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Fair v. Communications Unlimited Inc.

United States District Court, E.D. Missouri, Eastern Division

September 26, 2019

TACITA FAIR, individually and on behalf of those similarly situated, Plaintiffs,
v.
COMMUNICATIONS UNLIMITED, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff Tacita Fair’s Motion to Conditionally Certify FLSA Collective Action [2] and Plaintiff’s Second Motion to Toll FLSA Statute of Limitations [157]. The Court grants Fair’s Motion to Conditionally Certify FLSA Collective Action and denies Fair’s Second Motion to Toll FLSA Statute of Limitations.

         I. BACKGROUND

         On September 11, 2017, Plaintiff Tacita Fair filed a complaint in this Court alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the Missouri Minimum Wage Law, Mo. Rev. Stat. § 290.500 et seq. ECF No. 1. Plaintiff brought this suit as a collective action and a class action. Plaintiff alleges Defendants[1] misclassified employees as independent contractors to avoid paying overtime rates. On the same date she filed her complaint, Plaintiff filed a motion to conditionally certify the FLSA collective action. ECF No. 2. Three days later she filed a motion to toll the statute of limitations. ECF No. 6. On February 12, 2018, Plaintiff filed an amended motion to toll the statute of limitations. ECF No. 36.

         Prior to bringing this lawsuit, Marcus Fulton filed a lawsuit in this Court against the same defendants, with the same allegations regarding the classification of technicians and failure to pay overtime rates. Fulton failed to comply with court orders, failed to timely file a class certification brief, and failed to respond to a motion to dismiss the class action claims. Consequently, the Court dismissed the case for failure to prosecute. Thirteen days later, Plaintiff filed this action.

         On February 23, 2018, the Court granted Plaintiff’s motion to toll the statute of limitations for claims of individuals who opted-in to the Fulton suit from the date their claims were dismissed in the Fulton suit to the time when Defendants provide their contact information to Plaintiff. ECF No. 43. On April 3, 2018, Plaintiff filed a motion to compel the production of phone numbers, email addresses, and dates of service for Defendants’ technicians. ECF No. 50. The Court granted Plaintiff’s motion to compel on May 16, 2018, and required Defendants to produce the information by June 14, 2018. ECF No. 65. On June 21, 2018, and July 11, 2018, Defendants filed motions to dismiss the case, or in the alternative, to stay the case and compel arbitration. ECF Nos. 78, 86.

         On July 24, 2018, Charter Communications, Inc. filed a motion to quash a subpoena served by Plaintiff. ECF No. 91. On September 6, 2018, the Court denied Defendants’ motions to dismiss or to compel arbitration. ECF No. 112. On September 13, 2018, the Court partially granted Plaintiff’s motion for conditional certification. ECF No. 113. The Court conditionally certified a class of technicians who installed cable on behalf of CUA. The Court ordered Plaintiff to submit additional declarations for technicians working for other subcontractors to determine if they should be included in the class as well.

         On October 3, 2018, Plaintiff filed a second motion to compel to the names, phone numbers, email addresses, and dates of service of 1099 independent contractors paid by subcontractors as required by the Court’s prior orders. ECF No. 114. On November 6, 2018, the Court granted the second motion to compel and ordered Defendants to produce the information by November 26, 2018. ECF No. 122. On January 16, 2019, the Court denied Charter Communication’s motion to quash. ECF No. 139. On February 20, 2019, Defendants filed a motion for protective order to ban Plaintiff’s communications with independent contractors beyond those working for CUA. ECF No. 146. On March 4, 2019, the Court denied Defendants’ motion but required Plaintiff to submit to the Court any letter she intends to send to potential declarants for approval prior to sending. ECF No. 150. The Court approved Plaintiff’s letter on March 13, 2019. ECF No. 152.

         On July 9, 2019, Plaintiff filed 21 additional declarations in support of her motion for conditional certification. ECF No. 156. The same day she filed the pending motion to toll the statute of limitations. ECF No. 157. The motions for conditional certification and to toll the statute of limitations became fully briefed on August 5, 2019.

         II. MOTION TO TOLL THE STATUTE OF LIMITATIONS

         In her second motion to toll the statute of limitations, Plaintiff asks the Court to toll the statute of limitations for potential opt-in plaintiffs from September 11, 2017 (the date she filed her motion for conditional certification) until this Court authorizes dissemination of notice and consent to join forms in this case.

         A. Standard

         Equitable tolling is a “limited and infrequent form of relief” that is available if a party establishes “(1) that [s]he has been pursuing h[er] rights diligently, and (2) that some extraordinary circumstance stood in h[er] way.” Smithrud v. St. Paul, 746 F.3d 391, 396 (8th Cir. 2014) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, (2005)). The party requesting this relief bears the burden of demonstrating that she satisfies this test. Motley v. United States, 295 F.3d 820, 824 (8th Cir. 2002). While equitable tolling is not available for all statutes, “a nonjurisdictional federal statute of limitations is normally subject to a ‘rebuttable presumption’ in favor ‘of equitable tolling.’” Holland v. Florida, 560 U.S. 631, 645-46, (2010). Every Circuit that has ruled on the issue has determined that the FLSA statute of limitations period is not jurisdictional. See United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1635, n.8 (2015) (“[E]very Court of Appeals to have considered the issue has found that § 6 of the Portal–to–Portal Act, which contains the same “shall be forever barred” phrase, permits hearing late claims.”).

         B. ...


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