United States District Court, W.D. Texas, Waco Division
ORDER DENYING PLAINTIFFS' MOTION FOR EQUITABLE
TOLLING AND TO COMPEL DEFENDANTS TO PRODUCE A FULL CLASS
ALBRIGHT UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs Heather English, Joe Hawley, and
Robin Broussard's (“Plaintiffs”) Motion for
Equitable Tolling and to Compel Defendants to Produce a Full
Class List (“Motion”). ECF No. 136. The Court
held a hearing on August 28, 2019, to consider the Motion and
subsequent briefing. ECF Nos. 138, 139, 143, 152, 153. For
the following reasons, the Motion is DENIED.
March 29, 2019, this Court granted Plaintiffs Motion to
Certify Class as an FLSA Collective Action and for
Court-Authorized Notice. ECF No. 111. That order, among other
things, conditionally certified the following class:
All former and current independent contractors of Texas Farm
Bureau Casualty Insurance Company, Texas Farm Bureau Mutual
Insurance Company, Texas Farm Bureau Underwriters, Farm
Bureau County Mutual Insurance Company of Texas, Southern
Farm Bureau Life Insurance Company, and Texas Farm Bureau,
who within the past three years have worked in the position
of insurance agent in the State of Texas.
Id. at 19. The Order did not specify the reference
point from which the “past three years” would be
determined. Although this Court acknowledged in the Order
that Plaintiffs sought a class list that reached back three
years from the date of the complaint, it did not authorize a
class using the language proposed by Plaintiffs in the
original or live complaints, which sought a class list of
insurance agents classified as independent contractors
“between November 17, 2014 and the present.”
Compare Id. with ECF Nos. 1 ¶ 78; 39 ¶
101. Instead, the Order adopted the vague language in the
motion for conditional certification. See ECF No. 68
produced a class list on April 12, 2019, that included
putative class members dating back three years from the
Court's order. See ECF No. 115 ¶ 7.
Plaintiffs sent out court-authorized notice on April 22,
2019, based on the information provided in that list. ECF No.
117. Plaintiffs filed this Motion over two months after the
notice was distributed, and after the close of the notice
period, seeking an expanded list of potential class members.
Plaintiffs claim the delay was a result, at least in part, of
Defendants' omission of the start and end dates of the
putative class members or other disclosure of the time-period
that the class list covered. Motion at 3. Defendants dispute
that allegation and respond that the cover letter enclosing
the class list and a subsequent phone call between the
parties made clear that the list covered the three years
prior to the Court's order. ECF No. 153 at 1-2
(referencing ECF No. 138 at Ex. A-1).
the August 28, 2019 hearing on the Motion, the Court directed
Plaintiffs to identify in the briefing for conditional
certification any clear language indicating the class list
should include putative members reaching back three years
from complaint rather than the Court's order certifying
the class. ECF No. 150 at 55-56 (“Tr. at ”).
Plaintiffs filed a letter on September 4, 2019, reporting
that nothing in the conditional certification briefing
explicitly requested a class that extends back three years
from the complaint. ECF No. 152.
addition to a class list reaching back three years from the
complaint, Plaintiffs ask this Court to equitably toll the
statue of limitations for two distinct periods: the time
between the filing and the resolution of (1) the motions to
dismiss; and (2) the motion for conditional certification.
Motion at 5. Plaintiffs suggest equitable tolling is proper
to prevent opt-ins from losing compensable time that they
would otherwise be denied as a result of Defendants'
motion practice. Id. Defendants respond that
standard motion practice is not an external obstacle
warranting equitable tolling, and that such relief would
effectively give Plaintiffs a “second notice
period.” Response at 3, 7 (emphasis in original).
Further, Defendants contend nothing prevented Plaintiffs from
filing for conditional certification while Defendants'
motions were pending. See id. at 4-6.
Plaintiffs' Have Not Demonstrated the Class List Should
Reach Back Three Years from the Date of the
Court directed Plaintiffs to identify any clear language in
their conditional certification briefing that indicated they
sought a class list reaching back three years from complaint
rather than the Court's March 29, 2019 order. Tr. at
55-56. The Court stated that, in the absence of such a
statement, it would be unlikely to require Defendants to
produce a class list including putative class members from
three years before the date of the complaint. Id. In
accordance with the Court's request, Plaintiffs filed a
letter stating the following:
The briefing does not state that the class should go back
three years from the filing of the complaint. The briefing
also does not state that the class should go back three years
from the Court's order. Without question, Plaintiffs
briefing on this issue was unclear.
ECF No. 152 at 1; see also ECF No. 139 (Plaintiffs
admit “Without question, Plaintiffs could have been
clearer in their proposed class language.”).
Additionally, Plaintiffs' decision to change the proposed
class definition from those employed “between November
17, 2014 and the present” to “the past three
years, ” while apparently not purposeful in retrospect,
could have been viewed as an intentional ...