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English v. Texas Farm Bureau Business Corp.

United States District Court, W.D. Texas, Waco Division

October 15, 2019

HEATHER ENGLISH, JOE HAWLEY, ROBIN BROUSSARD, Plaintiffs,
v.
TEXAS FARM BUREAU BUSINESS CORPORATION, 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, TEXAS FARM BUREAU, Defendants.

          ORDER DENYING PLAINTIFFS' MOTION FOR EQUITABLE TOLLING AND TO COMPEL DEFENDANTS TO PRODUCE A FULL CLASS LIST

          ALAN D ALBRIGHT UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND

         On 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 at 2-3.

         Defendants 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).

         During 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.

         In 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.

         II. DISCUSSION

         A. Plaintiffs' Have Not Demonstrated the Class List Should Reach Back Three Years from the Date of the Complaint

         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 ...


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