Opinion
17-CV-00957 (AJN) (BCM)
09-01-2021
DEBRA JULIAN, et al., Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant.
REPORT AND RECOMMENDATION TO THE HON. ALISON J. NATHAN
BARBARA MOSES United States Magistrate Judge
Plaintiffs Debra Julian, Stephanie McKinney, and Kimberly Harris worked for defendant Metropolitan Life Insurance Company (MetLife) as Long-Term Disability (LTD) Claim Specialists. They allege that MetLife misclassified them as "exempt" employees and consequently failed to pay them overtime compensation as required by the federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. In addition, Julian - the sole original plaintiff in this Court - asserts a related claim under New York Labor Law (NYLL) §§ 650 et seq. and its implementing regulations, while McKinney, who joined this case on March 2, 2017, after first filing an administrative claim, sues under the Connecticut Minimum Wage Act (CMWA), Conn. Gen. Stat. Ann. §§ 31-58 et seq. Harris, who first joined this action as a named plaintiff on March 6, 2020, seeks damages under the Illinois Minimum Wage Law (IMWL), 820 Ill. Comp. Stat. 105/1 et seq.
Now before me for report and recommendation is defendant's motion (Dkt. No. 142) to dismiss and/or strike portions of the Connecticut and Illinois claims, pursuant to Fed.R.Civ.P. 12(b)(6), as time-barred. For the reasons that follow, the motion should be denied as to plaintiff McKinney, because the two-year statute of limitations applicable to her CMWA claim was tolled when she filed her administrative claim before the Connecticut Department of Labor (CT DOL). However, the motion should be granted as to plaintiff Harris, because the three-year statute of limitations applicable to her IMWL claim was never tolled, and the claim does not "relate back" to the filing of Julian's original FLSA and NYLL claims pursuant to Fed.R.Civ.P. 15(c)(1). Consequently, the portion of Harris's IMWL claim that arises out of overtime pay allegedly due for periods prior to March 7, 2017 - three years before she filed that claim in this Court - should be dismissed.
I. BACKGROUND
A. Facts Alleged in the Third Amended Complaint
All of the named plaintiffs are former LTD Claim Specialists for MetLife, a New York corporation headquartered in New York City. Third Amended Class Action Complaint (TAC) (Dkt. No. 120) ¶¶ 14-16, 19. MetLife is a "major player in the long-term disability market," providing LTD coverage for clients including "a number of large companies throughout the United States." Id. ¶ 26.
Plaintiff Julian resides in New York and worked for MetLife in New York from August 2004 to April 2016. TAC ¶ 14. She sues under the FLSA and the NYLL. Id. ¶ 57. Plaintiff McKinney resides in South Carolina but worked for defendant in Connecticut from September 2013 to July 2016. Id. ¶ 15. She sues under the FLSA and the CMWA. Id. ¶ 67. Plaintiff Harris resides in Illinois and was employed by MetLife in Illinois from June 2010 to August 15, 2018. Id. ¶ 16. She sues under the FLSA and the IMWL. Id. ¶ 77.
As LTD Claim Specialists, plaintiffs gathered information from disability claimants, collected other relevant information, and then presented the documentation to supervisors or specialized staff, such as MetLife's nursing, vocational, or psychiatric staff, who gave opinions on whether the LTD Claim Specialist should "take action on a claim." TAC ¶ 27. According to the TAC, the LTD Claim Specialists "had little to no authority to make many claim decisions on their own." Id. ¶ 28. Rather, their supervisors "were regularly responsible for deciding whether to take certain actions on a claim (such as rejecting or terminating the claim), and nursing, vocational, and psychiatric staff regularly rendered opinions that were necessary for claims decisions." Id.
In order to fulfill the basic requirements of the LTD Claim Specialist position, plaintiffs "regularly" worked between 45 and 60 hours per week. TAC ¶ 29. Specifically, "[p]laintiff Julian worked at least six hours of overtime per week." Id. ¶ 31. McKinney, the Connecticut plaintiff, "often worked at least 10 hours of overtime per week." Id. ¶ 30. Harris, the Illinois plaintiff, "also estimates that she worked at least ten hours of overtime each week. Id. ¶ 32.
Until November of 2013, MetLife classified its LTD Claim Specialists as "non-exempt," meaning that they received overtime pay when they worked more than 40 hours in a week. TAC ¶¶ 5, 33-34. However, in or around November 2013, "as a cost-cutting measure," MetLife "reclassified" its LTD Claim Specialists as exempt from overtime pay as "administrative employees," see 29 U.S.C. § 213(a)(1), "even though their job responsibilities did not change." TAC ¶¶ 6, 33. As a result of the reclassification, plaintiffs no longer received overtime compensation for working more than 40 hours in a given week. Id. ¶ 35.
B. Procedural History
On February 19, 2016, plaintiff McKinney filed a wage complaint against MetLife, under Connecticut law, with the CT DOL. TAC ¶ 36. The DOL investigated, but no resolution was reached. Id. Instead, McKinney "exercised her right to take her case to Court." TAC ¶ 37.
