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 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.
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
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
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.
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
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.
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
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.
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.
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
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 ...