Bah v. Enter. Rent-A-Car Co. of Bos., LLC

• Decision Date: 02 September 2021
• Docket Number: C.A. No. 17-12542-MLW
• Citation: 560 F.Supp.3d 366
• Parties: Mamadou Alpha BAH, Plaintiff, v. ENTERPRISE RENT-A-CAR COMPANY OF BOSTON, LLC, and Enterprise Holdings, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

560 F.Supp.3d 366

Mamadou Alpha BAH, Plaintiff,

v.ENTERPRISE RENT-A-CAR COMPANY OF BOSTON, LLC, and Enterprise Holdings, Inc., Defendants.

C.A. No. 17-12542-MLW

United States District Court, D. Massachusetts.

Filed September 2, 2021

Shannon E. Liss-Riordan, Thomas P. Fowler, Lichten & Liss-Riordan, P.C., Boston, MA, for Plaintiff.

Barry J. Miller, Hillary J. Massey, Seyfarth Shaw, LLP, Boston, MA, Jason C. Schwartz, Pro Hac Vice, Joshua S. Lipshutz, Gibson Dunn & Crutcher LLP, Washington, DC, for Defendant Enterprise Rent-A-Car Company of Boston, LLC.

Barry J. Miller, Hillary J. Massey, Seyfarth Shaw, LLP, Boston, MA, Jason C. Schwartz, Pro Hac Vice, Ryan C. Stewart, Pro Hac Vice, Joshua S. Lipshutz, Gibson Dunn & Crutcher LLP, Washington, DC, for Defendant Enterprise Holdings, Inc.

MEMORANDUM AND ORDER

WOLF, DISTRICT JUDGE.

I. INTRODUCTION

This is a putative class action brought by plaintiff Mamadou Alpha Bah against defendants Enterprise Rent-A-Car Company of Boston and Enterprise Holdings, Inc., and alleging violations of federal and Massachusetts overtime laws. Defendants have moved for reconsideration of the November 13, 2020 Order, which denied defendants’ motion to dismiss the claims that its alleged violations were willful. For the reasons described below, the motion for reconsideration is being denied.

In addition, the parties dispute how this case should proceed. See Feb. 17, 2021 Joint Statement (Dkt. No. 114). Plaintiff requests that the court next decide his Motion for the Issuance of Notice Pursuant to § 216(b) of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (the "FLSA") (Dkt. No. 5), which asks the court to conditionally certify a class. Defendants, however, argue that the court should first address the issue of equitable tolling, because that issue could preclude class certification or significantly affect the scope of any possible class. Defendants also seek to defer litigation concerning conditional certification in order to conduct limited discovery concerning willfulness and Bah's individual claims, in order to "inform the Parties’ briefing on which individuals may be ‘similarly situated’ to Bah for purposes of FLSA certification." Feb. 17, 2021 Joint Statement at 7. For the reasons explained below, the court is not deferring litigation on the conditional certification motion and is ordering a briefing schedule for that motion if it must be litigated.

II. MOTION FOR RECONSIDERATION

For claims brought under the FLSA, the applicable statute of limitations depends on whether the alleged violations were "willful." See 29 U.S.C. § 255(a). Defendants moved to dismiss plaintiff's "willfulness claims," arguing that he failed to plead those claims with particularity. See Dkt. No. 94 at 16-19. The court denied the motion because willfulness relates to defendants’ affirmative statute of limitations defense, and claims cannot be dismissed based on an affirmative defense unless plaintiff's pleadings establish the defense with certitude. See Nov. 13, 2021 Mem. at 33 (Dkt. No. 103). Defendants contend that this was an error of law and that FLSA willfulness claims must be pleaded with particularity in order to survive a motion to dismiss. See Mot. Reconsideration at 4-8 (Dkt. No. 106).

A. Legal Standard

"[I]nterlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case." Harlow v. Children's Hosp., 432 F.3d 50, 55 (1st Cir. 2005). See also Latin Am. Music Co. Inc. v. Media Power Grp., Inc., 705 F.3d 34, 40 (1st Cir. 2013). However, "[m]otions for reconsideration are not to be used as a vehicle for a party to advance arguments that could and should have been presented to the district court prior to its original ruling." Villanueva v. United States, 662 F.3d 124, 128 (1st Cir. 2011) (citing United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009)). Rather, "[r]econsideration may be proper where the movant shows a manifest error of law or newly discovered evidence, or where the district court has misunderstood a party or made an error of apprehension." Id. (citing Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 81-82 (1st Cir. 2008) ).

