Calloway v. AT & T Corp.

• Decision Date: 27 December 2019
• Docket Number: No. 18 C 06975,18 C 06975
• Citation: 419 F.Supp.3d 1031
• Court: U.S. District Court — Northern District of Illinois
• Parties: Diane CALLOWAY, et al., Plaintiffs, v. AT & T CORP., et al., Defendants.

419 F.Supp.3d 1031

Diane CALLOWAY, et al., Plaintiffs,

v.AT & T CORP., et al., Defendants.

No. 18 C 06975

United States District Court, N.D. Illinois, Eastern Division.

December 27, 2019

Glen Joseph Dunn, Jr., Glen J. Dunn & Associates, Jeffrey Grant Brown, Jeffrey Grant Brown, P.C., Angel Petrov Bakov, Bakov Law, Ltd., Chicago, IL, for Plaintiffs.

Karl Nelson, Gibson Dunn & Crutcher, LLP, Dallas, TX, Patrick Sean Coffey, Robert Matthew Romashko, Husch Blackwell LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Honorable Edmond E. Chang, United States District Judge

Telephone-call center employees have brought this proposed collective action against five AT & T entities: AT & T Corp.; AT & T, Inc.; AT & T Teleholdings, Inc.; AT & T Services, Inc.; and AT & T Operations, Inc. (referred to collectively as "AT & T"¹ for convenience's sake). The employees allege that they were deprived of overtime wages in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). R. 1, Collective Action Compl.² AT & T responded with a motion to dismiss, arguing (among other things) that this Court lacked personal jurisdiction over the defendants. R. 24, Defs.' Mot. Dismiss. The Court eventually terminated that motion without prejudice to allow for limited jurisdictional discovery. R. 68. Pending now is Plaintiffs' motion for equitable tolling, requesting that the statute of limitations for putative collective-action members be tolled from December 19, 2018 (the filing date of the Plaintiffs' motion, R. 28, to stay the briefing on AT & T's motion to dismiss) going forward until the date that the Court decides the jurisdictional issue. R. 54, Mot. Equitable Tolling. For the reasons stated below, the Court denies the motion for en masse equitable tolling, but does so without prejudice to individual employees later arguing that their specific circumstances justify tolling.

I. Procedural Background

In considering this motion, the Court assumes familiarity with the underlying facts described more fully in the order that granted in part and denied in part Plaintiffs' stay motion. See Calloway v. AT & T Corp. , 2019 WL 4694724, at *6 (N.D. Ill. Sept. 26, 2019). But it is worth recapping the procedural background as it pertains to the motion for equitable tolling. Plaintiffs filed the collective-action complaint against AT & T on October 17, 2018. Collective Action Compl. Nine employees were named as plaintiffs in the complaint, id. ¶ 1, with another 38 opt-in employees as of the date of the complaint's filing.³ Pls.' Mot. Stay ¶ 2. AT & T moved to dismiss on November 26, 2018, arguing (among other things) that this Court lacked personal jurisdiction over the various AT & T companies. Defs.' Mot. Dismiss. AT & T also moved to defer the deadlines established by the Mandatory Initial Discovery Pilot Project. R. 21. On November 29, 2018, the Court stayed AT & T's answer deadline and also stayed the Mandatory Initial Discovery disclosures deadline. R. 27.

In response to the motion to dismiss, on December 19, 2018, Plaintiffs sought leave to conduct limited discovery on the issue of personal jurisdiction. Pls.' Mot. Stay. Since the filing of that motion, 11 more employees have opted in to this action. R. 60, Def.'s Resp. Br. ¶ 5. Then, while the parties were briefing the motion to stay, Plaintiffs filed a motion to apply equitable tolling to the statute of limitations as to future collective members. Mot. Equitable Tolling. Specifically, Plaintiffs argue that equitable tolling should apply starting from December 19, 2018 (the filing date of Plaintiffs' stay motion), through the eventual date that the Court decides the jurisdictional issue.⁴ Id. The parties have briefed their positions on this issue. See Defs.' Resp. Br.; R. 61, Pls.' Reply Br.

A little over nine months after it was filed, the Court granted in part and denied in part the Plaintiffs' motion to stay, allowing for limited discovery on the issue of personal jurisdiction. Calloway , 2019 WL 4694724, at *6. The Court also denied without prejudice AT & T's motion to dismiss, subject to renewal after the jurisdictional discovery concludes. Id. at *8. The parties are currently still in the midst of jurisdictional discovery. See R. 75.

