsuit to toll the limitations and then seek consolidation. These examples are intended only to illustrate that the Late Opt-Ins were not relegated to opting in without leave of court.
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Plaintiffs further argue that the good cause requirement they requested "simply memorializes" one factor courts consider when deciding whether to strike untimely opt-ins. ECF No. 156 at 4. That does not explain, however, why no other factors were memorialized. And it demotes a requirement to a mere factor to be weighed against others. At the very least, the inclusion of a good cause requirement suggests it deserves a premium relative to other factors. But the Court still considers good cause a requirement. The plain meaning of the Court's order states late opt-ins are permitted "only if" they timely opt in or "they show good cause for delay," which they have failed to do here. ECF No. 111 at 20.
Second, Defendants reject the requirement of a "five-factor test" advanced by the Late Opt-Ins. The Late Opt-Ins urge the Court to consider factors beyond good cause that courts sometimes consider (in various combinations) when deciding whether to strike untimely consents. These include whether defendant will be prejudiced, how late the consent was filed, judicial economy, and the remedial purposes of the FLSA. See generally Coronado , 2014 WL 6674292, at *2 ; see also Ruggles , 687 F. Supp. 2d at 37 (N.D.N.Y. 2009). The Court agrees with Defendants that not all factors are required or weighted equally but acknowledges that they are common considerations. Indeed, because courts have broad discretion in determining whether late opt-in plaintiffs may join a collective action, "Late Opt-In Plaintiffs may be permitted if the other considerations weigh in their favor." See Ferguson v. Texas Farm Bureau , No. 6-17-CV-00111-ADA, 2019 WL 6609696, at *3 (W.D. Tex. Dec. 5, 2019) (citing Hipp v. Nat. Life Ins. Co. , 252 F.3d 1208, 1219 (11th Cir. 2001) ). But here, in the face of an explicit good cause requirement and no motion for leave offering good cause—and ultimately a finding that even Plaintiffs' response failed to establish good cause—the Court strikes the late consents.
B. Equitable Tolling
Plaintiffs ask this Court to toll the deadline for the stricken Late Opt-Ins so they may separately pursue relief. But because these opt-ins are not properly before the Court, neither is the question of whether to toll their statute of limitations in what may become a separate lawsuit. Thus, Plaintiffs' motion to equitably toll the statute of limitations is premature. See Monk v. Huston , 340 F.3d 279, 282 (5th Cir. 2003) (holding a court should dismiss a case for lack of "ripeness" when the case is abstract or hypothetical).
III. CONCLUSION
IT IS THEREFORE ORDERED that Defendants' Opposed Motion to Strike Untimely Consents to Join Collective Action (ECF No. 155) is GRANTED . Although the Court will not require Plaintiffs' counsel to modify the language on their website at this time, the Court is unlikely to allow additional plaintiffs to opt-in to this action.