UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

NANCY ALLISION and HOLLY BURNEY, Case No.: 3:14-CV-1005-AC

both in their individual capacities and, in 

addition, as a collective action on behalf of OPINION AND ORDER

others similarly situated, 

Plaintiffs,

v.

SCOTT DOLICH and ANNA JOSEPHSON, 

individuals, and PARK KITCHEN LLC,

an Oregon limited liability company, 

Defendants.

___________________________________

ACOSTA, Magistrate Judge:

Introduction

Plaintiffs Nancy Allison and Holly Burney (collectively “Plaintiffs”) brought this collective 

action against their prior employer seeking damages for violations of the Fair Labor Standards Act 

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(29 U.S.C. §§ 201 - 219) (the “Act”)1

. Plaintiffs now seek to amend their complaint to add a second

employer, for tolling of the statute of limitations, and for the production of payroll records from the

second employer.

The court finds the evidence of the relationship between the existing defendants and the

second employer is sufficient to justify adding the second employer to this action and that Plaintiffs

are entitled to production of the payrolls records from the second employer. While the precertification communications between the parties and prospective plaintiffs may have been

somewhat misleading, any misunderstanding may be remedied in a post-certification notice and the

existing defendants were under no obligation to provide the requested contact information prior to

certification of the action as a collective action. Accordingly, Plaintiffs’ motion to amend the current

complaint to add the second employer is granted2and Plaintiff may subpoena production of payroll

records from the second employer. Plaintiffs’ motion to toll and for corrective notice is denied.

Background

Plaintiffs filed this action on June 20, 2014, against Park Kitchen LLC (“Park”) and Scott

Dolich (“Dolich”). Park is a limited liability company registered with the Oregon Secretary of State

and Dolich is Park’s sole listed member. (Compl. ¶ 6.) On September 28, 2014, Plaintiffs filed an

amended complaint with the court’s approval, adding Anna Josephson, Park’s general manager

(“Josephson”), as a defendant (the “Amended Complaint”). (Am. Compl. ¶ 5.)

1Plaintiffs also alleged individual claims for retaliation based on their termination after

complaining about the alleged violations which are not relevant to the issues currently before the

court.

2The parties have consented to jurisdiction by magistrate in accordance with 28 U.S.C.

§ 636(c)(1).

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In the Amended Complaint, Plaintiffs allege Park, Dolich, and Josephson (collectively

“Defendants”) required employees to pool their tips and share them with managers and back-of-thehouse employees who are not traditionally tipped employees. (Am. Compl. ¶ 6.) Plaintiffs further

allege the tip pool was not valid under the Act. (Am. Compl. ¶ 6.) As a result of the alleged illegal

tip pool, employees were paid less than the federal minimum wage to which they were entitled. 

(Am. Compl. ¶¶ 11, 13.) At least three other Park employees, Rebecca Elroy, Teal Garrels

(“Garrels”), and Elisabeth McKnight, have filed consents to join in this action. 

Legal Standard

I. Motion to Amend

After the initial pleading stage, a plaintiff may amend his “pleading only with the opposing

party’s written consent or the court’s leave. The court should freely give leave when justice so

requires.” FED. R. CIV. P. 15(a) (2013). “Although the rule should be interpreted with ‘extreme

liberality,’ leave to amend should not be granted automatically.” Jackson v. Bank of Hawaii, 902

F.2d 1385, 1387 (9th Cir. 1990) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). 

A trial court may deny the motion if permitting amendment would prejudice the opposing party,

produce an undue delay in litigation, result in futility for lack of merit, is sought by plaintiffs in bad

faith or with a dilatory motive, or the plaintiffs have filed numerous amended complaints. Foman

v. Davis, 371 U.S. 178, 182 (1962); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.

1987). Prejudice to the opposing party carries the “greatest weight” in determining whether to deny

leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 

Whether to grant leave to amend lies within the sound discretion of the trial court. Webb, 655 F.2d

at 979. In exercising this discretion, however, the court “must be guided by the underlying purpose

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of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities.” Id.

II. Motion to Toll and for Corrective Notice

Collective actions are similar to class actions prosecuted under Rule 23 of the Federal Rules

of Civil Procedure where the “district court ha[s] both the duty and broad authority to exercise

control over a class action and enter appropriate orders governing the conduct of counsel and the

parties.” Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 171 (1989) (quoting Gulf Oil v.

