The opinion of the court was delivered by: Beryl A. Howell United States District Judge
Five exotic dancers brought this action against the owners and operators of "The House," "an exotic gentlemen's club in Washington, D.C. featuring nude female dancers." Mem. in Supp. of Pls.' Mot. for Partial Summ. J. ("Pls.' Mem.") at 1. The House classified its dancers as independent contractors, rather than employees, and, accordingly, did not pay them minimum wage. The plaintiffs argue that they were employees entitled to minimum wage under the federal Fair Labor Standards Act as well as the District of Columbia labor laws. The plaintiffs have moved for partial summary judgment on the issue of the defendants' liability. The defendants oppose that motion and have also moved to dismiss three of the plaintiffs on procedural grounds. For the reasons explained below, the Court grants the plaintiffs' motion for partial summary judgment and denies the defendants' motion to dismiss.
Plaintiff Quansa Thompson initially filed this action on October 13, 2009. Complaint, ECF No. 1. On behalf of herself and all others similarly situated, Plaintiff Thompson filed an amended complaint on November 9, 2009 naming the defendants Linda and A. Inc., trading as "The House," and Darrell Allen (collectively, the "defendants"). Amended Complaint ("Am. Compl.") ¶¶ 1-2. Defendant Allen is the President of The House and was Vice-President and a manager of The House during the period in which plaintiffs' claims arose. Pls.' Statement of Material Facts Not in Dispute ("SMF") ¶¶ 1-2; Pls. Mem., Ex. 9, Defs.' Resp. to Pls.' Interrog. No. 2. The House's corporate entity, Defendant Linda and A. Inc., was wholly owned by Darrell Allen's father, James Allen, who was President of The House until his death on June 3, 2009. Defs.' Resp. to Pls.' Interrog. No. 2. Defendant Allen advanced from Vice-President to President of The House shortly after his father's death. Id.
The Amended Complaint alleged that The House paid the plaintiff approximately $40 per ten-hour shift of exotic dancing, and that she regularly worked ten-hour shifts four nights a week. Am. Compl. ¶ 6. The Amended Complaint also alleged that the defendants took unexplained deductions from the plaintiff's wages, including late fees, fines for calling in sick, and stage fees. Id. ¶ 8. The plaintiff alleged that the defendants therefore violated the minimum wage provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 206(a)(1), the D.C. Minimum Wage Revision Act of 1992 ("DCMWA"), D.C. Code §§ 32-1001 et seq., and the D.C. Wage Payment and Wage Collection Law ("DCWPCL"), D.C. Code §§ 32-1301 et seq. Am. Compl. ¶¶ 11-22. Both defendants are alleged to be liable as "employers" under the FLSA, DCMWA, and DCWPCL. Id. ¶ 2. The plaintiff has also alleged a common law quantum meruit claim. Id. ¶¶23-27.
The defendants answered the Amended Complaint on November 27, 2009. ECF Nos. 3-4.
Plaintiff Thompson filed her suit on behalf of herself and other similarly situated employees pursuant to provisions of the FLSA that authorize similarly situated employees to litigate collectively. See 29 U.S.C. § 216(b). On May 6, 2010, this Court issued an Order directing the defendants to provide information that would facilitate the identification of other similarly situated plaintiffs. See Order, ECF No. 15 (Bates, J.). The Order attached an approved Notice and "Consent to Join Lawsuit" form that prospective plaintiffs were instructed to return by July 5, 2010. Id.
Thereafter, four additional plaintiffs filed consents to join the lawsuit: Lakisha Colberta/k/a "Shiver" on June 10, 2010; Eirene Lane a/k/a "Wild Cherry" on August 16, 2010; Jacemyein Morales a/k/a "Chyna" on September 1, 2010; and Tamika McKay a/k/a "Cherokee" on September 16, 2010. Thus, three of the additional plaintiffs filed their consents after the July 5, 2010 deadline set by the Court.
The parties in this case have conducted discovery, which closed on November 22, 2010. Before the Court are the plaintiffs' motion for partial summary judgment on the issue of the defendants' liability and the defendants' motion to dismiss plaintiffs Lane, Morales, and McKay for failure to file their consents to join the lawsuit in a timely fashion.
