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Kirkpatrick v. Cardinal Innovations Healthcare Solutions

United States District Court, M.D. North Carolina

September 1, 2017

MOLLY KIRKPATRICK, on Behalf of Herself and All Others Similarly Situated, Plaintiff,



         This is a proposed collective action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Before the court is Plaintiff Molly Kirkpatrick's motion to conditionally certify an FLSA collective (Doc. 26) and the motion of Defendant Cardinal Innovations Healthcare Solutions (“Cardinal”) to strike opt-in forms she filed before seeking conditional certification (Doc. 14). For the reasons set forth below, the motion to certify the collective action will be granted, and the motion to strike will be denied.

         I. BACKGROUND

         Plaintiff Kirkpatrick is employed as an Intellectual/Development Disability Care Coordinator (“I/DD coordinator”) for Defendant Cardinal. (Doc. 16 at 1, ¶ 1.) Cardinal classifies its I/DD coordinators as exempt from overtime pay under the FLSA's “learned professional” provision. (Id. at 1-2, ¶ 2.) Kirkpatrick brought this collective action alleging that she and several other I/DD coordinators routinely work over forty hours per week performing tasks that take them outside the learned-professional exemption, without paying them overtime. (Id. at 3, ¶ 9.) Alongside her complaint, Kirkpatrick filed opt-in forms from six similarly situated I/DD coordinators (Doc. 1-2), all of whom asked to join the putative class after “approach[ing] Plaintiffs' counsel as a group, and without any solicitation by counsel, prior to any advertisement being run.” (Doc. 19-1 at 2, ¶ 3.) A seventh employee joined the action at a later date. (Doc. 6.) Plaintiffs' counsel has also run advertisements in local newspapers seeking other plaintiffs (e.g., Doc. 14-2) but stated in a sworn declaration that the seven employees whose consent forms have been filed approached counsel without any solicitation and before any advertisements were run. (Doc. 19-1 at 2, ¶ 3.)

         Apart from their consent forms, Kirkpatrick has also filed eight almost-identical declarations from herself (Doc. 27-1) and the seven putative opt-in members (Doc. 27-2). The employees declare that they routinely work over forty hours per week without overtime compensation, that they lack the academic and professional credentials that would make them “learned professionals, ” that they routinely perform tasks that do not require specialized skills or training, and that their positions share the same title, job descriptions, and compensation and billing procedures. (See generally Doc. 27-1; Doc. 27-2.)

         Kirkpatrick now moves for conditional certification of an FLSA collective to include all I/DD coordinators who have worked for Cardinal in the course of the last three years. This motion is fully briefed and ready for decision. Cardinal moves to strike the consent forms filed by the seven opt-in employees on the basis that Kirkpatrick has solicited collective members before seeking conditional certification.

         II. ANALYSIS

         A. Motion to Strike

         Pursuant to Federal Rule of Civil Procedure 12(f)(2) and 29 U.S.C. § 216(b), Cardinal moves to strike Kirkpatrick's consent form and seven other consent forms she has filed. (Doc. 14; see also Doc. 14-1.) Cardinal's sole ground for this motion is that Kirkpatrick filed these consent forms and solicited collective members - though not those who filed the consent forms Cardinal seeks to strike - before moving for conditional certification under 29 U.S.C. § 216(b). (Doc. 14 at 1-2, ¶¶ 1-4.) It argues that because the court has a “managerial responsibility” to oversee the proper joinder of new plaintiffs to an FLSA action (id. at 7 (quoting Solais v. Vesuvio's II Pizza & Grill, Inc., No. 1:15CV227, 2016 WL 1057038, at *8 (M.D. N.C. Mar. 14, 2016))), Plaintiff's counsel cannot try to gather additional plaintiffs before the collective is conditionally certified. Cardinal further argues that the proper remedy for a failure to abide by that rule is to strike from the record those consent forms Plaintiff's counsel has already received - notwithstanding the fact that they did not arise from the allegedly improper solicitations - and to “deny joinder” of the seven opt-in plaintiffs. (Id. at 2.)

         On its face, Section 216(b) does not authorize motions to strike opt-in forms that violate its terms. Chemi v. Champion Mortg., No. 05-CV-1238, 2006 WL 7353427, at *8 (D.N.J. June 21, 2006) (“[O]n its face, the FLSA is silent regarding the issue whether consents may be filed before the court addresses and authorizes notice.”). Rule 12(f) allows the court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter, ” but Rule 7(a), which lists which documents are “pleadings” for Rule 12(f)'s purposes, Solais, 2016 WL 1057038, at *2, does not include affidavits, declarations, or consent forms. Cf. JHRG LLC v. StormWatch, Inc., No. 1:09CV919, 2011 WL 3111971, at *5 (M.D. N.C. July 26, 2011) (“Rule 7 . . . does not define affidavits and declarations as ‘pleadings.'”) Nevertheless, the Supreme Court has held that under § 216(b), the district court has a “managerial responsibly to oversee the joinder of additional parties” to an FLSA claim. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989).

