Partlow v. Jewish Orphans' Home of Southern California, Inc.

• Citation: 645 F.2d 757
• Decision Date: 18 May 1981
• Docket Number: No. 78-2961,78-2961
• Parties: 24 Wage & Hour Cas. (BN 1369, 91 Lab.Cas. P 34,014 Ralph G. PARTLOW, Robert P. Simonelli, Lauren Burton, Ann Bartelstein on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellees, v. JEWISH ORPHANS' HOME OF SOUTHERN CALIFORNIA, INC., a California corporation doing business as Vista Del Mar Child Care Service, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 757

645 F.2d 757

24 Wage & Hour Cas. (BN 1369, 91 Lab.Cas. P 34,014

Ralph G. PARTLOW, Robert P. Simonelli, Lauren Burton, Ann

Bartelstein on behalf of themselves and all other

persons similarly situated, Plaintiffs-Appellees, v. JEWISH ORPHANS' HOME OF SOUTHERN CALIFORNIA, INC., a

California corporation doing business as Vista Del

Mar Child Care Service, Defendant-Appellant.

No. 78-2961.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1980.

Decided May 18, 1981.

Peter M. Appleton, Tyre & Kamlins, Los Angeles, Cal., for defendant-appellant.

Kent Burton, Baker & Burton, Venice, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before NELSON and CANBY, Circuit Judges, and LARSON, ^* District judge.

LARSON, District Judge.

Plaintiffs filed this action on May 23, 1977, in the United States District Court for the Central District of California, alleging that the defendant ("Vista") had violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., by failing to pay adequate overtime compensation to its employees. The four plaintiffs named in the complaint, members of the child care staff at Vista, sought to maintain the lawsuit as a class action under the provisions of 29 U.S.C. § 216(b). Shortly after filing the complaint, counsel for the named plaintiffs, without leave of court, sent letters to current and former employees of Vista soliciting their consent to become parties to the lawsuit. ¹ Named plaintiffs' counsel subsequently filed with the court "consents" from sixty-nine Vista employees who wished to join the lawsuit.

The district court found that counsel's communication with the consenting Vista employees, although made in good faith, was "clearly contrary to law." The court then ordered that:

(1) the consents were improperly filed and ineffective;

(2) the clerk of court would notify each person on whose behalf an ineffective consent had been filed; and

(3) the statute of limitations for filing suit under the FLSA would be tolled for a period of forty-five days to allow those employes whose consents were ineffective to file a proper consent with the court. ²

The district court then certified its order as appealable under 28 U.S.C. § 1292(b) and cited the new court notice and the tolling of the statute of limitations as the controlling questions of law, the resolution of which would materially advance the litigation. This court granted defendant permission to take an interlocutory appeal. For the reasons stated below, we affirm.

The procedures for instituting a class action under the FLSA differ significantly from the procedures mandated under Rule 23 of the Federal Rules of Civil Procedure. Courts have uniformly held that the standard Rule 23 procedures court-directed notice to members of a certified class who must affirmatively request to be excluded from the lawsuit to avoid becoming a party are inapplicable in an FLSA action. Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977); Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975); LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975). Under the FLSA, a member of the class who is not individually named in the complaint is not a party to the lawsuit unless he affirmatively "opts in" by filing a written consent with the court. 29 U.S.C. §§ 216(b), 256. See also Kinney, supra, at 862.

In addition to the converse methods of becoming a party plaintiff, the FLSA and Rule 23 class actions differ in another very significant respect: the FLSA contains no specific authority for giving notice to class members who are potential party plaintiffs. Rule 23, of course, provides for court-directed notice to class members. The absence of a notice procedure in the FLSA creates some difficulty for named plaintiffs who seek to maintain a class action, yet are not permitted to notify other class members of the pendency of the action. Nevertheless, most courts that have interpreted the FLSA, including this court, have held that neither the named plaintiffs, their counsel, nor the court have the power to provide notice to FLSA class members. Id. at 863. Locascio v. Teletype Corp., 74 F.R.D. 108, 112 (N.D.Ill. 1977); Roshto v. Chrysler Corp., 67 F.R.D. 28, 30 (E.D.La. 1975); McGinley v. Burroughs Corp., 407 F.Supp. 903, 911 (E.D.Pa. 1975). Contra, Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335, 336 (2d Cir. 1979); Cantu v. Owatonna Canning Company, No. 3-67-Civil 374 (D.Minn. April 12, 1978). Unlike a class member in a Rule 23 action, the FLSA class member who is not notified and does not consent is not bound by an adverse judgment and is not barred from filing an individual claim. Kinney, 564 F.2d at 862. Kinney makes clear that under the law of this circuit, named plaintiffs' counsel had no power to solicit the class members. Id. The district court quite properly found that the resulting "consents" were ineffective.