A.Defendants' Motion to Dismiss
The FLSA authorizes a plaintiff to sue on behalf of herself and any "other employees similarly situated." 29 U.S.C. § 216(b). This cause of action, known as a "collective action," is not subject to the numerosity, commonality, and typicality rules of a class action under Federal Rule of Civil Procedure 23. Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C. 2004). "Instead, a collective action has only two threshold requirements: [T]he plaintiff must show that she is similarly situated to the other members of the proposed class, and those other members must 'opt in' to the proposed class." Id.; see also McKinney v. United Stor-All Centers, Inc., 585 F. Supp. 2d 6, 7-8 (D.D.C. 2008). "To determine whether a class should be certified under the FLSA, a court will usually proceed in two steps." Hunter, 346 F. Supp. 2d at 117. At the first step, plaintiffs must make a "modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Id. (quotation omitted). If the plaintiff makes that showing, the class is "conditionally certified" and the members of the class are given notice of the collective action and an opportunity to "opt in" to the litigation. Id.; see also 29 U.S.C. § 216(b). The case then proceeds as a collective action through the discovery period. Hunter, 346 F. Supp. 2d at 117. "The second step of the analysis occurs at the close of discovery, when the defendant may move to decertify the class in light of the record that was developed during the discovery period." Id. At this point, the Court makes a factual finding as to whether the proposed class members are similarly situated. Id.
"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." Robinson-Smith v. Gov't Emps. Ins. Co., 424 F. Supp. 2d 117, 119 (D.D.C. 2006) (citing 29 U.S.C. §§ 256, 255(a)). Under the FLSA statute of limitations, a plaintiff must sue within two years of when the action accrued or, in the case of a willful violation, within three years. Id. at 118-19(citing 29 U.S.C. §§ 216(b), 255).
The defendants have moved to dismiss plaintiffs Eirene Lane, Jacemyein Morales, and Tamika McKay "for failure to timely join in Quansa Thompson's Complaint in violation of the time standard set by this Court."*fn1 Defs.' Mot. to Dismiss at 1. As noted above, the Court's May 6, 2010 Order established a deadline of July 5, 2010 for plaintiffs to opt-in to this action, and plaintiffs Lane, Morales, and McKay filed their opt-in consents after that deadline. See id. The motion to dismiss states that "[t]he Defendant is severely prejudice [sic] in its ability to defend this matter, and to take advantage of the defense of the statute of limitations if the definitive date for joining the lawsuit is not enforced. Discovery is closed and the Court's Order is rendered meaningless if the three Plaintiffs are allowed to remain in the case." Id. at 2. The motion to dismiss also states that "[o]f equal significance to their failure to comply with the deadline is their participation as Plaintiffs in other litigation with identical claims raised in this litigation [sic]." Id. (citing Case Nos. 8:10-cv-02261 and 8:10-cv-02421 in the United States District Court for the District of Maryland and Case No. 10-cv-01591 in the United States District Court for the District of Columbia).
The Court has briefly reviewed the court filings in the other actions cited by the defendants and finds that those cases are not identical to this action.*fn2 Those cases involve similar claims by some of the plaintiffs here against different putative employers. The factual assertions the plaintiffs advanced in those actions could be relevant to their claims of liability and damages here if, for example, the plaintiffs claimed to be two or three places at the same time. That is not what the defendants allege here, however. The defendants point to no authority that would support their apparent position that plaintiffs cannot sue different defendants for violating the same laws. The fact that the plaintiffs have brought other, similar lawsuits is irrelevant to the defendants' motion to dismiss this action.
Defendants' suggestion that they will be prejudiced by permitting the late-filing plaintiffs to remain in the lawsuit because "[d]iscovery is closed" is also meritless. The defendants deposed all of the late-filing plaintiffs during discovery. See Pls.' Opp'n to Defs.' Mot. to Dismiss at 1-2. As the plaintiffs point out in their opposition, the defendants did not lodge any objection with the Court at the time that these plaintiffs filed their opt-in notices and instead waited until after discovery had closed to file a motion to dismiss. Id. Since the defendants not only had an opportunity to take discovery from these plaintiffs, but fully availed themselves of that opportunity, the defendants can hardly claim prejudice simply because discovery was closed at the time they filed their motion to dismiss.
The defendants' statute of limitations argument is also misplaced. The
FLSA statute of limitations is two years from when the action accrued
or, in the case of a willful violation, three years. 29 U.S.C. § 255.
