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Ferguson v. Texas Farm Bureau

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

December 5, 2019

CHRISTOPHER FERGUSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; Plaintiff,
v.
TEXAS FARM BUREAU, 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, Defendants.

          ORDER ON DEFENDANTS' MOTION TO STRIKE UNTIMELY CONSENTS TO JOIN COLLECTIVE ACTION

          ALAN D ALBRIGHT UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants 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, Texas Farm Bureau, and Southern Farm Bureau Life Insurance Company's (collectively, the “Defendants”) Motion to Strike Untimely Consents to Join Collective Action. ECF No. 204. Plaintiffs Christopher Ferguson, on behalf of himself and others similarly situated, filed a Response. ECF No. 205. Defendants filed a Reply on September 11, 2019. ECF No. 206. For the following reasons, the Motion is GRANTED.

         I. BACKGROUND

         On March 20, 2018, the Court adopted the report and recommendation of Magistrate Judge Manske and granted Plaintiff's Motion for Conditional Certification. ECF No. 128. The Court also authorized Notice to a putative class consisting of “former and current independent contractors of [Defendants] who within the past three years have worked in the position of agency manager in the State of Texas.” ECF No. 128. Specifically, the Order imposed a deadline of 45 days within which putative class members could opt into this action:

Class members may opt into this collective action only if: (1) they have mailed, faxed or e-mailed their Consent Form to Plaintiff's counsel within 45 days after the Notice and Consent Forms are transmitted by Plaintiff's counsel; or (2) they show good cause for delay.

ECF No. 128. On April 13, 2018, the Notice was sent by Plaintiffs to putative class members by first class mail. Pursuant to the Court's Order, the period for class members to opt-in to the collective action closed on May 28, 2018. Furthermore, the Notice included the following language:

Time Limits on Participating in this Lawsuit
All Consents must be returned no later than May 28, 2018, which is forty-five (45) days after this Notice is mailed to you, by mail, fax, or e-mail. A consent form is enclosed with a self-addressed stamped envelope.

ECF No. 150-1 at 3. However, on July 12, 2019, Plaintiffs Thomas Posey and Lewis Richburg (collectively, the “Late Opt-In Plaintiffs”) joined the case thirteen months after the deadline to opt-in to this collective action. A month later, Defendants filed the present Motion to strike the Late Opt-In Plaintiffs consents to the action.

         Defendants argue the Court should strike the untimely Consents because “Plaintiffs have offered no good cause for their late-filed Consents, and these Consents violate the express terms of the Court's March 20, 2018 Order.” Mot. to Strike Untimely Consents to Join Collective Action (hereinafter, “Mot. to Strike”) at 2. In response, Plaintiffs contend that courts “overwhelmingly allow individuals to participate in FLSA collective actions despite filing consents after the opt-in deadline because allowing ‘late opt-ins' promotes judicial economy, conveniences the parties, and reduces litigation expenses.” Resp. to Def.s' Mot. to Strike at 2. Plaintiffs also argue that Defendants are not prejudiced by the late-filed consents. Id.

         In addition to opposing the Motion to Strike, Plaintiffs ask the Court to equitably toll the claims of the Late Opt-In Plaintiffs in the event the Court grants Defendants' motion to strike. Id. at 1-2. Defendants respond that such a motion is premature and not ripe for the Court. Def.s' Reply to Pls.' Resp. at 4. Defendants also argue that even if the Court considers Plaintiffs' alternative request, the Court should deny equitable tolling under “well established Firth Circuit law.” Id.

         II. DISCUSSION

         Although the Fair Labor Standards Act (“FLSA”) provides for an opt-in procedure in a collective action, it does not specify when a person must opt-in or submit a written notice of consent to join a case. See 29 U.S.C. §§ 216(b), 255, 256. The court sets the opt-in deadline. See Id. Courts agree that the statute should be read broadly and generously in favor of those it protects; thus, courts have discretion in matters pertaining to opt-in deadlines. See, e.g., Coronado v. D.N.W. Houston, Inc., CIV.A. H-13-2179, 2014 WL 6674292, at *2 (S.D. Tex. Nov. 24, 2014) (observing the remedial purpose of the FLSA).

         Courts usually balance several factors in determining whether an untimely consent to join a collective action is allowed to stand: (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. Coronado, 2014 WL 6674292, at *2; see also Ruggles v. Wellpoint, Inc., 687 F.Supp.2d 30, 37 (N.D.N.Y. ...


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