United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
C. CLIFFORD SHIRLEY, Jr., Magistrate Judge.
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and the Order of Referral from Chief District Judge Varlan [Doc. 32].
Now before the Court is Plaintiffs' Motion for Order Adding Opt-In Plaintiffs, or in the Alternative, Plaintiffs' Motion for Permissive Joinder [Doc. 27] and the Defendants' Response in Opposition [Doc.27]. The Court finds that this motion is now ripe for adjudication, and for the reasons stated herein, the Plaintiffs' Motion will be GRANTED IN PART and DENIED IN PART.
Plaintiffs filed their Complaint in this case on April 22, 2014 and filed an Amended Complaint on May 19, 2014. After Defendants filed their Answer, the parties filed a Joint Motion for Conditional Certification of the Fair Labor Standards Act Collective Action. On July 30, 2014, the Chief District Judge entered a Consent Order allowing individuals who desired to participate/join the subject lawsuit to opt-in within eighty days from July 30, 2014 - i.e. by October 20 or 26,  2014. [Docs. 19, 23]. The Defendants were ordered to "provide Plaintiffs, within thirty (30) days of the entry of [the] Consent Order, a list of name and last known addresses, for all individuals who performed work at Defendant's establishment as entertainers during the three (3) years prior to April 22, 2011 or who are currently so working." [Doc. 23 at 1].
On November 4, 2014, Keyshia Burns sought to join the collective action. On November 11, 2014, Sara Hassan sought to join the collective action, and on December 8, 2014, Brandy Hill sought to join the collective action.
II. POSITIONS OF THE PARTIES
Plaintiffs move the Court to enter an Order adding Ms. Burns, Ms. Hill, and Ms. Hassan as opt-in plaintiffs to this collective action. Alternatively, Plaintiffs move the Court to permit Ms. Burns, Ms. Hill, and Ms. Hassan to joint this action pursuant to Rule 20 of the Federal Rules of Civil Procedure. In support of the requested relief, Plaintiffs state that good cause exists for allowing these potential plaintiffs to join the class. Plaintiffs assert that Defendants failed to disclose Ms. Burns or Ms. Hill and failed to provide a correct address for Ms. Hassan, despite the fact that Ms. Hassan still works for Defendants. Plaintiffs maintain that permitting Ms. Burns, Ms. Hill, and Ms. Hassan to join the class would not prejudice the Defendants, because: (1) these potential plaintiffs filed their opt-in forms just outside the deadline and (2) if the Court were to deny the request to join the collective action, Ms. Burns, Ms. Hill, and Ms. Hassan could still file individual suits against the Defendants. With regard to their alternative relief, the Plaintiffs argue that Ms. Burns, Ms. Hill, and Ms. Hassan should be permitted to join the class because they fulfill the criteria of Fed.R.Civ.P. 20(a)(1).
The Defendants respond that Ms. Burns, Ms. Hill, and Ms. Hassan failed to meet the deadline set by the Court. The Defendants maintain that permitting these three plaintiffs to join would "create the possibility of an endless flow of potential [p]laintiffs contrary to the spirit and intent of this Court's Order...." [Doc. 31 at 2]. The Defendants do not address Plaintiffs' allegation that Defendants did not disclose Ms. Burns or Ms. Hill, but with regard to Ms. Hassan, the Defendants note that she moved residences twice within a three-week period. Defendants contend that they cannot be expected to keep current information under such circumstances. Defendants argue that they will be prejudiced by the addition of these potential plaintiffs, because permitting them to join would increase the number of plaintiffs and potentially lead to additional discovery. Defendants note that this case was pending approximately six months prior to the deadline for opting-in, and they maintain that Ms. Burns, Ms. Hill, and Ms. Hassan had adequate time to opt-in to the litigation.
The Court of Appeals for the Sixth Circuit has not directly considered the issue before the Court. However, the District Court for the Southern District of Ohio, which is within the Sixth Circuit, has described the state of the law well, explaining:
The FLSA provides the procedure for potential plaintiffs to opt-in to a collective action but does not specify when the potential plaintiff must opt-in. See 29 U.S.C. §§ 216(b), 255, 256. Consequently, deadlines to opt-in are established by the trial court. The FLSA also does not "provide a standard under which a court should consider whether to include opt-in plaintiffs whose consent forms are filed after the court-imposed deadline has passed." Ruggles v. Wellpoint, Inc., 687 F.Supp.2d 30, 37 (N.D.N.Y. 2009).
Although the caselaw on this issue is wide-ranging, courts have generally decided the question by balancing various combinations of the following factors: (1) whether good cause' exists for the late submissions; (2) prejudice to the defendant; (3) how long after the deadline passed the consent forms were filed; (4) judicial economy; and (5) the remedial purposes of the FLSA.
Id. (citing Ayers v. SGS Control Servs., Inc., 2007 WL 3171342, at *4-5 (S.D.N.Y. Oct. 9, 2007) (requiring that late opt-in plaintiffs show good cause for their untimely consent filings), Robinson-Smith v. Gov't Empl. Ins. Co., 424 F.Supp.2d 117, 123-24 (D.D.C. 2006) (considering the potential prejudice to the defendant and the purposes of the FLSA), Raper v. State of Iowa, 165 F.R.D. 89, 92 (S.D. Iowa 1996) (considering potential prejudice to the defendant and judicial economy), Monroe v. United Air Lines, Inc., 94 F.R.D. 304, 305 (N.D. III. 1982) (considering how long after the deadline the consent forms were filed); but see Reyes v. Texas Ezpawn, ...