Reynolds v. Wyndham Vacation Resorts, Inc., C.A. No.: 4:14-cv-2261-PMD
| Decision Date | 29 January 2016 |
| Docket Number | C.A. No.: 4:14-cv-2261-PMD |
| Parties | Richard Reynolds, Sharon Linick, Linda Neely, Joseph Schubert, Doreen Mastandrea, Jonathan Anderson, Steven Bradley, Gerry Conklin, Jennifer Crawford, Daniel Delpriora, John Maynard, April Mclean, Mike Smith, William Suitt, Donna Weinberg, Larry Marshall, Michelle Johnson, and Edmundo Velasco, individually and on behalf of other employees similarly situated, Plaintiffs, v. Wyndham Vacation Resorts, Inc., and Wyndham Vacation Ownership, Inc., Defendants. |
| Court | U.S. District Court — District of South Carolina |
This matter is before the Court on cross-motions for partial summary judgment (ECF Nos. 96 & 97), Plaintiffs' Motion in Limine (ECF No. 99), and Plaintiffs' Motion for Equitable Tolling (ECF No. 113). For the reasons set forth herein, each motion is granted in part and denied in part.
On June 10, 2014, Plaintiffs commenced this action on behalf of themselves and others similarly situated, seeking unpaid minimum wages and unpaid overtime wages pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. The named Plaintiffs, as well as those who have subsequently given notice of their consent to join this action, are current or former sales representatives of Wyndham Vacation Resorts, Inc. Plaintiffs seek recovery from Wyndham Vacation Resorts, Inc. and Wyndham Vacation Ownership, Inc. (collectively, "Defendants").
The parties filed their respective motions for summary judgment on September 3, 2015, their responses in opposition on September 30, and their replies on October 13. Plaintiffs filed their Motion in Limine on September 10 and Defendants responded on September 28. Plaintiffs did not file a reply. Finally, Plaintiffs filed their Motion for Equitable Tolling on October 2. Defendants filed their Response in Opposition on October 26, and Plaintiff did not file a reply. Accordingly, these matters are now ripe for consideration.1
"Equitable tolling is available when 1) the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant, or 2) extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time." Cruz v. Maypa, 773 F.3d 138, 146 (4th Cir. 2014) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (internal quotation marks omitted)). "Equitable tolling is a rare remedy availably only where the plaintiff has 'exercise[d] due diligence in preserving [his] legal rights.'" Id. at 145-46 (quoting Chao v. Va. Dep't of Transp., 291 F.3d 276, 283 (4th Cir. 2002)). "In the interests of justice, courts have allowed equitable tolling of FLSA claims where conditional certification and notice to the prospective plaintiffs has been delayed due to the procedural posture of the case." Lorenzo v. Prime Commc'ns, L.P., No. 5:12-CV-69-H, 2014 WL 3366073, at *2 (E.D.N.C. July 9, 2014) (collecting cases).
At the outset, the Court does not find that Defendants have engaged in any sort of wrongful conduct that prevented any plaintiff from asserting his or her claim. Accordingly, the Court's decision turns on whether Plaintiffs have been prevented from timely filing their claims by circumstances beyond their control. Plaintiffs request that the court toll the statute of limitations from July 2, 2015, or, in the alternative, from the date they filed their consent forms. Plaintiffs assert they were not required to file consent forms because they were proceeding in their individual capacities. Additionally, they claim that if they were required to file consent forms, their verified answers to interrogatories and their signed declarations could act as substitutes for filed consent forms. Finally, Plaintiffs appear to assert that they were prejudiced by the Court's delay in ruling on their Motion for Conditional Certification and in authorizing notice to the class.
Conversely, Defendants assert Plaintiffs must file a consent form to toll the statute of limitations. The Court agrees. The Fourth Circuit has held that a plaintiff proceeding in his individual and representative capacity must file a consent form with the court. See Lee v. Vance Exec. Prot., Inc., 7 F. App'x 160, 166-67 (4th Cir. 2001) (per curiam) ; see also In re Food Lion, Inc., 151 F.3d 1029 (4th Cir. 1998) (table) (). Here, it is abundantly clear that Plaintiffs intended to file this action as a collective action against Defendants. Plaintiffs' original complaint explicitly states it is a "PLAINTIFF'S ORIGINALCOLLECTIVE ACTION COMPLAINT." (Pls.' Compl., ECF No. 1, at 1.) Thus, in order to toll the statute of limitations, Plaintiffs were required to file their consent forms with the Court. Accordingly, Plaintiffs' argument that they were not required to file consent forms fails.
