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Mickles v. Country Club Inc.

United States Court of Appeals, Eleventh Circuit

April 18, 2018

ANDREA MICKLES, on behalf of herself and all others similarly situated, Plaintiff-Counter Defendant,
v.
COUNTRY CLUB INC., d.b.a. Goldrush Showbar, Defendant-Counter Claimant-Appellee. LAUREN HOUSTON, Plaintiff-Counter Defendant-Appellant, SHANA MCALLISTER, APRIL LEMON, Plaintiffs-Appellants, JOY RICHARDSON, Plaintiff,

          Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:14-cv-01189-SCJ

          Before WILSON and BLACK, Circuit Judges, and SCHLESINGER, [*] District Judge.

          BLACK, CIRCUIT JUDGE:

         This case presents an issue of first impression regarding the status of opt-in plaintiffs in collective actions under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b)-specifically, whether an opt-in plaintiff is required to do anything beyond filing a written consent to become a party plaintiff. See Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001) (observing that a "plaintiff must affirmatively opt into a § 216(b) action by filing [her] written consent with the court in order to be considered a class member and be bound by the outcome of the action"). We conclude that filing a written consent pursuant to § 216(b) is sufficient to confer party-plaintiff status.

         I. BACKGROUND

         In April 2014, Andrea Mickles[1] filed a complaint against Country Club Inc., alleging she was proceeding on behalf of herself and all other similarly-situated employees in a collective action lawsuit under the FLSA, 29 U.S.C. § 216(b). Mickles alleged Country Club had improperly classified her and other employees as independent contractors and, as a result, failed to compensate them at the minimum wage and for overtime work. Country Club answered the complaint and filed counterclaims against Mickles-and any plaintiff who joined the action-for money had and received, unjust enrichment, and breach of contract.

         Other employees then opted into the litigation by filing consents to become party plaintiffs. On June 11, 2014, Lauren Houston filed a "Consent to Become a Party Plaintiff" with the court, stating she consented to sue as a plaintiff in the FLSA action. On August 26, 2014, Shana McAllister and April Lemon filed their "Consent[s] to Become . . . Party Plaintiff[s], " also consenting to sue as plaintiffs in the FLSA action.[2]

         Discovery began on August 22, 2014. Mickles and Country Club agreed that, per Northern District of Georgia Local Rule 7.1(A)(2), except as specifically provided, all "motions must be filed WITHIN THIRTY (30) DAYS after the beginning of discovery unless the filing party has obtained prior permission of the court to file later." The district court adopted this deadline in its Scheduling Order. All motions (absent a few exceptions) were required to be filed by September 22, 2014.[3]

         Country Club took the depositions of Houston, McAllister, and Lemon during the discovery period. The district court twice extended the discovery period, which ultimately ended on April 6, 2015. On May 14, 2015, more than a month after the close of discovery, Mickles filed a motion for conditional certification of a collective action. She moved to certify the collective action under 29 U.S.C. § 216(b), citing the procedure outlined by this Court in Hipp. 252 F.3d at 1218.

         On January 6, 2016, the district court denied the motion for conditional certification (conditional certification order) based on untimeliness, as the motion was filed "nearly eight months" past the deadline set by the local rules, and Mickles did not have "prior permission of the court" to file the motion after the deadline. The district court noted that the burden on a plaintiff seeking conditional certification is minimal, and Mickles was "well aware that there were other plaintiffs who were similarly situated and wished to opt-in before the deadline for filing the motion for conditional certification." The district court also rejected Mickles' argument that granting the motion for conditional certification would serve the interests of judicial economy, "as it would allow other potential plaintiffs to join this action, rather than forcing the plaintiffs to file separate actions." The court stated "[i]t is, indeed, unfortunate that needless costs may result as a consequence of Plaintiff's failure to file her Motion in a timely manner, " but noted costs would also result if discovery were reopened. The district court decided "the best course of action is to enforce the deadline, and thus to deny Plaintiff's motion as untimely." The court concluded, "[f]or the foregoing reasons, Plaintiff's Motion for Conditional Collective Action Certification . . . is DENIED." The conditional certification order made no mention of dismissing Houston, McAllister, and Lemon from the litigation.

         On October 6, 2016, Country Club filed a motion for clarification of the district court's conditional certification order, inquiring about which individual plaintiffs remained parties in the action. Mickles, Houston, McAllister, and Lemon each believed they were party plaintiffs in the action because the district court never dismissed their claims. Country Club believed Houston, McAllister, and Lemon never formally became party plaintiffs, and that they effectively fell out of the case when the motion for conditional certification was denied, leaving only Mickles as a party plaintiff. Mickles, Houston, McAllister, and Lemon responded, agreeing that clarification was necessary, but they disagreed that the denial of the motion for conditional certification caused Houston, McAllister, and Lemon to be automatically dismissed from the case. On October 17, 2016, the district court granted the motion for clarification (clarification order), stating that Houston, McAllister, and Lemon were never adjudicated to be similarly situated to Mickles, and, therefore, were never properly added as party plaintiffs to the collective action.

         On October 31, 2016, Country Club notified the district court that it had reached a settlement with Mickles. Mickles and Country Club filed a motion to approve the settlement, which resolved both the substantive claims and the counterclaims. On December 5, 2016, the district court approved the settlement. Houston, McAllister, and Lemon filed a notice of appeal, specifying that they were appealing the district court's (1) conditional certification order, (2) clarification order, and (3) order approving the settlement.

         II. DISCUSSION

         A. Jurisdiction

         As an initial matter, we must determine whether Houston, McAllister, and Lemon (collectively, Appellants) have appellate standing. We issued a jurisdictional question to the parties, asking them to address: (1) whether Appellants were considered parties such that they had a right to appeal; and (2) if so, whether their appeal was timely as to the orders that foreclosed their rights to participate in the litigation. We hold we have jurisdiction to entertain Appellants' appeal, as they (1) are parties to the litigation, and (2) timely appealed the final judgment in the case.[4]

         1. Whether Appellants were parties to the litigation

         The standing question is intertwined with the primary merits issue in this case, specifically: whether the district court erred in determining Appellants "never became parties" to the litigation. Because we must determine whether Appellants were ever parties to this FLSA collective action, a review of the typical process in an FLSA collective action is necessary.

         We first turn to the FLSA provision providing the opt-in mechanism for collective actions, 29 U.S.C. § 216(b). Unlike in a Rule 23 class action, where "each person who falls within the class definition is considered to be a class member" and bound by the judgment unless she has opted out, a plaintiff "must affirmatively opt into a § 216(b) action by filing [her] written consent with the court in order to be considered a class member and be bound by the outcome of the action." Hipp, 252 F.3d at 1216. Section 216(b) states an employee may maintain an action against any employer on behalf of herself "and other employees similarly situated." 29 U.S.C. § 216(b). Regarding opting into such litigation, the statute provides that "[n]o employee shall be a party plaintiff to any such action unless [s]he gives [her] consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id.

         Looking to the FLSA collective action statute, we discern two requirements. The first is a requirement of the named plaintiff-she must file on behalf of herself and "other 'similarly situated' employees." Hipp, 252 F.3d at 1217. The second is a requirement of the opt-in employee-she must give her "consent in writing to become such a party and such consent ...


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