II. Analysis

A. Equitable Tolling

The doctrine of equitable tolling "creates a defense to statute of limitations and other nonjurisdictional filing deadlines for cases in which, despite due diligence, the plaintiff cannot sue within the statutory deadline." Sparre v. United States Dep't of Labor, Admin. Review Bd. , 924 F.3d 398, 402 (7th Cir. 2019). Equitable tolling applies only if (1) the plaintiff has diligently pursued the plaintiff's rights; and (2) some extraordinary circumstance nevertheless prevented timely filing. Mayberry v. Dittmann , 904 F.3d 525, 529 (7th Cir. 2018) (citing Holland v. Florida , 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) ), cert. denied , ––– U.S. ––––, 139 S. Ct. 1202, 203 L.Ed.2d 228 (2019). To satisfy the second requirement, the circumstances causing the litigant's delay must be "both extraordinary and beyond its control." Id. (quoting Menominee Indian Tribe of Wis. v. United States , ––– U.S. ––––, 136 S. Ct. 750, 756, 193 L.Ed.2d 652 (2016) ) (emphasis in original). "[F]ailure to show either element will disqualify him from eligibility for tolling." Id.

Equitable tolling is an "extraordinary remedy that is rarely granted." Carpenter v. Douma , 840 F.3d 867, 870 (7th Cir. 2016) (cleaned up)⁵ ; Obriecht v. Foster , 727 F.3d 744, 748 (7th Cir. 2013) (quoting Simms v. Acevedo , 595 F.3d 774, 781 (7th Cir.2010) ); see also Wallace v. Kato , 549 U.S. 384, 396, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) ("Equitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs."); Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ("Federal courts have typically extended equitable [tolling] relief only sparingly."). But by the same token, the bar is not set so high as to make equitable tolling impossible. See Socha v. Boughton , 763 F.3d 674, 684 (7th Cir. 2014). Instead, its applicability is highly dependent on the facts and "courts are expected to employ flexible standards on a case-by-case basis." Id. ; see also Holland , 560 U.S. at 650-52, 130 S.Ct. 2549.

"In most cases in which equitable tolling is invoked, the statute of limitations has run before the plaintiff obtained information essential to deciding whether he had a claim." Cada v. Baxter Healthcare Corp. , 920 F.2d 446, 453 (7th Cir. 1990). The Seventh Circuit has concluded, for example, that the failure to post the notice required by the Age Discrimination in Employment Act of 1967 would provide a sufficient basis for tolling the statute of limitations on age-discrimination claims. Kephart v. Inst. of Gas Tech. , 581 F.2d 1287, 1289 (7th Cir. 1978). Kephart reasoned that "Congress imposed [the notice] requirement on employers to insure [sic ] that protected employees would be fully informed of their rights under the ADEA" and that "this end would not be realized if employers were free to breach the posting requirement without penalty." Id. In a similar vein, courts in this district have concluded that the failure to post the required notice under the FLSA might justify the equitable tolling of the statute of limitations. See, e.g., Pizano v. Big Top Party Rentals, LLC , 2018 WL 2193245, at *5 (N.D. Ill. May 14, 2018) (denying request for equitable tolling on other grounds but noting that "an employer's failure to comply with the notice requirements of 29 C.F.R. § 516.4 could serve as a basis for equitably tolling the statute of limitations on the claims of potential plaintiffs."); Young Chul Kim v. Capital Dental Tech. Lab., Inc. , 279 F. Supp. 3d 765, 772 (N.D. Ill. 2017) (denying summary judgment motion on statute of limitation grounds where parties disputed whether the employer posted the required notice, which could justify tolling the statute of limitations); Chavez v. Don Stoltzner Mason Contractor, Inc. , 2010 WL 1417029, at *5 (N.D. Ill. Apr. 5, 2010) (denying motion to dismiss on statute of limitations ground where the employees alleged that the employer failed to pose the required FLSA notice).

B. Analysis

The FLSA allows employees who are "similarly situated" to pursue their claims in a collective action. 29 U.S.C. § 216(b). An FLSA action must "be commenced within two years after the cause of action accrued," unless the violation was willful, in which case the statute of limitations is three years. 29 U.S.C. § 255(a). An FLSA lawsuit is considered "commenced" at different times depending on whether the employee is a named "party plaintiff" or is instead an opt-in:

on the date when the complaint is filed; except that in the case of a collective or class action … it shall be considered to be commenced in the case of any individual claimant—(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or (b) if such written consent was not so filed or if his name did not so appear—on the subsequent date on which such written consent is filed in the court in which the action was commenced.

29 U.S.C. § 256 (emphasis added). So even though the named Plaintiffs brought this collective action on behalf of all others similarly situated, the statute of limitations for these putative class members will continue to run until those employees actually opt in (that is, give their consent in writing to become parties in this action, per 29 U.S.C. § 216(b) ). See Espenscheid v. DirectSat USA, LLC , 705 F.3d 770, 771–72 (7th Cir. 2013). It is true that conditional certification (sometimes known as "Step One" notice) generally allows notice to be sent to potential class members, but t...