Equitable tolling should be granted in the instant litigation as Plaintiff has diligently been pursuing her rights on behalf of the potential collective class. See Abadeer v. Tyson Foods, Inc., 2010 U.S. Dist. LEXIS 136978, *9 (M.D. Tenn. Dec. 14, 2010). Indeed, as demonstrated by the procedural history set forth above, “extraordinary circumstances” exist here which warrant equitable tolling as Plaintiff is seeking relief on behalf of putative opt-ins whose statute of limitations have been and will continue to run until they are afforded the opportunity to affirmatively opt-in to this case. See id. As such, equitable tolling is needed to prevent further running of potential class members’ claims.
Courts routinely hold that when a motion for conditional certification is pending in a Fair Labor Standards Act (“FLSA”), the statute of limitations should be tolled for those opt-ins that have not affirmatively opted into the action. Courts reach this conclusion because of the recognition that opt-ins suffer prejudice as their statute of limitations continues to run due to reasons beyond their control until their notice of written consent is filed with the court. Specifically, Section 256 provides that in a collective action, an opt-in claim is commenced upon the filing of the notice of written consent with the court. See 29 U.S.C. § 256(b) (providing 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 [ . . . ] on the subsequent date on which such written consent is filed in the court in which the action was commenced.”). As such, signed consents do not relate back to the original filing date of the complaint. See id.; see also Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 200 (3rd Cir. 2011).
Indeed, there is often a lengthy amount of time that elapses from the granting of a conditional certification motion until the filing of an individual’s notice of consent form, because before an opt-in’s notice of written consent can even be filed with the court, a number of procedural steps must first occur. Firstly, the plaintiff’s counsel must move for conditional certification before the court. Secondly, the court must then grant conditional certification. Thirdly, the parties must agree upon a Notice form which requires court approval and is then mailed to all potential opt-ins. Potential class members must then review, complete, and mail the notice of consent forms back to Plaintiff’s counsel. Lastly, Plaintiff’s counsel must file the notice of consent forms with the court. It is only upon the filing of the notice of consent form that an opt-in’ statute of limitations stops running. It is no surprise then, the courts routinely will grant tolling to putative opt-ins starting from a much earlier date, such as the date plaintiffs’ counsel moved for conditional certification.
The Middle District of Tennessee in Abadeer v. Tyson Foods, Inc. granted an additional 120 days of tolling on behalf of potential opt-ins following the date of the Court’s Order granting conditional certification. See Abadeer v. Tyson Foods, Inc., 2010 U.S. Dist. LEXIS 136978, *15 (M.D. Tenn. Dec. 14, 2010). The Court had previously already granted tolling on behalf of putative opt-ins for seven (7) months, which represented the time period during which the plaintiff’s motion for conditional certification was pending before the court. See id. at *7-8. Relying in part upon other caselaw from the Sixth Circuit, the Court found that equitable tolling was warranted. See id. at *9-14. Specifically, the Court found tolling was appropriate as “the members of this collective action are low-wage workers, members of this group [who already opted in] had the assistance of counsel, and the necessity of time for the Court’s ruling.” Id. at *10-11; see also Roslies-Perez v. Superior Foresty Service, Inc., 652 F. Supp. 2d 887, 899 (M.D. Tenn. July 28, 2009) (tolling the statute of limitations for putative class members).
In a recent FLSA action, the Southern District of New York held that the statute of limitations should be tolled as of the date of the plaintiff’s filing of the motion for conditional certification. See McGlone v. Contract Callers, Inc., 2012 U.S. Dist. LEXIS 49702, *16-17 (S.D.N.Y. Apr. 9, 2012). In McGlone, the plaintiff moved for conditional certification on behalf of approximately 500 individuals in October of 2011 and the Court did not rule on the motion for conditional certification until nearly six (6) months later. See Civil Docket attached hereto as Exhibit A. The Court recognized that equitable tolling was appropriate as “putative class representatives and their counsel are diligently and timely pursuing the claims and should also not be penalized due to the court’s heavy dockets and understandable delays in rulings. Accordingly, the statute of limitations will be tolled as of the date of the filing of this motion.” Id.
