The opinion of the court was delivered by: Magistrate Judge Bissoon
For the reasons that follow, Plaintiffs' Motion (Doc. 324) to strike Mary C. Henderson's untimely opt-in form and to dismiss her from this collective action will be granted; Ms. Henderson's Motion (Doc. 304) for the issuance of corrective notice and a new opt-in period will be denied; and Ms. Henderson's Motion (Doc. 336) to disqualify Plaintiffs' counsel will be denied.
On July 6, 2009, the Court gave final approval over a notice form ("the Notice") to be sent to collective actions members regarding the claims conditionally certified in this case. See text Order dated Jul. 6, 2009. Among other things, the Notice informed putative collective action members of the following:
* "Employees ha[d] sued UPMC and related entities claiming UPMC failed to pay overtime as a result of UPMC not compensating hourly-paid employees for meal breaks during which the employees performed at least some work for their employer."
* The Notice recipients' "options in this lawsuit" were to either:
(a) "ask to be included," thereby "[j]oining in this lawsuit" and "[g]iv[ing] up [the] right to sue separately"; or
(b) "do nothing," forego "benefits from" the suit, "[b]ut . . . keep any rights to sue UPMC separately about the same legal claims in this lawsuit."
* Should the recipient choose to join the collective action, he or she was required to "fill out the enclosed . . . "Consent to Join' [form] and mail it," "postmarked by 60 days from mailing of th[e] Notice."
* Recipients were advised that, if their "signed [c]onsent form [wa]s not postmarked by 60 days from mailing of [the] Notice, [they] may be prohibited from participating in any recovery obtained against UPMC in this lawsuit."
See Notice (attached as Ex. A to Doc. 157) at 1, 3 (alterations in original omitted).
Plaintiffs' counsel has presented evidence, not disputed by Ms. Henderson, that the Notice was sent to her on July 14, 2009. See Pls.' Br. (Doc. 325) at 3 (citing record evidence). Pursuant to the sixty-day opt-in period established by the Court, Ms. Henderson's consent form was due for postmarking by no later than September 12, 2009.
Ms. Henderson executed her consent form on October 22, 2009, and she attempted to opt in, through separate counsel, on October 23rd. See Doc. 302.
None of the precedent reviewed by the Court has contemplated a putative collective action member opting in, untimely and through separate counsel, to assert claims under a conditionally certified FLSA action. Rather, and consistent with the Notice approved by this Court, the case law anticipates a putative plaintiff filing a separate lawsuit. Compare discussion supra (quoting Notice) with, e.g., Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 907 n.9 (9th Cir. 2004) ("[i]f employees do not opt[ ]in by filing [a] consent, they are not bound by the outcome of the collective action and may bring a subsequent private action") (citation omitted, emphasis added); Kelly v. Bluegreen Corp., 2008 WL 4962672, *2 (W.D. Wis. Nov. 19, 2008) ("to preserve their claims[, putative members] must either file an opt-in consent form in [the] pending action or file a separate lawsuit before the statute of limitations has run") (citation omitted, emphasis added); Owens v. Bethlehem Mines Corp., 108 F.R.D. 207, 210 (S.D. W.Va. 1985) (same).
Ms. Henderson enjoyed legal representation during her opt-in period, and she was, or should have been, aware of the consequences of ...