Opposition Brief — Perella v. Colonial Transit, Inc.

No. 92-1087

I

Supreme Court of the United S

October Term, 1992

*

DARLENE PERELLA, on her own behalf,

and all others similarly situated,

Petitioner,

V.

COLONIAL TRANSIT, INC. a/k/a

COLONIAL TAXI COMPANY, INC. and

MAYFLOWER CONTRACT SERVICES, INC.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

:

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

.

Mark S. SHIFFMAN* ANNETTE Estick

Jackson, Lewis, SCHNITZLER Senior Attorney

& KRUPMAN Mayflower Contract

First & Market Building Services, Inc.

100 First Avenue P.O. Box 7941

Pittsburgh, PA 15222 Shawnee Mission, Kansas

(412) 232-0404 66207

Joe. P. KELLy (913) 345-1986

JACKSON, Lewis, SCHNITZLER Counsel for Respondents

& KRUPMAN Colonial Transit, Inc.

1925 Century Park East a/k/a Colonial Taxi

Suite 1150 Company, Inc. and Mayflower

Los Angeles, California Contract Services, Inc.

90067

(310) 203-0200 *Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF QUESTION PRESENTED

Where Petitioner improperly filed this Fair Labor Stan-

dards Act lawsuit as a class action under Rule 23 of the

Federal Rules of Civil Procedure, and where Respondents

specifically asserted as affirmative defenses in the

Answer that Petitioner’s class allegations failed to state a

claim for relief, that “Petitioner could not institute this

action on behalf of a class,” and that the action was

barred by limitations, was the district court correct in

ruling that the statute of limitations was not tolled by the

filing of the Complaint and that Respondents were not

estopped from asserting the limitations defense as to all

persons who did not file consents within the limitations

period?

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.1, Respondents

Colonial Transit, Inc. a/k/a Colonial Taxi Company, Inc.

and Mayflower Contract Services, Inc. hereby identify the

following parent companies, subsidiaries (except wholly-

owned subsidiaries), and affiliates of each corporation:

Parent Company: Mayflower Group, Inc.

Affiliate of Mayflower Contract Services, Inc:

Mayflower Transit, Inc.

iii

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTION PRESEN-

OSES SPEEDED Fae rn eee i

CORPORATE DISCLOSURE STATEMENT.......... ii

TABLE OF AUTHORITIBES...........0.cccccccccess iv

COUNTERSTATEMENT OF THE CASE............ 2

SUMMARY OF RESPONDENTS’ ARGUMENT...... 4

REASONS FOR REFUSAL OF THE WRIT.......... 6

A. Petitioner’s Failure To Diligently Prosecute The

Class Action In the District Court Does Not Cre-

ate A Compelling Reason For Which A Writ

Should Issue. The Filing of A Complaint Under

the Fair Labor Standards Act Does Not Toll the

Statute of Limitations Until Potential Class Mem-

bers Have Had the Opportunity To File Con-

sents; Hence, The Court Of Appeals Correctly

Affirmed The District Court’s Decision ........ 6

B. The Writ Should Be Denied Because Petitioner Can-

not Possibly Establish Any Basis For Equitable Toll-

ing Of The FLSA Statute Of Limitations ......... 10

ey ons cio sda kawsedisecsadcaccs 16

iv -

TABLE OF AUTHORITIES

Page

Cases

Burnett v. New York Central R. Co., 380 U.S. 424, 85

S.Ct. M050, 13 L..2e DEl (PRED). 0 occ ccccsnccces 12

Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th

CA Re 686 ixwnin ees in ans ke lates vet enndvnsss 11

Dolan v. Project Construction Corp., 725 F.2d 1263

CRs Ge Fie 6 noha beens ivinsdebeavesccccecnuenes 6

Donovan v. Crisostomo, 689 F.2d 869 (9th Cir. 1982) .... 14

Edwards v. Kaiser Aluminum & Steel Sales, Inc., 515

fet. Fo Ek | ee er 11

Groshek v. Babcock and Wilcox Tubular Products Divi-

sion, 425 F. Supp. 232 (E.D. Wis. 1977). .......... 6, 7

Hoffmann-LaRoche Inc. v. Sperling, 493 U.S. 165, 110

S.Ct. 482, 107 L.Ed.2d 480 (1989) ...... 7, 9, 12, 3

Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir.

