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Cordell v. Sugar Creek Packing Co.

United States District Court, S.D. Ohio, Eastern Division
Sep 11, 2023
691 F. Supp. 3d 838 (S.D. Ohio 2023)

Opinion

Case No. 2:21-cv-00755

2023-09-11

Sara CORDELL, on behalf of herself and all others similarly situated, Plaintiff, v. SUGAR CREEK PACKING CO., Defendant.

Jeffrey Joseph Moyle, Robi J. Baishnab, Nilges Draher LLC, Cleveland, OH, Hans A. Nilges, Shannon Marie Draher, Nilges Draher LLC, North Canton, OH, for Plaintiff. Jamie Marie Goetz-Anderson, David A. Nenni, Katharine C. Weber, Zachary James LeCompte, Jackson Lewis LLP, Cincinnati, OH, for Defendant.


Jeffrey Joseph Moyle, Robi J. Baishnab, Nilges Draher LLC, Cleveland, OH, Hans A. Nilges, Shannon Marie Draher, Nilges Draher LLC, North Canton, OH, for Plaintiff. Jamie Marie Goetz-Anderson, David A. Nenni, Katharine C. Weber, Zachary James LeCompte, Jackson Lewis LLP, Cincinnati, OH, for Defendant. OPINION & ORDER ALGENON L. MARBLEY, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before this Court on Plaintiff Sara Cordell's Amended Motion for Expedited Discovery (ECF No. 43). The Sixth Circuit has recently heightened the showing plaintiffs must make before district courts will facilitate notice of a collective action lawsuit pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201-219. See Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023). Now, a district court may only facilitate notice of an FLSA suit if the plaintiff has shown a "strong likelihood" that the other employees to whom she wants to send notice are "similarly situated" to herself. Id. at 1011. This poses a more stringent standard than the "modest factual showing" that district courts in the Sixth Circuit had previously required. Clark also advised "district courts [to] expedite their decision to the extent practicable" and suggested that they "may promptly initiate discovery relevant to the motion, including if necessary by 'court order.' " Id. (citation omitted). Heeding that instruction, this Court now GRANTS IN PART and DENIES IN PART Cordell's motion and ORDERS the parties to conduct limited discovery pursuant to the terms set forth herein for a period of 90 days following the issuance of this Order.

II. BACKGROUND

Defendant Sugar Creek Packing Co. ("Sugar Creek") operates seven food production facilities, which manufacture and package foods. (See Am. Compl. ¶ 14, ECF No. 15). Sugar Creek also provides cooking and food safety solutions for both retail and food services customers. Four of the facilities are located in Ohio, one each in Washington Court House and Dayton, and two in Cincinnati; there are also facilities in Indiana, Kansas, and Missouri. (See Thomson Decl. ¶ 4, ECF No. 30-1). Employees at the Ohio and Indiana locations are unionized, while employees at the other facilities are not. (Id. ¶ 5).

Cordell worked as an hourly, non-exempt employee at Sugar Creek's Washington Court House facility for approximately two years. (Am. Compl. ¶ 13, ECF No. 15). Her role involved the processing, packaging, and handling of food. (Id. ¶ 35). Pursuant to the Food, Drug, and Cosmetic Act of 1938 ("FDCA"), 21 U.S.C. §§ 301-399i, the U.S. Food and Drug Administration ("FDA") has promulgated regulations governing the safe manufacturing, packing, or holding of human food. These regulations are known as "Good Manufacturing Practices" ("GMPs"). See 21 C.F.R. § 110. Sugar Creek, like other food manufacturers, is required to comply with the GMPs. Among other things, the GMPs require that food manufacturer employees, like Cordell, adhere to certain food safety and sterilization protocols, including the donning of a hairnet, helmet, eye and ear protection, smocks, aprons, protective sleeves, and one to two pairs of gloves, and regular handwashing. (Cordell Decl. ¶ 7, ECF No. 26-2).

According to Cordell, she was required to do this preparation work during her unpaid lunch period, prior to returning to her workstation at the end of lunch. (See Am. Compl. ¶¶ 36-37, ECF No. 15). All told, this required 10 to 15 minutes per lunch period. (Id. ¶¶ 10, 43). Accounting for this additional work, Cordell regularly worked over 40 hours per workweek, but was not paid overtime for the time she worked in excess of 40 hours in a week. (See id. ¶¶ 44-45).