On February 7, 2017, plaintiff McKinney filed an action against MetLife in the District of Connecticut, seeking overtime pay and related relief under the FLSA and the CMWA. See Declaration of Michael D. Palmer (Palmer Decl.) (Dkt. No. 164) Ex. A, ¶¶ 1, 46-64.
On February 8, 2017, plaintiff Julian filed this action. In her Complaint (Compl.) (Dkt. No. 1), she alleged (as relevant here) an individual overtime claim under the FLSA, Compl. ¶¶ 71-75, and a similar class claim under the NYLL. Id. ¶¶ 83-87. The Complaint sought certification of a New York class (with Julian as its representative) but did not seek certification of an FLSA collective. See Id. at 19-20 (Prayer for Damages). The proposed New York class was defined to include all LTD Claim Specialists who worked for MetLife in New York "on or after the date that is six years before the filing of the Complaint in this case." Compl. ¶ 29.
The statute of limitations under the NYLL is six years. NYLL §§ 198(3), 663(3).
On March 2, 2017, plaintiff Julian, joined by plaintiff McKinney, filed an Amended Complaint in this Court (Am. Compl.) (Dkt. No. 6), alleging a collective claim under the FLSA, a class claim under the NYLL, and a new class claim under the CMWA. Am. Compl. ¶¶ 49-57, 58-67, 68-77. The proposed FLSA collective was defined as LTD Claim Specialists who worked for MetLife anywhere in the United States "between three years before the filing of the original Complaint and the date of final judgment." Id. ¶ 50. The proposed Connecticut class, to be represented by McKinney, was defined to include all LTD Claim Specialists who worked for MetLife in Connecticut "from February 19, 2014 through the date of final judgment." Id. ¶ 68.
The statute of limitations under the FLSA is two years, "except that a cause of action arising out of a willful violation may be commenced within three years." 29 U.S.C. § 255(a).
The statute of limitations under the CMWA is two years, Conn. Gen. Stat. Ann. § 52-596, but is "tolled upon the filing with the Labor Commissioner of a complaint of failure to pay wages[.]" Id.
On March 24, 2017, plaintiffs filed a Second Amended Complaint (SAC) (Dkt. No. 17), which, like the prior pleading, alleged a collective claim under the FLSA and class claims under the NYLL and the CMWA. No Illinois law claims were alleged and no Illinois-based plaintiffs were identified in the pleading.
On March 22, 2018, the Hon. Alison J. Nathan, United States District Judge, granted plaintiffs' motion for conditional certification of a nationwide FLSA collective pursuant to 29 U.S.C. § 216(b). (Dkt. No. 65.) Thereafter, a Court-approved notice was sent to 470 LTD Claim Specialists across the country, and "more than 80" opted in, including 18 from Illinois. Palmer Decl. ¶ 14. One of the opt-ins was plaintiff Harris, whose consent-to-join form was dated February 26, 2019, and deemed filed March 6, 2019. (Dkt. No. 87 at 20.) The form stated that Harris consented to join the "collective action," seeking relief under the FLSA, and that she agreed to be bound by any adjudication or settlement of "the FLSA claims" in this action. (Id.)
On March 5, 2020, the parties submitted a stipulation permitting plaintiffs to file a further amended complaint. (Dkt. No. 118.) The next day, plaintiffs filed the TAC, which added Harris as a named plaintiff and added a class claim under the IMWL. TAC ¶¶ 1, 77-86, 110-16. The putative Illinois class alleged in the TAC is defined to include LTD Claim Specialists who worked for MetLife in Illinois "at any time from three years before the filing of the original Complaint," that is, on or after February 9, 2014, "through the date of final judgment." Id. ¶ 77.
Harris's name does not appear in the caption of the TAC, but she is identified as a plaintiff in ¶ 16 and as a proposed representative of the Illinois Class in ¶¶ 77-86 and 116.
The statute of limitations under the IMWL is three years. 820 Ill. Comp. Stat. Ann. 105/12(a).
On May 1, 2020, defendant filed the present motion, arguing that: (1) that the two-year statute of limitations under the CMWA bars the CMWA claims of the members of the putative Connecticut class to the extent their claims arose prior to March 3, 2015 (two years before any plaintiff filed a CMWA claim in this Court), see Def. Mem. (Dkt. No. 143) at 5-7; and (2) that the three-year statute of limitations under the IMWL bars the IMWL claims of the members of the putative Illinois class to the extent their claims arose prior to March 7, 2017 (three years before any plaintiff filed an IMWL claim in this Court). See Def. Mem. at 8-23. Defendant also filed an answer (Dkt. No. 144), asserting as an affirmative defense that plaintiffs' claims are barred in whole or in part by the applicable statutes of limitation. Plaintiffs filed their brief in opposition to the motion to dismiss (Pl. Opp.) (Dkt. No. 161) on May 29, 2020, along with the Palmer Declaration, and defendant filed a reply brief (Def. Reply Mem.) (Dkt. No. 179) on June 19, 2020.