od oer eT rey or errr ere 6

Kocian v. Getty Refining & Marketing Co., 707 F.2d

Tae Ce Ge SEE Gs vv 0 bees neeckneeaneasedcuaeekes 10

Kuhn v. Philadelphia Electric Co., 475 F. Supp. 324

CRe Pile. SPE hk hordes sewer aisle nesncseieees sess 6

LaChapelle v. Owens-Illinois, Inc. 513 F.2d 286 (5th

Cok SUOEE sa Sukoccusteathakecanebaeenabreceeeurenss 6

Link v. Wabash Railroad, 370 U.S. 626, 82 S.Ct. 1386,

Be & EF. eee rer ere ery 15

Lombardi v. Altemose Construction Co., 69 F.R.D. 410

aes Te COE Nick vsased Neda teres beer aee necks 6, 7

TT |

V

TABLE OF AUTHORITIES - Continued

Page

Madrigal v. Green Giant Co., 25 Wage & Hour Cas.

(GINA) OP (B.D. Wis. 1961). ...... 0... ccccnccscceess 6

Partlow v. jewish Orphans’ Home of Southern Califor-

nia, Inc., 645 F.2d 757 (9th Cir. 1981)........... 13, 14

Quina v. Owens-Corning Fiberglass Corp., 575 F.2d

FORE GEO We SUE s xpo wc kd oes \sinnediWeancexcens 15

School District of Allentown v. Marshall, 657 F.2d 15

Se Ee ED 6 hun aac ee bwh Saheenuas hanockiwade ti, 35

Stallcop v. Kaiser Foundations Hospitals, 820 F.2d

otcindhs citing tine Mev occok LETT UTTER TOT E TT TT are 11

STATUTES AND RULES

Fair Labor Standards Act (FLSA)

Be RP OD 5 osc d dase ode sndviaieaweras passim

es TE ik AA ns sae hs Ao REA wae ORS eee se cess 3

Federal Rule of Civil Procedure 23.............. passim

No. 92-1087

¢

In The C—

Supreme Court of the United States

October Term, 1992

¢

DARLENE PERELLA, on her own behalf,

and all others similarly situated,

Petitioner,

V.

COLONIAL TRANSIT, INC. a/k/a

COLONIAL TAXI COMPANY, INC. and

MAYFLOWER CONTRACT SERVICES, INC.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

+

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

Respondents Colonial Transit, Inc. a/k/a Colonial

Taxi Company, Inc. and Mayflower Contract Services, Inc.

hereby submit this Brief in Opposition to the Petition for

Writ of Certiorari to the United States Court of Appeals

for the Third Circuit.

COUNTERSTATEMENT OF THE CASE

In March 1989, Petitioner Darlene Perella filed this

suit in the United States District Court for the Western

District of Pennsylvania. Petitioner purported to bring

the action on behalf of herself and a class of similarly

situated individuals pursuant to Rule 23 of the Federal

Rules of Civil Procedure. The complaint sought overtime

compensation under the Fair Labor Standards Act.

Respondents Colonial Transit, Inc. and Mayflower

Contract Services, Inc. answered the complaint and

asserted as affirmative defenses that the complaint failed

to state a claim upon which relief could be granted (First

Affirmative Defense), that the action was barred by the

statute of limitations (Seventh Affirmative Defense), and

that Petitioner could not institute this action on behalf of

the class (Ninth Affirmative Defense).

After filing suit, Petitioner: @ u virtually nothing to

prosecute the class allegations. Petitioner continued to

put off class discovery even after the district court, at the

status conference held on October 23, 1989, recommended

that she “proceed with discovery, at least as to the sum-

mary judgment, and | don’t see why, at that time you

can’t do discovery on the class action aspect, too, or

anything else that would be relevant to this case, with the

idea of finishing up the discovery, at least as far as the

motion is concerned, within 60-some days, or something

like that.” (A-30a).!

