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Mayhew v. Loved Ones In Home Health Care, LLC

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

July 18, 2019

PAMELA MAYHEW, BETSY FARNSWORTH, on behalf of themselves and others similarly situated, Plaintiffs,
v.
LOVED ONES IN HOME CARE, LLC, and DONNA SKEEN, Defendants.

          MEMORANDUM OPINION & ORDER

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

         Pending is plaintiffs' motion to toll the statute of limitations in their action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., filed June 28, 2019.

         I. Background

         On July 28, 2017, plaintiff Pamela Mayhew initiated an individual FLSA action 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.

         While this matter was being litigated, Loved Ones entered into a settlement with the Department of Labor (“DOL”) in which they provided certain employees DOL settlement offers.

         On December 1, 2017, the court conditionally certified the collective action in this case pursuant to Ms. Mayhew's August 30, 2017 motion for conditional class certification. ECF Nos. 5, 23. Defendants, instead of issuing notice to the class, moved, on December 11, 2017, 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 current and former Loved Ones home health aides who worked in both the private care program and the Medicaid waiver program (“hybrid aides”) during 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. The Notice set a June 1, 2018 deadline for potential plaintiffs to mail consents to sue. Id. In total, 103 plaintiffs have opted into this action.

         On August 30, 2018, plaintiffs moved to reissue the March 6, 2018 FLSA notice and reopen the opt-in period on the grounds that “Defendants were directly communicating materially false information to their employees about the lawsuit and those employees' rights . . . . [which] created significant confusion within the potential plaintiff population and . . . directly led to the failure of many potential plaintiffs to opt-in to the action.” ECF No. 221, at 3. As a part of the relief sought in that motion, plaintiffs asked for a “tolling of the statute of limitations necessary to counter the effects of Defendants' improper communications with class members.” Id. at 14. In a subsequent motion by plaintiffs for leave to file consents outside of the opt-in period, filed October 12, 2018, they essentially brief why the plaintiffs are entitled to a tolling of the statute of limitations, which relief was requested in plaintiffs' previous motion of August 30, 2018. ECF No. 234.[1]

         The court denied plaintiffs' motion to reissue notice and reopen the opt-in period in its December 27, 2018 memorandum opinion and order. The court found that the “March 6, 2018 Notice . . . resolved any of the confusion caused by the misleading communications made by defendants in the DOL settlement.” ECF No. 257, at 10-11. The court did not address the statute of limitations issue inasmuch as the court denied the plaintiffs' motion in which that relief was sought.

         On January 23, 2019, the court permitted plaintiffs to file a third amended complaint to include allegations of wrongdoing stemming from certain arbitration agreements presented by the defendants to the plaintiffs. ECF No. 263. The third amended complaint was deemed filed that same day. After the third amended complaint was filed, the court entered a new schedule by which this matter would proceed, setting the discovery deadline for April 26, 2019, the dispositive motions deadline for May 16, 2019, the pretrial conference for July 12, 2019, and trial for August 27, 2018. ECF No. 277.

         On June 10, 2019, the court granted plaintiffs' December 12, 2018 motion for final FLSA collective action certification. ECF No. 293. Therein, the court stated that the class consists of current and former Loved Ones home health aides who worked in both the private care program and the Medicaid waiver program (“hybrid aides”) during the same pay period at any time between July 28, 2014 and May 31, 2017. Id. at 5.

         Plaintiffs then filed the subject motion to toll the statute of limitations. In their memorandum in support of the motion, plaintiffs state that “the court should toll the statute of limitations on each individual claim[] to a date that does not unduly and artificially deprive Plaintiffs of wages they earned.” ECF No. 298, at 15. Plaintiff does not specify for what period the statute of limitations should be tolled.

         II. Analysis

         The Court of Appeals for the Fourth Circuit has held that equitable tolling of the statute of limitations in FLSA cases is available in two instances: when (1) “the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant, ” or (2) “extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time.” Cruz v. Maypa,773 F.3d 138, 146 (4th Cir. 2014) (quoting Harris v. Hutchinson,209 F.3d 325, 330 (4th Cir. 2000)). “Equitable tolling is a rare remedy available only where the plaintiff has ...


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