Bernard, 452 U.S. 89, 101 (1981)). In the context of a collective action, where potential plaintiffs

may decide to participate in the litigation after receiving notice, it is paramount that early

communications with prospective plaintiffs be timely, accurate, and informative. Sperling, 493 U.S.

at 171-72. Accordingly, it is in the best interest of all for the court to become involved in the

management of the litigation, and primarilythe communications, at the outset of the action, provided

the court maintains its neutrality. Id. (citing Gulf Oil, 452 U.S. at 101.) Areas the court may address

in appropriate cases include authorizing the lead plaintiff to notify potential plaintiffs of the action,

resolve any disputes regarding the content of those notices, and set deadlines for potential plaintiffs

to join the action. Sperling, 493 U.S. 171-72. 

Discussion

I. Motion to Amend

Plaintiffs seek leave to add The Bent Brick (“Bent Brick”) as a defendant. Plaintiffs allege

in the proposed Second Amended Complaint (the “Proposed Complaint”) thatBentBrick is a limited

liability company registered with the Oregon Secretary of State, Dolich is Bent Brick’s sole listed

member, Josephson is Bent Brick’s general manager, Bent Brick employs collective action members,

and Bent Brick violated the Act in the same manner as Defendants. (Pls.’ Tripartite Mot. as Ordered

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by the Court (“Mot.”) Ex. 1 at ¶ 5.)

One current plaintiff, Garrels, worked at both Park and Bent Brick from February 2013 to

February 2014. (Garrels Decl. ¶¶ 2-3.) She originallywas hired at Park in November 2012. (Garrels

Decl. ¶ 2.) She did not complete an employment application or separate interview before working

for Bent Brick. (Garrels Decl. ¶ 3.) Garrels worked at both restaurants depending on the staffing

needs and, on occasion, would show up at the restaurant where she was scheduled to work and be

sent to the other restaurant because it was busier or shorter staffed. (Garrels Decl. ¶ 7.) The

restaurants had the same workweeks, pay periods, POS system, tip pool, tip checks, pay checks,

paydays, and payroll company. (Garrels Decl. ¶ 4.) Dolich was at both restaurants every day and

Josephson worked at both restaurants equally. (Garrels Decl. ¶ 6.) The same payroll errors occurred

at both restaurants at the same time. (Garrels Decl. ¶ 5.) Garrels received nearly identical letters

from the restaurants over the summer of 2014 explaining a payroll error had been discovered during

an audit with back pay checks included. (Garrels Decl. ¶¶ 8-12.) Garrels was aware of others who

worked at both restaurants. (Garrels Decl. ¶ 4.) The restaurants also “shared kitchen appliances and

space, and frequently borrowed each other’s kitchen equipments, furniture, chairs, places, and

serving platters. (Allison Decl. ¶ 6.) At least one piece of training material, an outline of the fourday basic floor training, was provided by “Dolich Enterprises” and similar training occurred at both

Park and Bent Brick. (Elroy Decl. ¶ 3.) The employee receiving the outline understood Dolich

Enterprises referred to both restaurants owned and operated byDolich – Park and Bent Brick. (Elroy

Decl. ¶ 3.)

Plaintiffs argue Bent Brick is a co-employer of many of the collective action members and

is, therefore, a proper defendant in this action. Defendants concede the restaurants shared some

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employees who expressed an interest at working at both locations, but contend most employees

worked for only one restaurant at a time. (Josephson Decl. ¶¶ 13 14, 17.) Defendants represent the

restaurants are separate entities with their own employer identification numbers that operated from

distinct locations, maintained separate bank accounts, contracted with its own suppliers and vendors,

and had its own unique menu, chef, and staff. (Josephson Decl. ¶¶ 2-9.) Defendants argue Bent

Brick are neither a single enterprise or joint employer under the Act, and therefore, amendment is

not appropriate. 

Plaintiffs allegeBent Brick is the employer of some of the collective action members and has

violated the Act. The right of Bent Brick employees to sue Bent Brick for violations of the Act is

not at issue. Clearly, Bent Brick employees could file a complaint against Bent Brick alleging

violations of the Act. The only question is whether Bent Brick may be added as a defendant to this

action. 

