Hyde v. Fricker's USA, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ALEXUS HYDE, on behalf of herself and :

all others similarly situated, :

: Case No. 1:22-cv-591

Plaintiff, :

:

vs. : Judge Jeffery P. Hopkins

:

FRICKER’S USA, LLC, et al.,

:

:

Defendants.

:

OPINION AND ORDER

This matter is before the Court on Plaintiff Alexus Hyde’s (“Plaintiff”) Motion for

Equitable Tolling. Doc. 20. For the following reasons, the Court GRANTS Plaintiff’s Motion

for Equitable Tolling.

I. PROCEDURAL BACKGROUND

On October 14, 2022, Plaintiff brought this action against her employers Defendants

Fricker’s USA, LLC, and Fricker’s North College Hill 107, LLC (together, “Fricker’s”),

alleging that the companies violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§§ 201-219, the Ohio Minimum Fair Wage Standards Act (“OMFWSA”), Ohio Rev. Code

§ 4111.01, et seq., and Article II § 34(a) of the Ohio Constitution. In the Complaint, Plaintiff

contends that Fricker’s maintains practices and policies that include not paying tipped, non-

exempt employees the applicable minimum wage for all hours worked in violation of the

federal and Ohio statutes. Doc. 1. Plaintiff names herself, as well as other similarly situated

employees affected by Fricker’s allegedly violative employment practices and policies who at

present have not been notified of the current FLSA suit and have yet to be named as potential

plaintiffs. Id.

At the time this case was filed, Clark v. A&L Home Care and Training Center, LLC, Sixth

Circuit Case No. 22-3101, was pending before the Sixth Circuit—the outcome of which this

Court determined would directly impact the case sub judice. See Doc. 14. In Clark, the Sixth

Circuit grappled with the question of what standard district courts should apply when

considering whether to grant or deny approval of a court-facilitated notice of a FLSA suit to

potential opt-in plaintiffs. On May 19, 2023, the Sixth Circuit rendered the decision in Clark.

In the order, the Sixth Circuit issued a new mandate requiring that all district courts apply an

entirely different standard in cases where a plaintiff involved in FLSA suit seeks court

approval of the notice to be sent to potential opt-in plaintiffs. See Clark v. A&L Home Care, 68

F.4th 1003 (6th Cir. 2023).

During the time Clark was pending before the Sixth Circuit Court of Appeals, Plaintiff

in the present case had, on January 27, 2023, filed a Motion for Conditional Certification of

the FLSA collective, Expedited Opt-In Discovery, and Court-Supervised Notice to Potential

Opt-In Plaintiffs (“Motion for Court-Supervised Notice to Potential Opt-In Plaintiffs”). Doc.

13. Meanwhile, on February 10, 2023, Ficker’s filed a Motion to Stay this Court’s ruling on

Plaintiff’s Motion for Court-Supervised Notice to Potential Opt-In Plaintiffs until the Sixth

Circuit issued the decision in Clark. Doc. 14. Thereafter, on February 28, 2023, the Parties

filed a Joint Stipulation to stay the case pending the Sixth Circuit’s decision in Clark. Doc 15.

The Joint Stipulation also included a provision for tolling the statute of limitations for the

Court-Supervised Notice to Potential Opt-In Plaintiffs for a period beginning on February 10,

2023, extending through the date the Sixth Circuit reached a final determination in Clark. Id.

Because Plaintiff’s previously filed Motion for Court-Supervised Notice to Potential Opt-In

Plaintiffs had not yet been fully briefed and did not incorporate the procedural changes

induced by Clark, Plaintiff withdrew it. Doc. 19; Notation Order (July 5, 2023). Now before

the Court is Plaintiff’s revised Motion for Equitable Tolling (the “Motion”), requesting that

this Court toll the statute of limitations for potential opt-in plaintiffs, filed on July 19, 2023—

two months after the Sixth Circuit rendered its decision in Clark. Doc. 20.

II. LAW AND ANALYSIS

A. The Effect of Clark on FLSA Collective Actions in the Sixth Circuit.

The FLSA mandates that employers pay a federal minimum wage and overtime to

certain types of employees. 29 U.S.C. §§ 206(a), 207(a). Employees can sue for alleged

violations of those mandates on “behalf of . . . themselves and other employees similarly

situated.” Id. at § 216(b). But “[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.” Id. Thus—assuming they are “similarly situated”—

other employees become parties to an FLSA suit only if they affirmatively choose to do so.

