n section two sixteen b says they must give written consent to join a case collective action and a in other section two fifty six says once they do that their action is deemed to have the three opponents in this case all joined a collective action that was filed by a separate person andrea mickelson who is not here before the court they all filed their consent there was no challenge to their consent it was timely they then proceeded through the case just like any other party as if they were named in the complaint they participated in just discovery they were actually counter claims pending against them and when one of them failed to appear to deposition that it's another option is actually not a party to the appeal that opt in join richardson was dismissed and then financially sanctioned for not appearing in a deposition so  we then had a motion for conditional certification pending before the court and the purpose of that motion was to ask the district court to authorize us to notify other employees who could potentially join the same action that motion was denied because the district court believed that it was untimely and we've we've challenge that ruling separately but what happened after that ruling then was confusion ensued as to whether our three options who had already joined the case were still parties are not reviewing the case law we believed it was quite clear that they were main parties the district court did not explicitly dismiss them well let's let's assume that we have jurisdiction over and that the district court in determining that are your clients and plaintiffs were never parties when you look at the statute does use the word party to describe  order and you had to file a motion for a conditional certification before the discovery deadline ended and it was filed eight months after that with an abuse of discretion standard of and then you were a conditional plaintiff's so at like done there's several things there that i'd like to unpack first of all there was not a specific deadline to file this motion there was a local rule that said in general any motion after thirty days after discovery begins so very early in the case thirty days after discovery begins you need the court's permission to file almost any motion except for summary judgment and discovery  motions when we had a discovery dispute which was whether the three options needed to produce tax returns and whether the defendant needed to produce records about other employees when that dispute arose we had a conference call with the court and that when i asked for the documents to be produced by the club the club said in the clubs that the defendant the defendant said well these a lot of these documents were later people who are parties so you know we object to this discovery and i said well part of the reason we wanted is because we're trying to add people to this case we're trying to send notice we want to see that this is a policy and political to multiple people the district court said well is it is it a collective action or not essentially and this is all in the transcript it's in the record i said well we're about to file a motion for notice in the district court said you filed your motion and then i'll decide on the discovery issues so under the rule all we needed was permission to file a motion we didn't need to modify the scheduling order we didn't need something formal on the docket that the district court knew what we were doing the dischord knew the stage the case was in and said you file your motion and then i'll district well ordered and then you said we're going to and then waited another is that i think i mean that it's accurate that it was a month after this conference call but what was happening at the same time was we were finishing depositions we think to clarify something here whether the court denied certification or not is actually a separate question we have three parties who joined the case the three parties before this cart this court all joined the case they filed their opt in consent forms way ahead of schedule this was i mean it was right after the the case began and there is no specific timeframe for filing an opt in it's not in the statute it's not in any local order it wasn't in the scheduling order but no matter what the deadline was we would have met it because we all three of these appellants filed the kids the consent forms very early in the case so when the district court said you're late on your conditional certification motion that should have had any effect on these three pellets they were already here they already did their discovery they were parties to the case and the dial of the order the timeliness of our motion none of that has anything to do with these three pounds  dismissal on the untimely and even if the district court were affirmed in that your position is that these individuals the three individuals who filed that the motion for conditional certification i mean excuse me who filed their notice pursuant to the statute that they should be able to proceed on their individual climb yes so so so those are the two things going on  appeal the most important part of our appeal is that these three opponents were parties below when the district court said they were not parties that created a very dangerous situation for us because if we'd gone to a new court and tried to refile this case they would have been deemed to be beyond a set your limitations because a couple years had gone by by the time we we recognize that the district court wouldn't let us go to trial with these three plaintiffs so we need that order to be vacated the one that said the clarification order from october twenty sixth seeing where the district court said they were never party that is simply incorrect as a matter of law they filed their consent forms whether or not we moved from notice didn't matter we didn't need to move from notice you could have a four plaintiff's collective action and go through the trial and never ask the court to send notes so this is again it's a totally separate question after you become a party you don't need that thereafter a motion for a conditional sort of you know you can you can maintain a collective action simply by filing opt in forms and proceeding to trial if the if the defendant believes they're not similarly situated well up in forms are three palance all if you believe that the untimely misses hsu controls and we were late on the motion for conditional certification that's separate we still have three parties here whose claims essentially evaporated they didn't they weren't given notice they weren't given an explicit dismissal there's not even a dismissal anywhere in the record really the only thing we got was this clarification or the said they were never like they were never here and that's not the way the f l asay works the f l s a collective action begins when you file opt in forms you can have a plaintiff moving for conditional certification you could get a final certification it's not a collective