Free Order - District Court of Arizona - Arizona

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Given that the Court has granted the MDL plaintiff's Motion to Facilitate Notice, the plaintiff shall not address in his reply the defendants' arguments that a FLSA collective action is inappropriate because the proposed class does not contain "similarly situated" adjusters.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

In re Allstate Insurance Company Fair Labor Standards Litigation Ruben H. Montano, Plaintiff, vs. Allstate Insurance Company, et al., Defendants.

) MDL No. 1541 ) ) ) ) No. CV-04-0014-PHX-PGR ) ) ) ) ) ORDER and OPINION ) ) ) )

Pending before the Court is Plaintiff Montano's Motion to Amend his Class and Collective Action Complaint for Overtime Wages and Injunctive Relief Under the Federal Fair Labor Standards Act (29 U.S.C. §210 et seq.) (doc. #18). Having considered the plaintiff's motion and the defendants' response, the Court concludes that the plaintiff must file a reply addressing the timeliness-related issues raised by the defendants in their response, and by the Court in this order.1 The plaintiff seeks in part to file an amended complaint expanding his current proposed FLSA class of all salaried claims representatives employed by the defendants in Arizona to a proposed class of all such persons employed

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anywhere in the United States except in the State of California.2 Although it is not an issue raised by the defendants, a review of the record has raised a question in the Court's mind as to whether the plaintiff can properly represent any FLSA class in light of the applicable statute of limitations. In order to be a proper representative for any proposed FLSA class, the plaintiff must have commenced this action within the applicable limitations period.3 Whether the plaintiff has done so in this case has become an issue to the Court because the Court cannot find in the record before it any indication that the plaintiff has to date filed his written consent required by 29 U.S.C. § 256(a) to toll the running of the statute of limitations. The Court accepts the position of those courts that have ruled that even a named plaintiff in a collective action must file a written consent prior to the expiration of the limitations period. See e.g., Harkins v. Riverboat Services, Inc., 385 F.3d 1099 (7th Cir. 2004) (Court, in rejecting named plaintiffs' argument that their failure to timely file written consents was a harmless failure to comply with a technicality, stated that "[t]he statute is unambiguous: if you haven't given your written consent to join the suit, or if you

Although the plaintiff states in his motion that the proposed amendment to the FLSA claim changes his case "from a solely collective action to an action seeking nationwide class certification pursuant to Federal Rules of Civil Procedure, Rule 23", the Court notes that it accepts the position of those numerous federal courts that have concluded that Rule 23 has no application to a FLSA collective action filed pursuant to 29 U.S.C. § 216(b). See e.g., DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 306 (3rd Cir. 2003). A FLSA action for overtime pay must be commenced within two years after the cause of action accrues, unless the action is based on a willful violation of FLSA, in which case it must be commenced within three years of accrual. 29 U.S.C. § 255(a). Such an action is commenced as to a named plaintiff either on the date the complaint is filed, if the named plaintiff also filed as of that date a written consent to become a plaintiff, and if the consent is not contemporaneously filed with the complaint, then as of the date the written consent is filed with the court, 29 U.S.C. § 256(a), and such an action is commenced as to an opt-in plaintiff as of the date that person's written consent is filed with the court. 29 U.S.C. § 256(b). A separate claim for a violation of the FLSA accrues each time a non-exempt employee receives a paycheck that improperly excludes overtime pay. Knight v. Columbus, 19 F.3d 579, 581-82 (11th Cir.), cert. denied, 513 U.S. 929 (1994); Cook v. United States, 855 F.2d 848, 851 (Fed.Cir. 1988); Archer v. Sullivan County, Tenn., 1997 WL 720406, *1 (6th Cir. Nov. 14, 1997); see also, Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir. 1993), cert. denied, 510 U.S. 1081 (1994).
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have but it hasn't been filed with the court, you're not a party. It makes no difference that you are named in the complaint[.] ... We are inclined to interpret the statute literally. No appellate decision does otherwise."); accord, Bonilla v. Las Vegas Cigar Co., 61 F.Supp.2d 1129, 1132-33 and 1139-40 (D.Nev. 1999); Tate v. Showboat Marina Casino P'ship, 2002 WL 31443124, *6 (N.D.Ill. Oct. 31, 2002); Salazar v. Brown, 1996 WL 302673, *10-*11 (W.D.Mich. April 9, 1996). Given that the plaintiff's FLSA claim accrued no later than the date of the last paycheck he received subsequent to his separation on December 7, 2001, it appears to the Court that he cannot be a representative of a collective action if he has not yet filed his written consent because his claim would be facially timebarred since more than three years has now elapsed since his last pay date. In his reply, the plaintiff shall state whether he has or has not filed a written consent in this action, and if he has, when and where that consent appears on the Court's record.4 If he has not yet filed a written consent, the plaintiff shall show cause why his FLSA claims should not be dismissed as time-barred. One of the issues raised by the defendants for why the plaintiff should not be allowed to amend his FLSA claim to expand his proposed class is that the plaintiff's motion, filed on May 10, 2004, was untimely filed in that Judge Browning had entered a scheduling order on March 5, 2003 (doc. #17 in CV 02-609-TUCWDB) that gave the parties until June 16, 2003 to move to join additional parties or amend their pleadings. Although this Court vacated all orders from the transferor courts setting pretrial deadlines in a Practice and Procedure Order entered on January 29, 2004, Judge Browning's deadline at issue had already

If the plaintiff did timely file his written consent, the plaintiff shall also explain why his proposed expansion of the FLSA class is appropriate given that the other member cases already contain the proposed class and the Court has already granted the Motion to Facilitate Notice.

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expired by that date. The plaintiff shall explain in his reply why his motion to amend should be considered to be timely. The plaintiff also seeks to amend his complaint to add a state law claim for violation of Arizona wage laws pursuant to A.R.S. § 23-353 and § 23-355.5 The defendants argue that such an addition would be futile because the one-year limitations period for such a claim expired before the plaintiff even commenced this action. The plaintiff shall explain in his reply why his proposed state law claim is not time-barred. Therefore, IT IS ORDERED that plaintiff Montano shall file a reply in support of his Motion to Amend his Class and Collective Action Complaint for Overtime Wages and Injunctive Relief Under the Federal Fair Labor Standards Act (29 U.S.C. §210 et seq.) (doc. #18) in compliance with this Order no later than February 21, 2006.6 DATED this 8th day of February, 2006.

The Court notes that the proposed amended complaint does not set forth, as required by Fed.R.Civ.P. 8(a), the basis for the Court's subject matter jurisdiction over the proposed state law wages claim. The defendants, if they so desire, may file a supplemental response directed solely at the arguments raised by the plaintiff in his reply. The supplemental response shall be filed no later than seven business days after receipt of the plaintiff's reply. The plaintiff shall not file a supplemental reply unless directed to do so by the Court. At the hearing held on January 24, 2006, the Court understood the counsel for the Rosa, Gaglione, and Wunder plaintiffs to state that they had filed a written opposition to plaintiff Montano's motion to amend. The Court, however, cannot find any evidence in the record that any such written opposition was filed. The plaintiffs' counsel shall immediately either inform the Court where in the record the Court can find the plaintiffs' opposition, or if the Court misunderstood the plaintiffs' counsel, to inform the Court that no written opposition was filed.
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