The Supreme Court and the Ninth Circuit have consistently found the central purpose of the

Act is to enact minimum wage and maximum hour provisions designed to protect employees. See,

e.g., Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981); Adair v. City of

Kirkland, 185 F.3d 1055, 1059 (9th Cir. 1999). The Act’s definition of employee has been called

the “ ‘broadest definition that has ever been included in any one act.’ ” U.S. v. Rosenwasser, 323

U.S. 360, 363 n.3 (1945) (quoting 81 Cong. Rec. 7,657 (1938) (statement of Sen. Black)). “‘Employ’

includes to suffer or permit to work.” 29 U.S.C. § 203(g) (2014). “‘Employer’ includes any person

acting directly or indirectly in the interest of an employer . . . .” 29 U.S.C. § 203(d). The Ninth

Circuit has held that the Act’s definition of “employer” is not to be limited to its common law

concept, but “is to be given an expansive interpretation in order to effectuate the [Act]’s broad

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remedial purposes.” Boucher v. Shaw, 572 F.3d 1087, 1090-91 (9th Cir. 2009) (citing Lambert v.

Ackerley, 180 F.3d 997, 1011-12 (9th Cir. 1999) (internal quotation marks and citations omitted)). 

“The touchstone is the ‘economic reality’ of the relationship.” Id. (citing Goldberg v. Whitaker

House Coop., Inc., 366 U.S. 28, 33 (1961)).

Two or more employers may jointly employ someone for purposes of the Act. Bonnette v.

California Health & Welfare Agency, 704 F.2d 1465, 1469 (9th Cir. 1983), abrogated on other

grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 539 (1985) (citing Falk v.

Brennan, 414 U.S. 190, 195 (1973)). All joint employers are individually responsible for

compliance with the Act. 29 C.F.R. § 791.2(a) (1981).

A. Single Enterprise

Defendants contend Plaintiffs must establish Park and Bent Brick are a “single enterprise”

before they may be held jointly liable under the Act. The minimum wage provisions of the Act

protect those “ in an enterprise engaged in commerce or in the production of goods for commerce.” 

29 U.S.C. §206. “Enterprise” is defined as:

the related activities performed (either through unified operation or common control)

by any person or persons for a common business purpose, and includes all such

activities whether performed in one or more establishments or by one or more

corporate or other organizational units including departments of an establishment

operated through leasing arrangements, but shall not include the related activities

performed for such enterprise by an independent contractor. 

29 U.S.C. 203(r)(1). Accordingly, three elements are required to show an entity, or entities, fall

within the definition of enterprise: 1) related activities; 2) unified operation or common control; 

and 3) a common business purpose. Chao v. A-One Medical Services, Inc., 346 F.3d 908, 915 (9th

Cir. 2003).

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Defendants do not appear to argue Park and Bent Brick are not an enterprise when viewed

individually or that the minimum wage protections of the Act do not apply to them. They argue only

that Park and Bent Brick are not entities that comprise an enterprise when viewed together. This

argument addresses the wrong point; the correct question is whether Bent Brick should be added as

a joint employer based on its relationship to Park, Dolich, and Josephson. “Whether two companies

constitute a single enterprise for FLSA coverage and whether theyare liable as joint employers under

§ 207 are technically separate issues.” Id. at 917 (citing Patel v. Wargo, 803 F.3d 632, 637 (11th

Cir. 1986)(“[T]he enterprise analysis is different from the analysis of who is liable under the FLSA. 

The finding of an enterprise is relevant only to the issue of coverage.”). In any event, the allegations

of the Proposed Complaint and the evidence offered byPlaintiffs sufficientlyestablish Park and Bent

Brick could qualify as an “enterprise” under the Act. 

Activities are considered “related” under the Act “when they are the same or similar, such

as those of the individual retail or service stores in a chain . . . .” 29 C.F.R. §779.206(a). Park and

Bent Brick are individual restaurants owned by Dolich and managed under the umbrella of Dolich

Enterprises. This relationship is similar to the relationship between individual retail or service stores

and the “chain” that owns and/or manages such stores. See Morgan v. Speakeasy, LLC, 625 F. Supp.

