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Nichole Plants v. U.S. Pizza Co., Inc.

United States District Court, E.D. Arkansas, Central Division

January 3, 2020

NICHOLE PLANTS, et al. PLAINTIFFS
v.
U.S. PIZZA COMPANY, INC. DEFENDANT

          OPINION AND ORDER

          Kristine G. Baker United States District Judge.

         Before 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).

         I. Factual Background

         Plaintiffs 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).

         On 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.).

         On June 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[1] 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).

         II. Legal Standard

         Summary 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).

         However, 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).

         III. Motion For Partial Summary Judgment

         U.S. 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).

         In 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., at 9-10).

         A. Legal Standard

         The 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 ...


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