Gonpo v. Sonam's Stonewalls & Art LLC

JAMPA GONPO, on behalf of himself and others similarly situated Plaintiff, v. SONAM'S STONEWALLS & ART LLC, et al., Defendants.

Civil Action No. 16-40138-MGM

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

April 9, 2018

MEMORANDUM AND ORDER REGARDING THE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS, PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION, AND PLAINTIFFS' MOTION FOR EQUITABLE TOLLING

(Dkt. Nos. 22, 34, 45, 47, 49, 62, & 78)

MASTROIANNI, U.S.D.J.

I. INTRODUCTION

Plaintiff, Jampa Gonpo, filed a six-count wage and hour complaint against his former employer, Sonam's Stonewalls & Art, LLC ("Stonewall"), and Sonam Rinchem Lama ("Lama"), Stonewall's owner-operator (collectively, "Defendants"), in September of 2016. His claims sound under the Fair Labor Standards Act ("FLSA"), the Internal Revenue Code, and state statutory and common law, all stemming from alleged failure to pay mandatory minimum and overtime wages and failure to maintain proper bookkeeping and reporting practices relating to payroll. (Dkt. No. 1). After Defendants answered, Plaintiff Gonpo filed a "Motion for Conditional Certification and for Court Facilitation of Notice" under section 216(b) of the FLSA in March of 2017. (Dkt. Nos. 14, 22). In support of that motion, Jamyang Gyatso Phulotsang, Tulku Dechen, and NFN Tobden each submitted affidavits asserting they worked for Defendants and detailing facts in support of their claims and intention to join a collective action. (Dkt. Nos. 22-2 - 22-5, 24-27). After the court referred that motion to Magistrate Judge Robertson, (Dkt. No. 30), Defendants moved to dismiss the complaint for lack of jurisdiction under 12(b)(1), (Dkt. No. 34), which the court referred to Judge Robertson as well, ( Dkt. No. 36). Plaintiff then filed an amended complaint (without seeking or receiving leave), adding Tobden, Phulotsang, and Dechen as named plaintiffs and adding state and federal claims on their behalf. (Dkt. No. 38). In short order, Defendants then filed three separate motions seeking dismissal of the amended complaint: a second 12(b)(1) motion, (Dkt. No. 45), a 12(b)(6) motion asserting failure to state a claim, (Dkt. No 47), and a separate "Motion to Dismiss re: Improper Addition of Claims and Parties," (Dkt. No. 49). Each latter motion was directed at the amended complaint. The undersigned referred those motions to Judge Robertson for consideration alongside the previously referred motions. (Dkt. No. 51). Three weeks later still, Plaintiffs filed a "Motion for Equitable Tolling" that sought an order "tolling the statute of limitations" to three years within filing of the initial complaint and, more generally, "to include the time [that] . . . Plaintiffs Gyatso, Tulku [Dechen] and Tobden" each worked for the Defendant. (Dkt. Nos 62-63).

Before the court now is Judge Robertson's Report and Recommendation ("R&R"), which addresses all of the above motions¹ and the parties' objections thereto. (Dkt. No. 78, 83-85). In her R&R, Judge Robertson recommends this court:

(1) deny both 12(b)(1) motions,

(2) deny the "Motion to Dismiss re: Improper Addition of Claims and Parties," (3) treat the filing of the amended complaint as a request for leave while treating the 12(b)(6) motion directed thereat as a challenge based on futility arguments and hold, in this context:

a. that Phulotsang, Tobden, and Dechen's FLSA claims are not equitably tolled, are time-barred, and on that basis deny leave to add those claims without prejudice to their ability to seek further leave,

b. that supplemental jurisdiction does not exist for Phulotsang, Tobden, and Dechen's pendent state law claims (or, in the alternative, decline to exercise jurisdiction as a matter of statutory discretion),

c. that Plaintiffs be denied leave, without prejudice, to file claims under 26 U.S.C. § 7434 of the Internal Revenue Code,

d. that Gonpo be denied leave to file a negligent misrepresentation claim on futility grounds, and

e. that Gonpo otherwise be granted leave to file the amended complaint,

(4) deny Gonpo's motion for conditional certification, and

(5) deny Gonpo's Motion for Equitable Tolling with respect to potential opt-in plaintiffs as premature.