In a normal civil suit, a plaintiff gives a district court notice of their alleged claims

through the commencement of a lawsuit. See Osborn v. Bank of United States, 22 U.S. 738, 819

(1824) (stating the “judicial power . . . is capable of acting only when the subject is submitted

to it by a party who asserts his rights in the form prescribed by law”). But in Hoffmann-La

Roche v. Sperling, 493 U.S. 165 (1989), the Supreme Court discerned from § 216(b) an implied

judicial power, “in appropriate cases,” to “facilitat[e] notice” of FLSA suits “to potential

plaintiffs.” Id. at 169. In that case, Supreme Court did not indicate what it meant by

“potential” plaintiffs for purposes of facilitating notice of an FLSA suit; the Court merely

“confirm[ed] the existence of the trial court’s discretion, not the details of its exercise.” Id. at

170.

In the decades since Hoffman, most courts have adopted the two-step framework for

facilitating notice of an FLSA suit to potential plaintiffs. See Lusardi v. Xerox Corp., 118 F.R.D.

351, 361 (D.N.J. 1987). At the first step, an FLSA plaintiff asks the district court to facilitate

notice of the suit to other employees who are “similarly situated” to the original plaintiff. See

Knecht v. C & W Facility Servs., Inc., 534 F. Supp. 3d 870, 873 (S.D. Ohio 2021). This step has

traditionally been referred to as “conditional certification” and typically takes place prior to

the parties conducting discovery. Then, after notice has been sent to other employees and

“merits discovery is complete[,] . . . the court takes a closer look at whether those ‘other

employees’ are, in fact, similarly situated to the original plaintiffs.” in Clark v. A&L Home Care,

68 F.4th 1003, 1008 (6th Cir. 2023). This is step two, where the court grants or denies final

approval of the collective.

Historically, district courts, in determining whether to grant “conditional certification”

at the first step, have only required that a plaintiff “‘make a modest factual showing’ that [they

are] similarly situated to the other employees [they are] seeking to notify.” Waggoner v. U.S.

Bancorp, 110 F. Supp. 3d 759, 764 (N.D. Ohio 2015) (quoting Comer v. Wal-Mart Stores, Inc.,

454 F.3d 544, 546–47 (6th Cir. 2006)). This was a “fairly lenient” standard that “typically

result[ed] in ‘conditional certification’ of a representative class.” Comer, 454 F.3d at 547

(citation omitted).

However, in Clark the Sixth Circuit modified this framework keeping in place the two-

step process but heightening the showing that plaintiffs must make before a district court can

grant approval to facilitate notice to potential opt-in plaintiffs. Clark, 68 F.4th at 1011. Instead

of the previous, “modest factual showing” standard, plaintiffs now “must show a ‘strong

likelihood’ that those employees [whom they seek to notify] are similarly situated to the

plaintiffs themselves.” Id. “Strong likelihood,” in this context, borrows from the preliminary

injunction standard: it “requires a showing greater than the one necessary to create a genuine

issue of fact, but less than the one necessary to show a preponderance.” Id. This new

framework has the predictable consequence of lengthening the already lengthy pre-notice

stage of an FLSA collective action because discovery will generally be required to meet the

new threshold inquiry for court facilitated notice. See id at 1012–13.

Importantly in the context of this case, the Clark framework also poses statute of

limitations issues. While a claim on behalf of a named plaintiff accrues when the complaint

is filed, a similarly-situated employee’s claim does not accrue until they file written notice

of consent and become a party plaintiff. See 29 U.S.C. § 256. This practice differs from the

automatic tolling for class members of Rule 23 class actions in that statute of limitations are

not automatically tolled for FLSA claims at filing for similarly situated plaintiffs. Compare 29

U.S.C. §˚255(a) (requiring claim within two years after the cause of action accrued, or within

three years if the cause of action arises out of a willful violation) with Am. Pipe & Constr. Co. v.

