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Depalma v. Scotts Company, LLC

United States District Court, D. New Jersey

May 21, 2019

DOMINICK DEPALMA and JOSEPH LESZCZYNSKI, individually and on behalf of all other similarly situated current and former employees, Plaintiffs,
v.
THE SCOTTS COMPLANY, LLC, Defendant.

          OPINION

          Kevin McNulty United States District Judge

         Now 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.

         I. Background

         On 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).

         Among 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).[1]

         A 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.

         As I will discuss infra, neither Depalma nor Leszczynski has filed a written notice of consent at any time in this litigation. (DE 1-216).

         On 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 Court."

(Answer to Amended Complaint, DE 17, ¶ 6).

         Between 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).[2]

         After a 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).

         On 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).[3]

         On 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).

         On September 19, 2016, Magistrate Judge Dickson's Joint Case Management Order permitted the parties to obtain written and ...


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