United States District Court, W.D. Texas, Waco Division
CHRISTOPHER FERGUSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; Plaintiff,
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
ALBRIGHT UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.”
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
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.