Harkins v. Riverboat Services, Inc.

• Citation: 385 F.3d 1099
• Decision Date: 06 October 2004
• Docket Number: No. 03-3624.,03-3624.
• Parties: John H. HARKINS, et al., Plaintiffs-Appellants, v. RIVERBOAT SERVICES, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

385 F.3d 1099

John H. HARKINS, et al., Plaintiffs-Appellants, v. RIVERBOAT SERVICES, INC., Defendant-Appellee.

No. 03-3624.

United States Court of Appeals, Seventh Circuit.

Argued September 10, 2004.

Decided October 6, 2004.

Appeal from the United States District Court for the Northern District of Illinois, William J. Hibbler, J.

Ernest T. Rossiello (argued), Rossiello & Associates, Chicago, IL, for Plaintiffs-Appellants.

Julia D. Mannix (argued), Davis, Mannix & McGrath, Chicago, IL, for Defendant-Appellee.

Before FLAUM, Chief Judge, and BAUER and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiffs in this suit for overtime pay under the Fair Labor Standards Act are 21 former employees of the defendant, which employed them on a gambling boat; 14 of the 21 also claim that they were fired in retaliation for making overtime claims, which likewise is forbidden by the Act.

The boat's home port is East Chicago, Indiana, on Lake Michigan. Like a number of other states, Indiana permits gambling only on "riverboats." Ind.Code § 4-33-9-1. This curiosity of American public policy has been well explained by William Blake Bennett, "Waterborne Woes: Legal Difficulties of Riverboat Gambling in Emerging Jurisdictions," Nev. Lawyer, Feb. 1985, p. 19:

Riverboat gaming undoubtedly has been chosen by gaming interests as a means by which casino gaming could be made more politically acceptable, both because it is considered as a less intrusive means of operation within a community, and because of its potential benefits to maritime interests, especially in areas where the shipbuilding industry has been reeling from the effects of a depressed offshore oil industry and from cutbacks in military vessel construction. Riverboat gaming also conjures up romantic notions of the past along the Mississippi River, and has been touted to the public as a means by which to create jobs, attract tourists, provide for economic development and enhance tax revenues by a voluntary form of taxation, while still avoiding the perception of casinos as a permanent part of the fabric of a community.

The Showboat Mardi Gras Casino, on which the plaintiffs worked, is a real ship despite its outlandish name and is considered a "riverboat" though it plies Lake Michigan rather than a river. Built in Florida, it sailed from its birth-place to East Chicago under its own steam. The plaintiffs were members of the ship's "marine crew." That is, they were not waiters or croupiers, but instead were responsible for the operation of the ship or (as comprehended within that term) the safety of the ship's passengers. The casino itself is operated by Harrah's, which hired the defendant to staff and supervise the maritime aspect of this boat-casino hybrid. Most of the plaintiffs, however, were not directly involved in navigation or engine-room work, and indeed spent much of their time doing the kind of housekeeping chores that they would have done in a casino that was on land — which, they argue, is what the Showboat Mardi Gras Casino really is, since it spends at least 90 percent of its time moored to a pier in East Chicago. This high incidence of maritime inactivity is due in part to the fact that the lake is too rough for the passengers' taste much of the year, but mainly, we imagine, to the passengers' not being much interested in sailing; they're interested in gambling and are happy to do it while the ship is moored, without having to risk becoming seasick. (It is hard to believe that weather or water conditions, though basically the only statutory excuses for allowing gambling while the boat is docked, Ind.Code § 4-33-9-2, prevent its sailing 90 percent of the time.) When the ship does sail, it is for short distances — indeed, without special permission by the state's gambling commission, a cruise may not exceed four hours, Ind.Code § 4-33-9-3 — and so the crew never has to sleep over in the ship. Realistically, their life differs only slightly from that of ordinary casino workers. The Fair Labor Standards Act (FLSA) exempts from its overtime provisions persons employed as seamen. 29 U.S.C. §213(b)(6). The plaintiffs argue that they are not seamen because they do not do the distinctive work of seamen and do not work on a real ship but on a kind of glorified houseboat.

