United States District Court, E.D. Arkansas, Central Division
NICHOLE PLANTS, et al. PLAINTIFFS
U.S. PIZZA COMPANY, INC. DEFENDANT
OPINION AND ORDER
Kristine G. Baker United States District Judge.
the Court is a motion for partial summary judgment filed by
defendant U.S. Pizza Company, Inc. (“U.S. Pizza”)
(Dkt. No. 28). Plaintiffs filed an unopposed motion for
extension of time to file a response to U.S. Pizza's
motion (Dkt. No. 31). The Court grants plaintiffs' motion
and considers plaintiffs' response timely filed (Dkt.
Nos. 32, 33). For the following reasons, the Court grants, in
part, and denies, in part, U.S. Pizza's motion for
partial summary judgment (Dkt. No. 28).
in this action are 59 individuals who worked as servers at 10
different U.S. Pizza locations (Dkt. No. 28, ¶ 1).
Plaintiffs bring this action pursuant to the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201,
et seq., and the Arkansas Minimum Wage Act
(“AMWA”), Arkansas Code Annotated §
11-4-201, et seq. (Dkt. No. 23, ¶¶ 5-6).
Plaintiffs claim that they spent more than 20% of their time
performing non-tipped duties for U.S. Pizza, assert that U.S.
Pizza was required to pay plaintiffs and its other servers at
least minimum wage for that time, and sue for wages owed from
that time (Id., ¶ 3). Plaintiffs seek a
declaratory judgment; monetary damages; liquidated damages;
prejudgment interest; and civil penalties and costs,
including reasonable attorneys' fees, within the
applicable statutory limitations period as a result of U.S.
Pizza's alleged failure to pay minimum wages under the
FLSA and the AMWA (Id., ¶ 7).
August 12, 2016, two former U.S. Pizza employees filed a
lawsuit captioned Latcham, et al. v. U.S. Pizza,
Inc., No. 4:16-cv-00582-BSM, on behalf of themselves and
all others similarly situated claiming that U.S. Pizza: (1)
operated an illegal tip pool and (2) violated the wage and
hour laws related to side work under both the FLSA and the
AMWA (Dkt. No. 32, ¶ 1). The named plaintiffs in
Latcham successfully sought initial certification of
a collective action under the FLSA, and 78 individuals
subsequently filed consents to join the
conditionally-certified collective under the FLSA, though not
all of those 78 individuals had worked as servers for U.S.
Pizza within the last two years (Id., ¶¶
2-3). In an Order dated June 28, 2018, United States District
Judge Brian S. Miller granted collective-wide summary
judgment on plaintiffs' illegal tip pool claim and found
it undisputed that U.S. Pizza servers keep all tips they
receive from dine-in customers (Id., ¶ 4).
Judge Miller also decertified the collective action as to
plaintiffs' remaining side work claim, dismissing without
prejudice the 78 opt-in plaintiffs and leaving for trial just
the individual side work claims of the two named plaintiffs
(Id., ¶ 5). In decertifying the collective
action, Judge Miller denied plaintiffs' request for a
60-day tolling period of the opt-in plaintiffs' statutes
of limitations (Id., ¶ 6). Plaintiffs assert
that the requested 60-day tolling period was specifically a
post-decertification tolling period intended to toll the
limitations period from the time the Latcham case
was decertified and the filing of this case (Id.).
29, 2018, 58 former Latcham opt-in plaintiffs filed
their original complaint in this action, refiling their side
work claims against U.S. Pizza and requesting applicable
tolling (Dkt. Nos. 1; 32, ¶ 11). Plaintiffs'
complaint states that strict application of the statute of
limitations would be inequitable, that each plaintiff brought
his or her claim for unpaid minimum wages in the
Latcham litigation by filing a consent to join that
suit, and that each plaintiff's claims should be tolled
as of the date he or she filed his or her consent to join the
Latcham litigation (Dkt. Nos. 1, ¶¶
104-106; 23, ¶¶ 108-110; 32, ¶ 11). U.S. Pizza
alleges that 27 of these plaintiffs did not file timely consents in
Latcham and provides a table listing the last day
worked at U.S. Pizza, the alleged start of the two-year
limitations period, and the alleged Latcham consent
file date for those 27 employees (Dkt. No. 30, ¶ 13).
Plaintiffs deny that these 27 employees did not file timely
consents in Latcham and maintain that they are
entitled to the opportunity to produce evidence of a
three-year limitations period for claims under the FLSA as
well as a three-year limitations period for claims under the
AMWA (Dkt. No. 32, ¶ 13).
judgment is proper if there is no genuine issue of material
fact for trial. UnitedHealth Group Inc. v. Executive Risk
Specialty Ins. Co., 870 F.3d 856, 861 (8th Cir. 2017)
(citing Fed.R.Civ.P. 56). Summary judgment is proper if the
evidence, when viewed in the light most favorable to the
nonmoving party, shows that there is no genuine issue of
material fact and that the defendant is entitled to entry of
judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “In ruling on a
motion for summary judgment ‘[t]he district court must
base the determination regarding the presence or absence of a
material issue of factual dispute on evidence that will be
admissible at trial.'” Tuttle v. Lorillard
Tobacco Co., 377 F.3d 917, 923 (8th Cir. 2004) (internal
citations omitted). “Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for
trial.” Johnson Regional Medical Ctr. v.