Thereafter, substantial discovery was conducted and additional motions were filed. On October 19, 2020, defendant moved to decertify the FLSA collective. (Dkt. No. 228.) On October 23, 2020, defendant moved for partial summary judgment, arguing that plaintiff McKinney (as well as certain opt-in plaintiffs) was properly classified as exempt for purposes of both federal and Connecticut law. (Dkt. No. 248.) On November 20, 2020, plaintiffs moved to certify the New York, Connecticut, and Illinois classes pursuant to Fed.R.Civ.P. 23. (Dkt. No. 265.)
On August 31, 2021, Judge Nathan granted defendants' motion to decertify the FLSA collective; dismissed the opt-in plaintiffs' FLSA claims without prejudice to filing their own FLSA actions; denied plaintiffs' motion to certify the state law classes; and granted summary judgment to defendant on plaintiff McKinney's FLSA claim, while permitting her CMWA claim to proceed. Mem. Op. & Order (Dkt. No. 348) at 4-28. That ruling moots many of the issues raised in the present motion, but leaves two narrow questions for decision: (1) whether McKinney's individual CMWA claim permits her to recover damages for work performed between February 20, 2014 and March 3, 2015; and (2) whether Harris's individual IMWL claim permits her to recover damages for work performed between February 9, 2014 and March 7, 2017.
The FLSA decertification motion was granted, and the state law certification motion was denied, because as to the key question underlying plaintiffs' misclassification claims - whether the LTD Claim Specialists "exercise[d] discretion and independent judgment," 29 U.S.C. § 213(a)(1) - the evidence showed that plaintiffs had "varied experiences," such that the disposition of their misclassification claims would require individualized evidence as to how each LTD Claim Specialist was managed or supervised and individual credibility assessments. Mem. Op. & Order at 5-8. The summary judgment motion was granted as to McKinney's FLSA claim because the "undisputed record" showed that "her job involved making 'a decision after the various possibilities have been considered' at various steps in the claims process, '" and thus that she "exercised discretion and independent judgment." Id. at 25 (citing 29 C.F.R. § 541.202(a)). The motion was denied as to McKinney's CMWA claim because MetLife failed to show that there was no genuine dispute of material fact as to an additional requirement, specific to Connecticut law: that an "exempt" employee may not devote more than 20% of her workweek to non-administrative work. Id. at 27-28 (citing Conn. Agencies Regs. §§ 31-60-15).
II. ANALYSIS
A. Legal Standards
When considering a motion to dismiss made pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted, the trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). In addition to the facts alleged in the body of the complaint, the court may consider judicially-noticeable matters, Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016); documents "attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference," Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)); and "documents that, although not incorporated by reference, are 'integral' to the complaint." Sierra Club v. Con-Strux, 911 F.3d 85, 88 (2d Cir. 2018) (quoting L- 7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)).
Although the statute of limitations is an affirmative defense, see Morales v. Gourmet Heaven, Inc., 2016 WL 6996976, at *7 (D. Conn. Nov. 29, 2016) (CMWA); Young Chul Kim v. Cap. Dental Tech. Lab'y, Inc., 279 F.Supp.3d 765, 770 (N.D. Ill. 2017) (FLSA and IMWL), it may be raised on a motion to dismiss pursuant to Rule 12(b)(6) if - as in this case - the defense "appears on the face of the complaint," Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 319 (2d Cir. 2021) (quoting Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008)), or in documents attached to or integral to the complaint. Harris v. TD Ameritrade Inc., 338 F.Supp.3d 170, 188 (S.D.N.Y. 2018), report and recommendation adopted, id. at 175. Thus, in Whiteside, the Court of Appeals affirmed the dismissal of an FLSA claim, pursuant to Rule 12(b)(6), as time-barred. 995 F.3d at 320. See also, e.g., Kai Yan Lai v. Wai Mon Leung, 2012 WL 4472155, at *6 (E.D.N.Y. Aug. 31, 2012) (recommending dismissal of FLSA complaint on timeliness grounds pursuant to Rule 12(c)), report and recommendation adopted, 2012 WL 4472143 (E.D.N.Y. Sept. 26, 2012). Where, as here, defendant seeks a partial dismissal on statute of limitations grounds (which would, in effect, cut off the plaintiff's ability to collect damages for earlier periods), the Court may proceed under Rule 12(b)(6). See Ewer v. United States, 63 Fed.Cl. 396 (2005); Zorrilla v. Carlson Restaurants Inc., 255 F.Supp.3d 465 (S.D.N.Y. 2017).