Based on these allegations, Cordell filed suit on February 11, 2021, asserting FLSA collective and Rule 23 class claims. After amending her complaint once, she sought conditional certification pursuant to the FLSA in September 2021; Sugar Creek opposed certification and requested a stay pending the Sixth Circuit's decision in Clark. This Court granted the stay, denied without prejudice Cordell's motion, and tolled the statute of limitations for the FLSA claims. (See Op. & Order, ECF No. 30). In May 2023, the Sixth Circuit issued its decision in Clark, which lifted the stay in this case. Cordell then filed her motion for expedited discovery.

III. LAW & ANALYSIS

A. The Effect of the Clark Decision

The FLSA allows employees to bring collective actions against employers for unpaid wages where the employees are "similarly situated" to one another. See 29 U.S.C. § 216(b). "Similarly situated" employees can "opt-in" to the suit by filing a written consent to join the collective. Of course, this is possible only if they are aware of the suit in the first place. Potential plaintiffs typically learn of FLSA suits from the court overseeing the lawsuit. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) (holding that the FLSA gives "district courts [ ] discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs").

Beginning in 1987, courts have facilitated notice to potential plaintiffs via a two-step process. See generally Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). At the first step, an FLSA plaintiff asks the district court to facilitate notice of the suit to other employees who are "similarly situated" to the original plaintiff. See Knecht v. C & W Facility Servs., Inc., 534 F. Supp. 3d 870, 873 (S.D. Ohio 2021). This step has traditionally been referred to as "conditional certification" and typically takes place prior to the parties conducting discovery. Then, after notice has been sent to other employees and "merits discovery is complete[,] . . . the court takes a closer look at whether those 'other employees' are, in fact, similarly situated to the original plaintiffs." Clark, 68 F.4th at 1008. This is step two, where the court grants or denies final approval of the collective.

Historically, district courts, in determining whether to grant "conditional certification" at the first step, have only required that a plaintiff " 'make a modest factual showing' that he is similarly situated to the other employees he is seeking to notify." Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 764 (N.D. Ohio 2015) (quoting Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006)). This was a "fairly lenient" standard that "typically result[ed] in 'conditional certification' of a representative class." Comer, 454 F.3d at 547 (citation omitted).

Clark modified this framework: it kept in place the two-step process but heightened the showing that plaintiffs must make before a district court will agree to facilitate notice to potential plaintiffs. Clark, 68 F.4th at 1011. Instead of the previous, "modest factual showing" standard, plaintiffs now "must show a 'strong likelihood' that those employees [whom they seek to notify] are similarly situated to the plaintiffs themselves." Id. "Strong likelihood," in this context, borrows from the preliminary injunction standard: it "requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a preponderance." Id.

Clark also pointed out that "conditional certification" is inaccurate for suits brought pursuant to the FLSA because "certification" applies only to Rule 23 actions, which "are fundamentally different from collective actions under the FLSA." Id. at 1009 (quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013)). Whereas "certification" of a Rule 23 class authorizes the named plaintiff to act as a "representative" of the class, "opt-in plaintiffs . . . have the same status in relation to the claims of the lawsuit as do the named plaintiffs." Prickett v. DeKalb Cnty., 349 F.3d 1294, 1297 (11th Cir. 2003).

The Sixth Circuit in Clark declined to follow the Fifth Circuit's recent, wholesale rejection of the two-step approach. See Swales v. KLLM Transport Servs., LLC, 985 F.3d 430, 434 (5th Cir. 2021). In Swales, "the Fifth Circuit held that court-approved notice may be sent only to employees 'who are actually similar to the named plaintiffs'—meaning, apparently, that the district court must find by a preponderance of the evidence that those employees are similarly situated to the original plaintiffs." Clark, 68 F.4th at 1009-10 (quoting Swales, 985 F.3d at 434). And if necessary, trial courts can authorize preliminary discovery, to the extent necessary to make the "similarly situated" determination. See Swales, 985 F.3d at 441. The "strong likelihood" standard adopted by Clark does not require nearly as high a burden of proof. Clark also preserves the two-step process, which Swales had rejected.

