United States District Court, E.D. Missouri, Eastern Division
TACITA FAIR, individually and on behalf of those similarly situated, Plaintiffs,
COMMUNICATIONS UNLIMITED, INC., et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Tacita
Fair’s Motion to Conditionally Certify FLSA Collective
Action  and Plaintiff’s Second Motion to Toll FLSA
Statute of Limitations . The Court grants Fair’s
Motion to Conditionally Certify FLSA Collective Action and
denies Fair’s Second Motion to Toll FLSA Statute of
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 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.
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
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.
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.
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.
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.
MOTION TO TOLL THE STATUTE OF LIMITATIONS
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.
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.”).