B. The Statute of Limitations for McKinney's CMWA Claim was Tolled During the Pendency of her CT DOL Proceeding
As noted above, the limitations period under the CMWA is two years, but "shall be tolled upon the filing with the Labor Commissioner of a complaint of failure to pay wages[.]" Conn. Gen. Stat. Ann. § 52-596. Since McKinney's CMWA claim was tolled on February 19, 2016, when she filed her administrative complaint for overtime wages with the CT DOL, she is now entitled to seek damages arising out of work that she performed for MetLife in Connecticut beginning two years prior to that date.
In their operative pleading, plaintiffs define the proposed Connecticut class to include individuals who worked for MetLife as LTD Claim Specialists in Connecticut and were classified as exempt from "at any time from February 19, 2014 through the date of final judgment." TAC § 67. However, since the CT DOL claim was filed on February 19, 2016, I calculate February 20, 2014 as the earliest date for which Harris could recover overtime damages.
MetLife does not appear to dispute this point. To the contrary: in its moving brief, MetLife acknowledges that McKinney's CT DOL filing "may have tolled the limitations period for her individual claim," Def. Mem. at 1, but argues vigorously that "there is no legal basis for extending such tolling beyond the individual claims of Ms. McKinney" to the other members of the putative Connecticut class. Id. at 6 (emphases added); see also Butler v. McIntosh, 1997 WL 112010, at *7 (Conn. Sup. Ct. Feb. 21, 1997) ("it is held that the tolling provision of § 52-596 applies only to the claim of a person who files a complaint with the Commissioner"). Plaintiff argues just as vigorously that, under the circumstances presented here, the tolling provision of § 52-596 should "extend to the class." Pl. Opp. at 21-25.
Because the district judge has denied plaintiffs' motion to certify the proposed Connecticut class, there is no need to resolve this point. For the sake of clarity, however, I recommend that defendants' motion be DENIED to the extent it seeks an order that would prevent McKinney from seeking CMWA damages for work performed on or after February 20, 2014.
C. Harris's IMWL Claim Does Not Relate Back to the Filing of the Original Complaint
In Illinois, a claim for unpaid or underpaid wages must be brought "within 3 years from the date of the underpayment." 820 Ill. Comp. Stat. Ann. 105/12(a). Plaintiffs do not assert that Harris's IMWL claim was tolled by operation of state law. Instead, they contend that it "relate[s] back to the original complaint," for limitations purposes, pursuant to Fed.R.Civ.P. 15(c)(1). Pl. Opp. at 8. If plaintiffs are correct, Harris will be able to seek overtime wages allegedly due to her as early as February 9, 2014 (three years before plaintiff Julian filed this action), even though she did not assert any wage claim until she opted in to the FLSA collective on March 6, 2019 (more than five years after that date) and did not assert an IMWL claim until plaintiffs filed the TAC on March 6, 2020 (more than six years after the relation-back date for which she contends).
Rule 15(c)(1) provides that "[a]n amendment to a pleading relates back to the date of the original pleading" when:
(A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.Fed. R. Civ. P. 15(c)(1)(A)-(C).
Rule 15(c)(1) "mandates relation back once the Rule's requirements are satisfied; it does not leave the decision whether to grant relation back to the district court's equitable discretion." Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 553 (2010). Conversely, if the amendment does not satisfy Rule 15(c)(1), relation back should not be granted. See Trustees of Bricklayers & Allied Craftworkers, Loc. 5 New York Ret., Welfare, Lab. Mgmt. Coal. v. Preferred Masonry Restoration, Inc., 2019 WL 4688601, at *9 (S.D.N.Y. Sept. 25, 2019) ("relation back under Federal Rule of Civil Procedure Rule 15(c) is not an equitable doctrine") (emphasis in the original). Consequently, this Court must first determine which subsection(s) of Rule 15(c)(1) apply to the present dispute, and must then consider whether the requirements of the applicable subsection(s) are met.
2.Harris Must Satisfy Rule 15(c)(1)(C)
"Rule 15(c)(1)(C), which governs relation back when an amendment changes the named defendants, also applies to a change of named plaintiffs." Merryman v. J.P. Morgan Chase Bank, N.A., 319 F.R.D. 468, 472 (S.D.N.Y. 2017) (collecting cases); accord Cortese v. Skanska Koch, Inc., 2021 WL 429971, at *14 (S.D.N.Y. Feb. 8, 2021); Puchalski v. FM Constr., Inc., 2020 WL 6727777, at *12 (E.D.N.Y. Nov. 16, 2020); Leber v. Citigroup 401(k) Plan Inv. Comm., 323 F.R.D. 145, 154 n.11 (S.D.N.Y. 2017); In re Eaton Corp. Sec. Litig., 2017 WL 4217146, at *5-7 (S.D.N.Y. Sept. 20, 2017); Tarazi v. Truehope Inc., 2017 WL 5957665, at *12 (S.D.N.Y. July 28, 2017), report and recommendation adopted, 2017 WL 5957745 (S.D.N.Y. Nov. 30, 2017). In this case, therefore, "relation back can be achieved only through Rule 15(c)(1)(A) or Rule 15(c)(1)(C)." Tarazi, 2017 WL 5957665, at *12. Since Harris makes no claim that Illinois law allows relation back under the circumstances presented here, the question for this Court is whether she has satisfied Rule 15(c)(1)(C).