B. Cordell's Request for Expedited Discovery

1. Whether Limited Discovery is Warranted

Cordell now moves for expedited discovery about Sugar Creek's hourly employees, timekeeping and payroll records, and other information, before she files a renewed motion for court-facilitated notice to potential plaintiffs. The portion of Clark that Cordell relies on for this request reads as follows:

If the plaintiffs in an FLSA suit move for court-approved notice to other employees, the court should waste no time in adjudicating the motion. To that end, a district court may promptly initiate discovery relevant to the motion, including if necessary by "court order."
Clark, 68 F.4th at 1011 (citing FED. R. CIV. P. 26(d)(1)). Note first that this does not require district courts to permit or order discovery, and certainly not expedited discovery. Rather, it simply re-affirms that district courts have the authority to do so. As a recent decision from Chief Judge Lioi of the Northern District of Ohio observed, this is in accordance with the "broad discretion [of trial courts] under the rules of civil procedure to manage the discovery process and control their dockets." McElroy v. Fresh Mark, Inc., No. 5:22-cv-00287, 2023 WL 4904065, at *8 (N.D. Ohio Aug. 1, 2023) (quoting Marie v. Am. Red Cross, 771 F.3d 344, 366 (6th Cir. 2014)). In short, control over discovery remains within the purview of district courts, whether it is requested before a motion for court-approved notice has been filed or after such a motion is granted.

Here, this Court finds that a limited degree of preliminary discovery is warranted. The heightened standard set by Clark requires heightened proof from an FLSA plaintiff. And that proof involves a "factbound" determination that relies on the "sometimes unique knowledge" of other potential plaintiffs. Clark, 68 F.4th at 1010. It is often the case that an FLSA plaintiff will only be able to make the requisite "step one" showing if she has had an opportunity to investigate whether the facts and circumstances of other potential plaintiffs were "similarly situated" to hers—i.e., if she is permitted to engage in some discovery. See also Jones v. Ferro Corp., No. 1:22-cv-00253, 2023 WL 4456815, at *6 (N.D. Ohio July 11, 2013) ("Given the heightened standard that the Sixth Circuit has now imposed on FLSA plaintiffs, the Court agrees that it would be unreasonable to expect Plaintiff to satisfy that burden while at the same time denying Plaintiff information about potential opt-in plaintiffs that could assist Plaintiff in satisfying his burden.").

In opposing Cordell's request, Sugar Creek highlights several flaws it perceives with her FLSA claim. It argues, for example, that the Seventh Circuit's decision in Mitchell v. JCG Indus., Inc., which held that 29 U.S.C. § 203(o) bars donning-and-doffing claims such as Cordell's, "make[s] discovery completely unnecessary . . . in this lawsuit." (Def.'s Resp. in Opp'n at 2, ECF No. 52) (citing 745 F.3d 837, 839-40 (7th Cir. 2014)). It also argues that, because its various facilities have different meal break policies, there is no "single, FLSA-violating policy" that both Cordell and other employees have suffered. (See id. at 9). These arguments are misplaced. The former goes to the merits of Cordell's claim, suggesting that it fails as a matter of law. But the merits of Cordell's claims are not before this Court at this stage of the litigation. And the latter goes to the merits of the motion for court-approved notice that Cordell will presumably file in the future, seeing as it asserts that Cordell is not "similarly situated" to potential plaintiffs who were employed at other facilities. No such motion is currently pending; the merits of a future motion that is yet to be filed are not before this Court at this stage either. Neither argument alters this Court's conclusion that limited discovery is warranted.

Note also that this assumes that this Court will agree that the "controlling" caselaw from a different circuit is, in fact, binding in this case.

2. The Appropriate Scope of Discovery

Two further issues remain: the timing and scope of preliminary discovery. Cordell asks this Court to enter an order delineating the topics for discovery and directing Sugar Creek to produce certain information for all current and former hourly employees from February 22, 2018, to the present. (See Proposed Scheduling Order, ECF No. 43-1). Sugar Creek, on the other hand, argues that discovery should be far more limited (if it is permitted at all)—specifically, only as to employees at a limited subset of facilities, about a more limited set of topics, and for a more limited period of time. (See Resp. in Opp'n at 10-11, ECF No. 52).

