that individuals not named in the complaint file written consent forms to become party plaintiffs.
29 U.S.C. § 216(b). Without these written consents, Gordon is prohibited from maintaining and
prosecuting this action on behalf of a class of similarly situated employees.' See Groshek, 425 F.
Supp. at 233 (observing that plaintiff in FLSA claim could not bring class action without written
consents from coemployees); Lombardi, 69 F.R.D. 411 (denying plaintiff's motion to maintain
class action because no consents filed with court). Although Gordon cannot maintain this suit as
a representative of a class, she may continue to prosecute this suit as an individual action. 425 F.
Supp. at 233; Wallace v. Water Tank Serv. Co., 256 F, Supp. 689, 690 (W.D. Okl. 1966).
Defendant’s motion to dismiss is denied to the extent that the entire action will not be stricken;
however, defendant’s motion is granted to the extent that the class action component of this suit

is hereby stricken.
Enter:
€ ,
)
“Ded 4
David H. Coar
United States District Judge

Dated: February 22, 2001

' To maintain a class action suit, plaintiff may be able to amend her complaint by filing
the required written consent forms before the statute of limitations runs. The applicable statute
of limitations period is two years after the cause of action accrues. See 29 U.S.C. §§ 255(a)
(setting forth two year limitations period), 256 (delineating time that action is deemed to have
commenced).

3.


Minute Order Form (06497)

e

United States District Court, Northern District of Illinois

Name of Assigned Judge David H, Coar Sitting Judge if Other
or Magistrate Judge ° than Assigned Judge
CASE NUMBER 00 C 7912 DATE February 22, 2001
CASE Gordon v. Trace Ambulance
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION: nature of the motion being presented.)

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) imi Answer brief to motion due . Reply to answer brief due

(4) i) Ruling/Hearing on set for at

(5) Oo Status hearing{held/continued to] [set for/re-set for] on set for at

(6) ia) Pretrial conference{held/continued to] [set for/re-set for] on set for at

(7) Oo Trial[set for/re-set for] on at

(8) a [Bench/Jury trial] [Hearing] held/continued to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (General Rule 21 CO FRCP41(a)(1) OO FRCP41(a)(2).

(0) «of [Other docket entry] For the reasons stated in the attached Memorandum Opinion and Order,
Defendant’s motion to dismiss [Doc. 3-1] is denied to the extent that the entire action will not be stricken;
however, defendant’s motion is granted to the extent that the class action component of this ft is hereby
stricken. Ruling date of February 27, 2001 is stricken. -

e
al oa [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court.
No notices required. umber nies
Notices mailed by judge’s staff.
|_| FEB 23 2001
x Notified counsel by telephone. date docketed
X_ | Docketing to mail notices. \s
Mail AO 450 form. docketing deputy initials |
Copy to judge/magistrate judge. 4
iyi

de(le)

date maited notice
courtroom

deputy’s
initials

UPFED ge

Date/time received in

central Clerk’s Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS yae(t"
EASTERN DIVISION VO aot
gep2dt

GAYLE M. GORDON, individually and on
behalf of a class of similarly situated
employees,

Plaintiffs,

No. 00 C 7912
v.

TRACE AMBULANCE, INC. and
BLACKHAWK MEDICAL
TRANSPORTATION, INC., Illinois

)
)
)
)
)
)
)
) HONORABLE DAVID H. COAR
)
)
)
corporations, )
)
)

Defendants.

MEMORANDUM OPINION AND ORDER

Gayle M. Gordon (“Gordon”) brings this action on behalf of herself and a class of
similarly situated employees (collectively, “Plaintiffs”) of Trace Ambulance, Inc. and Blackhawk
Medical Transportation, Inc. (“Defendants”). Gordon alleges that the defendants failed to
provide her and the class of employees on whose behalf she brings suit overtime compensation
for the hours worked in excess of the 40 hours per workweek during the period March 26, 2000
through July 22, 2000, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
207(a). Before this court is Defendant’s motion to dismiss. For the reasons discussed below, the
motion is granted in part and denied in part.

In a Fed. R. Civ. P. 23(b)(3) class action, once a class is certified, class members are

deemed parties to the action unless they elect to opt out upon receiving notice of the action. Fed.

EN

“le


R. Civ. P. 23(b). The instant claim for overtime compensation, however, is governed by §16(b)

of the FLSA, 29 U.S.C. § 216(b), which sets forth a different standard for maintaining class

action suits. Section 16(b), which provides a remedy against employers who fail to pay

minimum wage of overtime compensation, reads in relevant part:
Action to recover such liability may be maintained against any employer... in any
Federal or State court of competent jurisdiction by any one or more employees for and on
behalf of himself or themselves and other employees similarly situated. 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). Accordingly, no individual in a FLSA suit can become a party plaintiff or

be bound by a judgment unless she opts into the class by filing a written consent. Lombardi v.

Altemose Constr. Co., Inc., 69 F.R.D. 410, 411 (E.D. Pa. 1975).

Thus, whereas Rule 23 authorizes a class action upon the certification of a class until
presumptive class members opt out, § 16(b) bars the maintenance of a class action unless and
until individuals affirmatively opt in. Allen v. Marshal Field & Co., 93 F.R.D. 438, 441 (N.D.
Il. 1982). In examining the requirements articulated in Rule 23 and §16(b), the courts have
concluded that “[t]here is a fundamental, irreconcilable difference between the class action
described in Rule 23 and that provided for by FLSA §16(b). ... It is crystal clear that § 16(b)

precludes pure Rule 23 class actions in FLSA suits.” Groshek v. Babcock and Wilcox Tubular

Products Division, 425 F, Supp. 232, 233 (E.D. Wis. 1977) (quoting LaChapelle v. Owens-

Illinois, Inc., 513 F.2d 286, 288 (Sth Cir. 1975)).

Thirteen months have passed since Gordon filed her purported class action suit. No

consents have been filed with this court, other than Gordon’s. Section 16(b), however, requires

-2-