On June 3, 2005, we conditionally certified Plaintiffs’ action as a collective action 1

under § 216(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. (Doc. No. 27.) 

In our June 3, 2005 Order, we directed counsel to meet and confer with regard to the content of

the proposed notice to be sent to the potential plaintiffs and to re-submit the proposed notice to

the Court within twenty (20) days. On June 23, 2005, we received a letter from defense counsel

indicating that counsel for both parties had discussed the proposed Class Notice and Consent to

Join Forms and that they had reached agreement on all but one sentence. Defendants sought

inclusion of a sentence in the Class Notice that indicated that The Chubb Institute seeks

dismissal of the case and payment of its costs by Plaintiffs and those who join the suit. Plaintiffs

opposed inclusion of this sentence. Having been unable to reach agreement, Plaintiffs filed a

Renewed Motion for Approval and Facilitation of Notice under 29 U.S.C. § 216(b) and Motion

to Compel Names and Addresses of Class Members. (Doc. No. 30.) This Motion is currently

pending before the Court, and Class Notice has not yet been sent.

Plaintiffs seek an order tolling the statute of limitations for the potential opt-in plaintiffs

who are similarly situated to avoid unfair prejudice to these potential plaintiffs. A cause of

action for unpaid overtime compensation under the FLSA must be commenced within two years

after the cause of action accrued, except that a cause of action arising out of a willful violation

may be commenced within three years after the cause of action accrued. 29 U.S.C. § 255(a). In

addition, under the FLSA, the action commences for purposes of § 255 on the date when the

complaint is filed for named plaintiffs and on the date when written consent to become a party

plaintiff is filed for non-named plaintiffs. 29 U.S.C. § 256. As a result, absent tolling of the

statute of limitations, potential opt-in plaintiffs who have not yet received notice of this

collective action may be precluded from joining the lawsuit because of expiration of the two or

three year period.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEONARD BOSLEY, ET AL. :

 : CIVIL ACTION

:

v. :

: NO. 04-CV-4598

:

CHUBB CORPORATION, ET AL. :

ORDER

AND NOW, this 20 day of February, 2007, upon consideration of Plaintiffs’ Motion th

For Tolling Order (Doc. No. 36), and all papers submitted in support thereof and in opposition

thereto, it is ORDERED that the Motion is GRANTED. The Statute of Limitations is 1

Case 2:04-cv-04598-RBS Document 44 Filed 02/20/07 Page 1 of 3
The equitable tolling doctrine applies to every federal statute of limitation, including the

FLSA. Henchy v. City of Absecon, 148 F. Supp. 2d 435, 438 (D.N.J. 2001) (citing Kamens v.

Summit Stainless, 586 F. Supp. 324, 328 (E.D. Pa. 1984). In the Third Circuit, “there are three

principal, though not exclusive, situations where equitable tolling may be appropriate: (1) if the

defendant has actively misled the plaintiff, (2) if the plaintiff has ‘in some extraordinary way’

been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights

mistakenly in the wrong forum.” Miller v. Beneficial Mgmt. Corp., 977 F.2d 834, 845 (3d Cir.

1992); see also Henchy, 148 F. Supp. 2d at 438. 

Courts have found equitable tolling to be appropriate in cases where a delay in a ruling

by the court would otherwise prejudice the opt-in plaintiffs. See Owens v. Bethlehem Mines

Corp., 630 F. Supp. 309, 312-13 (S.D. W. Va. 1986) (applying equitable tolling to ADEA action

based on five month delay in court’s ruling on class certification); see also Sperling v.

Hoffmann-La Roche, Inc., 118 F.R.D. 392, 411 (D.N.J. 1988) (granting equitable tolling because

of delay in court rulings and because “defendant has long had timely notice of the claims in this

case and plaintiffs’ efforts to find more class members”). In addition, in considering equitable

tolling, courts consider the underlying purpose of statutes of limitations—“to ensure fairness to

defendants and notify them of claims that they must defend before the claims grow stale.” 

Partlow v. Jewish Orphans’ Home of S. Cal., Inc., 645 F.2d 757, 761 (9th Cir. 1981), rev’d on

other grounds, Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989).

In the instant case, equitable tolling is appropriate because of court delay in approving

the Class Notice and because of Defendant’s somewhat unreasonable demand to include a

sentence in the Class Notice that suggests that opt-in plaintiffs will be responsible for

Defendant’s litigation costs. See Gerlach v. Wells Fargo & Co., No. C 05-0585, 2006 WL

824652, at *4 (N.D. Cal. Mar. 28, 2006) (noting that “[a]ny language in the notice regarding

defendants obtaining ‘an award of costs to be paid by the individual plaintiffs’ must define those

costs and be clear that potential plaintiffs will not bear the burden of paying defendants’

attorneys’ fees should defendants prevail”). The disagreement between the parties followed by

the delay have prevented potential opt-in plaintiffs from learning of this case within the statute of

limitations period. Moreover, Defendant will not be prejudiced by a tolling of the limitations

period because Defendant has had timely notice of the claims in this case and of Plaintiffs’

intention and efforts to find more class members. See Sperling, 118 F.R.D. at 411. 

Accordingly, we conclude that “extraordinary circumstances” have prevented potential

opt-in plaintiffs from asserting their rights in this matter and thus that equitable tolling properly

applies here. We will toll the limitations period beginning June 23, 2005, the date on which the

Court received Defendant’s letter explaining the impasse in negotiations over the proposed Class

Notice, and the deadline for FLSA opt-in consent forms, a deadline which will be set in a later

Order approving and facilitating Notice.

Case 2:04-cv-04598-RBS Document 44 Filed 02/20/07 Page 2 of 3
3

tolled for potential opt-in plaintiffs from June 23, 2005 until the filing deadline for FLSA opt-in

consent forms, which deadline will be set by Order approving and facilitating Notice.

IT IS SO ORDERED.

BY THE COURT:

_____________________

R. Barclay Surrick, Judge

Case 2:04-cv-04598-RBS Document 44 Filed 02/20/07 Page 3 of 3