Cervenka v. Jumpp Logistics, LLC et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

KEVIN CERVENKA, individually
and on behalf of all others similarly
situated

v.

JUMPP LOGISTICS, LLC, ET AL.
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CIVIL NO. 4:21-CV-813-SDJ
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Opposed Motion to Toll the Statute of
Limitations for Putative Collective Members, (Dkt. #38), and the parties’ subsequent
briefing on the motion, (Dkt. #41, #42). Named Plaintiff Kevin Cervenka asks that
the Court toll the Fair Labor Standard Act’s statute of limitations for potential opt-
in plaintiffs to this collective action. (Dkt. #38 at 1). Defendants oppose the motion.
(Dkt. #41). Because the Court cannot toll the statute of limitations for unidentified,
hypothetical parties, the Court will deny the motion.
I.
BACKGROUND
This is a proposed collective action under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq. Named Plaintiff Kevin Cervenka worked for
Defendants Jumpp Logistics, LLC and Couch Goat Quandary, LLC as a delivery
driver for one year. (Dkt. #1 ¶ 32). Cervenka alleges that Defendants misclassified
him and its other delivery drivers as independent contractors, instead of non-exempt
employees, and failed to pay overtime compensation as required by the FLSA.
(Dkt. #1 ¶¶ 1, 6).
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Cervenka sued Defendants in October 2021. (Dkt. #1). Six months after
Defendants filed their answer, Cervenka moved for court-approved notice of this
collective action to “similarly situated” delivery drivers. (Dkt. #30 at 10–12). That
motion remains pending before the Court. Meanwhile, even without court-approved
notice, three individuals have opted in as plaintiffs since the filing of this action. See
(Dkt. #25, #37).
Cervenka now asks the Court to toll the statute of limitations “for all putative
collective members from May 31, 2022—the date Plaintiffs filed their Motion for
Court-Authorized Notice—until the Court issues a ruling on that motion and notice
is disseminated.” (Dkt. #38 at 5). Importantly, Cervenka seeks tolling not on behalf
of specific, identifiable individuals, but on behalf of yet-to-be-identified prospective
plaintiffs who may join this action in the future. Cervenka argues that tolling is
warranted here because “the delay in ruling on Plaintiffs’ motion is entirely outside
the control of putative collective members, and they remain unaware of their rights
and the existence of this action due to the lack of court-authorized notice.” (Dkt. #38
at 2–3). In response, Defendants argue that equitable tolling requires fact-specific
determinations about individual parties and, thus, cannot be applied on a class-wide
basis to prospective parties. See (Dkt. #41 at 4–5).
II. LEGAL STANDARD
The FLSA provides a two-year statute of limitations for non-willful violations
and a three-year statute of limitations for willful violations. 29 U.S.C. § 255(a). “[I]n
a FLSA collective action, the statute of limitations for a named plaintiff runs from
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the date that the plaintiff files the complaint, while the limitations period for an opt-
in plaintiff runs from the opt-in date.” Sandoz v. Cingular Wireless LLC, 553 F.3d
913, 916–17 (5th Cir. 2008).
The statute of limitations may be extended, however, via the doctrine of
equitable tolling. In practice, equitable tolling “pauses the running of, or ‘tolls,’ a
statute of limitations when a litigant has pursued his rights diligently but some
extraordinary circumstance prevents him from bringing a timely action.” Arellano v.
McDonough, 598 U.S. 1, 6, 143 S.Ct. 543, 214 L.Ed.2d 315 (2023) (cleaned up).
Accordingly, “a litigant is entitled to equitable tolling of a statute of limitations only
if the litigant establishes two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Menominee Indian Tribe of Wisconsin v. United States,
577 U.S. 250, 255, 136 S.Ct. 750, 193 L.Ed.2d 652 (2016) (cleaned up). The second
element is met “only where the circumstances that caused a litigant’s delay are both
extraordinary and beyond its control.” Id. at 257.
Though a “traditional feature of American jurisprudence,” Arellano, 598 U.S.
at 6 (cleaned up), equitable tolling is a “narrow exception” to the statute of limitations
that should be “applied sparingly,” Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 457
(5th Cir. 2011) (cleaned up). It is generally reserved for “situations where the
claimant has actively pursued his judicial remedies by filing a defective pleading
during the statutory period, or where the complainant has been induced or tricked by
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his adversary’s misconduct into allowing the filing deadline to pass.” Irwin v. Dep’t of
Veterans Affs., 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).
III. DISCUSSION
Cervenka seeks equitable tolling on behalf of all future opt-in plaintiffs—that
is, unidentified individuals who are not yet but may become parties to this case. The
Court must deny the request for two reasons: First, and most fundamentally,
equitable tolling cannot be applied on a group-wide basis to prospective or
hypothetical parties because the doctrine requires fact-specific determinations about
specific individuals. Second, failure to receive an opt-in notice to a particular lawsuit
does not constitute an “extraordinary circumstance” justifying application of the
equitable-tolling doctrine.
A. Equitable Tolling Cannot Be Applied to a Group of Prospective Parties.
As explained above, “a litigant is entitled to equitable tolling of a statute of
limitations only if the litigant establishes two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Menominee, 577 U.S. at 255. This standard does not
lend itself to group-wide tolling for hypothetical future parties. It requires instead
that the Court make “fact-specific determinations” about specific individuals. Sandoz
v. Cingular Wireless, LLC, No. 6:07CV1308, 2014 WL 3045532, at *4 (W.D. La. July 3,
2014) (cleaned up). In the FLSA collective-action context, these determinations
