United States District Court, D. Colorado
LISA STRANSKY, NATALIE FIORE, ERIN PEREZ, HELEN GEIST, ANGELA VANLENGEN, BROOKE THOMPSON, MILDRED HAMILTON, and NICOLE WAGNER, individually and on behalf of others similarly situated, Plaintiffs,
HEALTHONE OF DENVER, INC., Defendant. and MILDRED BROOKS, HAYKE CAPERTON, JASON CAPERTON, JENNIFER CAYLOR, ANGELA ELLIOTT, JAMES FARQUHAR, CATHY GORDON, MICHELLE LUGO, KATHY OKAMATSU, ANN MARIE UWANDU, and SALLY ANN WARDLE, Plaintiffs,
HEALTHONE OF DENVER, INC., Defendant.
ORDER DENYING MOTION FOR JOINDER AND GRANTING MOTION TO CONSOLIDATE
WILLIAM J. MARTÍNEZ, District Judge.
These actions are brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., by current and former employees of Defendant HealthONE of Denver, Inc. ("Defendant"). Before the Court are two motions filed by Plaintiffs Lisa Stransky, Natalie Fiore, Erin Perez, Helen Geist, Angie Vanlengen, Brooke Thompson, Mildred Hamilton, and Nicole Wagner, individually and behalf of all others similarly situated (collectively "Stransky Plaintiffs"), the plaintiffs in Civil Action No. 11-cv-2888-WJM-MJW (the "Stransky Action"). (ECF Nos. 165 & 186.) The Stransky Plaintiffs move to join in the Stransky Action the plaintiffs in Civil Action No. 14-cv-0042-WJM-KMT (the "Brooks Action"), namely Mildred Brooks, Hayke Caperton, Jason Caperton, Jennifer Caylor, Angela Elliott, James Farquhar, Cathie Gordon, Michelle Lugo, Kathy Okamatsu, Ann Marie Uwandu, and Sally Ann Wardle (collectively "Brooks Plaintiffs"), or alternatively, to consolidate the Stransky and Brooks Actions. ( Id. ) For the reasons set forth below, the Motion for Joinder is DENIED, and the Motion to Consolidate is GRANTED.
The Stransky Action was filed on November 7, 2011, as a collective action under the FLSA challenging Defendant's alleged practice of failing to compensate employees for the time spent donning and doffing required hospital scrubs. (ECF No. 1.) The class was conditional certified on December 6, 2012. (ECF No. 68.) On March 7, 2013, the Court approved the Notice to the Conditional Class, and set the postmark deadline for opt-in class members' consent forms at no later than 60 days following the date the Notice was mailed. (ECF No. 120 at 24.) The Notice was mailed to potential class members on May 13, 2013. (ECF No. 169-1.) Therefore, the consent forms were required to be postmarked on or before July 12, 2013 in order to be timely under the Court's Order. ( See ECF No. 120.)
At a Status Conference on August 22, 2013, Plaintiffs' counsel stated that 12 or 13 opt-in plaintiffs had returned late consent forms, and the Stransky Plaintiffs sought to join those late opt-in plaintiffs to the action. (ECF No. 170 p. 54.) On November 20, 2013, the Stransky Plaintiffs filed 11 late consent forms and an accompanying Motion to Join Potential Opt-In Plaintiffs Pursuant to Fed.R.Civ.P. 20(a)(1) ("Motion for Joinder"). (ECF Nos. 164 & 165 (Brooks Plaintiffs' names omitted).) Defendant filed a Response opposing the Motion for Joinder (ECF No. 169) and the Stransky Plaintiffs filed a Reply (ECF No. 172).
While the Motion for Joinder was pending, Plaintiffs' counsel filed 11 separate complaints in the Stransky Action, one on behalf of each of the late opt-in plaintiffs sought to be joined. (ECF Nos. 173-84.) These complaints were re-filed as 11 separate cases, and were later merged into the Brooks Action. (No. 14-cv-0042 ECF No. 6.) On January 14, 2014, the Stransky Plaintiffs filed a Motion to Reassign Related Cases for the Purpose of Judicial Economy and/or Consolidate Related Cases Pursuant to Fed.R.Civ.P. 42 (the "Motion to Consolidate"). (ECF No. 186.) At a Status Conference on January 22, 2014, Defendant's counsel stated that Defendant did not oppose the Motion to Consolidate. (ECF No. 198 p. 11:20-22 (agreeing that "[i]f the Court determines not to add [the Brooks Plaintiffs] as late opt-ins and they proceed individually, we agree that it would make sense that they be consolidated for the purposes of administration.").) Accordingly, Defendant filed no Response to the Motion to Consolidate.
