United States District Court, S.D. West Virginia
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 the plaintiffs' motion for leave to file a third
amended complaint, filed December 14, 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 Pamela Mayhew and Betsy Farnsworth did not file
consents to sue in accordance with the Notice approved by the
court. The court, however, in its December 27, 2018
memorandum opinion and order on plaintiffs' motion to
file consents to sue outside the opt-in period, found that
Ms. Mayhew was deemed to have consented to joining the
collective action on August 30, 2017. See ECF No. 256, at
4-6. Further, the court permitted Ms. Farnsworth to file her
consent to sue outside of the timeframe provided by the
Notice. Id. at 10.
December 2018, Loved Ones distributed to currently-employed
collective class members and other employees two
employment-related documents: an “Arbitration
Agreement” and an “Addendum to Arbitration
Agreement (‘Addendum').” Proposed Compl., ECF
No 242-1, at ¶ 27. Plaintiffs contend that defendants
“contemporaneously” distributed these two
documents to employees. Pls.' Mot. Issue Clarifying
Notice, ECF No. 241, at 3-4.
documents were the subject of plaintiffs' December 13,
2018 motion to issue a clarifying notice to plaintiffs in
this action. Specifically, the “Arbitration
Agreement” purports to cover “any claim, dispute
or controversy between you and us, whether preexisting,
present or future, that in any way arises from or relates to
your employment . . . .” Arbitration Agreement, ECF No.
241-1, at 2. The “Addendum” conversely states
that “[t]his Agreement does not apply to any civil
lawsuit that was already filed . . . by the employee, or on
their behalf, against employer (whether individually or as a
member of the class).” Addendum, ECF No. 241-2, at
December 19, 2018, the court approved the Clarifying Notice
that plaintiffs' counsel was to distribute to collective
action plaintiffs. ECF No. 255. This notice informed the
plaintiffs that “YOU DO NOT HAVE TO AGREE TO PRIVATE
ARBITRATION OF YOUR OVERTIME CLAIMS IN ORDER TO KEEP YOUR
JOB.” Clarifying Notice, ECF No. 253.
seek to amend their complaint to include FLSA retaliation
claims pursuant to 29 U.S.C. § 215(a)(3), which arise
out of the distribution of the “Arbitration
Agreement” and “Addendum.” Plaintiffs
maintain that Loved Ones informed employees who are also
members of the class that if an employee failed to sign both
documents (the “Arbitration Agreement” and the
“Addendum”), Loved Ones would “terminate
her employment on December 21, 2018.” Proposed Compl.,
ECF No. 242-1, at ¶ 29. Plaintiffs also contend that
Loved Ones, apart from the two documents noted above,
“threatened conduct to terminate the employment of
collective class Plaintiff[s] who refuse to agree to or to
execute” the two above-described documents, which they
believe “is retaliatory in nature based on
Plaintiffs' status and participation in this
litigation.” Id. at ¶ 37. Further,
plaintiffs assert that distributing these documents
“invades the exclusive province of the Court to control
and to direct communications relative to the collective
action with collective class Plaintiffs, ” and that
this “invasion . . . is employment-related retaliation
and discrimination against collective class
Plaintiffs.” Id. at ¶ 35.
filed three separate responses to plaintiffs' motion, one
on January 2, 2018 and two on January 10, 2018. The January
2, 2018 response and the first January 10, 2018 response are
identical and argue that inasmuch as no named plaintiff filed
a consent to sue during the timeframe set in the Notice
(March 6, 2018 through June 1, 2018), the statute of
limitations in this matter has run and the entire case should
be dismissed. ECF No. 260, at 1-2; ECF No. 261, at 1-2.
Defendants' second response of January 10, 2018 states
that because the Clarifying Notice that was approved on
December 19, 2018 resolved the conflict between the terms of
the “Arbitration Agreement” and the
“Addendum, ” the issues raised in the amended
complaint are moot. ECF No. 262, at 1-2.
Standard of Review
Rule of Civil Procedure 15(a)(2), invoked by plaintiff,
provides that a party who can no longer amend a pleading as
of right can still amend by obtaining “the opposing
party's written consent or the court's leave.”
Fed.R.Civ.P. 15(a)(2). “The court should freely give
leave when justice so requires.” Id. In
applying Rule 15(a), “[t]he law is well settled that
leave to amend a pleading should be denied only when the
amendment would be prejudicial to the opposing party, there
has been bad faith on the part of the moving party, or the
amendment would be futile.” Edwards v. City of
Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (quoting Johnson
v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). A
proposed amendment is futile “if . . . [it] fails to
satisfy the requirements of the federal ...