1 References to the Petition for Writ of Certiorari shall be

es “(Pet. ___)”; references to the Appendix attached to the Petition

shall be “(A-__),” followed by the correct page designation.

——

Indeed, it was not until April 20, 1990, when the

district court denied Respondents’ motion for summary

judgment on the issue of whether the FLSA applied to

Petitioner’s employment and ordered Petitioner to file a

motion for class certification, that she for the first time

requested discovery as to potential class members. Up to

that time, Petitioner’s counsel did not pursue discovery

on the class action issues, apparently under the mistaken

belief that the opt-in requirements contained in section

16(b) of the Fair Labor Standards Act did not apply to

this action.

At the status conference held on June 5, 1990,

Respondents’ counsel argued that the district court

lacked subject matter jurisdiction over Petitioner’s class

allegations because the suit was improperly filed under

Rule 23. Section 16(b) of the FLSA, 29 U.S.C. § 216(b),

requires that a class action for overtime pay proceed

instead under section 16(b). Unlike Rule 23 class actions

in which all similarly situated persons are class members

who will be bound by a judgment unless they opt out,

section 16(b) expressly provides that no employee shall

be a party plaintiff unless he first files a written consent

to opt into the action. No written consents were ever filed

with the court by any potential class iiembers.

At a subsequent status conference held on October

26, 1990, Respondent’s counsel argued that the two-year

statute of limitations (set forth in 29 U.S.C. § 255) was

running as to potential plaintiffs who had not yet filed

written consents, and that the class allegations should be

dismissed unless written consents were filed before

November 5, 1990. On October 29, 1990, the court ordered

Petitioner to file a motion to proceed pursuant to Rule 23.

After allowing full briefing of the issue, the district court

ruled that the two-year statute of limitations applied to

this action, and for any such claims to be timely consents

had to have been filed by mid-November, 1990 (A-4a-5a).

The district court denied the motion for class certification

under Rule 23, and dismissed the claims of the potential

opt-in plaintiffs as time barred. (A-6a).

Petitioner appealed to the United States Court of

Appeals for the Third Circuit, arguing that the lower

court erred in refusing to permit Petitioner to bring this

action under Rule 23 and that Respondents were

estopped to assert the statute of limitations defense

because they failed to disclose to Petitioner’s counsel that

the statute of limitations was running as to purported

class claims. On September 30, 1992, the Court of Appeals

issued a Judgment Order, affirming the district court’s

decision in its entirety. (A-la). This Petition for Writ of

Certiorari followed.

SUMMARY OF RESPONDENTS’ ARGUMENT

Petitioner fails to present any cogent argument for

granting this discretionary petition. Here, as in the dis-

trict court and the court of appeals, Petitioner urges that

the plain language of section 16(b) of the FLSA concern-

ing the procedure for bringing multiple claimant cases

and nearly 20 years of consistent judicial precedent inter-

preting this provision were swept away ina single Court

opinion that does not even touch upon the issue. Peti-

tioner further argues that the statute of limitations was

tolled because Respondents ostensibly “never raised any

issue as to the bar of the claims of the potential class

members by reason of the statute of limitations.” (Pet. 5).

In making this argument, Petitioner is forced to ignore

Respondents’ specific limitations defense, and to attempt

to avoid the consequences of her counsel’s ignorance of

the requirements for proceeding with multiple party

actions under FLSA section 16(b) by placing blame alter-

nately on Respondents and the district court.

The district court and the court of appeals each con-

sidered and rejected Petitioner’s equitable tolling argu-

ments, concluding that Petitioner presented no facts that

would justify tolling the statute of limitations as to per-

sons who failed to file written consents within the two-

year limitations period. That decision is most certainly

correct. The limitations defense was asserted in Respon-

dents’ Answer. Yet, Petitioner never advised the district

court of the requirements of FLSA section 16(b) as they

related to this action, or alerted the court to the need to

conduct prompt discovery on class action issues so as to

avoid the bar of the statute of limitations. Petitioner’s

failure to diligently prosecute the class allegations does

not support intervention by this Court. The Petition

should be summarily denied.