The district court dismissed the overtime claims of 18 of the 21 plaintiffs because no written consents by them to join in this suit had been filed with the court before the statute of limitations expired. The case then went to jury on the overtime claims of the remaining three plaintiffs and on the retaliatory-discharge claims of the 14 plaintiffs who had made such claims. The jury awarded a verdict for the defendant on all the claims. All 21 plaintiffs appeal.

In a collective (or, as it is sometimes called, a representative) action under the FLSA, a named plaintiff sues "in behalf of himself ... and other employees similarly situated. 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." 29 U.S.C. §216(b). (Compare class actions under Fed.R.Civ.P. 23(b)(3), in which the consent of class members is not required; instead they have a right to be notified of the class action and to opt out of it and seek their own remedies. Fed.R.Civ.P. 23(c)(2)(B).) The plaintiffs' counsel asks us to overlook the failure to comply with the statute. He argues that since all 18 were actually named as plaintiffs in the complaint and participated in discovery, their consent to be parties can be presumed and so the failure to file written consents for them was harmless, a mere failure to comply with a technicality.

The statute is unambiguous: if you haven't given your written consent to join the suit, or if you 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, for you might have been named without your consent. The rule requiring written, filed consent is important because a party is bound by whatever judgment is eventually entered in the case, and if he is distrustful of the capacity of the "class" counsel to win a judgment he won't consent to join the suit. We are inclined to interpret the statute literally. No appellate decision does otherwise.

The importance of a strict interpretation is illustrated by this case. Eight years after the suit was filed, Mr. Rossiello, the class counsel, who has previously been sanctioned on more than one occasion for his conduct of litigation, Dormeyer v. Comerica Bank-Illinois, 226 F.3d 915, 916-17 (7th Cir.2000) (per curiam); Youker v. Schoenenberger, 22 F.3d 163, 169 (7th Cir.1994), has still not produced written consents from the 18. All, it is true, are named in the complaint as plaintiffs. But some were added late, and some who appeared in the original complaint disappeared when the complaint was amended. Rossiello emphasizes that all the plaintiffs have been deposed, but this hardly indicates that they wanted to have their rights adjudicated in this proceeding or be represented by counsel chosen by other plaintiffs.

The special oddity of this suit is that had it not been designated in the complaint as a collective action — that is, an action on behalf not only of the named plaintiffs but also of others similarly situated to them — there would be no requirement of filed written consents. The requirement is applicable only to collective actions. That is why those of the 18 who complained that they were fired in retaliation for filing overtime claims remained parties to the retaliation claims; those claims had not been pleaded as collective actions. It now appears that Mr. Rossiello long ago abandoned any idea of suing on behalf of those employees of the defendant whom he did not add to the complaint. Had he made this intention clear — an intention to convert the collective action for overtime pay to an action on behalf only of the named plaintiffs — before the statute of limitations expired, he would not have lost 18 of his 21 plaintiffs. Anderson v. Montgomery Ward & Co., 852 F.2d 1008, 1018 (7th Cir.1988); Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1134-35 (5th Cir.1984); Morelock v. NCR Corp., 586 F.2d 1096, 1103 (5th Cir.1978).

Anderson says that "the requirement that plaintiffs in a representative action file a written consent with the district court applies only to those parties who are not named as plaintiffs in the complaint." Id. at 1018-19. This statement, to which Mr. Rossiello clings with the strength of desperation, is the purest dictum. Anderson was a joint action — that is, a suit that is not a collective action because, although there are multiple plaintiffs, there is no claim for relief on behalf of persons similarly situated to the named plaintiffs. The character of the suit in Anderson is apparent from the court's citation to Allen v. Atlantic Richfield Co., supra, and from the fact that the plaintiffs in Anderson had "hired a lawyer to file a complaint on their behalf" and had thus "clearly indicated their consent to suit," while in the present case the plaintiffs' consent to take their chances with lawyer Rossiello is precisely what is at issue. This suit was captioned as a representative action when first filed and, for reasons known only to Rossiello, was never converted to a joint action. So the 18 are out.

As for the overtime claims by the three plaintiffs for whom written consents were filed, and which are therefore properly before us, the contention is that the district court should have ruled as a matter of law that they were not seamen within the meaning of the seaman's exemption from the FLSA, 29 U.S.C. §213(b)(6). The exemption is terse — "any employee employed as a seaman" — and has given rise to an extensive case law which contains however no case much like this one, no crisp formula, and little discussion...