action unless people join the case and we did have three people join the case and they're the ones who wan proceed with their claim so when the district court said they were never parties that was extremely prejudicial if they'd gone to a second court we'd be facing statute of limitations defense because you have a an order here that says well they were parties in the first case so they don't get tolling while they were not there so you're out of time because the statute of limitations under two fifty six doesn't toll until you file your consent form but again i  sanctioning a plane if why did he dismiss the plaintiff for not showing up at a deposition he could have just said i'm going to sever these and of four separate cases and go go on but the purpose of the f l s say is to provide efficiency and an easy way for workers  join together and proceed in one case it's judicial khana me it's simplicity for the defendant and it's a lower entry cost for the plaintiffs we hope the consent forms on time there really is no time but they were on time anyway they were timely under the statute of limitations at least we filed those we were parties we participated in the case as if we were full parties so that really is the most a class action and from my perspective the primary issue in this case is whether those former opt in plaintiffs have standing to bring this appeal and i raise three major three primary issues in the alternative my first point is that the balance never became parties to the litigation blow because the district court denied conditional certification of this case as a collective action a prerequisite to appellants acquisition of party status which is in turn of course prerequisite for process a way a court can organize a case and it's not required the catch is the statute says 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  which such action is brought i think that's correct your honor you've read you read the statute correctly but but you're what you're doing what i think the appellant's are doing is that is reading out of the statute the prior sentence which says that an action may be maintained against any employer including a public agency in any federal or state court of competent jurisdiction by one or more employees for an in behalf of himself or themselves and other employees similarly situated so the similarly situated language obviously part of the statute that's who that language is directed to the op teens who are the appellant in this case so my point is yes all they have to do they do have to f consent form as the statute says which does told the statue of limitations for them but because they are not named plaintiffs and they are punitive upton's they have to be similarly situated to the nameplate if in order to become members of the collective we don't know we don't have to sue i mean if the district judge if the district judge had kept the case and said now these people are not similarly situated then then i understand your argument but the district court didn't do that well that's correct that was done timely and i can't speak for the rest of the panel hands but i don't think it was timely but i'm talk about these plaintiffs go ahead yes my point is simply that my point is that in order for them to have become part of the collective there must have been a judicial finding that they were similarly situated to the named plaintiff and that never occurred in this case because they've already said you're not parties well that's true but the court the motion for collective act could conditional collect a certification been timely filed the court could have or would have done the analysis under hip and decided whether or not they were similarly situated to become parties but if you don't like that argument your honor and i see that you're struggling with it it's not it's not like is just is just a ministry of process it's it's hard to think about this case because your mind goes to class actions and i have to get that out of your mind in a while and and so i got that out of my mind and i'm i'm thinking ok this is a court may process and rule and it talks about orderly way to do it which doesn't have to be followed but if you do follow what this is what happens well that's true i mean as this court knows in the hip decision in two thousand and one the court i think it recommended the two step process i for collective action certification but basically said it's not required t court can do it any number of ways but i think the court basically encouraged in future cases that district courts use the two step process and that's it of course in this case that never occurred simply because the motion for going to answer was on timely so if if if we want to assume that the claimants the appeals in this case did become hard use as of the time that they filed their consent forms they see an argument the my argument is that they ceased to become parties once the court denied their motion for class certification i think that's that's that's my alternative argument that and tell me the case she use of if you give me just second your hon well there are a number of cases and i will say that the eleventh circuit jurisprudence on this issue is not pertinent exactly clear i think the hip decision incisions which followed it in dicta suggested that if a court either decertified or declines to certify collective action that the opt in plaintiffs who should be dismissed without prejudice but that's based on certification this is just a process where you get people notice is conditional certification that just you just notice people you could decertify it you can say well all these people have come in and i've heard all of them but i'm not going to certify that that's correct and i think in either circumstance whether a court either or  declines to conditionally certified all either way i think what the this court in hips contemplate was that those claimants would fall away and be dismissed without prejudice not effect not s had to affect their f l s a right because of course if they're dismissed without prejudice they are free to file their own separate civil action which frankly is what i thought would occur in this case these individuals were plaintiffs because they filed pursuant to the statute and the court could have dismissed without prejudice or the court court could have kept the plaintiffs in the case and permitted them to process within that to go forward with in that case right if i if i understood your question correctly or on oh sorry about a little trouble hearing it i might my understanding of what the eleventh circuit jurisprudence says is in this context claimants who are not named plaintiffs but who are putative opt in plaintiffs if the court declines to certify or to decertify right they essentially should fall out of the case in effect a dismissal without prejudice now it's true that the district court's order on certification or denying their motion for certification did not expressly state that they are