The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on plaintiffs' motion to file consents untimely and toll the statute of limitations. Plaintiffs move to file the notices of consent of four potential claimants in the collective action brought by the named plaintiff and other persons against defendant under the Fair Labor Standards Act ("FLSA"). 29 U.S.C. § 201 et seq. Plaintiffs further move that the statute of limitations be equitably tolled so that these consents are considered filed as of the dates that each was signed. Upon consideration of plaintiffs' motion, defendant's opposition, and plaintiffs' reply, the Court concludes that plaintiffs' motion will be granted with respect to the filing of the consents, but must be denied with respect to the issue of equitable tolling.
This lawsuit was filed on June 15, 2001, by named plaintiff Jerome Robinson-Smith. Under the FLSA, an employee may bring an action on behalf of himself and other employees similarly situated within two years of when the action accrued or, in the case of a willful violation, within three years. 29 U.S.C. §§ 216(b), 255. Persons wishing to join an FLSA collective action must affirmatively opt in to the suit by filing a notice of consent. Under the statute, "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." 29 U.S.C. § 216(b). For each plaintiff who opts in to the case after the filing of the complaint, the action is not considered commenced for purposes of the statute of limitations until the date on which the plaintiff's written consent is filed with the court. 29 U.S.C. § 256; see also 29 U.S.C. § 255(a).
In a November 16, 2001 Memorandum Opinion and Order, this Court directed the defendant to turn over to the named plaintiff the names and mailing addresses of potential members of the collective action, so that the plaintiff could provide such persons with notice of the lawsuit and their right to participate as a member of the suit. At that time, the Court set March 1, 2002 as the deadline by which the Court must receive Notices of Consent from those persons wishing to join the collective action. The Court extended this deadline to April 1, 2002 in an Order issued on January 14, 2002. Between November 16, 2001 and April 1, 2002, plaintiffs' counsel submitted 272 Notices of Consent to join in the collective action filed by Mr. Robinson-Smith.*fn1
On May 2, 2005, the plaintiffs filed a motion to file consents untimely and toll the statute of limitations. Specifically, the plaintiffs ask the Court to accept the consents of Lewis Nettles, John Surine, Matthew Chaney, and Jeffrey Jones and to toll the statute of limitations under the FLSA so that the consents are treated as timely filed as of the dates they were signed.
The declaration of plaintiffs' counsel, Charles E. Tompkins, appended to the motion, explains that these four Notices of Consent were timely mailed to counsel's office, but not filed with the Court. According to Mr. Tompkins, he first became aware of a possible problem with the consents in October 2004 when he and defense counsel compared lists of collective action members and found that the lists did not match. Mr. Tompkins then directed a paralegal to investigate the problem. Upon review of the Court's record of consents filed, plaintiffs' counsel found that the consents for Mr. Nettles, Mr. Surine, Mr. Chaney, and Mr. Jones had not been filed with the Court. Mr. Tompkins describes in his declaration the protocol his firm had created for ensuring that all consents sent to them by collective action members were filed, but he is unable to explain how the error occurred. He describes it as "a clerical error on the part of [his firm]." Declaration of Charles Tompkins in Support of Motion for Tolling ¶ 9.
A. Tolling The Statute Of Limitations
Plaintiffs argue that the four opt-in collective action members who mailed their Notices of Consent to counsel in a timely manner should not be held responsible for counsel's failure to file them. They ask that the Court toll the statute of limitations for the Notices of Consent "from the date [the four individuals with unfiled consents] intended to join this action." Pls' Mot. at 3. Their arguments fall into two categories. First, plaintiffs maintain that the collective action members should not be bound by the acts of their counsel because they did not "select their attorneys in any meaningful sense." Id. at 3; see id. at 9-10. They further maintain that "participation in this collective action, where the attorneys already had been chosen, was the only practical means available to these class members to vindicate their rights under the Fair Labor Standards Act." Id. at 3. Second, plaintiffs argue more generally that the nature of the error, including the fact that it was counsel's error, weighs in favor of equitable tolling. Id. at 5-7. In addition to the fact that the error was counsel's and not the four individuals in question, plaintiffs argue that because the four individuals diligently pursued their claims, the error was a good faith mistake, the effect of not tolling would be unduly punitive on the individuals, and defendant would not be substantially prejudiced by the tolling. Thus, they maintain the Court should toll the statute of limitations and accept the consents as timely filed. Id. at 5-8.
1. Client Accountability For Counsel's Actions
Clients generally are presumed to be accountable for and bound by their attorneys' conduct. Link v. Wabash Railroad Co., 370 U.S. 626, 633-34 (1962) (client cannot avoid consequences of attorney's acts or omissions as client's freely selected agent). This presumption of client accountability holds true even in Rule 23 class actions. See Pigford v. Veneman, 292 F.3d 918, 926 (D.C. Cir. 2002). The presumption is more easily rebutted where clients have not "voluntarily chosen" their attorneys, as is the case with Rule 23 class action members who have not chosen their class counsel. Id.
Relying on Pigford v. Veneman, 292 F.3d 918 (D.C. Cir. 2002), plaintiffs argue that the four opt-in individuals whose consents were not filed should not be held accountable for their actions. This reliance is misplaced. Unlike the opt-out Rule 23 class members in Pigford, who were effectively stuck with appointed class counsel whom the Court already had found were competent and would adequately protect the interest of the class, the opt-in plaintiffs in this FLSA action voluntarily chose their own counsel by responding to the notice sent to them with their consents, and thereby agreeing to participate in this lawsuit with this counsel.
Compare Pigford v. Veneman, 292 F.3d at 926. While the Pigford class members were "technically" permitted to retain other counsel for the purposes of pursuing their claims under the consent decree entered in that case, the court of appeals held that "the circumstances of this case, together with the terms of the decree itself, [made] such choices unlikely." Id. The class member's choice of counsel in Pigford was constrained by the fact that class counsel had received an advance fee to provide services for class members pursuing their claims under the consent decree, while all other lawyers who entered the case not only would have had to seek fees for their work, but in Pigford were actually prohibited from charging the clients directly. Id. The circumstances of the ...