United States District Court, S.D. West Virginia, Charleston
PAMELA MAYHEW, BETSY FARNSWORTH, on behalf of themselves and others similarly situated, Plaintiffs,
LOVED ONES IN HOME CARE, LLC, and DONNA SKEEN, Defendants.
MEMORANDUM OPINION & ORDER
T. Copenhaver, Jr. Senior United States District Judge
is plaintiffs' motion for leave to file consents to sue
outside of the opt-in period, filed October 12, 2018.
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.
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.
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.
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
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. 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.
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
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).
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 ...