Utah, 414 U.S. 538, 553 (1974) (tolling claims for Rule 23 class members). Without the

equitable tolling of the statute of limitations, the Clark standard creates a serious risk of harm

to opt-in plaintiffs due to the potentially elongated pre-notice period.

Over concern for this issue, Plaintiff now moves this Court to equitably toll the statute

of limitations for all potential opt-in plaintiffs. The issue sub judice is not whether the Court

has authority to equitably toll the statute of limitations for potential plaintiffs, but whether it

is appropriate, under the circumstances presented here, to do so at this juncture in exercising

sound discretion.

Fricker’s makes two central arguments against Plaintiff’s request for equitable tolling.

First, Fricker’s argues that Plaintiff does not have standing to request equitable tolling for any

potential opt-in plaintiffs. Second, Fricker’s contends that equitable tolling is unwarranted,

under the facts of this case, even if Plaintiff has standing. The Court addresses each argument

in turn.

B. Plaintiff Has Standing to Toll the Statute of Limitations.

According to Fricker’s, because notice has not been issued to potential opt-in plaintiffs,

Plaintiff’s request for equitable tolling is premature and she lacks standing to seek such relief

on their behalf. Doc. 21, PageID 133–36. The Court disagrees.

The Sixth Circuit made clear in Clark, both in the majority opinion and Judge Bush’s

concurring opinion, that it has fundamentally changed the architecture of FSLA suits in this

Circuit. Clark, 68 F.4th at 1012–13. With the adoption of the new “strong likelihood”

standard, defenses, such as a limitation defense, are no longer “off limits for purposes of the

notice determination[.]” Id. at 1012. These defenses must be litigated—and therefore

presented and responded to—as part of the initial merit's determination by Plaintiff. Id. at

1012–13. The reasoning behind this conclusion is best said by Judge Bush:

The heightened standard we announce, with its concomitant discovery and

requirement to litigate defenses, may significantly lengthen the period before potential

plaintiffs are notified of a pending FLSA lawsuit. As a result, many potential plaintiffs

may not learn of the FLSA action until after the limitations period for some or all of

their claims has run.

Id. at 1012 (Bush, J., concurring). In short, “implementation of the newly announced [Clark]

standard without consideration of tolling is likely to deplete remedies Congress has duly

provided.” Id. at 1013.1 The Sixth Circuit has, in essence, shifted the majority of the fact-

finding mission of a FLSA plaintiff to the pre-notice stage of the litigation.

Though Fricker’s argues that a plaintiff does not have standing to represent potential

plaintiffs until notice is issued, notice to non-parties is not even explicitly provided for in the

FLSA. And the FLSA’s collective-action provision is hardly clear on the procedure courts are

to follow. See 29 U.S.C. § 216(b). Thus, in deciding a case about the provision of notice in

FLSA collective actions, courts are forced to “unavoidably explore beyond Congress’s

words.” Clark, 68 F.4th at 1013. Notice is and must be implied by the statute because the right

to “proceed on behalf of those similarly situated must grant the court the requisite procedural

authority to manage the process of joining multiple parties in a manner that is orderly,

sensible, and not otherwise contrary to statutory commands or the provisions of the Federal

rules of Civil Procedure.” Hoffmann, 493 U.S. at 170. “That is, the Supreme Court recognized

that notice was needed to ensure that a collective action could actually occur.” Clark, 68 F.4th

at 1013.

Fricker’s argument opposing a process for joining multiple potential plaintiffs, which

on its face seems orderly and sensible and aligned with the rules and statute, falls of its own

logic: if Plaintiff has an implied right to proceed on behalf of potential plaintiffs similarly

situated to her, how does Plaintiff fail to have standing to seek equitable tolling of the statute

of limitations on their behalf? Indeed, pre-Clark this Court routinely granted FLSA plaintiffs’

requests to equitably toll the statute of limitations for potential plaintiffs before notice was

issued. E.g., Baden-Winterwood v. Life Time Fitness, 484 F. Supp. 2d 822, 828–29 (S.D. Ohio

1 In fact, late notice was already an issue pre-Clark. For example, while following the previous framework for

FSLA claims, notice was to be sent 361 days after the filing of the complaint in Clark. Clark, 68 F.4th at 1012.

The new standard will take even longer.

