United States District Court, W.D. Tennessee, Western Division
MICHAEL KUTZBACK, individually and on behalf of others similarly situated, Plaintiff,
LMS INTELLIBOUND, LLC and CAPSTONE LOGISTICS, LLC, Defendants.
ORDER GRANTING MOTION TO TOLL STATUTE OF
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff, Michael Kutzback, and the Opt-In
Plaintiffs' (Collectively “Plaintiffs”)
Motion to Toll Statute of Limitations. (D.E. #176)
(“Second Motion to Toll”). The instant motion was
referred to the United States Magistrate Judge for
determination. (D.E.#180). For the reasons set forth herein,
the instant motion is GRANTED.
case arises from allegations that Defendants LMS
Intellibound, LLC (“LMS”) and Capstone Logistics,
LLC (“Capstone”),  who are third-party warehouse
servicers providing logistic services for companies in the
warehouse, distribution, and manufacturing industries,
violated the Fair Labor Standards Act (“FLSA”),
29 U.S.C. §201, et seq., by failing to pay
proper overtime and minimum wages. (Am. Compl. ¶¶
19, 51-69). Plaintiff filed his initial Complaint on October
2, 2013, which he later amended on January 3, 2014.
alleges that Defendants operate approximately 239 locations
nationwide. (Id. ¶ 20). Plaintiff alleges that
he was hired to work as a non-exempt “Unloader, ”
otherwise known as a “Lumper” (hereinafter
“Unloader”), in or about June 2011. (Id.
¶ 21). Plaintiff alleges that he worked as a non-exempt
Unloader until August 2012, during which time he was
compensated on a production basis as determined by the number
and weight of the trucks unloaded. (Id. ¶ 24).
Plaintiff alleges that, during all times relevant to his
claims, he worked in excess of forty hours within a workweek
but was not properly compensated for all of his overtime
hours. (Id. ¶¶ 25-27). Specifically,
Plaintiff alleges that Defendants' “Team
Leads” and/or Managers “systematically and
consistently clocked-out its Unloaders while still working,
resulting in off-the-clock hours worked.” (Id.
¶ 28). Plaintiff alleges that the “pattern and
practice of clocking-out Unloaders while still working is a
nationwide practice.” (Id. ¶ 29).
Plaintiff alleges that these practices resulted in a failure
to pay both overtime and minimum wages in violation of the
FLSA from June 2011 to present. (Id. ¶¶
31-34). Plaintiff further alleges that Defendants have failed
to maintain proper time records as mandated by the FLSA.
(Id. ¶ 34d).
the proposed collective action, Plaintiff alleges that he and
the Opt-in Plaintiffs are or were all non-exempt Unloaders
employed Defendants and that they performed the same or
similar job duties as one another. (Id. ¶ 37).
Plaintiff alleges that all of these non-exempt Unloaders were
paid in the same manner, namely on a by-the-truck or
piece-rate basis. (Id. ¶ 38). Plaintiff alleges
that Defendants uniformly require as their policy or practice
all proposed opt-in plaintiffs to work off the clock in the
aforementioned manner, thus failing to pay them their
FLSA-mandated minimum wages and/or overtime wages.
(Id. ¶¶ 39-42). Thus, Plaintiff's
Amended Complaint proposes that the proper collective action
members should be defined as follows:
All production-only “Unloaders” (a/k/a
“Lumpers”) who worked for Defendants, nationwide,
within the last three years, who worked in excess of 40 hours
in one or more workweeks and were not compensated at one and
one-half times their regular rate of pay for all hours worked
in excess of 40 hours in one or more workweeks and were not
compensated at a rate at least equivalent to the federal
minimum wage in one or more workweeks as required by the
the causes of action, Count I alleges that Defendants
violated Sections 207 and 211 of the FLSA, 29 U.S.C.
§§ 207 & 211, and 29 C.F.R. §§ 516.2
& 516.4 by failing to compensate Plaintiff and the
proposed opt-in plaintiffs for the overtime hours worked and
by failing to maintain proper time records. Count II alleges
that Defendants violated Section 206 of the FLSA, 29 U.S.C.
§ 206, by failing to compensate Plaintiff and the
proposed opt-in plaintiffs the federally mandated minimum
wage. Count III requests declaratory relief under the FLSA
and the Declaratory Judgment Act, 28 U.S.C. §§
February 18, 2014, Plaintiff filed a Motion to Conditionally
Certify Collective Action and Facilitate Notice to Potential
Class Members (“Motion to Certify”). (D.E. #43).
