The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Plaintiff Anu Upadhyay has brought this action against defendants Neeraj Sethi ("Mr. Sethi"), Ronica Sethi ("Ms. Sethi," and, together with Mr. Sethi, the "Sethis"), Dr. Shikha Sethi ("Dr. Sethi"), and Dr. Ganesh Raj, alleging, inter alia, minimum wage and overtime violations of the Fair Labor Standards Act (the "FLSA") and New York, North Carolina, and New Jersey state law. Plaintiff seeks to recover for alleged violations extending as far back as 1998.
On January 24, 2012, we issued an opinion in which we directed that a hearing be held on plaintiff's contention that the relevant statutes of limitations should be tolled until 2010, when plaintiff allegedly became aware of her cause of action. See Upadhyay v. Sethi, No. 10 Civ. 8462, 2012 U.S. Dist. LEXIS 11054, at *19-23 (S.D.N.Y. Jan. 25, 2012).*fn1 That hearing was held over three days, on May 1, May 2, and May 25, 2012.*fn2
Plaintiff and three of the defendants testified, their direct testimony having been provided by affidavit.*fn3 In addition, Gulnahar Alam -- the former Executive Director of Andolan, a workers' rights organization focusing on the needs of South Asians in America -- testified on plaintiff's behalf. Together, the parties submitted over fifty exhibits as part of the proceeding, the vast majority of which were introduced by defendants.
Having conducted the hearing, we have encountered no difficulty assessing the equitable tolling issue without reaching merits issues. Accordingly, we now rule that equitable tolling is not proper in this case and grant defendants' motion for partial summary judgment.
We begin by placing the issue of equitable tolling in its legal context. It is an extraordinary remedy to be used only sparingly. See Lanzetta v. Florio's Enters., Inc., 763 F. Supp. 2d 615, 622 (S.D.N.Y. 2011). Before a statute of limitations may be tolled, a court must determine both that the plaintiff exercised diligence in discovering her claims and that the defendants or some "extraordinary circumstances" prevented the plaintiff from bringing suit until she did.*fn4 Trans Union LLC v. Lindor, 393 F. App'x 786, 788-89 (2d Cir. 2010) (quoting Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005)). Plaintiff bears the burden on both questions. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
For plaintiff to prevail on the due diligence prong, she must have exercised diligence in pursuing the discovery of her claim during the entirety of the period she seeks to have tolled. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Thus, when a party has failed to acquire the knowledge or documents necessary to bring suit because of its own delinquency, equitable tolling is not an appropriate remedy.
For example, in Walker, the Second Circuit found equitable tolling inappropriate because the plaintiff had forgotten information underlying the suit, misplaced relevant documents, and delayed in asking for documents to refresh his recollection and therefore delayed bringing suit. 430 F.3d at 564. Other courts in this district have found, for instance, that an equitably tolled statute of limitations begins to run when the plaintiff "should have acquired [actual knowledge of the facts that comprise her cause of action] through the exercise of reasonable diligence," Gustafson v. Bell Atl. Corp., 171 F. Supp. 2d 311, 323 (S.D.N.Y. 2001), and that a plaintiff who was told that the Human Rights Commission would get back to her about her claim was not reasonably diligent when she did not hear from the Commission and did not follow up for over seven months because she "was not misled into this complacency," Curtis v. RadioShack Corp., 190 F. Supp. 2d 587, 590 (S.D.N.Y. 2002).
The second element, that defendants or some extraordinary circumstance prevented plaintiff from exercising her rights, requires a significant showing. See Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 322 (2d Cir. 2004). An employer's failure to tell a plaintiff of her legal rights is not by itself sufficient to justify equitable tolling, see, e.g., Lanzetta, 763 F. Supp. 2d at 622-23; the employer or some other exceptional circumstance must have actually prevented the exercise of plaintiff's legal rights in some way. See, e.g., Goodman v. Port Auth. of N.Y. & N.J., No. 10 Civ. 8352, 2012 U.S. Dist. LEXIS 26401, at *31-33 (S.D.N.Y. Feb. 29, 2012) (citing, inter alia, Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). To hold otherwise would be tantamount to holding that the statute of limitations should be tolled in nearly every wage-and-hour case. Accord Jacobsen v. Stop & Shop Supermarket Co., No. 02 Civ. 5915 (DLC), 2004 U.S. Dist. LEXIS 17031, at *11-12 (S.D.N.Y. Aug. 30, 2004).
The two elements of equitable tolling are related as it cannot be said that an external cause prevented plaintiff from bringing her claim if her delinquency was due to her own failure to pursue her rights. See Walker, 430 F.3d at 564. Conversely, if no extraordinary circumstances prevented her from bringing her claim, her failure to do so must be due to her own lack of diligence. Cf. Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985) (noting that an extraordinary circumstance would be one that made it "impossible for a reasonably prudent person to learn" of her cause of action).
II. Plaintiff Failed to Act Diligently
Plaintiff endeavors to portray herself as unaware of what she was being paid and of her legal rights, as well as being incapable of learning of those facts. While we reject that self-portrait later in this opinion, see infra Section III.B.2, in this section of our decision we focus on whether plaintiff had and failed to seize the opportunity to learn of these things --i.e., whether she was diligent.
A. Plaintiff's Diligence in Learning About Her Finances
Insofar as plaintiff claims that she did not know how much money was being deposited into her bank accounts as wages, she was not being diligent. She has acknowledged that she was aware she had the bank accounts. (E.g., Hr'g Tr. 1 at 52:21-53:13.) Nevertheless, she specifically disclaims ever asking the Sethis about deposit records. (First Upadhyay Aff. ¶ 8; see also Hr'g Tr. 2 at 274:3-19; Hr'g Tr. 3 at 101:13-17.) Nor did she attempt to get the records from Drs. Sethi and Raj or from the banks themselves.*fn5 Plaintiff has also acknowledged that she saw the checks representing her wages from Drs. Sethi and Raj.*fn6 (Hr'g Tr. 1 at 26:1-27:12, 35:7-9, 73:11-23.) She easily could have kept track of the amounts of these checks or asked for copies of them but failed to do so.
Similarly, plaintiff acknowledged that she was aware that the Sethis had tax returns prepared and filed on her behalf (Hr'g Tr. 1 at 101:5-10) and that she signed them on at least one occasion (Hr'g Tr. 2 at 187:23-25). Thus, plaintiff could have asked to see her returns in other years and kept track of the income reported therein.
Furthermore, it is undisputed that, at least on occasion, defendants would send money to plaintiff's family in India on plaintiff's behalf and at her request. To the extent plaintiff claims that she did not know how much of her wages these payments constituted, she was not being diligent. She made no effort to keep records of these transfers. Moreover, she has acknowledged that she was permitted to speak to her family, and she could have asked them about the amounts and frequencies of the transfers but did not. On the one occasion she claims she did ask whether a transfer was made, she did not ask about its amount. (Second Upadhyay Aff. ¶ 2.) Additionally, plaintiff indicated that she traveled to India in September 2007 (Am. Compl. ¶ 56), and she could, and should, have inquired of her family about the transfers then. The fact that plaintiff was aware of delays in depositing checks representing her wages sent to India by Drs. Sethi and Raj (Hr'g Tr. 1 at 59:11-60:7) indicates that she was fully capable of apprising herself of these matters.
In sum, plaintiff's failure to make any effort to utilize the readily available means to track her earnings, particularly in the absence of any claim that any defendant ever refused to respond to a question about her earnings, is simple neglect ...