United States District Court, D. Massachusetts
DIANNE BUCCERI, JANET CHARAK, LISA SANDERS, and PETER STAFFORD, on behalf of themselves and all others similarly situated, Plaintiffs,
CUMBERLAND FARMS, INC. Defendant.
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE.
before this court is Defendant Cumberland Farms, Inc.'s
(“Cumberland Farms”) Motion to Strike
Untimely Consent to Join Forms [“Motion to
Strike”] [#90]. That motion seeks to strike the Consent
to Join forms filed on behalf of two opt-in plaintiffs, Derek
Clement (“Clement”) and Rakesh Vadehra
(“Vadehra”). For the reasons that follow, the
motion is DENIED.
2, 2016, and upon stipulation of the parties, the court
conditionally certified for notice purposes a collective
action pursuant to § 216(b) of the Fair Labor Standards
Act (“FLSA”), consisting of individuals who were
employed by Cumberland Farms as Store Managers at certain
Cumberland Farms stores for any period during the three years
prior to June 2, 2016, and who elected to opt-in. Order
Regarding 216(b) Notice [#41]. The court ordered that such
individuals would have 60 days from the date of the mailing
of Notice of the action to return a Consent to Join Form
(“consent” or “opt-in” form).
Id. In order to meet the deadline, opt-in forms had
to be filed, postmarked, or actually received by that date.
Id. The Claims Administrator sent notice to the
individuals on July 7, 2016, and as a result, the individuals
were required to postmark their consent forms by September 6,
2016. Def.'s Mem. Law Supp. Mot. Strike
Untimely Consent to Join Forms [“Mem. Supp. Mot.
Strike”] 2 [#91]; Mot. Strike, Ex. A [#90-3]. On August
5, 2016, the Claims Administrator sent a postcard reminder to
all such individuals. Mem. Supp. Mot. Strike 2 [#91].
filed over 100 consent forms. Clement's consent form,
filed on September 20, 2016, is dated September 1, 2016.
Pls.' Notice of Filing Consent to Join Form(s) Under the
Fair Labor Standards Act, 29 U.S.C. § 216(b), at 5
[#81]. The parties dispute the date of the postmark.
Pls.' Mem. Law Opp'n Def.'s Mot. Strike Untimely
Consent to Join Forms [“Pls.' Opp'n”]
[#94]; Mot. Strike Ex. C [#90-5]. Vadehra's consent form,
filed on September 23, 2016, is dated September 8, 2016, and
postmarked September 12, 2016. Pls.' Notice of Filing
Consent to Join Form(s) Under the Fair Labor Standards Act,
29 U.S.C. § 216(b), at 4 [#83]; Mot. Strike, Ex. D
[#90-6]. No consent forms have been filed since September 23,
2016. On November 1, 2016, Defendant moved to strike
Clement's and Vadehra's consent forms as
actions under the FLSA are “fundamentally
different” from class actions under Federal Rule of
Civil Procedure 23. Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 133 S.Ct. 1523, 1529, 185 L.Ed.2d
636 (2013) (citing Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 177-78 (1989) (Scalia, J.,
[A] putative class acquires an independent legal status once
it is certified under Rule 23. Under the FLSA, by contrast,
“conditional certification” does not produce a
class with an independent legal status, or join additional
parties to the action. The sole consequence of conditional
certification is the sending of court-approved written notice
to employees, see Hoffmann-La Roche Inc.,
supra, at 171-172 . . ., who in turn become parties
to a collective action only by filing written consent with
the court, § 216(b).
Genesis Healthcare Corp., 133 S.Ct. at 1530. Clement
and Vadehra having now filed written consents, the court must
consider whether to allow their claims to proceed together
with the other plaintiffs, or to sever the claims and require
them to proceed separately.
FLSA provides no explicit standard by which a court should
consider whether to allow plaintiffs to join a particular
action after a court-imposed deadline for the filing of
consents has passed. Ruggles v. Wellpoint, Inc., 687
F.Supp. 2d. 30, 37 (N.D.N.Y. 2009). Courts use various
factors to guide their decision on this question, such as:
(1) “whether “good cause” exists for the
late submissions;” (2) whether the defendant would be
prejudiced by acceptance of late submissions; (3) the length
of delay; (4) judicial economy; and (5) the FLSA's
remedial purpose. See, e.g., id. (observing
that the caselaw on this question is
has articulated no prejudice it would suffer should the court
accept the late consent forms. Nor is such prejudice likely,
given that the action is not considered to be commenced as to
late-filed claims until the written consent was filed, 29
U.S.C. § 256, so no stale claims will arise, and the
consents were filed in any event before discovery commenced.
Additionally, the delay is minimal. Vadehra postmarked the
consent form just six days after the deadline. And even
accepting as true that Clement's consent form was
postmarked on September 10, 2016,  that represents only a
four-day delay. The remedial purposes of the FLSA also
counsel in favor of acceptance. As other courts have
recognized, “with respect to the FLSA, [a] generous
reading, in favor of those whom [C]ongress intended to
benefit from the law, is also appropriate when considering
issues of time limits and deadlines.” Ruggles,
687 F.Supp.2d at 38 (internal quotation marks and citation
efficiency argument also supports allowing the late-filed
consents. If Clement and Vadehra are not permitted to proceed
in this action, their severed claims could still be asserted
in a separate action. Courts have been wary of accepting this
efficiency argument wholesale, because such acceptance could
“give Plaintiffs carte blanche to file
additional consent forms in the future.”
Ruggles, 687 F.Supp.2d at 38; see also
Morangelli v. Chemed Corp., 275 F.R.D. 99, 122 (E.D.N.Y.
2011) (expressing concern that “plaintiffs'
well-worn efficiency argument” was “becoming the
carte blanche to file additional consent
forms”); Flood v. Carlson Restaurants, Inc.,
14 Civ. 2740 (AT)(GWG), 2016 WL 3221146, at *8 (S.D.N.Y. June
7, 2016) (same). Here, however, no new consent forms have
been filed over ten months, and there is no evidence that
Plaintiffs will file additional late consent forms. And
unlike in Morangelli and Flood, the court
has not previously extended the opt-in period. The economies
to be gained from accepting two late forms thus outweigh the
concern that floodgates will open.
have not articulated any reason for the late submissions.
Where all of the other factors weigh in Plaintiffs'
favor, courts have found that the absence of a showing of
good cause is not dispositive. See Ruggles, 687
F.Supp.2d at 37 (“Although Plaintiffs have offered no
good cause for their failure to timely file these consent
forms, all of the other factors weigh in their
favor.”); Saunders v. Getchell Agency, Inc.,
1:13-cv-00244-JDL, 2014 WL 12539643, at *11 n.17 (D. Me. Dec.
12, 2014) (“Defendants are not prejudiced by the
joinder of the individuals identified in Plaintiffs'
Motion to File Opt-In Consent Forms. The tardiness of the
individuals' filings is not excessive, judicial economy
is not negatively impacted, and the remedial purpose of the
FLSA is served by permitting the late opt-ins. These factors
support granting the ...