2007) (equitably tolling FLSA statute of limitations where parties were unable to reach an

agreement on how to best provide notice to potential plaintiffs); Struck v. PNC Bank N.A., 931

F. Supp. 2d 842, 848–49 (S.D. Ohio 2013) (equitably tolling FLSA statute of limitations from

date plaintiffs sought to notify putative class members of pending action); Engel v. Burlington

Coat Factory Direct Corp., No. 1:11cv759, 2013 WL 5177184, at *2–3 (S.D. Ohio Sep. 12, 2013)

(granting named plaintiffs’).2 The Court finds this procedure has even more backing post-

Clark. E.g., Cordell v. Sugar Creek Packing Co., 691 F. Supp. 3d 838, 850–51 (S.D. Ohio 2023)

(finding equitable tolling necessary before notice is given in a FLSA suit in part due to the

“additional layer of potential delay-inducing disputes” post-Clark); Duncan v. Magna Seating of

Am., Inc., No. CV 22-12700, 2024 WL 1049467, at *2 (E.D. Mich. Mar. 11, 2024) (“Earlier

decisions concluding that it is premature to consider equitable tolling before a plaintiff opts in

to an FLSA action . . . are inapplicable in light of the new standards and analyses set forth by

Clark.”). The Court sees nothing in the Clark opinion that suggests it must go against the

longstanding and sensible policy that pre-dated the Sixth Circuit’s recent decision. If anything,

Clark, and Judge Bush’s concurring opinion in particular, reinforce the Court’s belief that this

procedure is sound and should remain unchanged.

2 Several courts from other Circuits have allowed equitable tolling of FLSA claims where the case’s litigation

posture has delayed the court’s consideration of the motion for conditional certification and notice. See, e.g.,

Stickle v. SCIWestern Market Support Center, L.P., No. CV 08-083-PHX-MHM, 2008 WL 4446539, at *21–22

(D. Ariz. Sep. 30, 2008) (equitably tolling the FLSA statute of limitations where court delayed ruling on the

plaintiffs’ collective action pending determination of defendant’s motion to dismiss); Adams v. Tyson Foods,

Inc., No. 07-CV-4019, 2007 WL 1539325, at *1–2 (W.D. Ark. May 25, 2007) (tolling the statute of limitations

pending a decision by the MDL panel whether to transfer the case); Beauperthuy v. 24 Hour Fitness USA, Inc.,

06-0715 SC, 2007 WL 707475, at *8 (N.D. Cal. Mar. 6, 2007) (equitably tolling FLSA statute of limitations

because of factors outside plaintiffs’ control, including litigation and the competition between attorneys that

occurred during the settlement of related action); Helton v. Factor 5, Inc., 2011 WL 5925078, *2 (N.D. Cal.

Nov. 28, 2011) (equitably tolling FLSA statute of limitations pending decision on plaintiffs’ motion for

conditional certification).

In support of its argument, Fricker’s relies on three cases from the Northern District

of Ohio, none of which are binding upon this Court. Doc. 21, PageID 134.3 The case Fricker’s

relies upon most extensively, Jones, 2023 WL 4456815, acknowledges that “[c]ourts are

divided on whether it is appropriate for a court to equitably toll the statute of limitations for

potential opt-in plaintiffs in an FLSA case before those employees actually opt in.” Id. at *7.

The Jones court ultimately sides with those cases that have held that it is premature to consider

whether the statute of limitations should be tolled with respect to potential opt-in plaintiffs.

Id. However, the decision in that case hinged on four other cases, all decided pre-Clark. Id.4

Support for Jones has diminished in the wake of Clark. In this Court’s view, pre-Clark decisions

(and cases that rely on them) which have concluded that it is premature for a district court to

consider equitable tolling before a plaintiff opts in to an FLSA action no longer offer

persuasive authority.

The Court finds that Jones, its progeny,5 and the pre-Clark decisions cited in Jones, are

inapposite. Plaintiff’s request is not premature, and she therefore has standing to proceed. The

Court will consider whether the statute of limitations should be tolled with respect to potential

opt-in plaintiffs.