The limitations period runs for each individual plaintiff until the
date on which that plaintiff's written consent is filed with the
court. See 29 U.S.C. § 256. The motion to dismiss asserts that "[t]he
Defendants are deprived of the Statute of Limitations retroactive to
the deadline for joining in the Complaint. If allowed to stand
Plaintiffs actions translate in substantial economic loses otherwise
avoided by the application of the statute of limitations [sic]." Id.
at 4. Defendants' argument appears to presume that some form of
tolling would apply to the statute of limitations for the plaintiffs'
claims, such that the late-filing plaintiffs would be deemed to have
joined this lawsuit prior to the actual dates on which they filed
their consents. This presumption is incorrect. While the filing of a
class action under Rule 23 tolls the applicable statute of limitations
for putative class members, Crown, Cork & Seal Co., Inc. v. Parker,
462 U.S. 345, 353-54 (1983), no such tolling rule applies to FLSA
collective actions and the plaintiffs have not requested any equitable
tolling. See McKnight v. D. Houston, Inc., No. H-
09-3345, 2010 WL 4806869, at *11 (S.D. Tex. 2010). The statute of
limitations period for each individual plaintiff would therefore run
until the actual date on which the plaintiff's written consent was
filed with this Court. 29 U.S.C. § 256; see also Robinson-Smith, 424
F. Supp. 2d at 119, 123-24 (denying plaintiffs' request for equitable
tolling but accepting late-filed FLSA opt-in consents as of the date
of filing with the Court). Accordingly, the defendants' ability "to
take advantage of the defense of the statute of limitations" would not
be prejudiced if the Court accepts the late-filed consents.*fn3
Defs.' Mot. to Dismiss at 2.
The Court finds that the untimely opt-in consents should be accepted as filed as of the date that they were submitted to the Court. "The FLSA provides for the opt in procedure, but does not specify when a person must opt in to a collective action." Robinson-Smith, 424 F. Supp. 2d at 123. Courts in this district have adopted a "flexible standard" as to the opt-in procedure. Id. In Robinson-Smith, the court permitted the untimely filing of opt-in consents where the opt-in deadline was "chosen by the Court in its discretion and [without constraint] by any considerations other than the practicalities of the case and setting an appropriate deadline so that discovery could proceed." Id. The circumstances here are similar. Moreover, the number of additional plaintiffs here is relatively small and permitting the untimely filing of the consents will not delay discovery, which has already closed and in which the late-filing plaintiffs fully participated. Therefore, the Court concludes that the continued inclusion of plaintiffs Lane, Morales, and McKay in this action is "consistent with the statute and is within the Court's discretion." Id.
The defendants' motion to dismiss is accordingly denied.
B.Plaintiffs' Motion for Partial Summary Judgment
1.Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" based upon the pleadings, depositions, and affidavits and other factual materials in the record. Fed. R. Civ. P. 56(a), (c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The Court "need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). The Court must view all inferences in a light most favorable to the non-moving party. Tao, 27 F.3d at 638 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986)). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In this case, the defendants broadly assert that there are disputed issues of material fact that preclude entry of partial summary judgment for the plaintiffs. See Defs.' Opp'n to Pls.' Mot. for Partial Summ. J. ("Defs.' Mem.") at 2. In asserting the existence of disputed issues of fact, however, the defendants' opposition to the plaintiffs' motion for summary judgment generally fails to comply with the standards set forth in Federal Rule of Civil Procedure 56. Under Rule 56(c), a "party asserting that a fact . . . is genuinely disputed must support the assertion by citing to particular parts of materials in the record, including depositions, documents, . . . affidavits or declarations . . . or other materials . . . or [by] showing that the materials cited [by the moving party] do not establish the absence . . . of a genuine dispute . . . ." Fed. R. Civ. P. 56(c)(1).
In responding to the plaintiffs' Statement of Material Facts Not in Dispute, which is quite brief, the defendants have merely replied to each paragraph with a simple, one-word response of "Admitted" or "Denied." See Defs.' Mem. at 2. The defendants' bald denials of the plaintiffs' assertions are insufficient to establish a dispute of fact under Rule 56, which requires the defendants to cite conflicting parts of the record or otherwise demonstrate that the parts of the record relied upon by the plaintiffs do not establish the absence of a genuine dispute. Fed. R. Civ. P. 56(c); see also Local Civil Rule LCvR 7(h)(1) ("An opposition to [a summary judgment motion] shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement."). The defendants also have not submitted any affidavits, deposition testimony, or any other factual record materials to the Court for consideration. Under Rule 56(e), if "a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion . . . [or] issue any other appropriate order." Fed. R. Civ. P. 56(e). Since the plaintiffs' reply memorandum, which was filed three months ago, identified the aforementioned deficiencies in the defendants' opposition, and the defendants have not moved to supplement their filings, the Court will treat all of the factual assertions in the plaintiffs' Statement of Material Facts Not in Dispute as undisputed.*fn4 See Pls.' Reply to Defs.' Mem. in Opp'n to Pls.' Mot. for Partial Summ. J. at 1-2.
The FLSA requires every "employer" to pay "each of his ...