2d 632, 647 (N.D. Ill. 2007)(two “sister operations” providing restaurant services were engaged in

related activities). Dolich, Dolich Enterprises, and Josephson provided common control over Park

and Bent Brick. Bent Brick and Park share the common business purpose of providing food and

beverages to their customers, and shared property and employees while doing so. See 29 C.F.R. §

779.213 (“Generally, the term ‘common business purpose’ will encompass activities whether

performed by one person or bymore than one person, or corporation, or other business organization,

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which are directed to the same business objective or to similar objectives in which the group has an

interest.”); Chao, 346 F.3d at 916 (“[A] common business purpose is generally found where there

are related activities and common control.”). The court finds, for the purposes of a motion to amend,

Plaintiffs have adequately established Park and Bent Brick qualify as an enterprise under the Act. 

B. Joint Employer

“[J]oint employers are responsible, both individually and jointly, for compliance with all of

the applicable provisions of the [A]ct.” 29 C.F.R. § 791.2(a). In scenarios where the alleged joint

employment is horizontal,3 which is the case here, the Ninth Circuit looks to the regulations as a

guide for determining the existence of joint employment. Chao, 346 F.3d at 917. 

Where the employee performs work which simultaneously benefits two or more

employers, or works for two or more employers at different times during the

workweek, a joint employment relationship generally will be considered to exist in

situations such as:

 * * *

(3) Where the employers are not completely disassociated with respect to the

employment of a particular employee and may be deemed to share control of the

employee, directly or indirectly, by reason of the fact that one employer controls, is

controlled by, or is under common control with the other employer. 

29 C.F.R. § 791.2(b). 

In the briefing, the parties appear to concentrate on the relationship between Park and Bent

Brick in arguing whether or not they are joint employers. The court finds the relationship between

Dolich and Josephson, as the owner and general manager of both restaurants, and the collective

members is primarily relevant. While Bent Brick and Park may have operated as separate entities

3Vertical joint employment occurs when “a company has contracted for workers who are

directly employed by an intermediary company.” Chao v. Westside Drywall, Inc., 709 F. Supp. 2d

1037, 1062 (D. Or. 2010).

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financially, the evidence establishes that the employees of both restaurants were controlled and

supervised byDolich, through Josephson and other managers. Dolich, or Dolich Enterprises, trained

the employees of both restaurants in the same manner; scheduled the employees at both restaurants,

sometimes sending an employee from one restaurant to the other when necessary; paid the employees

of both restaurants in a similar manner through the same payroll company; and issued nearly

identical corrective notices to the employees of both restaurants after becoming aware of Plaintiffs’

claims against Park. These facts support a finding that the employers were not “completely

disassociated” with respect to the employment of the mutual employees and the restaurants are under

common control.

The court is merely determining, at this juncture, if Plaintiffs should be allowed to amend

the Amended Complaint to add Bent Brick as a defendant. It is not considering whether Plaintiffs

have stated a viable claim under Rule 12, or have sufficiently supported that claim with evidence to

survive a Rule 56 motion. In light of the evidence showing the relationship between Dolich and both

restaurants, the sharing of personal property and employees between the restaurants, and the

“underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or

technicalities,” the court finds the addition of Bent Brick as a defendant is appropriate. This finding

does not prevent Defendants from moving to dismiss the claims against Bent Brick or Bent Brick

moving for summary judgment once adequate discovery has been accomplished. 

II. Motion to Toll and for Corrective Notice 

Plaintiffs contend Defendants’ communications with prospective class members after this

action was filed has been misleading, coercive, and intimidating. Plaintiffs also represent

Defendants refused to provide contact information for the prospective class members in response to

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Plaintiffs’ request. Plaintiffs ask the court to issue a corrective notice apprising prospective

plaintiffs ofDefendants’ inaccurate and confusing communications, and toll the statute of limitations

based on Defendants’ coercive and intimidating communications and failure to timely provide 

requested contact information.

In a demand letter dated May 5, 2014, Plaintiffs’ counsel gave Park and Dolich written notice

of nonpayment and a wage claim as required under Oregon law. (Egan Decl. Ex. 1 at 1.) The letter

outlined Plaintiffs’ claims for wrongful deductions, minimum wage violations, unpaid wages, and

retaliation and wrongful termination. (Egan Decl. Ex. 1 at 1-2.) The letter informed the recipients

it “will serve as an ORS 652.750 demand for documents and spoliation notice.” (Egan Decl. Ex. 1

at 1.) Under a section entitled “Official Request for Employee Records,” the letter requests

documents relating to Plaintiffs and “all payroll and salary records for all employees beginning on

January 1, 2004,” and “the full name, present or last known address, telephone number and email,

present or last known place of employment, present or last known job title and relationship, if any,

to you or my client(s) of all persons believed to have knowledge of the facts concerning the claims

or defenses at issue. . . .” (Egan Decl. Ex. 1 at 4-5.)