Although Rule 15(c)(1)(C) does not expressly apply to amendments bringing in new plaintiffs (as opposed to new defendants), the Advisory Committee noted, when the provision was first introduced, that the "attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs." Fed.R.Civ.P. 15(c) (advisory committee's note to 1966 amendment). Since then, the Second Circuit has consistently applied that provision to amendments adding new plaintiffs. See Levy v. U.S. Gen. Acct. Off., 175 F.3d 254, 255 (2d Cir. 1999) (per curiam) (agreeing with the district court that "the claims of the Roemer Appellants . . . do not relate back to Levy's timely complaint" because "Levy did not seek to add the Roemer Appellants as plaintiffs because of a mistake, as required by Fed .R. Civ. P. 15(c)(3)(B)"); Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 19 (2d Cir. 1997) ("While Rule 15(c) is framed in terms of an amendment that would change the party 'against' whom a claim is asserted and of the new party's ability to maintain a 'defense,' it is also applicable to a proposed change of plaintiffs."). When these cases were decided, the substance of what is now Rule 15(c)(1)(C) appeared in Rule 15(c)(3). See Advanced Magnetics, 106 F.3d at 19 (setting out then-current text of relevant portions of Rule 15).
Plaintiffs contend that relation back "requires a party to meet the provisions of either (A), (B), or (C)." Pl. Opp. at 18 (emphasis added). However, subsection (C) incorporates, as one of its requirements, that subsection (B) be "satisfied." Thus, where the subsection (C) applies, the party seeking relation back "cannot rely on Rule 15(c)(1)(B) alone." Charlot v. Ecolab, Inc., 97 F.Supp.3d 40, 70 (E.D.N.Y. 2015), report and recommendation adopted, id. at 40-57; see also Dial Corp. v. News Corp., 2016 WL 690895, at *2 (S.D.N.Y. Feb. 9, 2016) (where the amendment adds a new plaintiff, "this Court looks to Rule 15(c)(1)(C), not Rule 15(c)(1)(B)"). Any other interpretation would render subsection (C) a nullity.
3.Harris Is Not Entitled to Relation Back Under Rule 15(c)(1)(C)
a. Fair Notice
Subsection (C) requires, at the outset, a showing that subsection (B) has been satisfied; that is, that "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading." Fed.R.Civ.P. 15(c)(1)(B). Where, as here, the amendment involves "newly added claims, rather than the elaboration of prior claims," the court must also determine, for purposes of subsection (B), whether "the original complaint gave the defendant fair notice of the newly alleged claim[ ].” Charlot, 97 F.Supp.3d at 70-71 (quoting O'Hara v. Wks. Marine, Inc., 294 F.3d 55, 68 (2d Cir. 2002)); see also ASARCO LLC v. Goodwin, 756 F.3d 191, 202 (2d Cir. 2014) (the "central inquiry" under Rule 15(c)(1)(B) "is whether adequate notice of the matters raised in the amended pleading has been given to the opposing party within the statute of limitations by the general fact situation alleged in the original pleading") (quoting Slayton v. Am. Exp. Co., 460 F.3d 215, 228 (2d Cir. 2006)); Zorrilla v. Carlson Rests. Inc. 255 F.Supp.3d. 465, 477 (S.D.N.Y. 2017) (same). See also 6A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1497, at 97 (3d ed. 2010) ("[T]he standard for determining whether amendments qualify under Rule 15(c) is not simply an identity of transaction test. Although not expressly mentioned in the rule, courts also inquire into whether the opposing party has been put on notice regarding the claim or defense raised by the amended pleading.").
Similarly, subsection (C) expressly requires a showing that, "within the period provided by Rule 4(m) for serving the summons and complaint" (90 days after filing), the defendant "received such notice of the action that it will not be prejudiced in defending on the merits." Fed.R.Civ.P. 15(c)(1)(C)(i). See also Puchalski, 2020 WL 6727777, at *12 ("In order for an amendment which adds a new plaintiff to relate back to the original complaint, the original plaintiff must demonstrate [that] the defendant received adequate notice of the new plaintiff's claims so as not to be prejudiced in maintaining a defense on the merits") (quoting Levy v. U.S. Gen. Acct. Off., 1998 WL 193191, at *5 (S.D.N.Y. Apr. 22, 1998), aff'd, 175 F.3d 254 (2d Cir. 1999)).
In this case, plaintiffs are correct that Harris's misclassification claim under the IMWL arises out of the same "conduct, transaction, or occurrence" underlying plaintiffs' would-be collective misclassification claim under the FLSA (first asserted in the Amended Complaint), namely: "MetLife's uniform reclassification of all LTD Claim Specialists as exempt in November 2013, as well as its resulting failure to pay them overtime compensation." Pl. Opp. at 14.Defendant is correct, however, that nothing in the original Complaint (the pleading to which plaintiffs request relation back), and nothing that occurred within the next 90 days, gave MetLife fair notice of the IMWL claim that Harris first asserted more than three years later - on March 6, 2020 - in the TAC.