Vista urges us to adopt the viewpoint that the Kinney decision also prohibits the district court from notifying each person on whose behalf an ineffective consent was filed. Vista views Kinney as having imposed a broad prohibition against FLSA notice at any time. We do not agree. To the very peculiar factual circumstances involved in the court-proposed notice in this case, we find the Kinney notice prohibition to be inapplicable. Kinney involved an FLSA class action in which notice had not been sent to class members. The district court there permitted the named plaintiffs to send notice and consent-to-join forms to potential plaintiffs, and the defendant took an interlocutory appeal. This court held that due process did not require potential FLSA plaintiffs to be notified of a pending lawsuit and that the district court did not have the power under the FLSA to permit notice to be sent. Id. Since any judgment rendered in the case would not be binding on any person who did not receive notice and opt in, the court reasoned, due process did not require notice and the court, lacking any specific statutory authority, did not have the power to order that notice be given. Id. at 864. See Pan American World Airways, Inc. v. United States District Court for the Central District of California, 523 F.2d 1073, 1077 (9th Cir. 1975).

What Kinney did not directly determine, however, is whether due process requires the court, in a case such as this one, to provide notice to potential plaintiffs who have already received notice, albeit improperly, and as a result have opted to join the lawsuit. Unlike in Kinney, the potential plaintiffs in this case who opted in after the improper notice have a very substantial interest that is threatened the right to bring a lawsuit to recover alleged underpayment of wages an interest that they have indicated by written consent that they wish to protect. Were it not for the solution purposed by the district court, these sixty-nine individuals would be barred by the FLSA statute of limitations from instituting a collective action to which they filed timely consents that, through no fault of their own, were subsequently found invalid. We are persuaded that due process considerations not present in Kinney require the district court to give notice to the sixty-nine current and former Vista employees who earlier filed ineffective consents. " '(D)ue process is flexible and calls for such procedural protections as the particular situation demands.' " Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). "(T)he trial court has an obligation to those not before it to ensure that they are apprised of proceedings that may finally affect them; ..." In re Gypsum Antitrust Cases, 565 F.2d 1123, 1127 (9th Cir. 1977). See also Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

Furthermore, we think that the rationale of Kinney and Pan American World Airways, Inc., when applied to the factual circumstances of this case, supports the notice process ordered by the district court. As this court stated in Kinney,

in any action in which persons who do not affirmatively opt in will not be bound by the outcome, notice is not compelled by due process because the employees' right to litigate will not be compromised merely by their absence from the class proceedings.

Kinney, 564 F.2d at 864. See Pan American World Airways, Inc., 523 F.2d at 1077. In this case, the employees' right to litigate, a right which they affirmatively exercised, will be compromised if notice is not provided. Thus, we find that notice is compelled by due process considerations under the reasoning of the Kinney decision. The consenting plaintiffs cannot be excluded from this lawsuit.

Vista also contends that the FLSA statute of limitations cannot be tolled in order to permit any of the sixty-nine employees to file a proper consent. The district court ordered the statute tolled for forty-five days. It is true that the FLSA statute of limitations continues to run until a valid consent is filed. 29 U.S.C. § 256(b); Montalvo v. Tower Life Building, 426 F.2d 1135, 1149 (5th Cir. 1970); Kuhn v. Philadelphia Electric Co., 487 F.Supp. 974, 975 (E.D.Pa. 1980). However,

(t)he basic question to be answered in determining whether, under a given set of facts, a statute of limitations is to be tolled, is one "of legislative intent whether the right shall be enforceable ... after the prescribed time."

Burnett v. New York Central Railroad, 380 U.S. 424, 426, 85 S.Ct. 1050, 1053, 13 L.Ed.2d 941 (1965) (quoting Midstate Horticultural Co. v. Pennsylvania Railroad, 320 U.S. 356, 360, 64 S.Ct. 128, 130, 88 L.Ed. 96 (1943)).

The FLSA is silent on the question whether the statute of limitations may be suspended for any cause. Several decisions, however, have discussed tolling...