The opinion of the court was delivered by: Irenas , Senior District Judge:
Presently before the Court, Defendants Bionetics, Goldbelt Eagle, and Gold Belt Falcon filed this Motion to Dismiss Claims of Individuals who Failed to File or Filed Untimely Consent Forms ("Motion"), 29 U.S.C. § 216(b). (Dkt. No. 97) For the following reasons the Motion will be granted in part and denied in part.
Defendants employed Plaintiffs as Citizens on the Battlefield ("COB") role players to assist in military training exercises. On July 10, 2008, Plaintiffs filed a collective action Complaint alleging that Defendants failed to pay overtime wages in accordance with the Fair Labors Standards Act of 1938, 29 U.S.C. § 207(a). *fn1 (Dkt. No. 1) On September 29, 2010, this Court granted Plaintiffs' Motion for Conditional Certification.
See Manning v. Goldbelt Falcon, LLC , 2010 WL 3906735 (D.N.J. 2010).
Under the Fair Labor Standards Act, there are two pertinent requirements to maintain a collective action: 1) each Plaintiff must manifest his written consent, and 2) Plaintiff's attorney must file that consent with the Court. 29 U.S.C. § 216(b); see, e.g., Harkins v. Riverboat Services, Inc., 385 F.3d 1099, 1101 (7th Cir. 2004) ("[t]he statute is unambiguous: if you haven't given your written consent to join the suit, or if you have but it hasn't been filed with the court, you're not a party."). The statute provides no further guidance regarding the practicalities surrounding timing and form of the requirements.
To comply with the first requirement, this Court issued an Order on September 29, 2010 that granted a 120 day opt-in period for all prospective class members. (Dkt. No. 62) In an Order issued November 22, 2010, the Court settled the form of notice and the opt-in period began to run. (Dkt. No. 68) The Court approved letter that accompanied the opt-in consent form instructed prospective plaintiffs to sign, date and forward the consent form to plaintiffs' counsel within the opt-in period. ( See Dkt. No. 64, Ex. A) The parties do not dispute that the opt-in period closed on March 22, 2011. (Def.'s Br. Supp. Mot. Dismiss, 2; Pl.'s Br. Opp. Mot. Dismiss, 1)
However, this Court's Orders did not address the statute's second requirement that plaintiffs' attorney file consent with the Court. Needless to say, if the opt-in period ended March 22, 2011, the deadline for filing consent could not conceivably be the same day. *fn2 Nevertheless, Defendants argue that as of March 22, 2011, the consent of twelve Plaintiffs had not yet been filed with the Court and, as a result, they should be dismissed as parties. *fn3 (Dkt. Nos. 90-93; Def.'s Br. Supp. Mot. Dismiss, 2) These Plaintiffs can be categorized into three distinct groups.
The first group is made up of eight Plaintiffs not named in the caption. *fn4 It is undisputed that these Plaintiffs signed and dated their Court approved consent forms before the March 22 consent deadline and, in some cases, well before the deadline. *fn5 However, Plaintiffs' attorney filed the consent forms with the Court between one and six days after the opt-in period closed. (Dkt. Nos. 90-93)
In the second group, named and lead class Plaintiff Sharis Manning failed to sign a Court approved consent form altogether. However, Manning participated in a deposition and submitted a written declaration indicating knowledge of the suit on February 22, 2010. (Dkt. No. 44)
The final group is comprised of named Plaintiffs Brandon Drew, Joshua Goldberg and Chad Waters. Although Defendants deposed these Plaintiffs whom acknowledged their participation in the lawsuit, these Plaintiffs never signed written consent. (Pl.'s Br. Opp. Mot. Dismiss, 3)
The Fair Labor Standards Act provides: "No 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." 29 U.S.C. § 216(b). The statute does not elaborate upon the form or timing of these two requirements.
With respect to form, courts have shown considerable flexibility
as long as the signed document indicates consent to join the lawsuit.
See Ketchum v. City of Vallejo , 2007 WL 4356137,
*2 (E.D.Cal. 2007). In some cases, plaintiffs have been deemed to have
manifested consent, although they did not submit the specific form
approved by the Court. See, e.g., Mendez v. Radec,
Corp. , 260 F.R.D. 38, 52 (W.D.N.Y. 2009) ...