MetLife argues that the Illinois administrative and executive exemption statute, 820 Ill. Comp. Stat. 105/4a(2)(E)(E) Ill. differs "critically" from its federal counterpart because Illinois defines the scope of those exemptions with reference to the FLSA and the rules adopted thereunder "as both exist on March, 30, 2003," prior to the 2004 amendments to the federal FLSA regulations, 69 Fed. Register 21, 122, 22, 260-74, which provided "substantive interpretations on pivotal, substantive issues" regarding the exemptions. Def. Mem. at 12. Additionally, defendant points out that the IMWL allows for "treble damages" in certain circumstances, see 820 Ill. Comp. Stat. 105/12, while liquidated damages under the FLSA (and NYLL) are capped at double the plaintiff's unpaid wages, and require a finding that the employer lacked a good faith belief that it was complying with the law. Def. Mem. at 12-13 (citing 29 U.S.C. § 216(b) and NYLL § 198(1-a)). These differences in governing law, while potentially complicating the trial of a case involving both federal and state wage-and-hour statutes, do not undermine plaintiffs' argument that the IMWL claim arises out of the same underlying conduct by MetLife alleged in the earlier-filed FLSA, NYLL, and CMWA claims: its decision to reclassify its LTD Claim Specialists as exempt - nationwide - in November 2013, and its failure to pay them any overtime thereafter.
The original Complaint, as noted above, alleged an individual FLSA claim, by Julian, and an NYLL class claim on behalf of Julian and other New York plaintiffs. To be sure, the FLSA claim was repleaded as a collective action approximately three weeks later (within the Rule 4(m) period), see Am. Compl. ¶¶ 49-57, which arguably put MetLife on notice that other LTD Claim Specialists from around the country could opt in. However, an opt-in plaintiff's FLSA claim does not relate back, see Cortese, 2021 WL 429971, at *14-15, and pursuant to 29 U.S.C. § 256 "is not tolled until he or she files a Consent to Sue form." Charlot, 97 F.Supp.3d at 73. See also Curry v. P&G Auditors & Consultants, LLC, 2021 WL 2414968, at *14 (S.D.N.Y. June 14, 2021) ("The 'statute of limitations for opt-in plaintiffs' FLSA claims runs until they actually join the lawsuit; it does not relate back to the filing of the named plaintiff's complaint.'") (quoting Gaspar v. Pers. Touch Moving, Inc., 2014 WL 4593944, at *7 (S.D.N.Y. Sept. 15, 2014)); Cortese, 2021 WL 429971, at *15 ("[A] large body of law in this Circuit holds that a FLSA claim is not tolled by the filing of a collective action."). While defendant reasonably could have anticipated that one or more LTD Claim Specialists from Illinois would opt in to the FLSA collective, those opt-ins would be limited to claims that were timely, under the FLSA's two- or three-year statute of limitations, when their consent-to-sue forms were filed. The Amended Complaint did not give MetLife fair notice that it would also "be sued, in this action, by different plaintiffs asserting individual and class claims under the wage-and-hour laws of . . . additional states." Charlot, 97 F.Supp.3d at 72.
Implicitly admitting that the Amended Complaint itself did not give MetLife notice that Harris (or any other new plaintiff) would be filing IMWL claims three years later, plaintiffs argue that "once the § 216(b) notices went out" in 2018, "and LTDCSs residing in Illinois joined the action" in 2019, MetLife "should have anticipated" that "a suitable representative would step forward to serve as an IMWL plaintiff." Pl. Opp. at 16. See also Id. at 16-17 ("It would not have been reasonable for MetLife to assume that class counsel would refrain from pursuing all possible remedies for Illinois opt-in plaintiffs, including moving to elevate an opt-in plaintiff to IMWL class representative once the option arose."). Defendant responds, correctly, that this "is not how notice works." Def. Reply at 7. "The requirement of fair notice recognizes that plaintiffs wishing to rely on relation back bear some responsibility to define the scope of the action they are bringing, so that defendants may properly evaluate and respond to such claims." Charlot, 97 F.Supp.3d at 73. Moreover, under Rule 15(c)(1)(C), they must discharge that responsibility within 90 days after filing their lawsuit. Harris therefore cannot rely on litigation developments in 2018 and 2019 to show that her IMWL claim properly relates back to the date of Julian's original Complaint in 2017.
Although this case is no longer a FLSA collective action, plaintiffs' relationship-back theory, if accepted by the Court, would have significant implications for such cases.
