-4-
be unmanageable as a collective action. Furthermore, we reject
defendants’ de minimis argument.

Accordingly, plaintiff’s motion to compel defendants to
produce a Rule 30(b) (6) witness regarding the display of a notice
regarding employees’ rights to overtime pay is granted.
Plaintiff’s motion for sanctions is denied because defendants’
position was “substantially justified,” that is, it had a
reasonable basis. See Fed. R. Civ. P. 37(a) (4); Pierce v.
Underwood, 487 U.S. 552, 565-66 (1988) (construing the phrase
“substantially justified”). Although we agree with Judge
Gottschall’s opinion in Cortez on the issue of equitable tolling,
there does not appear to be any Seventh Circuit case law directly
on point, and case law from other circuits is sparse.

CONCLUSION

Plaintiff's motion to compel defendants to produce a Rule
30(b) (6) witness on the issue of defendants’ display of the FLSA
notice is granted. The deposition shall be taken by February 26,
2004. A status hearing is set for March 10, 2004, at which time
plaintiff’s motion to give notice to similarly situated persons

will be discussed.



~a-
the notice was displayed, pursuant to Rule 30(b) (6) of the Federal
Rules of Civil Procedure.

Defendants argue that they need not produce a Rule 30(b) (6)
witness for two reasons: 1) equitable tolling does not apply to the
FLSA statute of limitations; and 2) Cisneros, whose claim was
timely filed, is not “similarly situated” to plaintiffs who would
invoke equitable tolling, nor could those plaintiffs’ claims be
Managed in a collective action. Defendants also contend that
plaintiff cannot represent any other plaintiffs because his claim
is de minimis.

We agree with our colleague in this district that an
employer’s failure to post the notice required by 29 C.F.R. § 516.4
tolls the FLSA statute of limitations until an employee acquires a
general awareness of his rights under the FLSA. See Cortez v.
Medina’s Landscaping, No. 00 C 6320, 2002 WL 31175471 (N.D. Ill.
Sept. 30, 2002) (Gottschall, J.). Moreover, we reject defendants’
argument that Cisneros is not “similarly situated” to plaintiffs
who would invoke equitable tolling. The difference in the
applicable limitations periods is not one that overrides the basic
similarity of plaintiff's substantive claim and the possible
substantive claims of other plaintiffs--the alleged failure to pay
them overtime wages. The difference is not one that would affect
plaintiff’s motivation or ability to adequately represent these

other plaintiffs, nor do we believe that plaintiffs’ claims would


“

DATE:

ENTER:

-5-

February 5, 2004

Sey

John ady, United States oisefigt Judge



Minuee O-ger Form (06/97)

.

United States District Court, Northern District of Illinois

Keo Anil ap John F. Grady Sting Jaa Othe

CASE NUMBER 03 C 1453 DATE February 5, 2004
CASE Cisneros v. Jinny Beauty Supply Co and Ok Sung Choe
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.)

in part. ENTER MEMORANDUM OPINION.

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.)

(2) im) Brief in support of motion due

3) a Answer brief to motion due___. Reply to answer brief due__.

(4) oa Ruling/Hearing on ____sset for____at

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

(6) a Pretrial conference[held/continued to] [set for/re-set for]}on__——ssetfor_ sat.

(7) o Trial[set for/re-set for]on sat

(8) o [Bench/Jury trial] [Hearing] held/continued to____at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (General Rule21 © FRCP41(a\(1) 0 FRCP41(a)(2).

ao) «=f [Other docket entry] _ Plaintiff's motion to compel and for sanctions [7-1] is granted in part and denied

Notified counsel by telephone.

ql x [For further detail see order (on reverse side of/attached to) the original minute order.}
No notices required, advised in open court. Document
a . Number
No notices required. umber of notices
X._ | Notices MAILED by judge's staff. FEB 0 6 2004

are docketed.
Docketing to mail notices. _ }
Mail AO 450 form. 4c ay

Copy to

dyno L3IYLSIG°S'P_aememie
depuis yuaid

KAM deputy’s KAM

initials Dateligreaive ip C- 934 "Wu nailing deputy initials

(Reserved for use by the Court)
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03-1453.041-JCD February 5, 2004

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EPIFANIO CISNEROS, on behalf of
himself and all other plaintiffs

PACKETED

similarly situated, known and FEB 0 6 2004
unknown,

Plaintiff,

v. No. 03 C 1453

JINNY BEAUTY SUPPLY CO., INC.,
and OK SUNG CHOE, individually,

Defendants.

MEMORAND OPINION

Before the court is plaintiff’s motion to compel and for
sanctions. For the reasons explained below, the motion is granted
in part and denied in part.

BACKGROUND

Plaintiff, Epifanio Cisneros, brought suit (on his own behalf
and on behalf of others similarly situated) against defendants
Jinny Beauty Supply Co. (“Jinny”) and Ok Sung Choe, an individual,
alleging violation of the Fair Labor Standards Act, 29 U.S.C. § 201
et seq. (the “FLSA”), and the Portal-to-Portal Act, 29 U.S.C. § 251
et seq. (Count I); willful violation of the FLSA (Count II); and
violation of the Illinois Minimum Wage Law, 820 ILCS § 105/1 et
seq. (Count IV). Plaintiff also seeks to collect liquidated

damages pursuant to the FLSA (Count III). The complaint alleges

|



-~2-
that defendants, who are beauty supply distributors, failed to pay

overtime wages to plaintiff and other similarly situated employees.

The FLSA allows for “collective actions” to be maintained for
alleged violations of the statute as follows:

An action to recover the liability prescribed in [certain

sections of title 29] may be maintained against any

employer (including a public agency) . . . by any one or
more employees for and in 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). This “opt-in” requirement preempts the class
action procedure outlined in Federal Rule of Civil Procedure 23.
See King v. General Elec. Co., 960 F.2d 617, 621 (7th Cir. 1992).

Plaintiff has filed a motion to give notice to similarly
situated persons. The motion was not fully briefed because the
parties were attempting to agree on the scope of notice. During
the parties’ discussions, a discovery issue arose and led to the
instant motion to compel.

Plaintiff asserts that defendants failed to display a notice
explaining employees’ rights to overtime pay under the FLSA, as
required by 29 C.F.R. § 516.4. According to plaintiff, the
practical effect of the failure to display this notice is the

equitable tolling of the FLSA statute of limitations. Plaintiff

seeks to compel defendants to produce a witness regarding whether