A Park employee, who prefers to remain anonymous for fear of retaliation, provided

information to Plaintiffs’ counsel about statements made by Dolich at a weekly staff meeting on 

June 26, 2014, less than a week after this action was filed. (Egan Decl. ¶ 2.) Dolich acknowledged

the filing of this action and the allegations of allegedly illegal tip pooling, the improper distribution

of tips, and the failure to pay the required minimum wage. (Egan Decl. ¶ 2.) Dolich admitted to the

minimum wage violations, characterized it as an honest mistake, and indicated “they were in the

process of making amends for that.” (Egan Decl. ¶ 2.) He expressed his opinion that the tip pool,

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and distributions of tips, was proper based on statements from several attorneyfriends, and that “they

would fight that part of the lawsuit to the death.” (Egan Decl. ¶ 2.) He also stated the lawsuit did

not affect any of the current employees and that they should not worry about it. (Egan Decl. ¶ 2.) 

The employee explained:

I don’t want to reveal my name, because I am afraid of being retaliated

against and made uncomfortable at work. Even before I ever talked to Mr. Egan, I

had heard that Nan Allison and Holly Burney had been fired because of their

speaking out against the tip pool. Ireally don’t think most people even know that the

lawsuit applies to them. I do know that some other employees still disagree with the

general manager Anna Josephson getting a point in the tip pool, but we don’t feel like

we can talk about it openly.

(Egan Decl. ¶ 2.)

On July 21, 2014, Park forwarded letters to at least two employees who no longer worked

at Park, advising them of a financial error and providing a check for “retro pay.” (Garrels Decl. Ex.

4, 5; Pavey Decl. Ex. 1.) The letter, signed by Dolich, read:

I hope this letter finds you well. Upon auditing our previous payroll records, we

discovered that we owe you a small amount of back pay. This check covers the

amount we owe you plus a generous amount of interest for your inconvenience. We

realize it is a small amount but we like to keep our books clean. We are terribly sorry

for any inconvenience this may have caused.

(Garrels Decl. Ex. 4; Pavey Decl. Ex. 1.)4

Plaintiffs ask the court to toll the statute of limitations based on the Dolich’s misleading

statements in the staff meeting and Defendants failure to timely provide contact information in

response to the May 5, 2014, letter. Plaintiffs request for corrective notice relies on the misleading

statements in the staff meeting and the letters and checks mailed to ex-employees allegedly curing

4Bent Brick sent Teal a virtually identical letter and check on September 16, 2014. (Garrels

Decl. Ex. 6, 7.)

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any payment discrepancy.

A. Motion to Toll

Under the Act, the statute of limitations for filing a claim is two years, or three years if the

violation was “willful.” 29 U.S.C. § 255(a) (2014). Furthermore, an action under the Act: 

shall be considered to be commenced in the case of any individual claimant – 

(a) on the date when the complaint is filed, if he is specifically named as a

party plaintiff in the complaint and his written consent to become a party plaintiff is

filed on such date in the court in which the action is brought; or

(b) if such written consent was not so filed or if his name did not so appear –

on the subsequent date on which such written consent is filed in the court in which

the action was commenced.

29 U.S.C. § 256 (2014). The basic thrust of this statutory section is that a potential plaintiff must

submit his or her consent to become a party plaintiff within two or three years of an alleged violation

of the Act.

In general, “[e]quitable tolling applies when the plaintiff is prevented from asserting a claim

by wrongful conduct on the part of the defendant or when extraordinary circumstances beyond a

plaintiff’s control made it impossible to file a claim on time.” Veliz v. Cintas Corp., 2007 U.S. Dist.

LEXIS 24428, at *14 (N.D. Cal. Mar. 20, 2007) (citing Stoll v. Runyon, 165 F.3d 1238, 1242 (9th

Cir. 1999); Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996), cert. denied, 522

U.S. 814 (1997)). The doctrine “is extended sparingly and only where claimants exercise diligence

in preserving their legal rights.” Adams v. Inter-Con Security Systems, Inc., 242 F.R.D. 530, 542-543

(N.D. Cal. Apr. 11, 2007) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). The

Ninth Circuit has applied the doctrine of equitable tolling to collective actions under the Act. 