Indeed, under [plaintiffs'] theory, a national defendant should be on notice of potential class claims in any state it operated as soon as an FLSA collective action was filed, and before any representative [state-specific] plaintiffs were identified and joined the action. This reasoning would defeat the purpose of Rule 15(c)'s notice requirement, if the filing of a single FLSA collective action automatically put a national defendant on notice of any and all potentially related state class claims that may arise.Charlot, 97 F.Supp.3d at 56. This in turn would cause prejudice - even where, as here, the substantive differences between the relevant state statutes are not dramatic - because an FLSA defendant "'has a protectible expectation created by statute that it will face suit only from those who timely consent to opt in.'" Cortese, 2021 WL 429971, at *15 (quoting Huer Huang v. Shanghai City Corp., 2020 WL 5849099, at *14 (S.D.N.Y. Oct. 1, 2020)); see also Krupski. 560 U.S. at 550 (a defendant "who legitimately believed that the limitations period had passed without any attempt to sue him has a strong interest in repose").
The goal of the relation-back provisions set forth in Rule 15(c)(1) is "to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense," Advanced Magnetics, 106 F.3d at 19 (quoting Fed.R.Civ.P. 15 ((advisory committee's note to 1991 amendment)), not to allow FLSA plaintiffs to effectively suspend state statutes of limitation for all potential collective members. I therefore cannot recommend that this Court stretch the concept of "fair notice" to the circumstances presented here. Instead, I conclude that the "pleading of a nationwide FLSA collective action was not fair notice of individual and class action claims under state law, notwithstanding the similarity of the relevant facts." Charlot, 97 F.Supp.3d at 74. See also Wright v. Frontier Mgmt. LLC, 2021 WL 428626, at *3-4 (E.D. Cal. Feb. 8, 2021) (following Charlot and holding that plaintiffs' original pleading, alleging an FLSA collective claim and a California class claim, "did not provide Defendants with fair notice" of new proposed individual and class claims, brought by new plaintiffs, under the laws of Washington, Oregon, and Illinois).
I recognize that the caselaw is not uniform on this point. Zorrilla came to a different conclusion, holding that plaintiffs' filing of a nationwide FLSA collective, together with their "conduct during the litigation," gave defendants adequate notice of new California Labor Code claims that were first pleaded, by newly-added California plaintiff Amber Swan, in the Third Amended Complaint, and therefore that those claims would relate back for limitations purposes. 255 F.Supp.3d at 477-79. See also Kinkead v. Humana at Home, Inc., 450 F.Supp.3d 162, 190 (D. Conn. 2020) (rejecting claim that defendants had "insufficient notice" of plaintiffs' new claims under the NYLL, at least to the extent that those claims were "essentially identical" to plaintiffs' previously-pleaded claims under the FLSA and Connecticut law, but denying relation back for claims that "expanded the temporal scope of the action" or raised new issues). In Zorilla, however, the court relied on a three-factor test set out by the First Circuit in Young v. Lepone, 305 F.3d 1, 14 (1st Cir. 2002), rather than following Second Circuit precedent. 455 F.Supp.3d at 476-79. Moreover, in suggesting that plaintiffs' conduct during the litigation (including statements made in a scheduling order warning that they intended to add new plaintiffs and new state law claims) provided defendants with "informal notice" that "Swan's claims were going to be litigated," 255 F.Supp.3d at 478, Zorrilla overlooked the express requirement in Rule 15(c)(1)(C) that the defendant be given fair notice "within the period provided by Rule 4(m)."
b. Mistake
Where, as here, the amendment as to which relation back is sought effects a change in the parties to the lawsuit, Rule 15(c)(1)(C)(ii) requires a showing that the defendant "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." See Levy, 175 F.3d at 255 (affirming decision of district court denying relation back where new plaintiffs were added but not "because of a mistake, as required" under the language now appearing in (C)(ii)); Puchalski, 2020 WL 6727777, at *13 ("Although Plaintiff contends that courts are divided whether the 'mistake' requirement applies to amendments adding a new plaintiff, the Second Circuit has resolved that issue"); Dennis v. JPMorgan Chase & Co., 439 F.Supp.3d 256, 263 (S.D.N.Y. 2020) (noting that "the Second Circuit has clearly rejected" a more lenient rule for plaintiff-adding amendments and concluding that the district court "is bound by this precedent"); Tarazi, 2017 WL 5957665, at *12-13 (Levy "makes clear that mistake must be established"); Merryman, 319 F.R.D. at 472-73 (following Levy, which has "not been overruled and . . . cannot be distinguished"); Paulay v. John T. Mather Mem'l Hosp., 2016 WL 1445384, at *3 (E.D.N.Y. Mar. 14, 2016) (following Levy and holding that any amendment adding party plaintiffs "must, in accord with Rule 15(c)(1)(A)(c)(ii), be premised upon a mistake in naming the proper plaintiff."), report and recommendation adopted sub nom. Paulay v. Mather, 2016 WL 1449648 (E.D.N.Y. Apr. 12, 2016); Dial Corp., 