Addressing a similar request for expedited discovery in the wake of Clark, Magistrate Judge Armstrong of the Northern District of Ohio noted:

This issue comes to the Court in an unusual posture. While Plaintiff requests an order compelling [Defendant] to produce four categories of documents, it does not appear that Plaintiff has served discovery requests on [Defendant] or otherwise formally requested those materials, and neither party has filed a motion to compel or a motion for a protective order. Instead, Plaintiff is effectively asking the Court to craft discovery requests directed to [Defendant] on its own initiative.
Jones, 2023 WL 4456815, at *5. The same is true of this case. Cordell seeks an order compelling Sugar Creek to produce certain specific records, but has not requested those records from Sugar Creek either through formal or informal channels. It is premature for this Court to compel the production of specific documents at this stage, before any such requests or attempts to conduct discovery have been made (or frustrated). More appropriate is for the parties to proceed with limited, preliminary discovery. During this period, Cordell may serve Sugar Creek with discovery requests, within the parameters set forth infra, and Sugar Creek may do the same, if it so chooses; the timeline of the parties' productions will be governed by the standard rules of discovery. See, e.g., FED. R. CIV. P. 33(b)(2). And, if either party finds the other's conduct improper, she or it may submit a formal motion to compel.

In suggesting that this Court should enter an order compelling discovery immediately, Cordell references several decisions from district courts in the Fifth Circuit. (See Am. Mot. for Expedited Discovery at 5, ECF No. 43). This Court, however, declines to follow those examples and instead subscribes to the more cautious approach set out in Jones and McElroy. This is because courts in the Fifth Circuit must adhere to a different, more demanding set of requirements, at least as compared to the teachings of Clark. As discussed above, the Fifth Circuit rejected wholly the two-step Lusardi process and allowed district courts to approve notice only to employees "who are actually similar to the named plaintiffs." Swales, 985 F.3d at 434 (emphasis added). It further mandated that "district courts [ ] rigorously enforce [the similarity requirement] at the outset of the litigation." Id. at 443. To that end, district courts in the Fifth Circuit must now "identify, at the outset of the case, what facts and legal considerations will be material to determining whether a group of 'employees' is 'similarly situated' " and then "authorize preliminary discovery accordingly." Id. at 441.

This differs from the instructions given by the Sixth Circuit in several important respects. See also Clark, 68 F.4th at 1009-10 (explicitly rejecting the Swales approach); id. at 1015 (White, J., concurring in part and dissenting in part) (agreeing with the majority's rejection of Swales). As an initial matter, Swales mandates preliminary discovery, while Clark simply notes that allowing such discovery is permissible. Compare Clark, 68 F.4th at 1011 ("may . . . initiate discovery"), with Swales, 985 F.3d at 441 ("should authorize"). The showing that a FLSA plaintiff must make at the outset of the litigation also differs, with Swales requiring a higher, "preponderance of the evidence" standard. See Clark, 68 F.4th at 1010. And, most relevant to the discussion here, Swales requires district courts to identify for the parties what facts are relevant for the "similarly situated" inquiry from the very beginning; Clark does not. These differences suggest that the path plotted by district courts in the Fifth Circuit need not be followed here.

It is possible of course that, even if Clark does not require district courts to set out explicitly the precise parameters of pre-step one discovery, such a course of action makes sense. Cordell suggests that that might be the case, noting that such an order might "aid the Court in deciding whether this case can proceed as a collective action 'without stirring up unwarranted litigation.' " (Am. Mot. for Expedited Discovery at 5, ECF No. 43) (quoting Rogers v. 12291 CBW, LLC, No. 1:19-cv-00266, 2021 WL 1156629, at *1 (E.D. Tex. Mar. 15, 2021)). But a concern with future litigation alone is not enough to justify this Court deviating from its proper role as a mediator of discovery disputes and wading into the uncharted territory of dictating specific records for the parties to produce before the parties have even had an opportunity to confer and submit requests—in effect, "fashion[ing] . . . discovery requests on behalf of the parties." McElroy, 2023 WL 4904065, at *8. After all, this Court is "in the business of resolving the legal arguments presented to it, not in creating a party's inferred argument for [her] and then passing judgment on it." Lyon v. Yellow Transp., Inc., No. 2:08-cv-00464, 2009 WL 1604807, at *15 (S.D. Ohio June 8, 2009). This Court therefore denies Cordell's request for an order compelling Sugar Creek to produce specific records at this time.