dismissed without prejudice i think that's what gave rise to this to this appeal frankly had the district courts decertify are not denial of certification order said the claimants the appellant's here are dismissed without prejudice and there would not have been any subsequent confusion that a lot why should we send it back to give the district court an opportunity to do that well i think you could do obviously you have the you authority to do that i think that's what the court in the district court intended to do on clarification now you might take it i know plaintiffs excuse me balance counsel takes issue with the language in the district court's clarification order where it said they never became parties you know maybe that was an overstatement perhaps but i think the result is going to be the same i think even if this course the court were to vacate the district court's order and send it back my intuition my instinct is that the court would simply dismiss them without prejudice as it relates to mr x s argument about the the predicament that his clients would have been in and you know if i didn't hear you tell me why we shouldn't do that well i think as i said i think you could have jurisdiction i think if you're trying to reach the merits i think you could do as you're suggesting tell me whether or not i am misunderstanding the statute in the process i thought that in order to file a motion for conditional certification to demonstrate that you're similarly situated to the other name plaintiffs you have to be a party well you know i think that that's why they're called putative members of the collective or potential members of the collective you know it's a little weird for me to refer to them as parties plaintiffs i mean they because there's only three individuals here that are appealing i mean they could have been named in the individual in the original complaint as named pla just as ms mikkel was named a warrant it was ms it was andrea mitchell zz and other individuals similarly situated that's how it was styled it's not a two step process once you're a party then you have an opportunity to show that you're similarly situated to the name plaintiffs or the where on the stand the statute is that incorrect from from my perspective here's how i understood it judge i always understood it that they were tensioned plaintiffs in the case until the court went through the certification process and if the district court granted certification then they elevated to plaintiff's party plaintiff status in a in a collective process so because here is my concern  they are in fact plaintiffs merely by filing a consent form then i'm not sure i understand the entire purpose of a motion for collective certification can well the motion is a mechanism in uses to administer the case but but these people participated in all this is scott free and and and in fact ms richardson was who didn't show up for her deposition is in a better position than they are because she was dismissed without prejudice and so nothing was mentioned to the district court through that whole thing there weren't as discovery and motions for sanctions and all the stuff that goes along with it that they were treated his parties were that's a that's a fair question your honor they did participate i will agree that they did participate in the discovery process because at that point time there had been no motion for conditional certification and remember usually motions first conditional certified early in the life of the case that was not done here so i was taking that opportunity after they had opted in by filing consent forms to take discovery from them in order to respond be able to respond to a future motion for conditional certification obviously the only way i can credibly challenge their right to be part of a collective is to take some discovery from them so sure i was taking discovery from them but i always considered them putative or potential plaintiffs and you know i have no obviously no control over when the appellants decide to move for conditional cert whether they decide to move forward at all so if you were if you were if you've already done with extended discovery period to move or conditional cert that could lead to a hypothetical situation where i would that where a defendant has no opportunity to challenge the merits of the opt ins who are contending that they are similarly situated in this case we did have that opportunity because i did get to the pose them and i get did get to take discovery from them but because they waited so long to file the motion for conditional cert the court denied that motion a procedural grounds before we got t so i believe judge black your understanding here is right on point the fact that there was not an explicit dismissal order from the district court when the district court denied conditional serve cation that actually makes all the difference and then compounding the problem was when the district court said they were never parties our issue with these three plaintiffs is we have a claim we want to move forward with it if you're saying we were never parties but we don't have a clear dismissal order how are we supposed to go pursue our claim do we file a new case because if we did that my friend here would most likely say well you're too late because now your opt in is yours after you work here and you don't get towing because you want to party so when we're say you win in the case goes back what happens yes so we're basically ready for trial we go to trial with these three plaintiffs and we're happy and their rights are protected and that's a great outlet when a second went when if if you  reverse saul on the denial of the certification notice process then this is what you did let's say that was  that now you have to rule on the motion for a conditional sort of occasion we don't you don't get sort of for cation that's one option yeah i'm not asking this court to to reverse and for certification we're asking first and foremost vacate the order that says our three people were not parties second and this is you know the next step would be if you are inclined to say that our motion was timely or that the court gave us permission to that the conditional serve cation motion then just vacate the denial and have the district court reach the merits because they were i mean we have three people worked in the same building on the same job complain about same policy you said the merits would just be whether or not your clients are similarly situated to the name plaintiffs well no it's it would just be at this point it be whether these three plaintiffs are sufficiently similarly situated to other people to send notice to other people because remember we're just talking about conditional serve but most importantly we need of a cator of the order that says they were never parties so we can protect their claims and move forward if there's no more questions and i thank you for your t you council court is in recess and so nine o'clock tomorrow morning