Halterman, 867 F.3d 1013, 1016 (8th Cir. 2017) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). A factual dispute is genuine if
the evidence could cause a reasonable jury to return a
verdict for either party. Miner v. Local 373, 513
F.3d 854, 860 (8th Cir. 2008). “The mere existence of a
factual dispute is insufficient alone to bar summary
judgment; rather, the dispute must be outcome determinative
under the prevailing law.” Holloway v. Pigman,
884 F.2d 365, 366 (8th Cir. 1989).
parties opposing a summary judgment motion may not rest
merely upon the allegations in their pleadings. Buford v.
Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial
burden is on the moving party to demonstrate the absence of a
genuine issue of material fact. Celotex Corp., 477
U.S. at 323. The burden then shifts to the nonmoving party to
establish that there is a genuine issue to be determined at
trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364,
366 (8th Cir. 2008), cert. denied, 522 U.S. 1048
(1998). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).
Motion For Partial Summary Judgment
Pizza moves for partial summary judgment, arguing that these
27 plaintiffs' claims are untimely and should be
dismissed with prejudice (Dkt. No. 28, ¶ 6). U.S. Pizza
states that, during the Latcham case, Judge Miller
ruled that for the purposes of the FLSA a two-year statute of
limitations applied to the side work claims and specifically
denied the plaintiffs' request for post-decertification
equitable tolling of the opt-in plaintiffs' statutes of
limitations for the purpose of refiling individual claims
(Id., ¶ 2). Accordingly, U.S. Pizza maintains
that the statutes of limitations for the claims of the
dismissed opt-in plaintiffs, including the 58 plaintiffs in
the present action, began to run again on June 28, 2018
(Id.). U.S. Pizza argues that these 27 plaintiffs
cannot claim equitable tolling because they filed consents to
join the Latcham collective action more than two
years after they last worked as servers at a U.S. Pizza
location (Id., ¶ 5). U.S. Pizza argues that
these plaintiffs also failed to assert any claims under the
AMWA within three years of last working as a server at a U.S.
Pizza location (Id.). Further, U.S. Pizza states
that issue preclusion bars these plaintiffs from litigating
the issue of equitable tolling since that issue was decided
in Latcham (Id., ¶ 4).
response, plaintiffs argue that they are entitled to pursue
their FLSA claims for a period of three years prior to the
filing of their consents to join in Latcham (Dkt.
No. 33, at 4). Plaintiffs assert that the equitable tolling
that the Latcham court refused to apply was
post-decertification tolling rather than pre-decertification
tolling (Id.). Accordingly, plaintiffs argue that
any tolling applicable to plaintiffs prior to the
decertification order in Latcham was not disturbed
by the Latcham ruling, meaning that plaintiffs
continue to benefit from the tolling of their FLSA-based
claims that occurred between the filing of their individual
consents to join and the decertification order
(Id.). Further, plaintiffs argue that they are not
bound by the Latcham court's ruling that a
two-year statute of limitations applied since these
plaintiffs were dismissed from Latcham as opt-in
plaintiffs by the time of that ruling (Id., at 6).
Additionally, plaintiffs argue that they continue to be
entitled to pursue their state law claims pursuant to the
AMWA accruing in the three years prior to the filing of
Latcham or at least three years prior to the filing
of plaintiffs' consent to join in Latcham
(Id., at 8). Plaintiffs argue that this Court should
not dismiss the AMWA claims of any plaintiffs whose last day
of work for U.S. Pizza falls within the three years prior to
the filing of the Latcham case or, alternatively,
within the three years prior to the filing of plaintiffs'
consents to join in the Latcham case (Id.,
FLSA provides that claims for violations be “commenced
within two years after the cause of action accrued.” 29
U.S.C. § 255(a). The statute of limitations is extended
to three years if the FLSA violation by the employer was
willful. Id. A cause of action is commenced when the
complaint is filed or, in a collective action, when the party
files a written consent to become part of the collective
action. 29 U.S.C. § 256(a)-(b). For an opt-in plaintiff
in a collective action, the FLSA explicitly measures the
statute of limitations from the date such plaintiff joins the
lawsuit, rather than the filing date of the initial
complaint. 29 U.S.C. § 256(b); see also Collins v.
Barney's Barn, Inc., No. 4:12CV00685 SWW, 2013 WL
1668984, at *6 (E.D. Ark. Apr. 17, 2013). “The statute
of limitations for a plaintiff in a collective action is
tolled after the plaintiff has filed a ...