2016 WL 690895, at *2 (noting that the argument in favor of applying the "mistake" requirement to amendments adding plaintiffs "has even greater persuasive power in the context of a class action" because "[p]ermitting relation back of an entire class of plaintiffs would blindside a defendant who thought it was dealing with a small, enumerated group of plaintiffs"); Wilder v. News Corp., 2015 WL 5853763, at *16 (S.D.N.Y. Oct. 7, 2015) ("the weight of authority in this Circuit," including Levy, "indicates that relation back of an amended complaint adding new plaintiffs is permitted only where the omission of the subsequently-added plaintiffs from the timely-fried complaint was the result of a mistake"); Charlot, 97 F.Supp.3d at 83-84 (collecting earlier cases and concluding that "[i]n line with Second Circuit precedent and the Advisory Committee's notes on Rule 15, this Court will apply Rule 15(c)(1)(C) to the Named Plaintiffs' proposed amendments"); Dumont v. Litton Loan Servicing, LP, 2014 WL 815244, at *16 (S.D.N.Y. Mar. 3, 2014) ("[T]he Second Circuit has itself applied the mistake requirement to newly added plaintiffs . . . and this Court has continued to do so as well."); In re Bennett Funding Grp., Inc. Sec. Litig., 194 F.R.D. 98, 100 (S.D.N.Y. 2000) ("well-established case law and the clear dictates of Rule 15(c) require that plaintiffs invoking the relation back doctrine demonstrate that their failure to add new plaintiffs was the product of some mistake, rather than a deliberate decision").
The omission of Harris and any Illinois claims from the original Complaint, the Amended Complaint, and the Second Amended Complaints was not a mistake. "For example, the failure to previously add [Harris] as a plaintiff is neither the result of some legal error, nor is it a case in which an employee with identical claims was mistakenly named as a plaintiff in the original Complaint." Puchalski, 2020 WL 6727777, at *13. Plaintiffs make no effort to argue this point. Instead, they invite this Court to ignore Levy and its progeny because, they say, where the amendment changes plaintiffs, rather than defendants, "no purpose is served by an artificial mandate of an identification error." Pl. Opp. at 19. Plaintiffs add that that by "crystalizing the nature and import of Rule 15(c)(1)(C)," Krupski "abrogate[d] any prior decisions appearing to suggest that a plaintiff must have been mistaken as to his or her own identity." Id.
I recommend that the Court decline plaintiffs' invitation. First, neither Levy nor the other decisions on which MetLife relies required that a plaintiff be "mistaken as to his or her own identity." Other forms of mistake are also correctable, where relation back is necessary "to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense." Advanced Magnetics, 106 F.3d at 19. See, e.g., Goodman v. United States, 298 F.3d 1048, 1054 (9th Cir. 2002) (permitting relation back where Paul Goodman's counsel "made an understandable pleading error" by filing an initial complaint on behalf of JoAnn Goodman's estate when, under applicable law, Paul (as JoAnn's widower) was "the real party in interest"); Allen v. Nat'l R.R. Passenger Corp., (Amtrak), 2004 WL 2830629, at *10 (E.D. Pa. Dec. 7, 2004) (permitting relation back where five Amtrak employees filed discrimination charges and received right-to-sue letters from the EEOC, but initial complaint erroneously named only one of them in the caption, requiring amendment to list all five).
Second, nothing in Krupski (which involved a defendant-changing amendment) abrogated, or cast doubt upon, the applicability of the "mistake" requirement to plaintiff-changing amendments. Krupski reaffirmed that Rule 15(c) "mandates relation back once the Rule's requirements are satisfied." 560 U.S. at 553. It did not suggest that "the Rule's requirements" should themselves be relaxed where the amendment seeks to add a new plaintiff (and, in this case, a new claim) rather than a new defendant.
Third, as many courts have noted (both before and after Krupski), the Second Circuit has "clearly rejected" plaintiff's view, Dennis, 439 F.Supp.3d at 263, in a decision which, although non-precedential, has stood for more than 20 years and "cannot be distinguished" from the case now before the Court. Merryman, 319 F.R.D. at 472-73. There are thus "compelling reasons to apply the mistake requirement." Tarazi, 2017 WL 5957665.
Fourth and finally, given that neither the original Complaint nor the Amended Complaint gave defendant fair notice of Harris's IMWL claim - thus precluding relation back regardless of whether any mistake was made - there is no need to reach the question whether Rule 15(c)(1)(C)(ii) mandates the same result. See Charlot, 97 F.Supp.3d at 84 ("even were the Court to decline to apply [Rule 15(c)(1)(C)(ii)] in the present circumstance, the result would be the same").
III. CONCLUSION
For the reasons set forth above, I respectfully recommend that defendant's motion be GRANTED IN PART and that plaintiff Harris's IMWL claim be DISMISSED to the extent it arises out of overtime pay allegedly due for periods prior to March 7, 2017.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Alison J. Nathan at 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Nathan. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).