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News | Aug 08, 2014

TIPS FOR OVERTIME LAWYERS: FLSA TOLLING ARGUMENTS ARE GETTING TRACTION IN FEDERAL COURT

We’ve been noticing that more and more federal judges presiding over FLSA collective actions have been tolling the running of the statute of limitations where the defendants’ litigation tactics delay the court’s resolution of the plaintiff’s conditional certification motion.  Here is a string cite we recently put together listing some of the better cases:  In other FLSA collective actions, district courts toll the running of the limitations period where the defendant’s litigation tactics have delayed conditional certification proceedings.  See, e.g., Kellgren v. Petco Animal Supplies, Inc., 2014 U.S. Dist. LEXIS 78456, *12-14 (S.D. Cal. June 6, 2014) (tolling where conditional certification delayed by defendant’s motion to dismiss); Lorenzo v. Prime Communications, Inc., 2014 U.S. Dist. LEXIS 93123, *5-10 (E.D.N.C. May 8, 2014) (tolling where conditional certification delayed by defendant’s refusal to produce discovery and attempt to compel arbitration); Curless v. Great American Real Food Fast, Inc., 280 F.R.D. 429, 434-35 (S.D. Ill. 2012) (tolling where conditional certification delayed by defendant’s failure to produce discovery); Bolletino v. Cellular Sales of Knoxville, Inc., 2012 U.S. Dist. LEXIS 112132, *8-12 (E.D. Tenn. Aug. 9, 2012) (tolling where conditional certification delayed by defendant’s motion to dismiss); Mitchell v. Acosta Sales, LLC, 841 F. Supp. 2d 1105, 1120 (C.D. Cal. 2011) (tolling where conditional certification delayed by defendant’s motion to consolidate and stay); Yahraes v. Restaurant Associates Events Corp., 2011 U.S. Dist. LEXIS 23115, *9-10 (E.D.N.Y. March 8, 2011) (tolling where conditional certification delayed by defendants’ “re-briefing the certification motion, [attempt] to defer certification in anticipation of dispositive motions, and fail[ure] to produce documents”); Stickle v. SCI Western Support Center, L.P., 2008 U.S. Dist. LEXIS 83315, *61-67 (D. Ariz. Sept. 30, 2008) (tolling where conditional certification delayed by defendant’s motion to dismiss); Adams v. Inter-Con Security Systems, Inc. 242 F.R.D. 530, 542-43 N.D. Cal. 2007) (tolling where notice delayed by defendant’s failure to provide list of collective members).  In fact, some judges have even tolled the FLSA limitations period where the delays in deciding conditional certification are not even attributable to defendant’s conduct or tactics.  See, e.g., Jackson v. Bloomberg, L.P., 298 F.R.D. 152, 170-71 (S.D.N.Y. 2014); Engel v. Burlington Coat Factory Direct Corp., 2013 U.S. Dist. LEXIS 130513, *2-6 (S.D. Ohio Sept. 12, 2013); McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438, 445 (S.D.N.Y. 2012); Ruffin v. Entertainment of the Eastern Panhandle, 2012 U.S. Dist. LEXIS 1511, *2-9 (N.D.W.V. Jan. 5, 2012); Helton v. Factor 5, Inc., 2011 U.S. Dist. LEXIS 136170, *6-8 (N.D. Cal. Nov. 28, 2011).

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