On October 10, 2014, Plaintiff filed a Motion to Toll
asserting that the statute of limitations should be tolled
for potential opt-in plaintiffs as of February 18, 2014, the
date of the filing of the Motion to Certify (“Motion to
Toll”). (D.E. #64). On October 24, 2014, Defendants
filed a Response to Plaintiff's Motion to Toll arguing
that the “extraordinary” relief requested by
Plaintiff is not consistent with the statutory scheme set
forth under the FLSA. (D.E. #65). Defendants further asserted
that tolling was inappropriate because nothing has prevented
or is preventing any potentially aggrieved individuals from
pursuing their claims by filing their own suits or opting-in
to this action. On December 16, 2014, the Magistrate Judge
issued a Report and Recommendation on the Motion to Certify
and Motion to Toll. As to the Motion to Certify, the
Magistrate Judge recommended that the collective action
should be conditionally certified. As to the Motion to Toll,
the Magistrate Judge recommended that it should be denied
without prejudice. The Report and Recommendation reasoned
that there has been uncertainty about applying the doctrine
to unidentified potential opt-in plaintiffs and that,
“[i]f and when potential plaintiffs whose claims would
otherwise be timebarred choose to opt into this class, they
may apprise the Court of their circumstances and individually
move for equitable tolling.” (D.E. #68 at 25) (quoting
Tiffany Montgomery v. Decatur County General Hosp.,
No. 1:11-cv-01096-JDB-egb, slip op. at 15 (W.D. Tenn. Mar.
19, 2012)). On March 25, 2015, the District Court adopted the
Magistrate Judge's Report and
15, 2016, Plaintiff filed the Second Motion to Toll arguing
that, while the universe of Opt-in Plaintiffs claims would be
barred in whole or in part was unknown at the time Plaintiff
filed his initial Motion to Toll, there is now a “known
and definite certainty that many of the current Opt-ins'
claims would be barred in the absence of any order tolling
their statute of limitations.” Plaintiff asserts that,
in the absence of tolling, at least 144 current Opt-in
Plaintiffs' claims would be completely time-barred and
extinguished. (See Second Mot. to Toll, Exh A).
Plaintiff further argues that he is currently unable to
identify every single Opt-in Plaintiff by name who would be
adversely impacted if his or her statute of limitations were
not tolled, in part because Defendants have not provided
complete start and end dates for each Opt-in Plaintiff for
him to ascertain precisely who would be adversely impacted if
the statute of limitations were not tolled. Plaintiff
requests that the statute of limitations be tolled from the
date he filed his Motion to Conditionally Certify until the
Court ruled on the motion-a period of 400 days.
August 1, 2016, Defendants filed their Response in opposition
to the Second Motion to Toll. Defendants assert that
Plaintiff's request is extraordinary, that it is not
supported by statute or case law, and that it fails to put
forth any new or material facts or changes in the law since
the Court previously denied his Motion to Toll. Defendants
argue that, contrary to the Magistrate Judge's prior
Report and Recommendation, Plaintiff has not
“individually move[d]” for tolling by apprising
the Court of individual opt-in Plaintiff's circumstances.
Instead, Defendants argue that Plaintiff merely reiterates
the arguments that the Court previously rejected.
the FLSA, “[n]o employee shall be a party plaintiff to
any [action] unless he gives consent in writing to become
such a party and such is filed in the court in which the suit
is brought.” 29 U.S.C. § 216; EEOC v.
Chrystler Corp., 546 F.Supp. 54 (E.D.Mich. 1982),
affirmed, 733 F.2d 1183 (6th Cir. 1984) (concluding
that the filing of consent does not relate back to the date
the original complaint was filed). To opt in to an FLSA
collective action, written consent must be filed within the
statute of limitations set forth in 29 U.S.C. § 255.
Thus, the filing of the complaint does not stop the statute
of limitations from running for individuals other than the
complainant(s); instead, the statute of limitations will
continue to run as to other potential opt-in plaintiffs
unless or until he or she files written consent to opt into
the collective action. Kathy Brown v. Consolidated
Restaurant Operations, Inc., No. 3:12-00788, 2013 WL
4804780, at *8 (M.D. Tenn. Sept. 6, 2013). Section 255,
however, only serves as “a procedural limitation period
under the Act, ” Ott v. Midland- Ross
Corp., 523 F.2d 1367 (6th Cir. 1975), and is thus
subject to equitable measures such as tolling, Owens v.
Bethlehem Mines Corp., 630 F.Supp. 309, 311 (S.D.W.V.
1986) (citing Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 (1982)).
tolling is an extraordinary remedy that is sparingly applied
and concerns cases involving extraordinary
circumstances.” Bennett v. Runyon, No.
96-5532, 1997 WL 133337, at *1 (Mar. 21, 1997) (citing
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,
96 (1990)). “Generally, a litigant seeking equitable
tolling bears the burden of establishing two elements: (1)
that he has been pursuing his rights diligently; and, (2)
that some extraordinary circumstance stood in his way.”
Menominee Indian Tribe of Wisconsin v. United
States, 136 S.Ct. 750, ...