Bonilla v. Las Vegas Cigar Co.

• Decision Date: 18 August 1999
• Docket Number: No. CV-S-98-1298PMP (RLH).,CV-S-98-1298PMP (RLH).
• Parties: Ramon BONILLA, Sylvia Glez, Agapito Torres, Jose Luis Guareno, Nelson Ventura, Leonardo Rosario, Gilberto Rodriguez, Jorge Amadiz, Pedro Rosaria, Santiago Estrella, on behalf of themselves and all other employees of Las Vegas Cigar Company similarly situated, Plaintiffs, v. LAS VEGAS CIGAR COMPANY, Defendant.
• Court: U.S. District Court — District of Nevada

61 F.Supp.2d 1129

Ramon BONILLA, Sylvia Glez, Agapito Torres, Jose Luis Guareno, Nelson Ventura, Leonardo Rosario, Gilberto Rodriguez, Jorge Amadiz, Pedro Rosaria, Santiago Estrella, on behalf of themselves and all other employees of Las Vegas Cigar Company similarly situated, Plaintiffs, v. LAS VEGAS CIGAR COMPANY, Defendant.

No. CV-S-98-1298PMP (RLH).

United States District Court, D. Nevada.

August 18, 1999.

COPYRIGHT MATERIAL OMITTED

Jose C. Pallares, Las Vegas, NV, for plaintiffs.

Malani L. Kotchka, Smith & Kotchka, Las Vegas, NV, for defendant.

ORDER

PRO, District Judge.

Presently before the Court is Defendant Las Vegas Cigar Company's (hereinafter "Las Vegas Cigar") Motion for Summary Judgment (# 18) filed May 25, 1999. Plaintiffs, Ramon Bonilla, Sylvia Glez, Agapito Torres, Jose Luis Guareno, Nelson Ventura, Leonardo Rosario, Gilberto Rodriguez, Jorge Amadiz, Pedro Rosaria, Santiago Estrella (collectively "Plaintiffs"), filed Plaintiffs' Opposition to Motion for Summary Judgment (# 19) on June 11, 1999. Las Vegas Cigar filed Defendant's Reply to Plaintiffs' Opposition to Motion for Summary Judgment (# 34) on July 6, 1999.

I. Factual and Procedural Background

Plaintiffs were employees of Las Vegas Cigar. On September 16, 1998, they filed a Complaint "on behalf of themselves and all other employees of Las Vegas Cigar Company similarly situated," claiming that Las Vegas Cigar had violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219.¹ Generally, Plaintiffs seek to recover unpaid minimum wages, overtime compensation, liquidated damages, and attorney's fees. Las Vegas Cigar answered the Complaint on January 21, 1999, by denying any violation of the FLSA, and also asserting several defenses, including that the Plaintiffs' claims were barred by the statute of limitations.

On May 25, 1999, Las Vegas Cigar moved for summary judgment, asserting that Plaintiffs had failed to file consent to suit forms with the Court as required by 29 U.S.C. §§ 216(b) and 256 to commence the action for purposes of the statute of limitations. After this motion was filed, eight of the eleven named Plaintiffs filed consent to suit forms with the Court. Two named Plaintiffs, Gilberto Rodriguez and Jose Luis Guareno, admitted in Interrogatories that they have never filed a consent to suit form, and there is no record that the remaining named Plaintiff, Pedro Rosaria, has filed a consent to suit form with the Court.

II. Discussion

A. Summary Judgment and the Statute of Limitations

The Court must reject Plaintiffs' argument that summary judgment is an "inappropriate challenge" to a "procedural defect in the Complaint," and Plaintiffs' contention that the Court should treat Las Vegas Cigar's motion as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. It is appropriate for this Court to consider summary judgment on a meritorious statute of limitations claim. See 389 Orange St. Partners v. Arnold, Nos. 97-35877, 98-35005, 98-35240, 1999 WL 355959, at *2 (9th Cir. June 4, 1999) (affirming district court's grant of summary judgment barring claims under statute of limitations); Ott v. United States, 141 F.3d 1306, 1310 (9th Cir.1998) (same).

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. All facts and inferences drawn must be viewed in the light most favorable to the responding party when determining whether a genuine issue of material fact exists for summary judgment purposes. See Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1050 (9th Cir.1995). After drawing inferences favorable to the respondent, summary judgment will be granted only if all reasonable inferences defeat the respondent's claims. See S.E.C. v. Seaboard Corp., 677 F.2d 1297, 1298 (9th Cir.1982).

"Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1).

B. Claims Barred by Statute of Limitations

Las Vegas Cigar contends that Plaintiffs' claims are completely or partially barred by the applicable statute of limitations for private rights of action under the FLSA. Plaintiffs do not seriously dispute this contention, but argue that "failure to file signed consents ... simultaneously with the Complaint is not fatal; the consents may be filed after the complaint, commencing the action pursuant to 29 U.S.C. Section 256." (Pls.' Opp'n to Mot. for Summ.J. at 3).

Title 29 U.S.C. § 216(b) of the FLSA provides that employees may bring private actions for themselves "and other employees similarly situated" against employers who violate the FLSA. 29 U.S.C. § 216(b) (1999). Section 216(b) further provides, "No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id. Under the provisions of the Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262, claims must be brought within two years of the alleged FLSA violation. See 29 U.S.C. § 255 (1999). Pursuant to 29 U.S.C. § 256, an action is commenced,

on the date when the complaint is filed; except that in the case of a collective or class action instituted under the Fair Labor Standards Act ... 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 (1999).

The statutory language is clear. When plaintiffs have filed a "collective action," under § 216(b),² all plaintiffs, including named plaintiffs, must file a consent to suit with the court in which the action is brought. Although the consents may be filed after the complaint, the action is not deemed commenced with respect to each individual plaintiff until his or her consent has been filed. See Atkins v. General Motors Corp., 701 F.2d 1124, 1130 n. 5 (5th Cir.1983) (affirming district court's refusal to allow certain plaintiffs to intervene where plaintiffs had not opted in before running of statute of limitations); Partlow v. Jewish Orphans' Home of Southern Cal., Inc., 645 F.2d 757, 760 (9th Cir.1981) ("It is true that the FLSA statute of limitations continues to run until a valid consent is filed."); Cash v. Conn Appliances, Inc., 2 F.Supp.2d 884, 897 (E.D.Tex.1997) (stating that in collective actions, statute of limitations continues to run until consent filed); Salazar v. Brown, Jr., No. G87-961, 1996 WL 302673, at *10-11 (W.D.Mich. Apr. 9, 1996) (analyzing cases which held that statute of limitations under § 256 is tolled when written consents are filed for each plaintiff); Graham v. City of Chicago, 828 F.Supp. 576, 583 (N.D.Ill.1993) (finding that complaint commences when consent filed). By contradistinction, a suit which consists of a number of individual actions joined under Rule 20(a) of the Federal Rules of Civil Procedure is not a "collective action," and plaintiffs need not file a consent to suit in order to commence the action. See Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1134-35 (5th Cir.1984); Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir.1978); Gray v. Swanney-McDonald, Inc., 436 F.2d 652, 655 (9th Cir.1971).

The question thus becomes whether Plaintiffs have filed a "collective action" within the meaning of § 216(b), or a number of individual actions joined under Rule 20(a) of the Federal Rules of Civil Procedure. Although the statute itself does not define "collective action," the Ninth Circuit Court of Appeals has indicated that a collective action is "an action brought by an employee or employees for and in behalf of themselves and other employees similarly situated." Gray, 436 F.2d at 655 (quoting H.R.REP. No. 326, 80th Cong., 1st Sess. at 14) (internal quotations omitted). In Gray, the Ninth Circuit Court of Appeals determined that the case was not a collective action where the action "was not brought for the benefit of unnamed plaintiffs, or in the name of any plaintiff who was suing in a representative capacity." Gray, 436 F.2d at 655.

In the present case, the Complaint states that the Plaintiffs are suing "on behalf of themselves and all other employees of Las Vegas Cigar Company similarly situated." The language parrots § 216(b), and Gray, and would thus seem to invoke the collective action requirements of the FLSA. However, the Fifth Circuit Court of Appeals found that such language did not automatically infer a collective action. See Allen, 724 F.2d at 1135 (holding that language in complaint that plaintiffs sought to represent "other similarly situated Atlantic Richfield employees" not dispositive on question of collective action). The Allen court stated that the action "never evolved into a collective or class action since no unnamed plaintiff ever came forward and filed a written consent to the suit," and all named plaintiffs alleged individual causes of action and sought individual relief. Id. at 1135.

After examining the statute's provisions and other authorities, the Court concludes that the Ninth Circuit Court of Appeals would not adopt the approach taken by the Fifth Circuit...