¢

REASONS FOR REFUSAL OF THE WRIT

A. Petitioner’s Failure To Diligently Prosecute The

Class Action In the District Court Does Not Create

A Compelling Reason For Which A Writ Should

Issue. The Filing of A Complaint Under the Fair

Labor Standards Act Does Not Toll the Statute of

Limitations Until Potential Class Members Have

Had the Opportunity To File Consents; Hence, The

Court Of Appeals Correctly Affirmed The District

Court’s Decision.

The language of FLSA section 16(b) is directly at

odds with the language of Rule 23, which provides that

any member of a class action is included unless he or she

affirmatively “opts-out.” On this basis, courts have uni-

formly held that FLSA suits cannot be maintained as Rule

23 class actions. Dolan v. Project Construction Corp., 725

F.2d 1263 (10th Cir. 1984); Kinney Shoe Corp. v. Vorhes, 564

F.2d 859, 862 (9th Cir. 1977); LaChapelle v. Owens-Illinois,

Inc., 513 F.2d 286, 288-89 (Sth Cir. 1975); Madrigal v. Green

Giant Co., 25 Wage & Hour Cas. (BNA) 89, 90 (E.D. Wis.

1981); Kuhn v. Philadelphia Electric Co., 475 F. Supp. 324

(E.D. Pa. 1979); Lombardi v. Altemose Construction Co., 69

F.R.D. 410, 411 (E.D. Pa. 1975); Groshek v. Babcock and

Wilcox Tubular Products Division, 425 F. Supp. 232, 234

(E.D. Wis. 1977).

Instead, the only collective action available under the

FLSA is a so-called “opt-in” class action whereby no

party is bound unless he or she files a written consent to

join the action with the court. As stated in Lombardi,

[N]Jo person in an FLSA suit can become a party

plaintiff or be bound by a judgment unless he

7

has ‘opted into’ the class, i.e. filed a written

consent. . . . “It is crystal clear that § 16(b)

precludes pure Rule 23 class actions in FLSA

suits.”

69 FR.D. at 411 (E.D. Pa. 1975) (emphasis added; citation

omitted).

Certainly, the two-year limitations period under the

FLSA is not tolled simply because Petitioner improperly

filed this suit as a Rule 23 class action. As discussed in

Groshek, any contrary holding would ignore the express

language of Section 16(b):

The plaintiff argues that the filing of their claim

under Rule 23 tolls the statute of limitations

pending the determination of the main-

tainability of the action as a class action. This

argument ignores the language of 29 U.S.C.

§ 256... . [§] [T]he fact that under Rule 23 the

filing of the named plaintiff's complaint does

toll the statute of limitations in certain actions

has no effect on [a § 216(b) suit] where Rule 23

does not apply. This court has no authority under

the FLSA to adopt portions of Rule 23 procedures

and apply them to an action brought under the

Act ... when to do so would be to take the FLSA

statute of limitations out of context.

425 F. Supp. at 234 (emphasis added; citations omitted).

Petitioner now acknowledges this authority (Pet. 12),

but argues that the express language of FLSA section

16(b) and an established body of case law were over-

turned by this Court’s decision in Hoffmann-La Roche Inc.

v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480

(1989). Petitioner argues that Hoffmann-LaRoche mandates

that regardless of her lack of diligence in prosecuting the

class allegations and ascertaining the identity of potential

class members, this Court should determine whether

lower courts are required to intervene in all class actions

under FLSA section 16(b) to facilitate notice to potential

plaintiffs of a pending lawsuit, and whether limitations

should be tolled “until potential class action members

have had the opportunity to file consents.” (Pet. 7). This

argument is meritless.