Next, Plaintiffs argue that their verified answers to interrogatories and signed declarations could act as substitute consents. The FLSA provides that "[n]o 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). "Courts have repeatedly interpreted Section 256 [of the FLSA] as requiring all plaintiffs in an FLSA collective action, whether named or unnamed, to file written consents to toll the statute of limitations." Faust v. Comcast Cable Commc'ns Mgmt., No. WMN-10-2336, 2013 WL 5587291, at *3 (D. Md. Oct. 16, 2014). However, the requirements for a written consent are not specified by the FLSA.
"While it is clear that some document in addition to the complaint must be filed, it is not clear what form the written consent must take, especially when the alleged party plaintiff is a named plaintiff." D'Antuono v. C & G of Groton, Inc., No. 3:11cv33 (MRK), 2012 WL 1188197, at *2 (D. Conn. Apr. 9, 2012). Courts have generally shown "considerable flexibility" with respect to the form of consent, Manning v. Gold Belt Falcon, LLC, 817 F. Supp. 2d 451, 454 (D.N.J. 2011), requiring only that "the signed document verif[y] the complaint, indicate[ ] a desire to have legal action taken to protect the party's rights, or state[ ] a desire to become a party plaintiff." Perkins v. S. New England Tel. Co., No. 3:07-cv-967, 2009 WL 3754097, at *3 n.2 (D. Conn. Nov. 4, 2009).
Butler v. DirectSAT USA, LLC, 55 F. Supp. 3d 793, 800 (D. Md. 2014). As in this case, the plaintiffs in Faust failed to file written consent forms. Id. at 3. However, the court in Faust allowed signed interrogatories and other documents to meet the consent requirement of the FLSA on the date those documents were filed. Id. at *18-19. Similarly, in Butler, the court permitted signed interrogatory answers and a signed declaration to constitute written consent. 55 F. Supp. 3d at 800.
Defendants object to Plaintiffs' attempt to use answers to interrogatories as a written consent because the interrogatories were signed by Plaintiffs' counsel using an "s/" signature and not signed and verified by Plaintiffs. The Court agrees. Although several of the interrogatories filed as exhibits by Plaintiffs contain a statement that the Plaintiff provided the answers to the interrogatories, none of those exhibits contain Plaintiffs' signatures. Accordingly, Plaintiffs' answers to interrogatories cannot be used in lieu of signed consent forms.
Defendants also object to Plaintiffs' use of their signed declarations because they do not contain a statement indicating Plaintiffs' consent. In determining whether a document manifests consent, the court in Faust asked "whether Plaintiffs' signed declarations and answers to interrogatories demonstrate a clear intention to join the collective action." 2013 WL 5587291, at *5. Additionally, the court in Butler stated that signed interrogatory answers and signed declarations were sufficient consents where those "documents refer[red] to the facts underlying the litigation and express[ed] [Plaintiffs'] view[s] that the alleged practices applied to all [employees]." 55 F. Supp. 3d at 800. Here, each signed declaration contains a description of that Plaintiff's job duties, a description of Defendants' business practices, and a list of other employees who were subject to those same business practices. (See Pls.' Decls., ECF Nos. 113-1-113-13.) As a result, Plaintiffs' signed declarations meet the requirements delineated by the Court in Butler. While Plaintiffs do not explicitly state that they consent to join the present suit, their declarations demonstrate their desire to join. Accordingly, Plaintiff's Motion is granted in part, tolling the statute of limitations to the date on which Plaintiffs' declarations were first filed, July 27, 2015.
Having determined that Plaintiffs' signed declarations were sufficient to demonstrate Plaintiffs' clear intention to join the collective action, thereby tolling the statute of limitations,the Court need not consider whether equitable tolling should be granted in favor of the moving Plaintiffs.2
To grant a motion for summary judgment, a court must find that "there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). The judge is not to weigh the evidence but rather must determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). All evidence should be viewed in the light most favorable to the nonmoving party. Perini Corp. v. Perini...
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