Nevertheless, some general outlines of the permissible scope of discovery at this stage may still be helpful. The Northern District of Ohio recently suggested that preliminary discovery in an FLSA case should be " 'narrowly tailored' to the sole question of whether there is a 'strong likelihood' of 'substantial similarity' " to the named plaintiff, McElroy, 2023 WL 4904065, at *9, drawing from the corresponding standard for expedited discovery at the preliminary injunction stage. See, e.g., BAE Sys. Aircraft Controls, Inc. v. Eclipse Aviation Corp., 224 F.R.D. 581, 587 (D. Del. 2004). This is sensible: because an FLSA plaintiff need only show a strong likelihood that she is similarly situated to other potential plaintiffs at step one, any discovery that goes beyond uncovering facts material to that preliminary determination is unnecessary. Cf. Clark, 68 F.4th at 1010 ("A district court's determination to facilitate notice in an FLSA suit is analogous to a court's decision whether to grant a preliminary injunction."). This Court therefore adopts the same outer limits for the preliminary discovery authorized by this Order.

This Court also provides observations on three specific disputes raised by the parties about the scope of discovery. First, Sugar Creek suggests that it should not be required to provide names and contact information of employees. To do so, it argues, would allow Cordell to "contact them in an uncontrolled manner . . . and court them to be plaintiffs." (Resp. in Opp'n at 10, ECF No. 52). But such information is necessary for an FLSA plaintiff to determine whether other employees were subject to the same policies that allegedly violated the FLSA, as this is a "factbound" question reliant on other employees' "knowledge—sometimes unique knowledge—of the relevant facts." Clark, 68 F.4th at 1010; see also Jones, 2023 WL 4456815, at *5-*6. Moreover, there is no evidence that Cordell plans to use this contact information to solicit employees to join the case as plaintiffs. In fact, Cordell expressly disavows any such conduct. (See Am. Mot. for Expedited Discovery at 6, ECF No. 43). Any suggestion otherwise by Sugar Creek is entirely speculative. Name and contact information for potential opt-in plaintiffs (not just identified opt-in plaintiffs) are within the scope of preliminary discovery.

Second, Cordell seeks discovery for employees who worked at Sugar Creek's facilities up to three years before she initiated this suit, i.e., since February 22, 2018, whereas Sugar Creek wishes to limit discovery to two years. The typical statute of limitations for an FLSA claim is two years, but Cordell has pled a willful violation, which "permit[s] a three-year limitations period instead of the normal two." Jones v. Converse Elec., Inc., No. 2:21-cv-01830, 2021 WL 5027411, at *5 (S.D. Ohio Oct. 29, 2021) (citing 29 U.S.C. § 255(a); Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 842 (6th Cir. 2002)). A "willful" violation is one where "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). It does not require individualized proof that the employer willfully violated the FLSA with respect to each member of the collective, just that it willfully violated the FLSA in promulgating a certain policy (or in acting in conformity with the policy) that harmed the collective. Thus, this Court has in the past refrained from deciding whether an FLSA violation is willful at the notice stage, finding instead that it "is a question better suited for a later stage of the litigation, when discovery has occurred." See Converse Elec., 2021 WL 5027411, at *5 (citations omitted).

The same reasoning applies here. This Court need not decide at this early stage whether Sugar Creek's alleged FLSA violation was willful, nor whether a two- or three-year limitations period is more appropriate. That question will be answered later. For now, Cordell is permitted to conduct discovery based on a three-year limitations period.

Third, Sugar Creek argues that any discovery should be limited to its Ohio facilities, because its Indiana facility lies within the jurisdiction of the Seventh Circuit and thus any donning-and-doffing claims by employees at that facility are foreclosed by the Seventh Circuit's decision in Mitchell. (See Resp. in Opp'n at 10-11, ECF No. 52). As noted above, whether Mitchell bars FLSA claims like Cordell's is not appropriate for adjudication at this stage of the litigation. See supra Part III. B.1 n.2. Sugar Creek may present Mitchell as a defense if and when Cordell moves for court-approved notice; this Court will consider the defense and render a decision on its applicability at that time. This Court therefore declines Sugar Creek's invitation to decide that the employees at the Indiana facility are not "similarly situated" to Cordell before the opposing party has had an opportunity to present facts material to that determination.

Accordingly, this Court will permit the parties to conduct limited discovery "only to the extent that such [discovery] reasonably relates to the question of whether [other] employees are similarly situated to" Cordell. Jones, 2023 WL 4456815, at *6. Information appropriate to this inquiry includes name and contact information for employees and information about employees at all of Sugar Creek's facilities, within a three-year limitations period.

