HERBERT JONES, et al. Plaintiffs,
HOFFBERGER MOVING SERVICES LLC, et al. Defendants.
JAMES K. BREDAR, District Judge.
This lawsuit was filed on February 19, 2013 by Plaintiffs Herbert Jones and Joseph Jones against Defendant Hoffberger Moving Services LLC ("HMS") (1) as a putative collective action for failing to pay wages due under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 206, et seq., and (2) as a putative class action for violations of the Maryland Wage Payment and Collection Act ("MWPCA") and the Maryland Wage and Hour Law ("MWHL"). (Compl., ECF No. 1.) Plaintiffs twice amended the complaint (First Am. Compl., ECF No. 18; Sec. Am. Compl., ECF No. 47.) In the first amended complaint, Plaintiffs added Rodney McFadden and Raymond Green as plaintiffs and removed the count alleging violations of the MWCPA. (First Am. Comp.) In the second amended complaint, Plaintiffs added Margaret A. Hoffberger and Michael S. Hoffberger (collectively, with HMS, "Defendants") as defendants and also added back in a count for alleged violations of the MWPCA. In the second amended complaint, Plaintiffs also ceased bringing their state law claims as a putative class action. (Sec. Am. Compl.) Thus, presently before the Court is a three-count complaint, in which Plaintiffs seek to bring their claims under the FLSA (Count III) as a collective action pursuant to 29 U.S.C. § 216(b). ( Id. )
On July 23, 2013, this Court allowed this case to proceed as a collective action under §216(b). (ECF No. 26.) On July 30, 2013, it granted Plaintiffs' unopposed request to extend the deadline for sending opt-in notices to putative collective action members until August 8, 2013. (ECF. No. 29). On August 27, 2013, the Court granted Plaintiffs' unopposed request to extend the deadline to either accept or reject Defendants' offer of judgment until September 11, 2013. (ECF No. 59.) As of November 6, 2013, thirty-nine plaintiffs-including Plaintiffs Jones, Jones, McFadden, and Green-have opted-in to the collective action.
Now pending before the Court is Plaintiffs' motion for extension of time and other relief. (ECF No. 67.) The issues have been briefed and no hearing is required. Local Rule 105.6. For the reasons set forth below, the motion will be GRANTED IN PART and DENIED IN PART.
Plaintiffs' motion arises out of a July 17, 2013 communication sent by Defendants to putative collective action members who, at the time, were current employees of HMS. (ECF No. 67 ¶ 10; ECF No. 77 at 3-4.) On that date Curtis Stanton, an HMS dispatcher responsible for distributing work assignments to HMS employees, handed out affidavits to HMS employees. (ECF No. 81-5 at 46, 77; ECF No. 67-3.) These affidavits were accompanied by a cover letter on HMS letterhead. In relevant part, this cover letter reads:
Attached hereto is an Affidavit relating to the litigation filed against the Company in the United States District Court about wages you have been paid or may be entitled to. You should read this document carefully and sign it only if it is true and correct.
You are NOT under any obligation to sign this affidavit and you may refuse to do so for any reason. Your employment with the Company WILL NOT be affected in any way if you choose not to sign. YOU WILL NOT BE TERMINATED IF YOU DO NOT WANT TO SIGN THE AFFIDAVIT.
You may consult your own lawyer about whether you should sign [sic] this Affidavit before signing it.
(ECF No. 67-3.) The affidavits themselves read, in relevant part:
4. I understand that I am not required to use transportation supplied by the Company to any job site.
5. On those occasions when I have used Company supplied transportation to any job site I have not been required to nor did I perform any work on behalf of the Company during the time I was travelling to the job site.
6. If I was asked to perform any work for the Company at the Warehouse I was paid for the time ...