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Mayhew v. Loved Ones In Home Health Care, LLC

United States District Court, S.D. West Virginia

January 23, 2019

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


          John T. Copenhaver, Jr Senior United States District Judge

         Pending is the plaintiffs' motion for leave to file a third amended complaint, filed December 14, 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.

         Named 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.

         In 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.

         These 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 ¶ 5.

         On 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.[1]

         Plaintiffs 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.

         Defendants 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.

         II. Standard of Review

         Federal 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 ...

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