3 In support of their standing argument, Defendants cite Jones v. Ferro Corp., No. 1:22-cv-00253-JDA, 2023 WL

4456815, at *7 (N.D. Ohio July 11, 2023); McElroy v. Fresh Mark, Inc., No. 5:22-cv-287, 2023 WL 4904065, at

*12 (N.D. Ohio Aug. 1, 2023); and McCall v. Soft-Lite, LLC, No. 5:22-cv-816, 2023 WL 4904023, at *11 (N.D.

Ohio Aug. 1, 2023).

4 The Jones court exclusively relies on the following cases in reaching its conclusion: Woods v. First Transit, Inc.,

No. 1:21-cv-739, 2022 WL 4465752, at *2 (N.D. Ohio Sept. 26, 2022); Lemmon v. Harry & David Operations,

Inc., No. 2:15-cv-779, 2016 WL 234854, at *8 (S.D. Ohio Jan. 20, 2016); Taylor v. Pilot Corp., No. 2:14-cv-

2294, 2018 WL 10550646, at *2 (W.D. Tenn. Mar. 8, 2018); Mende v. Wildcat Investments, LLC, No. 2:17-cv-

286, 2018 WL 11432996, at *3 (S.D. Ohio Oct. 24, 2018).

5 McElroy and McCall both rely exclusively on Jones to reach the same conclusion. See McElroy, 2023 WL

4904065, at *12; McCall, 2023 WL 4904023, at *10–11.

C. The Interest of Justice Weigh in Favor of Equitable Tolling.

The doctrine of equitable tolling “permits courts to extend the statute of limitations on

a case-by-case basis to prevent inequity.” Struck, 931 F. Supp. 2d at 845. “The decision to

invoke equitable tolling in a particular case, therefore, lies solely within the discretion of the

trial court.” Id. at 846. Typically, “equitable tolling applies only when a litigant’s failure to

meet a legally-mandated deadline unavoidably arose from circumstances beyond that

litigant’s control.” Id. (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209

F.3d 552, 561–62 (6th Cir. 2000)). The burden rests squarely with a FLSA plaintiff to

demonstrate why he or she is entitled to toll equitably the statute of limitations in a given case.

Id.

The Sixth Circuit has articulated five factors for district courts to consider in

determining whether equitable tolling should be applied in a case. These are: “(1) lack of

actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement;

(3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) a

plaintiff’s reasonableness in remaining ignorant of the notice requirement.” Andrews v. Orr,

851 F.2d 146, 151 (6th Cir. 1988). This list “is not necessarily comprehensive, and not all

factors are relevant in all cases.” Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). (quoting

Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir. 2003)). Indeed, “equitable tolling has been

found where three of the five factors were not satisfied.” Roslies-Perez v. Superior Forestry Service,

Inc., 652 F.Supp.2d 887, 899 (M.D. Tenn. 2009) (tolling FLSA statute of limitations for

putative class members) (citing Dixon v. Gonzales, 481 F.3d 324, 331 (6th Cir. 2007)). As set

forth below, the Court concludes that the interests of justice favor equitable tolling in this case

when measured against all of the factors listed in the Sixth Circuit’s Andrews decision.

i. Actual Notice.

With respect to the first factor, this Court finds that potential opt-in plaintiffs lack

actual notice of this case. See Bolletino v. Cellular Sales of Knoxville, Inc., 3:12-cv-138, 2012 WL

3263941, at *4 (E.D. Tenn. Aug. 9, 2012) (granting equitable tolling after finding that

“potential opt-in plaintiffs almost certainly lack notice . . . of the filing requirement and lack

knowledge of the FLSA or their potential claim.”). Due in part to the unique posture of this

case, about 19 months have passed since the parties stipulated to stay this case pending the

Sixth Circuit’s ruling in Clark v. A&L Home Care, 68 F.4th 1003 (6th Cir. 2023). See Doc. 15.

This delay has consumed much of the FLSA’s statute-of-limitations period “and has the

potential to extinguish the claims of a substantial portion of the putative class.” Struck, 931 F.