Similarly, in Yahraes v. Restaurant Associates Events Corp., the Eastern District of New York granted equitable tolling of the statute of limitations on behalf of potential opt-ins for the period of time that the plaintiff’s two separate motions for conditional certification was pending which amounted to a total of approximately three (3) months. Yahraes v. Restaurant Associates Events Corp., 2011 U.S. Dist. LEXIS 23115, *9-10 (E.D.N.Y. March 8, 2011). In doing so, the Court held that “plaintiffs have vigorously pursued their claims and, through no fault of their own, have been delayed in prosecuting their action and distributing 216(b) notice to potential opt-in plaintiffs.” Id. at *8. Significantly, the Court noted that equitable tolling would not prejudice the defendants as they had been on notice since the complaint was originally served that they would be potentially liable for FLSA claims going back three years. See id. at *9.
In Stickle v. SCI Western Mtk. Support Ctr., the Court granted the plaintiffs’ motion for equitable tolling for the period of time from when the defendants filed their motion to dismiss until the date that the plaintiffs re-file their motion for conditional certification. See Stickle v. SCI Western Mtk. Support Ctr., 2008 U.S. Dist. LEXIS 83315, *61-65 (D. Ar. Sep. 30, 2008). The Court held that the delay caused by the defendant’s motion to dismiss was prejudicial to potential opt-ins should the case be certified: “The commencement of a lawsuit does not act to toll the statute of limitations under the FLSA for putative class members. Instead, the statute of limitations continues to run until putative class members file consent forms. Courts have equitably tolled the statute of limitations in an FLSA action when doing so is in the interest of justice. [Citing cases] The Court finds it appropriate in the interest of justice to toll the statute of limitations here. Defendants here will not be prejudiced by an equitable toll. If not tolled, the statute of limitations could act to deprive consenting employees of their right of action.” Id. at *63-64 (internal citations omitted).
Likewise, the Court in Antonio-Morales v. Bimbo’s Best Produce, Inc. granted the plaintiff’s motion to toll the statute of limitations during the pendency of a stay requested by the U.S. Department of Justice. See Antonio-Morales v. Bimbo’s Best Produce, Inc., 2009 U.S. Dist. LEXIS 51833, *6 (E.D. La. April 20, 2009). In granting the motion, the Court noted that “[c]ourts routinely grant equitable tolling in the FLSA collective action context to avoid prejudice to actual or potential opt-in plaintiffs that can arise from the unique procedural posture of collective actions under 29 U.S.C. § 216(b).” Id. at *4.
Lastly, in Owens v. Bethlehem Mines Corp., the Court granted tolling of the statute of limitations as to two opt-ins to an action involving Age in Discrimination Employment Act (“ADEA”) claims. See Owens v. Bethlehem Mines Corp., 630 F. Supp. 309, 312-313 (S.D. W. Va. 1986). The ADEA operates pursuant to the same statutory framework applicable to the FLSA concerning how potential opt-ins must join collective action. See id. at 311; see also 29 U.S.C. § 256. The Court found the claims of the two opt-ins timely, even though the notice of consent forms filed by both opt-ins did not meet the ADEA’s three-year statute of limitations. See id. at 310-311. In granting equitable tolling to both opt-ins’ claims, the Court stated that “[t]hrough no fault of the Plaintiffs or the Defendant, the motion to certify was not ruled upon until November 21, 1985. In a Rule 23 class action, the running of the statute of limitations for the individual plaintiffs is suspended during the pendency of the class certification question.” Id. at 312 (internal citations omitted). Although recognizing that Rule 23 principles did not apply, the Court followed the holdings of other courts and granted tolling, in part, no doubt to the approximately 16-month time period between the motion to conditionally certify the class and the Court Order granting conditional certification. See id. 310.