Hoffmann-LaRoche addressed “the narrow question of

whether, in an ADEA action, district courts may play any

role in prescribing the terms and conditions of communi-

cation from the named plaintiffs to potential members of

the class on whose behalf the collective action has been

brought.” 493 U.S. at 169, 110 S.Ct. at 486. Expressly

referring only to ADEA class actions, the Court stressed

that the district court’s involvement in giving notice to

potential plaintiffs is discretionary, and should be under-

taken only in appropriate cases. Id. The Court expressly

confirmed only the existence of the trial court’s discre-

tion, not the details of its exercise. 493 U.S. at 170, 110

S.Ct. at 486. The Court determined that judicial interven-

tion in the discovery process was appropriate because the

named plaintiffs had diligently prosecuted the class alle-

gations, going so far as to seek the names and addresses

of the 1200 potential class members even before suit was

filed. After obtaining this information, the plaintiffs then

~ sent notices to 600 potential plaintiffs they were able to

ascertain, timely filed a complaint and 400 consents, and

then moved for discovery of all the names and addresses

of similarly situated employees to ensure that all poten-

tial plaintiffs would receive notice of the suit. When the

defendant resisted discovery, the plaintiffs then asked the

court to intervene to assist them in obtaining and mailing

out the remaining notices. Id. at 168, 110 S.Ct. at 485.

In the words of Mark Twain, any similarity between

the diligence shown by the plaintiff in Hoffmann-LaRoche

and that shown by Petitioner is that between “lightning

and lightning bug.” As the transcripts of the status con-

ferences contained in Petitioner’s Appendix make clear,

Petitioner never once advised the district court of the

requirements of FLSA section 16(b) as they applied to this

action, or alerted the court to the need to conduct early

discovery on class action issues so as to avoid the bar of

the statute of limitations. Nor is there any other evidence

of record to show that Petitioner exercised diligence in

attempting to conduct class action discovery.

Petitioner’s contention that her counsel showed

“continuous concern with addressing class action issues

throughout the status conferences” (Pet. 9-10) finds no

support in the record.? Petitioner’s counsel’s failure to

timely raise these issues had nothing to do with any

statements of Respondents’ counsel or the district court’s

2 One searches the record in vain for any discussion about

sending notice to potential class members at the October 1989

status conference. (A-26a-33a). Indeed, at the conference, the

district court specifically advised Petitioner to continue discov-

ery on class action issues “or anything else that would be rele-

vant to the case.” (A-30a). While Petitioner’s counsel did broach

the “notice issue” at the April 20, 1990 conference (A-46a) - a

full six months before the limitations period expired — he never

advised the court that the limitations period was running as to

potential plaintiffs or requested the court to intervene in discov-

ery as it related to the class action issues. (A-52a).

10

failure to set a cutoff date for potential plaintiffs to opt in

to the action. Rather, Petitioner’s counsel was simply

unaware of the opt-in requirements under FLSA section

16(b). As Petitioner’s counsel stated at the April 20, 1990

district court hearing, “I thought that [section 16(b)]

applied only to the Department of Labor.” (A-52a).

B. The Writ Should Be Denied Because Petitioner Can-

not Possibly Establish Any Basis For Equitable Toll-

ing Of The FLSA Statute Of Limitations.

Petitioner argues that because she was apparently

ignorant of the opt-in requirements of FLSA section 16(b)

and failed, for instance, to early-on alert the court to the

limitations issue or request the court to hold a discovery

conference on the class action issues, the statute of limita-

tions should be tolled because the district court was

“under the assumption that no statute of limitations issue

existed.” (Pet. 9). This argument is wholly unpersuasive.

The federal courts uniformly agree that toiling of statutes

of limitation is appropriate only in limited circumstances.

Thus, for example, in Kocian v. Getty Refining & Marketing

Co., 707 F.2d 748 (3d Cir. 1983), the Court of Appeals for

the Third Circuit recognized three principal situations

where equitable tolling may be appropriate:

(1) the defendant has actively misled the plain-

tiff respecting the cause of action, (2) the plain-

tiff has ‘in some extraordinary way’ been

prevented from asserting his rights, or (3) the

plaintiff has raised the precise statutory claim in

issue but has mistakenly done so in the wrong

forum.

