Shidler v. Alarm Security Group, LLC
Shidler v. Alarm Security Group, LLC
Opinion of the Court
ORDER
Pending before the Court is the self-styled “Notice to Court of Joint Submission of Agreed Notice for Court Approval”
1. Background
On January 6, 2012, Plaintiff Eric Shidler (“Shidler”) filed a complaint alleging insufficient overtime payment by Alarm Security Group, LLC, (“ASG”) in violation of the Fair Labor Standards Act (“FLSA”).
II. Conditional Certification
The Fair Labor Standards Act (“FLSA”) creates a cause of action against employers who fail to pay adequate overtime compensation, and allows for that action to be brought collectively on “behalf of [an employee] ... and other employees similarly situated.”
Although the Fifth Circuit has refrained from endorsing a specific approach to collective action certification,
As this action is currently at the notice stage, the Court’s broad discretion is subject only to two general limitations. First, the Court must give special regard to judicial neutrality, avoiding the appearance of partiality regarding the merits of the case.
Here, the Court finds that the proposed notice encompasses putative class members between whom such a factual nexus exists. In this regard, the agreement between the parties weighs heavily on the Court’s determination, and dramatically minimizes the need for substantive involvement by the Court at this point in the action, as there is no dispute between the parties that requires the Court’s adjudication.
III. Mtotion for Equitable Tolling
As explained above, under the FLSA, plaintiffs are not bound to the results of the litigation until they have affirmatively opted into the collective action.
In his motion, Shidler requests that the Court equitably toll the statute of limitations from the date the parties filed the agreed notice of conditional certification.
In support of this request, Shidler argues that he has diligently pursued his action.
In its response to the motion, ASG argues that equitable tolling is not appropriate in this case. • Notably, the response does not assert that Shidler failed to act diligently in seeking to conditionally certify the class. Instead, ASG asserts that the situation does not present the “extraordinary” circumstances which would satisfy the second requirement, and directs the Court’s attention to several cases where equitable tolling was denied.
However, the Court is unpersuaded by these cases, which are factually inapposite on several bases. In the first regard, many of the cases involve requests for equitable tolling from the date that the plaintiff filed the complaint.
More significantly, the decisions upon which ASG relies involved disputes about the conditional certification.
Such an extraordinary circumstance, combined with Shidler’s undisputed diligence in pursuing his relief, is sufficient to warrant equitable tolling. ASG asserts that equitable tolling is conditioned upon wrongdoing by the opposing party, and that the Court should deny the relief because it has not acted wrongly.
Finally, the parties’ agreement to the terms of the conditional certification vitiates any prejudice to ASG from granting the motion. Although ASG asserts in its response that the requested relief would result in prejudice, these assertions are simply not credible.
Therefore, in the interests of fairness, the Court finds that equitable tolling is appropriate for the period from May 14, 2012, the date the parties filed the agreed notice of conditional certification, until the date of this order.
IV. Conclusion
For the foregoing reasons, the Court CONDITIONALLY CERTIFIES the following class as agreed to by the parties: “All individuals currently and formerly employed by Alarm Security Group, LLC (ASG) whose primary duties include(d) the installation and/or maintenance and/or service of ASG’s fire suppression systems and who were paid on a commission and/or service bonus basis at any time from January 6, 2009 through the present.” Accordingly, the Court APPROVES the agreed notice to potential opt-in plaintiffs.
The Court ORDERS ASG to provide Shidler’s counsel in electronic, computer-readable format, within twenty (20) days of this order the last known names, addresses and telephone numbers of all individuals currently and formerly employed by Alarm Security Group, LLC (ASG) whose primary duties include(d) the installation and/or maintenance and/or service of ASG’s fire suppression systems and who were paid on a commission and/or service bonus basis at any time from January 6,
The Court ORDERS that, within ten (10) days of receipt of this contact information from ASG, Shidler’s counsel shall mail to each of the identified individuals: (1) a true, and correct copy of the court-approved notice; (2) a true and correct copy of the notice of consent to join a collective action form; and (3) a postage-paid envelope addressed to Shidler’s counsel so that those individuals wishing to join this collective action may forward the executed notice of consent form for filing with the Court. Before filing any executed notice of consent form with the Court, Shidler’s counsel shall redact all personal identifying information in accordance with the Southern District of Texas’ General Order 2004-11. ' Shidler shall file a notice with the Court certifying the date these materials were mailed to the potential opt-in plaintiffs.