Partlow v. Jewish Orphans’ Home of Southern California, Inc., 645 F.2d 757, 761 (9th Cir. 1981). 

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1. Failure to Provide Contact Information

Plaintiffs argue Defendants’ failure to produce contact information for prospective employees

when requested justifies the tolling of the statute of limitations from June 26, 2014. Plaintiffs rely

on Adams for the proposition that a defendant’s delay in providing requested discovery may justify

equitable tolling. In Adams, the plaintiffs argued equitable tolling was appropriate “due to

defendant’s refusal to supply potential plaintiffs’ contact information to the named plaintiffs.” 

Adams, 242 F.R.D. at 543. The court agreed, noting plaintiffs were not at fault and defendants’

refusal was wrongful: “Because plaintiffs have diligently pursued their legal rights by soliciting

information from defendants, and defendants[’] refusal has delayed that pursuit, equitable tolling is

appropriate.” Id.

This court has previously characterized the result in Adams as an “anomaly.” Goudie v.

Cable Comm’ns, Inc.,Civ. No. 08-507-AC, 2008 WL 4861649, at *3 (D. Or. Nov. 8, 2008). Rather,

this court adopted the approach taken in Prentice v. Fund for Publ. Interest Research, Inc., No. C06-7776 SC, 2007 WL 2729187 (N. D. Cal. Sept. 18, 2007), which explicitly rejected Adams by

concluding the failure to produce requested contact information prior to conditional certification of

the collective did not warrant equitable tolling. The Prentice court reasoned “[i]f refusal to disclose

contact information is sufficient basis to grant equitable tolling, either the FLSA statute oflimitations

is meaningless or the Courts are reading a disclosure requirement into the FLSA where the statute

does not contain such a requirement.” Id. at *3. This court agreed “the FLSA contains no

requirement that a defendant produce contact information for potential plaintiffs prior to conditional

certification” and held “Plaintiffs’ reliance on Adams is unavailing.” Goudie, 2008 WL 4861649,

at *3. At least one other judge in this district has reached a similar conclusion. See Marguiles v. TriPage 14 - OPINION AND ORDER {SIB}

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County Metro. Transp. Dist. of Oregon, No. 3:13-cv-00475-PK, 2013 WL 5593040 (D. Or. Oct. 20,

2013)(“I agree with the courts that have found equitable tolling is not appropriate where a defendant

withholds contact information for potential plaintiffs prior to conditional certification of the

collective action.”).

This action has not been certified as a collection action. Plaintiffs are relying solely on a

request for contact information made on May 5, 2014, before this action even was filed. Defendants

refusal to provide contact information prior to issuance of the court’s final order authorizing notice

was not improper and, therefore, equitable tolling is not justified.

2. Staff Meeting Communications

Plaintiffs also rely on what they characterize as the misleading and inherently coercive

information provided at the staff meeting as justification for the equitable tolling of the statute of

limitations. Plaintiffs present testimony from an anonymous employee that Dolich represented the

lawsuit did not affect the employees present at the meeting and that most employees did not think

the lawsuit applied to them. While this establishes Park employees may have been unclear about

whether they could participate in the lawsuit, it did not prevent the employees from independently

investigating their rights or their ability join as a plaintiff in this action. In fact, if this action is

certified as a collective action, each of these employees will receive notice informing them of their

right to participate, thereby negating the effect of any misleading or coercive communication. 

Defendants’ conduct is not out of the ordinary, much less the extraordinary circumstances required

to justify equitably tolling the statute of limitations. Plaintiffs’ request for tolling of the statute of

limitations is denied.

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B. Motion for Corrective Notice

Plaintiffs also move for corrective notice to address the misleading information provided by

Defendants to prospective plaintiffs. Specifically, Plaintiffs’ claim Dolich’s statements at the staff

meeting led employees to believe they could not participate in this actions, and that the letters and

checks mailed to ex-employees could lead those individuals to believe Defendants had paid all sums

due them, leading to confusion about whether those recipient could joins as a plaintiff in this action.