“cannot be made until a putative plaintiff actually opts in to [the] collective action.”
Id. (cleaned up). Indeed, the Supreme Court’s articulation of the tolling standard
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presupposes that an existing party to the case is seeking to toll the statute of
limitations on his own behalf. See Menominee, 577 U.S. at 255 (explaining that
equitable tolling is warranted only where “the litigant establishes . . . that he has
been pursuing his rights diligently” and “that some extraordinary circumstance stood
in his way and prevented timely filing” (emphasis added)).
Numerous courts have come to the same conclusion. In Eltayeb v. Deli Mgmt.,
Inc., another court in this district rejected a named-plaintiff’s request to toll the
statute of limitations for unidentified prospective opt-in plaintiffs in an FLSA
collective action. No. 4:20-CV-385, 2024 WL 989490, at *3 (E.D. Tex. Mar. 7, 2024).
It explained that “because no potential opt-in plaintiffs have been identified by
Plaintiff, the Court cannot conduct a fact-specific inquiry as to whether those
potential opt-in plaintiffs have diligently pursued their rights.” Id.; see also Coker v.
Stonewater Roofing Co., No. 6:19-CV-211, 2020 WL 1451654, at *2 (E.D. Tex. Mar. 25,
2020) (denying equitable tolling where “[named-plaintiff] has neither argued nor
shown that any particular opt-in plaintiff who may have filed after the statute of
limitations acted diligently in discovering and pursuing their claims”). Similarly, in
Knox v. John Varvatos Enters. Inc., another district court denied equitable tolling
where “[t]he plaintiffs on whose behalf equitable tolling is being sought have not been
identified” and “[n]o information has been provided about their circumstances.”
282 F.Supp.3d 644, 658 (S.D.N.Y. 2017). Thus, the court explained, it “cannot assess
whether any potential opt-in plaintiff has diligently pursued her rights.” Id. So too
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here. Cervenka has not identified any specific opt-in plaintiffs, and the Court cannot
assess whether hypothetical opt-in plaintiffs have diligently pursued their rights.
Cervenka points the Court to several cases tolling the statute of limitations for
prospective opt-in plaintiffs. (Dkt. #38 at 3–5). The Court finds those cases
unpersuasive. Cervenka particularly relies on the analysis of the equitable-tolling
standard in the FLSA collective-action context as set forth in Costellow v. Becht Eng’g
Co., No. 1:20-CV-179, 2020 WL 8271875 (E.D. Tex. Dec. 16, 2020). There, the court
considered whether the named plaintiffs acted with reasonable diligence, rather than
the opt-in plaintiffs. Id. at *3 (tolling the statute of limitations for opt-in plaintiffs
where named plaintiffs “acted with reasonable diligence” by “fil[ing] their motion to
certify a collective action shortly after Defendant’s Answer”). Respectfully, the Court
disagrees with an approach to the tolling issue that focuses on the diligence of the
named plaintiffs, rather than the opt-in plaintiffs. “For the FLSA statute of
limitations to be equitably tolled [as to an opt-in plaintiff], [the] opt-in plaintiff, rather
than the named plaintiff, must have exercised reasonable diligence in pursuing his
or her rights.” Eltayeb, 2024 WL 989490, at *2; see also Sandoz v. Cingular Wireless,
L.L.C., 700 F.App’x 317, 320–21 (5th Cir. 2017) (analyzing whether opt-in plaintiffs,
not named plaintiff, exercised reasonable diligence).
B. Lack of Opt-In Notice Is Not an “Extraordinary Circumstance.”
Even if Cervenka had identified specific opt-in plaintiffs who generally
pursued their rights diligently, he has not shown “that some extraordinary
circumstance stood in [their] way and prevented timely filing.” Menominee, 577 U.S.
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at 255. Cervenka alleges that the Court’s “extraordinary delay” in ruling on his
motion for court-authorized notice—and the resulting lack of court-authorized notice
to prospective plaintiffs—“constitutes an extraordinary circumstance warranting
relief.” (Dkt. #38 at 5). That is wrong.
In Sandoz, the Fifth Circuit held that failure to receive an opt-in notice to a
particular collective action does not constitute an “extraordinary circumstance”
justifying application of the equitable-tolling doctrine. 700 F.App’x at 321. That is
because “[e]quitable tolling . . . focuses on whether an external obstacle ‘prevented
timely filing,’ not on whether an external obstacle prevented timely filing in a specific
suit.” Id. (citing Menominee, 577 U.S. at 255). Opt-in plaintiffs must therefore identify
some external obstacle—other than a lack of opt-in notice—preventing them from
“discovering their claims and initiating [their own] suit.” Id. The Fifth Circuit
concluded that “when, as here, an employee’s own inaction relegates opt-in notice
from a specific suit as the only means of discovering an FLSA violation, we will not
transform routine litigation into an extraordinary circumstance.” Id.
Here, Cervenka has not identified an external obstacle preventing potential
plaintiffs from timely joining this suit or initiating their own. He has not alleged, for
example, that potential plaintiffs have “been induced or tricked by [their] adversary’s
misconduct into allowing the filing deadline to pass.” Irwin, 498 U.S. at 96. Rather,
“[p]otential opt-in plaintiffs have been free, for the entirety of this action, to discover
their claims and give their written consent to join this action.” Coker, 2020 WL
1451654, at *2. Indeed, several already have. See (Dkt. #25, #37). They have also been
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free to initiate their own suits. Thus, Cervenka has not carried his burden to show
that an extraordinary circumstance stood in the potential plaintiffs’ way and
prevented timely filing. See Menominee, 577 U.S. at 255.
IV. CONCLUSION
For these reasons, Plaintiffs’ Opposed Motion to Toll the Statute of Limitations
for Putative Collective Members, (Dkt. #38), is DENIED.
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