United States District Court, S.D. New York
MEGAN BARRETT, LINDSEY HOUSER, JENNIFER JONES, JENNIFER SEARD, ERIN ECKENRODE, CHRISTY LOWDER, JULIE SMYTH, ANDREA HARLEY, KIMBERLY CLINTON, and MARIE AVILA, TRACY LE, each individually and on behalf of a class of similarly situated female employees, Plaintiffs,
FOREST LABORATORIES, INC. AND FOREST PHARMACEUTICALS, INC., Defendants.
OPINION & ORDER
RONNIE ABRAMS, District Judge.
Plaintiffs move for equitable tolling of the limitations period for potential collective action members' claims under the Equal Pay Act, 29 U.S.C. § 206(d). For the reasons that follow, the motion will be denied.
Plaintiffs are 11 current or former female employees of Defendants Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc. (collectively, "Defendants" or "Forest") who bring individual and class claims under the Equal Pay Act ("EPA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Their claims are discussed in greater depth in the course of the Court's Opinion resolving Defendants' earlier motion to dismiss. See Barrett v. Forest Labs., Inc., 39 F.Supp.3d 407 (S.D.N.Y. 2014). For present purposes, the relevant facts are limited to the actions of both sides in the course of litigating these claims.
This action was commenced on July 5, 2012, with four employees initially bringing EPA and Title VII claims against Forest. Plaintiffs served Defendants at the same time they filed their First Amended Complaint ("FAC")-fourth months later, on November 2, 2012. Six additional plaintiffs were named in the FAC, possibly as a result of Plaintiffs' counsel's efforts to publicize the litigation in the intervening period. See, e.g., Decl. of Gary D. Friedman dated January 26, 2015 ("Friedman Decl."), Dkt. 74, Ex. F and O (press releases), M-N, P-Q (news articles). An initial case management conference scheduled for December 21, 2012 was adjourned indefinitely upon Plaintiffs' request (and with Defendants' consent) in anticipation of Defendants' motion to dismiss. See Dkt. 19. After that motion was filed on February 4, 2013, Plaintiffs sought and were granted leave to file a Second Amended Complaint ("SAC"), which they did on March 20, 2013. Defendants again moved to dismiss on April 29, 2013. Briefing was completed by June 27, 2013, oral argument held on January 16, 2014, and the motion decided on August 14, 2014. Each party sought and received extensions at various points.
On September 12, 2014, in response to the Court's direction, Plaintiffs wrote on behalf of both parties to advise that the parties had "begun the meet-and-confer process." See Dkt. 54. And on October 24, 2014, in a joint report in anticipation of the rescheduled initial conference, Plaintiffs first advised of their desire to seek expedited discovery of certain information and equitable tolling for the EPA claims. See Dkt. 56. Notably, at no point in the course of this action had the Court ordered or a party sought a stay of discovery, nor did the rules provide for one. Magistrate Judge Dolinger, to whom this case was subsequently referred for general pre-trial matters, entered a case management plan on December 11, 2014. See Dkt. 66. Discovery has been ongoing since.
Plaintiffs brought this motion on January 1, 2015. They seek to toll the statute of limitations from April 29, 2013-the date on which Defendants filed their motion to dismiss the SAC-through the date conditional certification for the collective action is granted. The parties had previously agreed to toll the period between July 20, 2011 and May 31, 2012, prior to the filing of the action. Decl. of David Sanford dated February 2, 2015 ("Sanford Decl.") ¶¶ 4-5, Dkt. 76; Decl. of Deborah Marcuse in Supp. of Cond. Cert. Mot. dated May 22, 2015, ¶ 5, Dkt. 111. Their earlier acquiescence notwithstanding, Defendants now object to any further tolling.
A. The EPA and Equitable Tolling
Under the EPA, which incorporates various provisions of the Fair Labor Standards Act ("FLSA"), claims must be "commenced within two years after the cause of action accrued, " unless the violation was "willful, " in which case the period is three years. 29 U.S.C. § 255(a); see also Moore v. Publicis Groupe SA, No. 11-CV-1279 (ALC), 2012 WL 2574742, at *8 (S.D.N.Y. June 29, 2012) (noting that "the EPA utilizes the FLSA's enforcement mechanisms and employs its definitional provisions") (quotation omitted). In the case of a collective action, the statute of limitations for each plaintiff runs until she opts-in to the lawsuit by filing her written consent with the court, not when the named plaintiff files her complaint. See 29 U.S.C. § 256(b). Significant for present purposes, such signed consents from class members "do not relate back to the original filing date of the complaint." Lee v. ABC Carpet & Home, 236 F.R.D. 193, 199 (S.D.N.Y. 2006).
The approach under the FLSA stands in sharp contrast to the American Pipe doctrine applicable for Rule 23 class actions, whereby "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Giovanniello v. ALM Media, LLC, 726 F.3d 106, 115 (2d Cir. 2013) ( quoting Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974)); see also LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975) (describing the "fundamental, irreconcilable difference" between the FLSA's opt-in procedure and Rule 23's optout procedure). These divergent approaches are a result of Congress' deliberate choice in the FLSA context "to prevent the assertion of surprise claims by unnamed employees at a time when the statute of limitations would otherwise have run." Gibbons v. Equitable Life Assur. Soc., 173 F.2d 337, 339 (2d Cir. 1949); see also Grayson v. K Mart Corp., 79 F.3d 1086, 1106 (11th Cir. 1996) (noting legislative history of FLSA illustrating "concern that an opt-in plaintiff should not be able to escape the statute of limitations bearing on his cause of action by claiming that the limitations period was tolled by the filing of the original complaint"). Thus while Plaintiffs' bringing this action automatically tolls the claims of potential Title VII class members, see, e.g., Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), it does not do so for potential EPA collective action members.
The doctrine of equitable tolling creates an exception to the potential harshness of the FLSA's limitations regime by "allow[ing] courts to extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996); see also Parada v. Banco Indus. de Venezuela, C.A., 753 F.3d 62, 70-71 (2d Cir. 2014) (accepting possibility of equitable tolling under FLSA). The exception, however, is exceedingly narrow. "Because statutes of limitations protect important social interests in certainty, accuracy, and repose, equitable tolling is considered a drastic remedy applicable only in rare and exceptional circumstances." A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144 (2d Cir. 2011) (internal quotation marks, citations, and alteration omitted). Indeed, the Supreme Court has cautioned that equitable tolling is "not a cure-all for an entirely common state of affairs." Wallace v. Kato, 549 U.S. 384, 396 (2007).
A litigant seeking equitable tolling bears the high burden of establishing both "(1) that [s]he has been pursuing [her] rights diligently; and (2) that some extraordinary circumstance stood in [her] way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); accord Ellul v. Congregation of Christian Bros., 774 F.3d 791, 801 (2d Cir. 2014). In light Congress's considered choice not to relate a FLSA collective action member's signed consent back to the date of the original complaint, "courts must be cautious about equitably tolling the FLSA limitations period, " Woodard v. FedEx Freight E., Inc., 250 F.R.D. 178, 194 (M.D. Pa. 2008), lest they ...