         Cardinal cites three cases for the proposition that “[s]everal courts have explicitly recognized that striking opt-ins . . . is an appropriate remedy” when plaintiff's counsel solicits opt-ins before conditional certification. (Doc. 22 at 5-6 (citing Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982); Partlow v. Jewish Orphans' Home of S. California, Inc., 645 F.2d 757, 759 (9th Cir. 1981), abrogated by Hoffmann-La Roche Inc., 493 U.S. 165 (1989); Heitmann v. City of Chicago, No. 04C3304, 2004 WL 1718420, at *2 (N.D. Ill. Jul. 30, 2004)).) None of these cases is availing.

         Woods was decided before Hoffmann-La Roche and addressed whether a district court has the power to effect notice to an FLSA class. 686 F.2d at 579. The court held that it does, as long as the notice does not emanate from the court itself.[1] In doing so, the court noted that it would not have been proper for plaintiff's counsel to solicit opt-in forms without first telling the defendant of his intent to do so and giving it the opportunity “to verify the accuracy of the notice and, if he wished, to move for an order amending the notice or limiting its distribution in an appropriate manner.” Id. at 580. Here, Cardinal does not argue that Plaintiff's counsel did not reach out to it - its sole contention is that the opt-in forms should not have been filed until after conditional certification was granted.

         The court in Heitmann required the plaintiff to amend his consent forms because he failed to notify the defendant of their distribution. 2004 WL 1718420, at *2. But that was because of the Seventh Circuit's recognition in Woods that “it is improper for the plaintiff to issue notice and consent forms ‘without first communicating to the defendant's counsel his intention to do so.'” Heitmann, 2004 WL 1718420, at *2 (quoting Woods, 686 F.2d at 580). The court noted that the plaintiff's “ignorance of this requirement is somewhat understandable” given that it has no express basis in a statute or rule. Id. “Nevertheless, ” the court held, “the rule is more than twenty years old now, and Plaintiff should have followed it.” Id. Of course, there is no such rule in the Fourth Circuit. Even if there were, Cardinal does not claim that Plaintiff failed to notify it of the opt-ins, so she has not violated the Seventh Circuit rule. See Woods, 686 F.2d at 580 (“Before this suit was filed, Woods had sent invitations to other members of the class to join with him, and New York Life does not challenge his right to do this.”). And even if she had, it does not necessarily follow from the Seventh Circuit's rule that the proper remedy for its violation is to strike offending opt-in forms. Even the Heitmann court allowed the plaintiffs to amend their opt-in forms. 2004 WL 1718420, at *2.

         The question in Partlow, under “very peculiar factual circumstances, ” was whether due process concerns arising from the FLSA's opt-in rules required the district court to notify plaintiffs who filed FLSA consent forms when they were later determined to be invalid so those plaintiffs could elect whether to continue in the lawsuit. 645 F.2d at 759-60. Like Woods, Partlow was decided before Hoffmann-La Roche. The Ninth Circuit noted in dicta that “most courts that have interpreted the FLSA . . . have held that neither the named plaintiffs, their counsel, nor the court have the power to provide notice to FLSA class members, ” 645 F.2d at 759, a statement of law abrogated by Hoffmann-La Roche. The court's statement a few sentences later that “named plaintiffs' counsel had no power to solicit the class members, ” id., appears to be a restatement of that now-abrogated standard. Even if Partlow were good law, the relevant language in Partlow applies only to class members who were solicited improperly. 645 F.2d at 759 (“[U]nder the law of this circuit, named plaintiffs' counsel had no power to solicit the class members. The district court quite properly found that the resulting ‘consents' were ineffective.” (citation omitted)). Here, the seven opt-in forms filed alongside the complaint came from employees who “approached Plaintiffs' counsel as a group, and without any solicitation by counsel, prior to any advertisement being run.” (Doc. 19-1 at 2, ¶ 3.)

         Cardinal has identified only two cases in which courts have struck pre-certification opt-in forms on the ground that they were filed before conditional certification was granted. (Doc. 14 at 6 (citing Melendez Cintron v. Hershey Puerto Rico, Inc., 363 F.Supp.2d 10, 17 (D.P.R. 2005)); Id. at 8-9 (citing Chemi, No. 05-2006 WL 7353427, at *9).) The notable distinction between those cases and the present one is that in them, as in Partlow, the opt-in forms struck were obtained through a pre-certification solicitation by the plaintiff. Melendez Cintron, 363 F.Supp.2d at 11 (stating that the objectionable opt-in forms were obtained through a “solicitous letter” sent by plaintiff's counsel);[2] Chemi, 2006 WL 7353427, at *8 (“There is no indication that opt-in plaintiffs became aware of the pending lawsuit except through the efforts of counsel to publicize it.” (footnote omitted)).[3]

         Here, the seven opt-ins filed alongside the complaint came from employees who “approached Plaintiffs' counsel as a group, and without any solicitation by counsel, prior to any advertisement being run.” (Doc. 19-1 at 2, ¶ 3.) Cardinal acknowledges as much (Doc. 22 at 4 (“Plaintiff notes that this lawsuit was filed on August 28, 2016, and plaintiff did not begin running advertisements in local newspaper until on or about September 14, 2016 . . . .”)) but insinuates either that (a) Plaintiff's counsel was not being candid in her declaration when she stated that she didn't solicit the opt-in forms (id. (questioning “how these other opt-in Plaintiffs learned about the case, how they learned about whom to contact to opt-in, and what information they were provided”)); or (b) Plaintiff - and the seven employees who have opted ...

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