Klick v. Cenikor Found.

509 F.Supp.3d 951

Timothy KLICK, et al., Plaintiffs,

v.CENIKOR FOUNDATION, Defendant.

CIVIL ACTION NO. 4:19-CV-1583 (lead case)

CIVIL ACTION NO. 4:19-CV-3032 (Aleem)

CIVIL ACTION NO. 4:19-CV-3033 (Sorey)

United States District Court, S.D. Texas, Houston Division.

Signed December 23, 2020

Douglas M. Werman, Werman Law Office PC, Zachary C. Flowerree, Werman Salas, PC, Chicago, IL, Morgan Halboth Scott, Law Firm of Josh Borsellino, Fort Worth, TX, Joshua Charles Borsellino, Borsellino, P.C., Austin, TX, for Plaintiff Timothy Klick.

Justin M. Chopin, Adam P. Sanderson, The Chopin Law Firm LLC, Charles J. Stiegler, Pro Hac Vice, Stiegler Law Firm, New Orleans, LA, for Plaintiff Malik Aleem.

David Mitchell Gregory, Andrew Wilson Reed, Christopher Benjamin Dove, Locke Lord LLP, Houston, TX, for Defendant.

MEMORANDUM & ORDER

Keith P Ellison, U.S. District Judge

Pending before the Court are Motions for Equitable Tolling which arise in two related cases: Aleem v. Cenikor Foundation , No. 4:19-cv-3032, and Sorey v. Cenikor Foundation , No. 4:19-cv-3033. (Doc. 78; Sorey , Doc. 88.)¹ These two cases, along with four others involving similar claims against Defendant Cenikor Foundation ("Cenikor"), have been consolidated before this Court for pretrial purposes under the first-filed Klick v. Cenikor Foundation , No. 4:19-cv-1583. (Doc. 60.)

In all cases, Plaintiffs seek to recover, under the Fair Labor Standards Act ("FLSA"), minimum wage and overtime compensation from Cenikor for allegedly unpaid labor performed as part of Cenikor's substance abuse treatment program. At issue here, Plaintiffs Aleem and Sorey have moved to equitably toll the FLSA statute of limitations for potential opt-in plaintiffs. After considering the motions, briefing, oral arguments by parties, and applicable law, the Court concludes that both motions should be granted.

I. BACKGROUND

The alleged facts in these cases arise from the time that Plaintiffs Aleem and Sorey spent as participants in Cenikor's substance abuse treatment program in Baton Rouge, Louisiana. (Aleem , Doc. 1 ¶ 11; Sorey , Doc. 1 ¶ 15.) The relevant procedural histories of the two cases are as follows.

A. Procedural History of the Aleem Matter

The lead case Klick , as well as the Aleem and Sorey cases, were all filed on May 1, 2019. (See Doc. 1; Aleem , Doc. 1; Sorey , Doc. 1.) Less than two weeks later, on May 13, Aleem moved for conditional certification of a FLSA collective. (Aleem , Doc. 8.) That motion remains pending before this Court.² On May 28, Cenikor moved for a 120-day extension of time to file its opposition brief (Aleem , Doc. 20); the district judge granted a 14-day extension (Aleem , Doc. 24.). The parties dispute whether this extension placed the deadline at June 14 (Aleem's position) or June 17 (Cenikor's position). In any event, on June 18, Cenikor requested clarification of the order granting the extension or, in the alternative, moved for another extension of time to respond to the motion for conditional certification. (Aleem , Doc. 30.) Cenikor's grounds for the requested clarification were that the district court had extended the deadline to respond to a similar motion in the Sorey matter, and as such, that the same order also provided an extension of time in the Aleem matter. In a June 19 order, the district judge clarified that the extension of time in the Sorey matter only applied to that case and was pursuant to of a joint stipulation. (Aleem , Doc. 34.) The court did not grant a further extension.

Following a July 1, 2019 status conference in Aleem , Sorey , and a third related case, the district court entered a minute entry stating: "Ruling on pending motions deferred until issuances of Ruling on Motion to Transfer." (Aleem , Doc. 43.) Cenikor argues that any pending (or past) deadline it had to respond to Aleem's motion for conditional certification was thereafter stayed until the motion to transfer was resolved. Aleem disputes this interpretation of the minute entry, arguing that it merely deferred a ruling on the motion for conditional certification but did not stay the briefing schedule or deadlines. In any event, Cenikor ultimately filed its response on September 27, 2019 (Aleem , Doc. 55), and Aleem thereafter moved to stay briefing pending resolution of the motion to consolidate (Aleem , Doc. 57). Briefing was completed in December 2019, and the cases were transferred to and consolidated before this Court on February 25, 2020, under the lead case Klick. (Aleem , Doc. 65.) On September 10, 2020, Aleem moved to equitably toll the FLSA statute of limitations. (Doc. 78.)