On March 26, 2014, while both motions were pending, the Brooks Plaintiffs filed a Motion to Reassign the Brooks Action to U.S. Magistrate Judge Michael J. Watanabe, who is assigned to the Stransky Action. (No. 14-cv-0042, ECF No. 9.) Defendant opposed the Motion to Reassign as premature and duplicative of the Motion to Consolidate. (No. 14-cv-0042, ECF No. 14.) On March 27, 2014, Defendant filed a Motion to Stay Proceedings and Request for Expedited Consideration in the Brooks Action, asking for a stay of the Brooks Action pending resolution of the Motion for Joinder and the Motion to Consolidate. (No. 14-cv-0042, ECF No. 12.) The Court granted a stay of Defendant's deadline to file an answer or responsive pleading in the Brooks Action. (No. 14-cv-0042, ECF No. 13.) The Brooks Plaintiffs opposed the Motion to Stay. (No. 14-cv-0042, ECF No. 15.)
All four pending motions are now ripe for disposition.
The FLSA provides that "[n]o employee shall be a party plaintiff to any such [collective] action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." 29 U.S.C. § 216(b). However, the FLSA does not prescribe a time period within which proof of such consent must be filed. See id. Rather, the FLSA grants to a district court "the requisite procedural authority... [and] managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way." Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170-71 (1989). Pursuant to this responsibility, and in accordance with the Court's order that the opt-in Notice Period be 60 days, the Court-approved Notice to the Conditional Class in the Stransky Action contained language providing that "[y]our completed Consent to Sue form... must be postmarked by [July 12, 2013], in order to be eligible to participate in the lawsuit." (ECF No. 120 at 24, Appx. B p. 5.)
The parties here do not dispute that the Brooks Plaintiffs' consent forms were filed on November 20, 2013, four months after the postmark deadline had passed. ( See ECF No. 163-64.) Although Plaintiffs' counsel did not file the consent forms' postmarks, all 11 of the Brooks Plaintiffs' signatures on their consent forms are dated after the postmark deadline. (ECF No. 164.) Rather, the Stransky Plaintiffs contend that the Brooks Plaintiffs should be permitted to join the Stransky Action because good cause exists for the late submissions. (ECF No. 165 at 5-6.) Alternatively, the Stransky Plaintiffs argue that joinder is permissible because the late consent forms were filed prior to the deadline to join parties and amend pleadings, which expired on November 22, 2013. ( Id. at 7.)
The Court has little difficulty rejecting the second argument with respect to the deadline to join parties and amend pleadings. The Stransky Plaintiffs explicitly seek to include the Brooks Plaintiffs as members of the conditional class, and thus the deadline to submit their consent forms applies to the Brooks Plaintiffs as opt-in plaintiffs. Plaintiffs' counsel was made aware of the 60-day Notice Period on March 7, 2013 at the latest, when the Notice to the Conditional Class was approved. ( See ECF No. 120.) Furthermore, Magistrate Judge Watanabe properly advised Plaintiffs' counsel not to rely on the deadline to join parties, and instead to file a motion before this Court to permit any late opt-in plaintiffs to join. (ECF No. 170 at 54-55.) Pursuant to this Court's authority to manage this FLSA collective action, and given the prior Orders in this case, Plaintiffs' counsel was on notice that the opt-in deadline - not the deadline to join parties - was the operative deadline to permit potential class members to opt to join the class. See Hoffman-La Roche, 493 U.S. at 170-71. Accordingly, the Brooks Plaintiffs' failure to meet that deadline must be excused if they are to join the Stransky Action.
The parties dispute the standard this Court should apply in evaluating whether to permit the Brooks Plaintiffs to join the conditional class. While Plaintiffs' counsel urges the Court to allow for joinder based on a finding of good cause, Defendant argues that an excusable neglect standard applies under Federal Rule of Civil Procedure 6(b)(1)(B). (ECF Nos. 165 at 5-7; 169 at 7-13.) Neither party cites controlling case law on the issue. However, after review of the relevant persuasive authorities, the Court concludes that because the Motion for Joinder was filed after the opt-in deadline had passed, Rule 6(b)(1)(B) applies to Plaintiffs' counsel's request to extend that deadline, and therefore Plaintiffs' counsel must show that it failed to meet the deadline because of excusable neglect. See Scott v. Raudin McCormick, Inc., 2010 WL 3125955, at *1-2 (D. Kan. Aug. 6, 2010) (applying excusable neglect standard to late opt-in plaintiffs in an FLSA collective action); Courtright v. Bd. of Cnty. Comm'rs, 2009 WL 2916897 (W.D. Okla. Sept. 4, 2009) (same).
"Excusable neglect" generally applies to "inadvertent delays, " as "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable' neglect...." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392 (1993). However, "it is clear that excusable neglect' under Rule 6(b) is a somewhat elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant, " thereby permitting neglect caused by attorney inadvertence to be excusable under mitigating circumstances. Id. (internal citations omitted). To determine whether a movant has shown excusable neglect, courts consider " the danger of prejudice to the opposing party,  the length of the delay and its potential impact on judicial proceedings,  the reason for the delay, including whether it was ...