United States District Court, D. Maryland
David Copperthite United States Magistrate Judge
Pineda Leiva, Gladis Brenes Casazola. Carla Pinto, and Geidi
Oromon Ramos (collectively, "PlaintilTs") brought a
collective action against GBC Towson East, LLC d/b/a
Gino's Burgers and Chicken. Aberdeen GBC, LLC, Woodbine
Ventures-Aberdeen. LLC, A & M Hospitality, LLC, Scott
Autry, Jared Miller, and Bridgit Kincaid (collectively,
"Defendants"). alleging violations of the Fair
Labor Standard Act ("FLSA"), Maryland Wage Payment
and Collections Act, and Maryland Wage Hour Law, quantum
meruit, and discrimination under 42 U.S.C. § 1981.
Currently pending before this Court is Plaintiffs* Partial
Consent Motion to Revise Scheduling Order and For Other
Relief (ECF No. 70) and Defendants' opposition thereto
(ECF No. 71). The parties' submissions have been
reviewed, and no hearing is necessary. Loc.R. 105.6 (D.Md.
2016). For the reasons stated herein. Plaintiffs' motion
is GRANTED IN PART as to Plaintiffs consented motion to
revise the Scheduling Order and DENIED IN PART, without
prejudice, as to Plaintiffs' motion to toll the statute
of limitations for class members.
Modifying The Parties' Scheduling Order
motion includes a request to modify the parties'
Scheduling Order (ECF No. 28). The motion states that all
parties consent to extending the deadlines. ECF No. 70 at
4-5. and Defendants' partial opposition acknowledges
their consent to the proposed extension. ECF No. 71 at 4. The
Court will grant the parties" consensual motion to
revise their March 23. 2017 Scheduling Order, which shall be
modified in accordance with the accompanying Order.
Tolling The Statute of Limitations
next propose that the Court toll the statute of limitations
"for class members who are former employees of the
Aberdeen restaurant by three months to account for Defendant
Autry's delay, allowing them to recover for unpaid wages
and damages incurred between three years and three months
prior to their opt-in date and the present." ECF No. 70
at 5. Plaintiffs argue that "[polling is the only means
of ensuring that such potential Plaintiffs do not suffer the
diminution or extinguishment of their claims as a result of
Defendant Autry's delay, in violation of this Court's
order, in providing information to Plaintiffs as needed to
achieve the distribution of notice.'" hi.
Defendants counter that Plaintiffs have failed to demonstrate
that they are entitled to equitable tolling because they have
failed to meet their burden for establishing a basis for the
doctrine's application and for a willful FLSA violation
which would entitle them to a three year statute of
limitations, rather than a two year statute of limitations.
ECF No. 71 at 6-8. Furthermore, Defendants argue that a
blanket tolling request extending the statute of limitations
for claims against all Defendants where only Defendant Autry
failed to timely produce certain information would be
inequitable. Id. at 9.
FLSA has a two-tiered statute of limitations. 29 U.S.C.
§ 255(a). For ordinary violations there is a two-year
statute of limitations. See 29 U.S.C. § 255(a);
Desmond v. PNGI Charles Town Gaming, LLC,
630 F.3d 351, 357 (4th Cir. 2011). For "willful"
violations there is a three-year statute of limitations.
Desmond. 630 F.3d at 357. Unlike claims under Rule
23 of the Federal Rules of Civil Procedure, which
automatically toll upon filing the class action, the
limitations period for FLSA collective actions continues to
run for each individual plaintiff until he or she files
written consent to the suit. 29 U.S.C. § 256(b).
tolling is appropriate in two circumstances: first, when the
plaintiffs were prevented from asserting their claims by some
kind of wrongful conduct on the part of the defendant, and
second, when extraordinary circumstances beyond
plaintiffs' control made it impossible to file the claims
on time." Cruz v. Maypa. 773 F.3d 138, 145 (4th
Cir. 2014) (internal quotation marks omitted) (quoting
Harris v. Hutchinson. 209 F.3d 325, 330 (4th Cir.
2000)). "Equitable tolling is a rare remedy available
only where the plaintiff has exercised due diligence in
preserving [its] legal rights." Id. (internal
quotation marks omitted) (quoting Chap v. Va. Dep't
of Transp., 291 F.3d 276. 283 (4th Cir. 2002)). Thus,
the "circumstances under which equitable tolling has
been permitted are ... quite narrow." Harbourt v.
PPE Casino Resorts Md. LLC, Nos. CCB-14-3211,
CCB-16-339, 2017 WL 281992. at *2 (D.Md. Jan. 23, 2017)
(quoting Chao, 291 F.3d at 283).
have granted equitable tolling in FLSA cases where potential
opt-in plaintiffs lack notice of the lawsuit because the
employer failed to comply with its notice obligations.
See, e.g., Cruz, 773 F.3d at 146-47. Courts have
denied equitable tolling requests, however, on the grounds
that procedural delays were not extraordinary in nature.
Harbourt. 2017 WL 281992. at *3. "Under the
FLSA. the filing of the complaint in itself is not enough to
permit tolling of potential plaintiffs" claims.
Inevitably some plaintiffs* claims may expire before they
receive notice, even where conditional class certification is
sought and granted at an early stage of the litigation."
Id. Even though PlaintitTs have offered evidence of
conduct by Defendant Autry that could support equitable
tolling, given the statutory framework and the narrow
circumstances under which the Fourth Circuit has permitted
equitable tolling, the circumstances in this case are not
"extraordinary" enough to support a general tolling
of the statute of limitations. Therefore, the Court will deny
plaintiffs" motion as to tolling the statute of
limitations, but the Court does so without prejudice so that
any potential plaintiffs whose notice was delayed by
Defendant Autry's actions may file a motion for equitable
tolling with the Court for its consideration.
 On July 13, 2017, in accordance with
28 U.S.C. § 636 and Local Rules 301 and 302 of the
United States District Court for the District of Maryland and
upon consent of the parties, this case was transferred to
United States Magistrate ...