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Martinez v. Mendoza

United States District Court, E.D. North Carolina, Western Division

August 6, 2019

PEDRO RODRIGUEZ MARTINEZ, MATEO HERNANDEZ LOPEZ, and ELMER MENJIVAR ARGETA, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
CESAR MENDOZA; JORGE RAMOS; EAST CAROLINA COMMERCIAL SERVICES, LLC; SOLAR GUYS, INC.; and ALPHA TECHNOLOGIES SERVICES, INC., Defendants. ALPHA TECHNOLOGIES SERVICES, INC., Cross-Claimant,
v.
SOLAR GUYS, INC., Cross-Defendant.

          ORDER

         This matter is before the court on plaintiffs' motion to equitably toll the statute of limitations under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). (DE 114). The motion has been fully briefed, and, in this posture, the issues presented are ripe for ruling. For reasons noted, the motion is denied.

         BACKGROUND

         Plaintiffs, claiming they have been misclassified as independent contractors as opposed to employees, commenced this action December 20, 2017, alleging violations of the FLSA and North Carolina Wage and Hour Act, N.C. Gen. Stat. §§ 95-25.1, et seq. (See Compl (DE 1); see also Second Am. Compl. (DE 81)). On June 19, 2018, plaintiffs filed motion requesting the court conditionally certify two FLSA collective actions and requesting permission to share notice of the collective actions, in part, through public Facebook posts because plaintiffs believed defendants might not have complete contact information for the putative class members.[2] (DE 50 at 13; DE 115 at 2).

         Thereafter the parties reached an agreement concerning plaintiffs' motion, as reflected in defendants' joint response and conditional consent to plaintiffs' motion for conditional certification. (DE 64). On November 27, 2018, with the consent of all parties, the court conditionally certified the following two collectives:

1. A collective consisting of all similarly situated individuals engaged in the construction of IS46 through Defendant East Carolina Commercial Services individually or jointly with one or more of the other Defendants who were required to work in excess of forty hours per week and were not paid the appropriate overtime rate for hours worked over 40 in a workweek, and who timely file (or have already filed) a written consent to be a party to this action pursuant to 29 U.S.C. § 216(b); and
2. A collective consisting of all similarly situated individuals engaged in the construction of IS46 through Defendant East Carolina Commercial Services individually or jointly with one or more of the other Defendants who were required to purchase and provide their own hard hats, vests, boots, safety glasses and/or gloves and were not reimbursed for those purchases or paid minimum wage for their first week of work, and who timely file (or have already filed) a written consent to be a party to this action pursuant to 29 U.S.C. § 216(b).

(DE 93 at 1-2).

         Also, with the consent of all parties, the court directed the parties to meet and confer to attempt to agree on whether any additional means of distribution of the notice to potential opt-in plaintiffs is necessary and to report back to the court regarding the outcome of the conference. Defendants were further directed to provide to plaintiffs, by December 11, 2018, available information regarding the full names, dates of employments, job titles, last known addresses, email addresses, telephone numbers, and dates of birth of all putative members of the collectives “to assist Plaintiffs in the distribution of the approved notice.” (Id. at 2-3).

         The court set a deadline of March 27, 2019, for joinder of opt-in plaintiffs filing consent to join forms, further providing that “[u]pon timely application by Plaintiffs and a showing that Defendants have failed to provide personal contact information . . . for a significant number of the members of the proposed collectives, ” the court may extend the opt-in period by up to two months. (Id. at 3).

         On January 25, 2019, the parties filed joint report and motion to modify the discovery plan, informing the court that defendants Cesar Mendoza and East Carolina Commercial Services (“ECCS”) produced to plaintiffs “all available W-9 and 1099 tax documents containing approximately two-hundred and seventy addresses for potential members of the FLSA collectives” and that no other contact information is in any of the defendants' custody or control. (DE 107 at 2). In the same filing, plaintiffs informed the court that the FLSA collectives may include as many as 770 people, and that plaintiffs have not received phone numbers, e-mail addresses, or dates of birth for anyone. The parties informed the court that based on this information, the parties agreed additional means of distributing notice were appropriate, including providing the necessary information for notice and consent via the internet, press release, Facebook advertisements, and Facebook groups as well as through radio advertisements or public service announcements. The parties additionally sought an extension of the deadline to May 27, 2019, for opt-in plaintiffs to file consent to join forms. The court granted the parties' motion.

         Plaintiffs filed the instant motion on February 15, 2019, arguing that defendants have engaged in wrongful conduct warranting the tolling of the statute of limitations under the FLSA for potential opt-in plaintiffs. Defendants filed response in opposition in the following groupings: 1) defendants Solar Guys, Inc. and Jorge Ramos, (DE 128); 2) defendant ATS, (DE 130), and defendants ECCS and Cesar Mendoza, (DE 131). Plaintiffs filed omnibus reply. (DE 133).

         DISCUSSION

         A. Standard of Review

Unlike a class action under Federal Rule of Civil Procedure 23, where the filing of the complaint tolls the statute of limitations for all of the class members, under the FLSA, the statute of limitations continues running for each individual potential class member until he or she joins the class. The statute of limitations is tolled as of the date that the ...


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