B. Analysis

Defendants do not contend that newly discovered evidence or an intervening change in the law justifies reconsideration of the November 13, 2020 Order. Rather, they argue that the court's decision was based on an error of law. See Mot. Reconsideration at 3-4 (Dkt. No. 106). In support of this argument, they cite a litany of district court decisions that indicated that FLSA plaintiffs are required to plead willfulness with particularity to survive a motion to dismiss. See id. ¹ Defendants also supplemented their motion for reconsideration with a recently decided case in which the Second Circuit endorsed that view. See Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 320 (2d Cir. 2021).

However, Whiteside merely creates a circuit split on this issue. As the court in Whiteside recognized, see id. (citing Fernandez v. Clean House, LLC, 883 F.3d 1296, 1298-99 (10th Cir. 2018) ), other courts of appeals have held that a FLSA plaintiff need not plead willfulness with particularity. In Fernandez, the Tenth Circuit found that applying the two-year statute of limitations at the motion to dismiss stage was inappropriate where "[t]he Complaint hardly contain[ed] an admission that the alleged FLSA violations were not willful." See also Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 903 (9th Cir. 2013) (finding general allegation that "violations were ‘deliberate, intentional, and willful’ " sufficient to survive motion to dismiss, because "[a]t the pleading stage, a plaintiff need not allege willfulness with specificity"). Numerous district courts have taken a similar approach.²

Whiteside is the only case cited by defendants that was decided after this court's November 13, 2020 decision. Whiteside essentially reiterates reasoning in cases defendants cited previously and the court considered previously. Whiteside does not persuade the court that its November 13, 2020 decision was based on a manifest error of law. As explained in the November 13, 2020 Memorandum, this court's reasoning was consistent with First Circuit law concerning an affirmative defense to defeat a motion to dismiss. See Nov. 13, 2020 Mem. at 33 (citing Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 320 (1st Cir. 2008) ; Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001) ). As discussed more fully in that Memorandum, "willfulness" is not an element of a FLSA claim, but rather is an element of defendants’ statute of limitations defense. See Nov. 13, 2020 Mem. at 32. "Dismissing a case under Rule 12(b)(6) on the basis of an affirmative defense requires that ‘(i) the facts establishing the defense are definitively ascertainable from the complaint and the other allowable sources of information, and (ii) those facts suffice to establish the affirmative defense with certitude.’ " Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006) (quoting Rodi v. S. New Engl. Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004) ). In this case, the facts plaintiff alleges do not establish with certitude that the alleged violations of the FLSA were not willful. Accordingly, the motion for reconsideration is being denied.

III. CONDITIONAL CERTIFICATION

In addition, the court is not deferring litigation on plaintiff's Motion for the Issuance of Notice Pursuant to § 216(b) of the FLSA (Dkt. No. 5), which asks the court to conditionally certify a FLSA class. As discussed earlier, plaintiff argues that litigation of that motion should proceed now. Defendants, however, contend such litigation should be deferred until the court: (1) determines whether the claims of potential opt-in class members should be equitably tolled, and (2) allows limited discovery regarding the issues of willfulness and Bah's individual claims for the purpose of determining Bah's suitability as class representative. See Feb. 17, 2021 Joint Statement (Dkt. No. 114) at 7.

A. it is Not Appropriate to Defer Conditional Certification Pending Resolution of the Equitable Tolling Issue

The purpose of equitable tolling is to "extend[ ] statutory deadlines in extraordinary circumstances for parties who were prevented from complying with them through no fault or lack of diligence of their own." Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010). "[A] litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ). "Federal courts have typically extended equitable relief only sparingly in suits against private litigants, allowing tolling where the claimant has actively pursued his judicial remedies by filing a defective pleading or where he has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 90, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).

Whether a plaintiff has exercised "reasonable diligence" sufficient to justify equitable tolling is "an equitable, often fact-intensive inquiry." Holland v. Fla., 560 U.S. 631, 654, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Judges in the District of Massachusetts and others have, therefore, found it inappropriate to resolve equitable tolling on a class-wide basis before actual class members have been identified. See, e.g., Tidd v. Adecco USA, Inc., 2010 WL 996769, *3 (D. Mass. Mar. 16, 2010) ; Gonpo v. Sonam's Stonewalls & Art LLC, 2018 WL 1725695, *8 (D. Mass. Apr. 9, 2018) ; Sanchez-Rosa v. Municipality of San Juan, 2020 WL 6286503, *5-6 (D.P.R. Oct. 27, 2020). The Federal Circuit has reached the same conclusion. See United States v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986).

Moreover, resolving this issue solely...