Supp. 2d at 847. Thus, while the FLSA’s opt-in mechanism “necessarily involves some lapse

of time between the date a collective action is commenced and the date that each opt-in

plaintiff files [their] consent form,” Baden-Winterwood, 484 F.Supp. 2d at 826, the extreme

delay in receipt of actual notice in this case—through no fault of the potential plaintiffs—

could prove highly prejudicial. The Court agrees with the district court in Struck which

reasoned that “early notice to Opt-in Plaintiffs in a[n] [FLSA] collective action . . . was not

possible . . . allowing Opt-in Plaintiffs’ claims to diminish or expire due to circumstances

beyond their direct control would be particularly unjust.” Struck, 931 F. Supp. 2d at 847

(quoting Stransky v. HealthONE of Denver, Inc., 868 F.Supp.2d 1178, 1181–82 (D. Colo. 2012)).

Accordingly, the Court finds that the first factor under Andrews weighs heavily in favor of

tolling the statute of limitations.

ii. Constructive Notice.

With respect to second of the five factors, constructive notice, “this Court

acknowledges that the Sixth Circuit in an unpublished opinion has recognized that the mere

existence of the FLSA statute provides plaintiffs with constructive notice of their rights under

the FLSA and the filing deadlines.” Baden-Winterwood, 484 F.Supp.2d at 828 (citing Archer v.

Sullivan County Tenn., 129 F.3d 1263, 1997 WL 720406 at *4 (6th Cir. 1997)). Nevertheless,

“[i]f the mere existence of a law suffices to impart constructive notice, an inquiry into the

notice factors would be meaningless” because “[a] court would always find that every plaintiff

had constructive notice of the filing requirement.” Id. “Such a finding also questions why

notice is required to be sent to all potential opt-in plaintiffs to inform them of their rights and

statutory deadlines.” Id.

Given the procedural history this case has undergone and given all the other factors

that weigh more favorably towards Plaintiff, “equity demands that this Court give little weight

to the fact that the mere existence of the FLSA placed [p]laintiffs on constructive notice of the

filing requirement.” Id. (granting FLSA plaintiffs’ request for equitable tolling).

iii. Diligence.

The Supreme Court has stated that “[o]ne who fails to act diligently cannot invoke

equitable principles to excuse that lack of diligence.” Baldwin County Welcome Center v. Brown,

466 U.S. 147, 149–50, (1984). Here, however, Plaintiff has diligently pursued her rights under

the FLSA. She moved for conditional class certification and court-supervised notice to

potential opt-in plaintiffs on January 27, 2023—just over three months after filing the

Complaint. See Doc. 13. A month later the parties filed their stipulation to stay the case (Doc.

15), and the present motion (seeking to equitable tolling of the statute of limitations of notice

to potential opt-in plaintiff) was filed on July 19, 2023—only two months after the stay was

lifted. Doc. 20.

As a practical matter, potential opt-in plaintiffs could not have diligently filed consent

forms with the Court if they were unaware of their rights to join the case. “In the context of

an opt-in collective action, diligence is measured by whether potential plaintiffs opted-in when

given the opportunity, not by whether those plaintiffs chose to initially bring a lawsuit.” Baden-

Winterwood, 484 F.Supp.2d at 828 (citing Owens v. Bethlehem Mines Corp., 630 F.Supp. 309,

312-13 (S.D.W.Va.1986)) (cleaned up). Considering that that potential opt-in plaintiffs are

almost certain to have lacked knowledge of the pendency of this action, the Court likewise

finds that their failure to opt into the suit alone does not indicate a lack of diligence. Rather,

the almost 19-month long delay (caused by the parties’ stipulated stay of prosecution of the

case pending the Sixth Circuit’s ruling in Clark) in the issuance of notice constitutes an

“extraordinary circumstance that stood in [the] way” of potential plaintiffs’ exercise of those

rights. Abadeer v. Tyson Foods, Inc. v. Tyson Foods, Inc., 3:09-0125, 2010 WL 5158873, at *2

(M.D. Tenn. Dec. 14, 2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). As such,

there has been no showing of lack of diligence and this factor too weighs in Plaintiff’s favor.

iv. Absence of Prejudice to Defendants.

