United States District Court, D. New Jersey
DOMINICK DEPALMA and JOSEPH LESZCZYNSKI, individually and on behalf of all other similarly situated current and former employees, Plaintiffs,
THE SCOTTS COMPLANY, LLC, Defendant.
McNulty United States District Judge
before this Court is the motion of defendant the Scotts
Company LLC ("Scotts") for partial summary judgment
in this collective action with respect to named plaintiffs
Dominick Depalma and Joseph Leszczynski. (The parties'
cross-motions for summary judgment as to all plaintiffs will
be dealt with in a separate opinion.) For the reasons
explained herein, I will grant in part and deny in part
Scotts' motion for partial summary judgment as to named
plaintiffs Depalma and Leszczynski.
December 20, 2013, named plaintiffs Depalma and Leszczynski,
through their counsel, filed a "Class Action Complaint
and Demand for a Jury Trial." (DE 1). On February 4,
2014, the named plaintiffs filed their "First Amended
Collective Action Complaint and Demand for Jury Trial."
(DE 5). In both the original and amended complaint, the named
plaintiffs alleged a single claim for violation of the
FLSA's overtime requirement. (DE 1, 5).
the factual allegations of the Amended Complaint are two
statements relevant to this motion: (1) "Plaintiff
Depalma hereby consents to be a party to this action,
pursuant to 29 U.S.C. § 216(b)" and (2)
"Plaintiff Leszczynski hereby consents to be a party to
this action, pursuant to 29 U.S.C. § 216(b)." (DE
5, ¶¶ 10, 12).
little more than a month after the named plaintiffs filed the
Amended Complaint, on January 27, 2017, the first opt-in
filed a notice of consent to become a parry-Plaintiff. (DE
3). Others followed.
will discuss infra, neither Depalma nor Leszczynski
has filed a written notice of consent at any time in this
litigation. (DE 1-216).
February 26, 2014, Scotts filed an Answer to the Amended
Complaint. Among its defenses, Scotts asserted that certain
putative plaintiffs had not filed written consents:
"Some or all of the purported claims in the Complaint
are barred as to such claims asserted on behalf of Plaintiffs
and/or putative Collective Action Members, if any, who do not
give their consent in writing to become party plaintiffs
and/or whose express written consent is not filed with the
(Answer to Amended Complaint, DE 17, ¶ 6).
March 13, 2014 and January 12, 2015, four additional opt-ins
filed notices of consent to become a party plaintiff. (DE 21,
26, 29, 36).
period of limited discovery, on March 20, 2015, named
plaintiffs moved for conditional certification of a
collective action. (DE 43). On March 31, 2016, this Court
granted Plaintiffs motion and conditionally certified the
class. (DE 67).
April 15, 2016, this Court approved the plaintiffs'
submitted FLSA Notice. (DE 70). By July 22, 2016,
approximately 100 opt-ins had filed their consent forms.
(See DE 72-106).
August 4, 2016, Magistrate Judge Dickson granted the named
plaintiffs' motion to equitably toll the statute of
limitations for the putative collective action members from
March 20, 2015 until ten days after the Court decided the
named plaintiffs' motion for certification. (DE 107).
Scotts appealed to this district court. (DE 110).
September 19, 2016, Magistrate Judge Dickson's Joint Case
Management Order permitted the parties to obtain written and