707 F.2d at 753 (citation omitted).

11

Restrictions on equitable tolling must be scru-

pulously observed. Id. “Statutes of limitation are not arbi-

trary obstacles to the vindication of just claims, and

therefore they should not be given a grudging applica-

tion. They protect important social interests in certainty,

accuracy and repose.” Cada v. Baxter Healthcare Corp., 920

F.2d 446, 452-53 (7th Cir. 1990). Equitable tolling is not an

open-ended invitation to the courts to disregard limita-

tions periods simply because they bar what may other-

wise be meritorious causes of action. School District of

Allentown v. Marshall, 657 F.2d 15, 20 (3d Cir. 1981).

Throughout this litigation, the relevant statutory lan-

guage and case law were freely available to Petitioner

and her counsel. Respondents expressly raised the limita-

tions defense at the outset of the litigation, and they were

under no duty to educate Petitioner or her counsel con-

cerning the legal principles applicable to this case. The

limitations period is not tolled based on her counsel’s

errors in judgment. Stallcop v. Kaiser Foundations Hospitals,

820 F.2d 1044, 1050 (9th Cir. 1987) (because plaintiff was

represented by counsel during the limitations period, she

“gained the ‘means of knowledge’ of her rights and can

be charged with constructive knowledge of the law’s

requirements.” [quoting Edwards v. Kaiser Aluminum &

Steel Sales, Inc., 515 F.2d 1195, 1200 n.8 (5th Cir. 1975))).

If Petitioner truly believed that the district court was

mistaken as to the controlling law, or that the court’s

management of the case was prejudicing the rights of

potential class members, it was incumbent on Petitioner

to timely raise the issue with the court. Notably, Respon-

dents pleaded as affirmative defenses both the inap-

propriateness of Petitioner’s class action and the statute

12

of limitations. Moreover, Respondents went beyond any

duty they may have had and affirmatively educated

Plaintiff’s counsel on the error of his approach. At the

June 5, 1990 status conference, counsel for Respondents

stated that Rule 23 was the inappropriate vehicle, and

that FLSA class actions must proceed under FLSA section

16(b). (A-48a-49a). This was well within the statute of

limitations. Petitioner’s counsel stated that he thought

section 16(b) only applied to suits by the Department of

Labor. (A-52a). If there were compelling reasons to

address the class action issues early in the litigation, it

was the job of Petitioner to bring these issues to the

attention of the district court - not Respondents.

In no way is this a situation where Petitioner “has

been prevented from asserting” her rights. Burnett v. New

York Central R. Co., 380 U.S. 424, 429, 85 S.Ct. 1050, 1055,

13 L.Ed.2d 941 (1965). Nothing in Hoffmann-LaRoche sug-

gests that an element of a district court’s managerial

responsibility in actions under section 16(b) includes the

obligation to assist a plaintiff in the prosecution of their

case.

Petitioner also claims that tolling is required because

Respondents were in sole possession of employee lists

that she says were necessary to identify potential class

members. (Pet. 11-12). Once again, Petitioner presented

no fact of record below to support this argument. As in

Hoffmann-LaRoche, Petitioner could have begun discovery

as to the identity of other potential class members prior

to or immediately after filing her complaint. Or, she could

have filed a complaint in which she named other sim-

ilarly situated co-workers and thereafter filed consents.

However, she did nothing of the sort. In a very real sense,

13

she slept on her rights, only to be jolted from her slumber

when Respondents alerted her in October 1990 that the

statute of limitations was running. Petitioner’s failure to

initiate discovery as to the potential plaintiffs until nearly

seventeen months after filing her complaint, and her

subsequent delay in sending notices to and obtaining

consents from those potential plaintiffs once she had such

a list, is convincing evidence of her lack of diligence.?

Petitioner’s other authorities do not require a con-

trary result. In Partlow v. Jewish Orphans’ Home of Southern

California, Inc., 645 F.2d 757 (9th Cir. 1981), plaintiffs filed

an action for overtime compensation under the FLSA.

Plaintiff’s counsel sent letters to the defendant’s current

and former employees soliciting their consent to become

parties to the suit, and subsequently filed consents

obtained from 69 employees who wished to join in the

suit. The consents were later determined to be defective

because counsel has secured them without leave of court.

The court tolled the statute of limitations to allow those

employees to file proper consents with the court.