B. Procedural History of the Sorey Matter

The procedural history of Sorey has a few minor differences. After filing his complaint on May 1, Sorey filed his FLSA Step-One Notice (in other words, motion for conditional certification under the Lusardi³ framework) on May 10 (Sorey , Doc. 12). However, the parties filed a joint stipulation which tolled the statute of limitations through September 27, 2019 in exchange for extending Defendant's deadline to file a response to the motion until that date as well. (Sorey , Doc. 30.) Cenikor filed its response on September 27, 2019 (Sorey , Doc. 67), and briefing on the issue of conditional certification concluded in January 2020. (Sorey , Doc. 76.) That motion also remains pending before this Court. The case was consolidated under Klick on February 25, 2020. On September 15, 2020, Sorey moved to equitably toll the FLSA statute of limitations. (Sorey , Doc. 88.)

Finally, Cenikor represents that as of September 30, 2020, a total of 213 individuals have filed notices of consent to opt into the consolidated cases. (Doc. 80 at 10.)

On October 30, 2020, the Court heard oral argument on both Motions for Equitable Tolling.

II. LEGAL STANDARD

FLSA contains a two-year statute of limitations for claims of unpaid wages, which is extended to three years if a plaintiff proves that the defendant's violation was "willful." 29 U.S.C. § 255(a). The limitation period runs for each member of the FLSA collective until he or she signs an individual opt-in form. Magana v. Shore Constr., LLC , No. 17-CV-1896, 2017 WL 2911353, at *4 (E.D. La. July 6, 2017).

Like all federal statutes of limitations, the limits in FLSA are subject to equitable tolling. See Holmberg v. Armbrecht , 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946). The litigant seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). The plaintiff must show "reasonable diligence, not maximum feasible diligence, and an extraordinary circumstance that derives from some external obstacle to timely filing ... beyond the plaintiff's control, not from self-inflicted delay." Sandoz v. Cingular Wireless, L.L.C. , 700 F. App'x 317, 320 (5th Cir. 2017) (internal quotations and citations omitted).

The Fifth Circuit has emphasized that equitable tolling is a "narrow exception" to be "applied sparingly." Phillips v. Leggett & Platt, Inc. , 658 F.3d 452, 457 (5th Cir. 2011). At the same time, whether to equitably toll a statute of limitations is a decision which rests in the discretion of the district court, and courts must be "cautious not to apply the statute of limitations too harshly." United States v. Patterson , 211 F.3d 927, 931 (5th Cir. 2000). As one district judge has observed: "Courts routinely grant equitable tolling in the FLSA collective action context to avoid prejudice to actual or potential opt-in plaintiffs that can arise from the unique procedural posture of collective actions under 29 U.S.C. § 216(b)." Antonio-Morales v. Bimbo's Best Produce, Inc. , No. 8-CV-5105, 2009 WL 1591172, at *1 (E.D. La. Apr. 20, 2009) (collecting cases); see also Shidler v. Alarm Sec. Grp., LLC , 919 F. Supp. 2d 827, 829–30 (S.D. Tex. 2012) ("Although the Fifth Circuit has held that the doctrine of equitable tolling should generally be applied sparingly, it has nonetheless consistently allowed the doctrine's application where a plaintiff has acted diligently and the delay concerns extraordinary circumstances.").

III. DISCUSSION

Aleem seeks equitable tolling beginning on June 14, 2019,⁴ for "all individuals in the proposed collective as defined in the Complaint, but who have not yet opted into this action." (Doc. 78 at 1.) The Aleem collective is defined as: "All individuals who resided at the Cenikor Foundation, Inc. facility in Baton Rouge, Louisiana, within the three years prior to the filing of the Complaint, and who were assigned by Cenikor to work at third-party facilities but whose earnings were kept, in whole or in part, by Cenikor." (Aleem , Doc. 1 ¶ 32.)

In Sorey , the parties previously stipulated to tolling the statute of limitations through September 27, 2019. As such, Sorey seeks equitable tolling from September 27, 2019 until the Court rules on the motions for conditional certification, for the proposed collective as defined in the Complaint. The Sorey collective is defined as: "[A]ll residents of Defendant's facilities in Louisiana and Texas in the last three years who were required to perform work without pay." (Sorey , Doc. 1 ¶ 37.)

At the December 17, 2020 hearing, counsel represented to the Court that the Aleem collective is a strict subset of the Sorey collective.

A. Diligently Pursuing Rights

To warrant equitable tolling, a plaintiff must first show that he or she has been pursuing his or her rights diligently. Both Aleem and Sorey have plainly made this showing here.

Aleem filed a substantial motion for conditional certification, supported by numerous affidavits, just twelve days after filing the complaint. Plaintiff Sorey filed a similarly well-supported motion for conditional certification, also less than two weeks after filing the complaint. District courts across the country including in the Southern District of...