Communications with prospective plaintiffs in a collective action prior to certification of the

class are generally allowed. Giles v. St. Charles Health System, Inc., 980 F. Supp. 2d 1223, 1226

(D. Or. 2013). These communications raise issues, however, when they are misleading, coercive,

or improper. Id. The court may address these issue by restricting the communications between the

parties and the prospective plaintiffs or ordering a corrective notice to remedy the effect of improper

communications. Id.; Goody v. JeffersonCounty,No.CV-09-437-E-BLW, 2010 WL3834025 (Sept.

23, 2010). The court’s authority to regulate communications with class members must be based on

clear evidence that a potential for serious abuse exists. Gulf Oil, 452 U.S. at 101. The moving party

bears the burden of establishing the “particular abuses by which it is threatened” Id. at 102. 

1. Staff Meeting Communications

Dolich’s statements at the staff meeting that the lawsuit does not affect the employees and 

they “should not worry about it” is misleading, as evidenced by the anonymous employee’s opinion

that most people did not know the lawsuit applies to them. However, if this action is certified as a

collective action, notice of the lawsuit will be sent to all Park employees, including those attending

the June 26, 2014, staff meeting. The notice will inform Park employees of the specifics of the

lawsuit and their right to join as a plaintiff, thereby remedying any misunderstanding created by

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Dolichs’ misleading statements. Accordingly, an independent corrective notice is not warranted.

2. Letters and Checks to Ex-Employees 

Plaintiffs argue the letters and checks mailed to ex-employees could be viewed by the

recipients as payment in full of all amounts due them from Park and a bar to participation in this

lawsuit. Plaintiffs identify Goody as a nearly identical case and argue this court should require

corrective notice as the Goody court did. The defendant in Goody sent letters to various putative

plaintiffs explaining the employees wages were not adequately paid and attaching a check to “ensure

compliance with all State and federal laws.” Goody, 2010 WL 3834025 at *1. At least one recipient

stated the letter and check confused him with regard to whether he could join the collective action. 

Id. The court found that while the recipient eventually joined in the action, his initial confusion was

evidence that others could be confused and corrective notice was necessaryto inform all prospective

plaintiffs of their right to join the collective action. Id. at *3.

Goody is distinguishable from this case in at least two particulars. First, Plaintiffs have not

presented evidence that any ex-employees considered the letter and check to be confusing with

regard to their right to participate in this action. To the contrary, Garrels, one of the ex-employees

who received a letter and check, has filed her consent to join this action, supporting the conclusion

that the correspondence was not misleading. Second, in Goody, the court indicated the plaintiffs

filed a motion for certification of a class action on February 3, 2010; the letters and checks were

mailed to the prospective plaintiffs on March 2, 2010; and the court approved the collective class

and proposed notice one month later. Id. at *1. As the opinion addressing the plaintiff’s motion for

corrective notice was dated September 23, 2010, it appears the initial notice to the collective

members had been mailed prior to the court considering the plaintiff’s motion for a corrective notice

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and that corrective notice was necessary to remedy the inconsistencies between the initial notice and

the letters and checks. 

Here, Plaintiffs have not filed, and the court has not approved, a motion to certify this action

as a collective action. Consequently, Plaintiffs have not provided Park employees and ex-employees

of the specifics of the lawsuit and their right to participate in the action. If this collective action is

certified, the initial notice may be framed to remedy any confusion resulting from Park’s letters and

checks. Accordingly, the court finds corrective notice to remedy any current misunderstanding

created by the letters and checks is not required. 

III. Motion for Production of Bent Brick Payroll Records

Defendants argue the court should not allow the production of Bent Brick’s payroll records

if it allows Plaintiffs to add Bent Brick as a defendant. Defendants appear to concede the records

are relevant, and discoverable, if Bent Brick is a party to the litigation. The court has granted

Plaintiffs’ motion to amend. Consequently, the production of Bent Brick payroll records is

appropriate. Plaintiffs are authorized to issue subpoenas to Paychex and BenefitMall for the

production of Bent Brick’s payroll records.

Conclusion

Plaintiffs’ motion (#27) to amend the Amended Complaint to identify Bent Brick as a

defendant is granted and Plaintiffs may issue subpoenas for the production of Bent Brick’s payroll

records. Plaintiffs’ motion to toll and for corrective notice is denied.

DATED this 16th day of December, 2014.

 /s/ John V. Acosta 

 JOHN V. ACOSTA

United States Magistrate Judge

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