United States District Court, D. Maryland
Jacqueline Dolphus, et al.
Servis One, Inc. D/B/A BSI Financial Services
before the Court is Plaintiffs Jacqueline Dolphus,
Christopher Smith, Paul Dickson, Reginald Smith, Danielle
Hannah, and Gregory E. Sherrard's Motion for Equitable
Tolling of the Statute of Limitations (ECF No. 43). The
Motion is ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2016). For the reasons
outlined below, the Court will deny the Motion.
April 11, 2016, Plaintiffs filed suit against Servis One,
Inc. D/B/A BSI Financial Services (“Servis One”)
on behalf of themselves and similarly situated current and
former Servis One asset managers. (ECF No. 1). Plaintiffs
allege that they consistently worked more than forty hours
per week, but Servis One failed to pay them overtime. (Compl.
¶¶ 73-82, ECF No. 1). Plaintiffs seek recovery of
wages under the Fair Labor Standards Act, 29 U.S.C.
§§ 201, et seq. (2018)
(“FLSA”). (Id. at 2).
10, 2016, Plaintiffs filed a Motion for Conditional
Certification to Facilitate Identification and Notification
of Similarly Situated Employees. (ECF No. 11). The Court
denied the Motion on August 24, 2016. (ECF No. 18). The Court
also granted Servis One's request to conduct limited
discovery to determine whether Plaintiffs were similarly
situated enough to warrant a collective action.
(Id.). On November 14, 2016, Plaintiffs filed a Line
reinstating their Motion for Conditional Certification. (ECF
No. 21). The Motion ripened on December 9, 2016.
(See ECF Nos. 21-23). The Court granted
Plaintiffs' Motion for Conditional Certification six
months later on June 8, 2017. (ECF No. 25).
the Court conditionally certified the collective action,
Plaintiffs could not contact other potential class members
because the parties disputed the notice time-period and the
language of the opt-in form. On September 8, 2017, the Court
extended the notice period from August 1 to October 2, 2017,
and adopted Plaintiffs' proposed opt-in
form. (ECF No. 42).
contend that the Court's delayed ruling on two
issues—the Motion for Conditional Certification and the
approval of an opt-in form for other similarly situated
employees—extinguished many of purported
Plaintiffs' claims, due to the two-year statute of
limitations. Plaintiffs now request the Court toll the
statute of limitations on February 1, 2017, less than two
months after the parties fully briefed the reinstated the
Motion for Conditional Certification.
tolling of the statute of limitations is a “guarded and
infrequent” remedy appropriate under “quite
narrow” circumstances. Chao v. Va. Dep't of
Transp., 291 F.3d 276, 283 (4th Cir. 2002) (quoting
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000)). Equitable tolling is only available when: (1)
defendants “wrongful conduct” prevented
plaintiffs from asserting their claims; or (2)
“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)
(quoting Harris, 209 F.3d at 330). Furthermore,
equitable tolling is not permissible “where the
claimant[s] failed to exercise due diligence in preserving
[their] legal rights.” Chao, 291 F.3d at 283
(quoting Irwin v. Dep't of Veterans, 498 U.S.
89, 96 (1990)).
Plaintiffs argue that delays in the Court's rulings on
the relevant Motions constituted extraordinary circumstances
outside of their control, which prevented Plaintiffs from
filing their claims in time. The Court disagrees.
the FLSA, filing a complaint does not automatically toll the
statute of limitations for all similarly situated employees.
Some potential plaintiffs' claims may expire before they
receive notice of the collective action, even when a court
grants class certification early in the litigation.
Harbourt v. PPE Casino Resorts Md., LLC, No.
CCB-14-3211 2017 WL 281992, at *3 (D.Md. Jan. 23, 2017). The
fact that an employee's FLSA claim expires before he or
she received notice of a collective action is not in itself
extraordinary, but rather an anticipated result of the
have district courts in the Fourth Circuit concluded that
litigation delays were an extraordinary circumstance that
warranted equitable tolling. See, e.g.,
Harbourt, 2017 WL 281992, at *3 (finding the
four-month delay in granting a motion to dismiss and
subsequent appeal was not an extraordinary circumstance);
LaFleur v. Dollar Tree Stores, Inc., No. 2:12-cv-
00363, 2012 WL 4739534, at *7 (E.D.Va. Oct. 2, 2012) (denying
equitable tolling where motion for conditional certification
was still pending after three months); MacGregor v.
Farmers Ins. Exch., 2:10-CV-03088, 2011 WL 2731227, at
*2 (D.S.C. July 13, 2011) (denying equitable tolling because
the four-month time period in which a motion to dismiss was
pending did not constitute an extraordinary circumstance).
Courts have only found extraordinary circumstances when the
delay was unusually lengthy. See, e.g., Owens v.
Bethlehem Mines Corp., 630 F.Supp. 309, 312-13 (S.D.W.V.
1986) (allowing equitable tolling where motion for class
certification was pending before the court for over a year).
granting the Plaintiffs' Motion for Conditional
Certification six months after a full briefing did not
present an unusual or unexpected delay. Rather, the six
months the Motion was pending before the Court was a typical
length of time for litigation in the District of Maryland.
Additionally, the Court resolved the parties' good faith
disputes related to the notice and opt-in form as those
disputes ripened for the Court's review. Furthermore,
Plaintiffs did not seek equitable tolling until September 15,
2017—seven and one-half months from when they now
assert their claims should be tolled. Plaintiffs' belated
request reveals both the ordinariness of the circumstances
when they arose in February and Plaintiffs' lack of
diligence in preserving their claims.
Court therefore concludes that the six months the Motion was
pending does not constitute a sufficiently extraordinary
circumstance to “supplant the rules of clearly drafted
statutes.” Chao, 291 F.3d 276 at 283 (quoting
Harris, 209 F.3d 325 at 330). Without more
compelling circumstances or wrongdoing on Servis One's
part, any prejudice potential plaintiffs suffered is not
enough to warrant this equitable measure. Accordingly, the
Court will deny the Motion for Equitable Tolling of the
Statute of Limitations.
foregoing reasons, Plaintiffs' Motion for Equitable
Tolling of the Statute of Limitations (ECF No. 43) is DENIED.
Despite the informal nature of this Memorandum, it shall
constitute an Order of ...