With respect to fourth prong, the Sixth Circuit has emphasized that “[a]bsence of

prejudice [to the defendant] is a factor to be considered only after a factor that might justify

tolling is identified.” Baden-Winterwood, 484 F.Supp. 2d at 826 (quoting Allen, 366 F.3d at

401–02) (alterations in original). Having determined that the previous three factors weigh in

favor of equitable tolling, the Court examines whether such tolling would in some manner be

prejudicial to Fricker’s. Here, the Court finds that Fricker’s “had full knowledge that the

named Plaintiff brought the suit as a collective action on the date of the filing” and “was fully

aware of its scope of potential liability.” Struck, 931 F. Supp. 2d at 848. Moreover, Fricker’s

stipulated to stay this case while awaiting the Clark decision from the Court of Appeals, further

enlarging the litigation timeline. Under the circumstances, Fricker’s clearly has not been

prejudiced by the tolling of the FLSA’s statute of limitations in order to allow notice to be

sent to all potential opt-in plaintiffs to inform them of their rights and statutory deadlines.

v. Ignorance of the Filing Deadline by Potential Plaintiffs Is Reasonable

to Warrant Equitable Tolling.

Although “[i]gnorance of the law alone is not sufficient to warrant equitable tolling,”

Baden-Winterwood, 484 F.Supp. 2d at 829 (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir.

1991)), the Sixth Circuit has recognized that “ignorance of a filing requirement may be

reasonable under certain circumstances to warrant equitable tolling.” Id. (citing Allen, 366

F.3d at 401). Here, there is a high level of risk that potential opt-in plaintiffs were never

informed of the FLSA lawsuit or Fricker's potential wage violations and will not be so notified

until the court-ordered notice is issued in this case. By that time, as earlier discussed, a

substantial portion of those claims may already be untimely. This Court finds that it is entirely

reasonable that putative class members who received no actual notice of the pendency of this

action would remain ignorant of the filing deadline. Therefore, this factor too weighs in favor

of equitable tolling.

D. Scope of Equitable Tolling and Limited Discovery.

In light of the above, this Court finds that the interests of justice weigh heavily in favor

of tolling the FLSA’s statute of limitations for putative opt-in plaintiffs. The Court also agrees

with Plaintiff that in accordance with the “broad discretion [of trial courts] under the rules of

civil procedure to manage the discovery process and control their dockets,” McElroy, 2023

WL 4904065, at *8 (quoting Marie v. Am. Red Cross, 771 F.3d 344, 366 (6th Cir. 2014)), ninety

(90) days for conducting limited discovery is warranted. See Doc. 20, PageID 124.

Accordingly, the scope of discovery and tolling shall be as follows.

• The parties shall have 90 days to conduct limited discovery; all discovery pursued shall

be “‘narrowly tailored’ to the sole question of whether there is a ‘strong likelihood’

that potential opt-in plaintiffs show a ‘substantial similarity’” to the named plaintiff.”

Cordell, 691 F. Supp. 3d at 847 (cleaned up).

• Plaintiff shall have until the end of that 90-day period to file her anticipated Motion

for Conditional Certification and Court-Facilitated Notice to Potential Opt-in

Plaintiffs.

• If court-facilitated notice is granted, the statute of limitations on the claims of potential

opt-in plaintiffs shall run until 60 days after notice is mailed to putative class

members.6

With these limitations, Plaintiff’s request for equitable tolling of the FLSA’s statute of

limitations for potential opt-in plaintiffs is GRANTED.

III. CONCLUSION

For the reasons stated, the Court GRANTS Plaintiff’s Motion for Equitable Tolling

(Doc. 20).

6 See Cordell, 691 F. Supp. 3d at 850–51 (tolling the statute of limitations for potential opt-in plaintiffs before

conditional certification of plaintiff’s collective action and notice to potential plaintiffs in light of Clark);

Stransky, 868 F.Supp.2d at 1182 (tolling the FLSA's statute of limitations for potential opt-in plaintiffs from

the date of plaintiffs’ motion for judicial notice until 90 days after such notice is received); Baden-Winterwood,

484 F.Supp. 2d at 829 (tolling the FLSA statute of limitations from the date Plaintiff initiated discussions

regarding notice to putative class members until the date of the court's ruling on the notice order); Abadeer,

2010 WL 5158873, at *3 (tolling the FLSA statute of limitations during the pendency of motions concerning

notice to putative class, and extending 120 days from the date of approval of the requested notice).

SO ORDERED

September 16, 2024 _ 1 hobo (phn —

Jeffery P.“Hdépkins

United States District Judge

16