The Court ORDERS that any individual wishing to join this collective action shall have his or her written notice of consent filed with the Court on or before the sixtieth (60th) day after the date Shidler’s counsel certifies to the Court that the notice materials were mailed as ordered above.
IT IS SO ORDERED.
. Dkt. No. 12.
. Dkt. No. 20.
. Dkt. No. 1.
. Dkt. No. 6.
. Dkt. Nos. 10 & 12.
. Dkt. No. 13.
. Dkt. Nos. 13 & 15.
. Dkt. Nos. 20 & 21.
. 29 U.S.C. 216(b).
. LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975).
. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995) (overruled on other grounds); see also, Roussell v. Brinker Int'l, Inc., 441 Fed.Appx. 222, 226 (5th Cir. 2011), and Sandoz v. Cingular Wireless, LLC, 553 F.3d 913, n. 2 (5th Cir. 2008).
. Id. at 1214 (citing Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987)).
. Id.
. Id.
. Id.
. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173-74, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).
. Id.
. Flowers v. MGTI, LLC, CIV.A. H-11-1235, 2012 WL 1941755 (S.D.Tex. May 29, 2012) (quoting McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 801 (S.D.Tex. 2010)).
. See 29 U.S.C. § 216(b).
. See 29 U.S.C. §§ 256 (establishing commencement date for purposes of FLSA) & 255(a) (determining statute of limitations by commencement date)
. Dkt. No. 20.
. United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (internal citation and quotations omitted).
. See Caldwell v. Dretke, 429 F.3d 521, 530 n. 23 (5th Cir. 2005) ("Equitable tolling will not be granted if an applicant failed to diligently pursue his rights.”); see also Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002) (noting that equitable tolling only applies in "rare and exceptional circumstances”) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
. Dkt. No. 20 at p. 4.
. Dkt. No. 10.
. Dkt. Nos. 11 & 12.
. Dkt. No. 21 at pp. 3.
. See, e.g., Quintanilla v. A & R Demolition Inc., 2006 WL 1663739 (S.D.Tex. June 13, 2006).
. Dkt. No. 1.
. Dkt. No. 10.
. Dkt. No. 11.
. Dkt. No. 12.
. Muhammad v. GBJ, Inc., 2011 WL 863785 (S.D.Tex. 2011) (parties disputed conditional certification); Switzer v. Wachovia Corp., 2012 WL 1231743 at *1 (S.D.Tex. 2012) (same); Quintanilla v. A & R Demolition, Inc., 2006 WL 1663739 (S.D.Tex. 2006) (same); Hintergerger v. Catholic Health Sys., 08-CV-380S, 2009 WL 3464134 (W.D.N.Y. Oct. 21, 2009) (in which conditional certification was so heavily disputed that it involved the white stag of trial-court filings: the sur-sur-reply).
. Dkt. Nos. 11 & 12.
. Dkt. No. 21 at pp. 9 & 10.
. See Quintanilla v. A & R Demolition, Inc., 2006 WL 1663739 (S.D.Tex. 2006) (describing non-exclusive list of circumstances in which the Fifth Circuit found equitable tolling applicable).
. Dkt. No. 21 at ¶ 10.
. See Yahraes v. Rest. Associates Events Corp., 2011 WL 844963 (E.D.N.Y. Mar. 8, 2011).
. Dkt. No. 12, Attach. 1.
Reference
- Full Case Name
- Eric SHIDLER v. ALARM SECURITY GROUP, LLC
- Cited By
- 13 cases
- Status
- Published