3. The Timing of Discovery

As to the timing, Cordell asks for a 90-day deadline for all discovery and an order compelling the production of certain records by Sugar Creek within 15 days. (See Am. Mot. for Expedited Discovery at 3-4, ECF No. 43). Sugar Creek, on the other hand, requests at least 30 days to provide the information, arguing that Clark does not authorize expedited discovery and that the normal rules of discovery should apply. (Def.'s Resp. in Opp'n at 11, ECF No. 52).

It is true that, as Sugar Creek points out, Clark does not mandate expedited discovery; its instruction that district courts should "waste no time" refers to the issuing of a decision on an FLSA litigant's motion for court-approved notice, not to the discovery that precedes the filing of such a motion. Clark, 68 F.4th at 1011. But "[t]he heightened standard [set out in Clark], with its concomitant discovery and requirement to litigate defenses, may significantly lengthen the period before potential plaintiffs are notified of a pending FLSA lawsuit." Id. at 1012 (Bush, J., concurring). Thus, district courts must be mindful of this "concern of late notice" and of the "further delay" that allowing limited discovery will cause. Id. at 1012, 1013 (Bush, J., concurring). To ensure that FLSA suits proceed with all deliberate speed, and so that potential plaintiffs will not be left by the wayside, expedited discovery in advance of a motion for court-approved notice is sensible. Cf. Hoffmann-La Roche, 493 U.S. at 173, 110 S.Ct. 482 ("The broad remedial goal of the [FLSA] should be enforced to the full extent of its terms."). Ninety days for the completion of all preliminary discovery is sufficient, with the deadlines for all requests governed by the Federal Rules of Civil Procedure.

Because it is premature to compel the production of records at this time, this Court need not address the 15-day deadline that Cordell requested for such orders.

C. Equitable Tolling

Finally, Cordell asks this Court to continue tolling the statute of limitations for any potential plaintiffs. This Court previously granted Cordell's request for tolling during the stay that was imposed in this case. (See Op. & Order at 9, ECF No. 39). Sugar Creek opposes tolling, though it does not explain why. It simply states that it does so "for the same reasons it did earlier in the case," citing to a previous brief where it did not, in fact, oppose tolling; rather, it had suggested that the application of equitable tolling of the limitations period would render the stay that it was requesting at that point non-prejudicial. (Resp. in Opp'n at 11, ECF No. 52) (citing Reply Br. Mot. to Stay at 6, ECF No. 35).

Equitable tolling is typically appropriate where necessary to "prevent resulting injustice to plaintiffs from protection of defendants." Clark, 68 F.4th at 1013 (Bush, J., concurring) (citing Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 546-48, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974)). While the controlling opinion in Clark provided no commentary on equitable tolling, both the concurrence and dissent in that decision—i.e., a majority of the panel—endorsed the proposition that "[e]quitable considerations support the use of tolling for FLSA collective actions." Clark, 68 F.4th at 1014 (Bush, J., concurring); see also id. at 1017 (White, J., concurring in part and dissenting in part) ("[D]istrict courts should freely grant equitable tolling to would-be opt-in plaintiffs." (citation omitted)). After all, in the class action context, the "commencement of the action satisfie[s] the purpose of the limitation provision," as a defendant is thereby sufficiently on notice of the claim(s) against her. Am. Pipe, 414 U.S. at 551, 94 S.Ct. 756. So, too, for collective actions. See Clark, 68 F.4th at 1014 (Bush, J., concurring) ("The main purpose of the statute of limitations is met when defendants are informed of the claims by the initial plaintiffs and therefore glean the 'generic identities' of the plaintiffs and the 'subject matter and size' of the litigation." (quoting Am. Pipe, 414 U.S. at 555, 94 S.Ct. 756)).

Consider the standard five-factor test on which courts in the Sixth Circuit rely when analyzing equitable tolling outside of habeas corpus cases:

There is some debate over whether the five-factor test set forth in Andrews has been abrogated by the two-prong test laid out by the Supreme Court in Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010); see also Patterson v. Lafler, 455 F. App'x 606, 609 n.1 (6th Cir. 2012). But Holland and other cases limiting the use of the Andrews test, see, e.g., Cook v. Stegall, 295 F.3d 517, 522 (6th Cir. 2002), involve petitions seeking a writ of habeas corpus. There is no indication that the two-prong Holland test has been extended beyond the confines of the habeas context. See Penley v. NPC Int'l, Inc., 206 F. Supp. 3d 1341, 1348 n.2 (W.D. Tenn. 2016); see, e.g., Seoane-Vazquez v. Ohio State Univ., 577 F. App'x 418, 426-27 (6th Cir. 2014) (continuing to apply the five-factor test postHolland).

