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Mayhew v. Loved Ones in Home Health Care, LLC

United States District Court, S.D. West Virginia, Charleston

December 27, 2018

PAMELA MAYHEW, BETSY FARNSWORTH, on behalf of themselves and others similarly situated, Plaintiffs,


          John T. Copenhaver, Jr. Senior United States District Judge

         Pending is plaintiffs' motion for leave to file consents to sue outside of the opt-in period, filed October 12, 2018.

         I. Background

         On July 28, 2017, plaintiff Pamela Mayhew initiated an individual action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., related to pay practices of defendant Loved Ones In Home Care, LLC (“Loved Ones”) regarding their payment of overtime wages. ECF No. 1. On August 30, 2017, Ms. Mayhew filed her first amended complaint expanding her prior claims to include a collective action under the FLSA. ECF No. 6. Betsy Farnsworth joined this action as a named plaintiff in the second amended complaint, filed October 31, 2017. ECF No. 17.

         On December 1, 2017, the court conditionally certified the collective action in this case. ECF No. 23. Defendants subsequently moved to limit the conditional collective action certification on the grounds that it was too broad. ECF No. 27. After full briefing, the court ordered, on February 23, 2018, that the collective action be limited to employees who worked for defendants in home health aide in two or more programs during the course of the same pay period at any time between July 28, 2014, and May 31, 2017. ECF No. 54, at 4.

         A proposed notice of the collective action was filed by the plaintiffs on March 5, 2018 and was approved by the court on March 6, 2018. ECF Nos. 66, 67. Importantly, the Notice set a June 1, 2018 deadline for potential plaintiffs to mail consents to sue. Id.

         The plaintiffs seek the court's permission for Pamela Mayhew, Betsy Farnsworth, Brittany Carter, Rachel Coles, Laura Nelson and Melody Woods to file their consents to sue, as required under 29 U.S.C. § 216(b), after the June 1, 2018 opt-in deadline. Attached to the plaintiffs' motion are the consents to sue of the above-named individuals. The defendants have filed a response in opposition to the plaintiffs' motion.

         As an initial matter, Ms. Nelson, Ms. Woods and Ms. Carter have already opted into the collective action by filing timely consents, and the defendants acknowledge as much.[1] Defs.' Resp. Pls.' Mot. (“Defs.' Resp.”), ECF No. 235, at 3 (citing ECF Nos. 58, 59, 63). Therefore, the court need only address the plaintiffs' motion insofar as it relates to Ms. Mayhew, Ms. Farnsworth and Ms. Coles.

         II. Analysis

         The FLSA provides: “No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. 216(b). The Court of Appeals for the Fourth Circuit has stated, in an unpublished opinion, that “[t]he filing of a collective action under 29 U.S.C. § 216(b) . . . renders consents necessary, ” even for named plaintiffs. In re Food Lion, Inc., 151 F.3d 1029, 1998 WL 322682, at *13 (4th Cir. June 4, 1998) (unpublished table decision; see also Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101 (7th Cir. 2004) (“The statute is unambiguous: if you haven't given your written consent to join the suit, or if you have but it hasn't been filed with the court, you're not a party. It makes no difference that you are named in the complaint, for you might have been named without your consent.”).

         As another district court in this circuit has noted:

“While it is clear that some document in addition to the complaint must be filed, it is not clear what form the written consent must take, especially when the alleged party plaintiff is a named plaintiff.” D'Antuono v. C & G of Groton, Inc., No. 3:11cv33 (MRK), 2012 WL 1188197, at *2 (D. Conn. Apr. 9, 2012). Courts have generally shown “considerable flexibility” with respect to the form of consent, Manning v. Gold Belt Falcon, LLC, 817 F.Supp.2d 451, 454 (D.N.J. 2011), requiring only that “the signed document verif[y] the complaint, indicate[] a desire to have legal action taken to protect the party's rights, or state[] a desire to become a party plaintiff.” Perkins v. S. New England Tel. Co., No. 3:07-cv-967, 2009 WL 3754097, at *3 n. 2 (D. Conn. Nov. 4, 2009).

Butler v. DirectSAT USA, LLC, 55 F.Supp.3d 793, 800 (D. Md. 2014) (quoting Faust v. Comcast Cable Commc'ns Mgmt., LLC, No. WMN-10-2336, 2013 WL 5587291, at *3 (D. Md. Oct. 9, 2013)). “The statute itself does not mandate any particular form, and in general, all that is required is a signed statement indicating the plaintiff's intent, and consent, to participate as a plaintiff in the collective action.” Mendez v. The Radec Corp., 260 F.R.D. 38, 52 (W.D.N.Y. 2009).

         In Mendez, the named plaintiff, Mr. Mendez, filed a signed affirmation with the court in support of the plaintiffs' motion for court approval for the case to proceed as a collective action. Id. In that affirmation, Mr. Mendez stated that he was the named plaintiff in the matter and that as the named plaintiff, he was bringing the case “on behalf of himself and all other employees similarly situated.” Id. The court found that this affirmation “satisfied the written-consent requirement of § 216(b).” Id.; see also Gordon v. TBC Retail Grp., Inc., 2:14-cv-03365-DCN, 2016 WL 4247738, at *14 (D.S.C. Aug. 11, 2016) (finding that the declarations submitted by the named plaintiffs in ...

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