In affirming the district court’s order tolling the lim-

itations statute, the Court of Appeals for the Ninth Cir-

cuit reasoned that statutes of limitation are designed to

3 Moreover, Petitioner neglects to mention that she is now

and has for many years been an officer of the union representing

Respondents’ employees and, as such, easily could have

obtained the employee lists from the union. It was exactly this

type of diligence by the plaintiff that led the court in

Hoffmann-Laroche to conclude that court intervention to facili-

tate notice to potential class members was appropriate. 493 U.S.

at 170-71, 110 S.Ct. at 487.

14

notify defendants of claims before they become stale. The

court noted that this purpose had been served because

the defendant-employer was notified of the claims of the

potential plaintiffs within the limitations period when they

filed the defective consents. Therefore, requiring the

employer to defend those claims would not impose a

substantial hardship. 645 F.2d at 761. In sharp contrast,

Respondents have been prejudiced because no consents

were ever filed in this case and Respondents were never

notified of any potential claimants. The potential class

members that Petitioner seeks to add to this action are

not parties to the suit and have not been identified.

Petitioner’s reliance on Donovan v. Crisostomo, 689

F.2d 869 (9th Cir. 1982), is equally misplaced. There, the

court held that the class action commenced for FLSA

purposes when the Secretary of Labor named 24

employees as claimants in a pre-trial order. Id. at 875. The

action was remanded to allow the district court to deter-

mine whether the statute of limitations should be tolled

because the employer failed to assert the limitations issue at

trial and the Secretary may have been misled. Id. at 873.

Petitioner cannot show that Respondents failed to put her

on notice that they would assert the bar of limitations as

to all potential plaintiffs who had not filed written con-

sents by mid-November 1990. Indeed, the limitations

defense was explicitly raised in the Respondents’ Answer

and it was never waived. Moreover, the potential class

claimants have never been identified.

When all is said and done, Petitioner’s arguments in

support of equitable toiling boil down to a plea of igno-

rance of the law. It is well established that Petitioner’s

ignorance of her legal rights does not toll the statute of

15

limitations. School District of Allentown v. Marshall, 657

F.2d at 21; Quina v. Owens-Corning Fiberglass Corp., 575

F.2d 1115, 1118 (5th Cir. 1978).

In conclusion, Respondents are cognizant of the judi-

cial reluctance to penalize a litigant because of her attor-

ney’s error. However, Petitioner must be bound by the

acts and omissions of her attorneys.* A decision to reins-

tate this suit merely because of this Court’s belief that the

Petitioner should not be penalized by the errors of her

own voluntarily chosen counsel would be visiting the

sins of Petitioner’s attorney upon Respondents. “Any

other notion would be wholly inconsistent with our sys-

tem of representative litigation, in which each party is

deemed bound by the acts of his lawyer-agent and is

considered to have ‘notice of all facts, notice of which can

be charged upon the attorney.’ ” Link v. Wabash Railroad,

370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734

(1962). For these reasons, Respondents respectfully sub-

mit that the petition for writ of certiorari should be

denied.

4 Indeed, Petitioner expressly alleged in the Complaint that

“It]he attorney’s for Plaintiff are experienced and capable in

litigation in the field of labor relations.” (Complaint, 1 E).

16

CONCLUSION

The petition for a writ of certiorari should be denied

in its entirety.

Respectfully submitted,

Mark S. SHIFFMAN*

JACKSON, Lewis, SCHNITZLER

& KRUPMAN

First & Market Building

100 First Avenue

Pittsburgh, PA 15222

(412) 232-0404

Joet P. KEetty

Jackson, Lewis, SCHNITZLER

& KRUPMAN

1925 Century Park East

Suite 1150

Los Angeles, California

90067

(310) 203-0200

ANNETTE EsLick

Senior Attorney

Mayflower Contract

Services, Inc.

P.O. Box 7941

Shawnee Mission, Kansas

66207

(913) 345-1986

Counsel for Respondents

Colonial Transit, Inc.

a/k/a Colonial Taxi

Company, Inc. and Mayflower

Contract Services, Inc.

*Counsel of Record