(1) lack of actual notice of the filing requirement, (2) lack of constructive knowledge of filing requirement, (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendant; and (5) a plaintiff's reasonableness in remaining ignorant of the notice requirement.
Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988); see also Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946) (noting that the "equitable doctrine [of tolling] is read into every federal statute of limitation"). This list "is not necessarily comprehensive, and not all factors are relevant in all cases." Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004) (citation omitted); see, e.g., Dixon v. Gonzales, 481 F.3d 324, 331 (6th Cir. 2007) (affirming the grant of tolling even where only two of the factors were present).

Here, at least four of the five factors favor granting tolling. Even before Clark, "the normal course of litigation could cause delays that inequitably frustrate[ ] [the] rights" of potential opt-in plaintiffs. Gomez v. Glob. Precision Sys., LLC, 636 F. Supp. 3d 746, 761 (W.D. Tex. 2022). And now, by heightening the showing an FLSA plaintiff must make before notice can be provided of the collective action, Clark has injected an additional layer of potential delay-inducing disputes: "disputes over the scope of precertification discovery, subsequent discovery disputes . . . and so on." Id. In fact, the motion sub judice is just such a dispute. A potential opt-in plaintiff typically lacks actual notice of the filing requirement (the first factor) until notice of the collective action is provided, and the additional delays contemplated by Clark will lead to potential plaintiffs lacking actual notice for an even longer period of time. See Struck v. PNC Bank N.A., 931 F. Supp. 2d 842, 846-47 (S.D. Ohio 2013); Clark, 68 F.4th at 1014 (Bush, J., concurring) (noting "that 'delays inherent' in [meeting a heightened preliminary 'similarly situated' showing] could diminish FLSA collective actions 'to the point of being unfeasible" (quoting Gomez, 636 F. Supp. 3d at 762)). Similarly, the delays lengthen the time before potential opt-in plaintiffs are even aware of the suit and thus before they can file consent forms with this Court—undermining their ability to show diligence (the second factor). See Baden-Winterwood v. Life Time Fitness, 484 F. Supp. 2d 822, 826 (S.D. Ohio 2007). The delays also mean that potential opt-in plaintiffs may reasonably remain ignorant of the filing deadline for joining a collective action (the fifth factor) for a longer period of time, by which point "a substantial portion of those claims will already be untimely." Struck, 931 F. Supp. 2d at 848; see Penley, 206 F. Supp. 3d at 1348. Finally, separate from the potential for additional delay caused by Clark, granting tolling will not prejudice Sugar Creek (the fourth factor) as it has been put on notice adequately by the filing of the suit, as noted previously. See also Gunn v. NPC Int'l, Inc., 625 F. App'x 261, 267 (6th Cir. 2015).

This Court therefore concludes that equitable tolling is warranted in this case.

IV. CONCLUSION

For the reasons stated more fully above, this Court GRANTS IN PART and DENIES IN PART Plaintiff's Amended Motion for Expedited Discovery and for Tolling (ECF No. 43). This Court ORDERS the parties to conduct expedited discovery solely with respect to whether potential opt-in plaintiffs are similarly situated to Cordell. All such discovery shall be completed within 90 days of the date of this Order. The scope of discovery shall fall within the parameters set forth within this Order and must be narrowly-tailored to the "similarly situated" inquiry; any further disputes may be raised with this Court pursuant to the Federal Rules of Civil Procedure. Additionally, this Court GRANTS Cordell's request for equitable tolling of the statute of limitations for potential opt-in plaintiffs.

IT IS SO ORDERED.


Summaries of

Cordell v. Sugar Creek Packing Co.

United States District Court, S.D. Ohio, Eastern Division
Sep 11, 2023
691 F. Supp. 3d 838 (S.D. Ohio 2023)
Case details for

Cordell v. Sugar Creek Packing Co.

Case Details

Full title:Sara CORDELL, on behalf of herself and all others similarly situated…

Court:United States District Court, S.D. Ohio, Eastern Division

Date published: Sep 11, 2023

Citations

691 F. Supp. 3d 838 (S.D. Ohio 2023)

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