Both Plaintiff and Defendants objected in part and filed replies to the other's objections. (Dkt. Nos. 83-85, 88-89). Plaintiff objects to the extent the R&R recommends denying his motion for conditional certification. (Dkt. No. 84). Defendants object that the R&R errs in recommending (i) that their motions to dismiss for lack of jurisdiction be denied, (ii) Plaintiff's Motion for Equitable Tolling be denied without rather than with prejudice, (iii) that leave to file 26 U.S.C. § 7434 claims be denied without rather than with prejudice, and (iv) that the court hold Plaintiff Gonpo factually stated a claim of willful violations of the FLSA. (Dkt. No. 82). Defendants also contend that the Magistrate Judge erred in deeming the motion for equitable tolling "premature." For the reasons below, each of Defendants objections are OVERRULED and the Plaintiff's objections are SUSTAINED IN PART with respect to his motion to certify. The court therefore ADOPTS the R&R except to the extent it recommends denying Plaintiff's Motion for Certification as more fully explained below.

II. DISCUSSION

A. Standard of Review

A District Court may refer dispositive and non-dispositive motions to a magistrate judge for an R&R. See 28 U.S.C. §636(b)(1)(B); Fed. R. Civ. P. 72(b). Any party adversely affected by the recommendations issued may file written objections within fourteen days of being served with the R&R. See 28 U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of the portions of the report, specified proposed findings, or recommendations, to which a specific objection is made. Id.; see also M. v. Falmouth School Dept., 847 F.3d. 19, 25 (1st Cir. 2017). Arguments or available evidence not raised before the Magistrate Judge are deemed waived. See Guzmán-Ruíz v. Hernández-Colón, 406 F.3d 31, 36 (1st Cir. 2005). "Absent objection . . . [a] district court has a right to assume that [the affected party] agree[s] to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985). In conducting its review, the court is free to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

B. Law and Analysis

The court has considered the entirety of the R&R de novo and agrees with the portions of Judge Robertson's analysis to which none of the parties have objected. Rather than repeat that reasoning here, the court addresses only those recommendations to which the parties have objected. Suffice it to emphasize, at this point, that no party has objected to the R&R's construal of the amended complaint as an implicit request for leave or challenged the treatment of the 12(b)(6) motion as an opposition to that request on the grounds that the leave sought involved futile claims. Neither party challenges, moreover, the R&R's conclusions and recommendations concerning (i) Plaintiffs' failure to state a claim under 28 U.S.C. § 7434,² (ii) Gonpo's failure to state a claim for negligent misrepresentation, (iii) denial of leave to amend with FLSA claims on behalf of Phlotsang, Tobden, and Dechen because those claims are time-barred, (iv) the absence of supplemental jurisdiction over state law claims asserted on behalf Phlotsang, Tobden, and Dechen. Having reviewed all recommendations receiving no objections, and finding those recommendations sound, the court hereby ADOPTS them.

The parties' particular objections are addressed below.

1. Plaintiff's Objections - Motion to Conditionally Certify FLSA Class

Plaintiff objects only to the recommendation to deny his motion to conditionally certify his collective class FLSA suit. Although such non-dispositive motions are reviewed in other postures for clear error, see, e.g., Rutledge v. Claypool Elec., Inc., No. 2:12-CV-0159, 2013 WL 435058, at *2 (S.D. Ohio Feb. 5, 2013) (reviewing an order on a motion for FLSA certification for clear error), the instant motion is reviewed de novo here because Judge Robertson only issued a R&R as to its disposition. See 28 U.S.C. § 636 (a)(b)(1).

Plaintiff filed a "Motion to Certify Class Conditional FLSA Collective" under 29 U.S.C. § 216(b). (Dkt. No 22). The motion sought an order (i) conditionally certifying a collective FLSA class, (ii) directing Defendants to produce a Microsoft Excel file containing contact information and dates of employment for potential class members, (iii) authorizing that notice be sent to members of the class, (iv) authorizing equitable tolling of the statute of limitations pending expiration of the opt-in period, and (v) directing Defendants to post a proposed notice in a conspicuous place at locations where class members worked or are now working. (See Dkt. No. 78 at 52-53).

As courts have unanimously interpreted it, section 216(b) allows plaintiff-employees to enforce FLSA overtime and minimum provisions in "collective actions" on behalf of themselves and those "similarly situated." The section provides in relevant part:

An action . . . may be maintained against an employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and [on] behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such 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.

Id. (emphasis added).

District courts have broad discretionary power to authorize the sending of notice to potential class members in a collective action brought pursuant to section 216(b). Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) ("[D]istrict courts have discretion . . . to implement 29 U.S.C. 216(b) . . . by facilitating...