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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gabriel Scales, 

Plaintiff, 

v. 

Information Strategy Design Incorporated, 

et al., 

Defendants. 

No. CV-18-00087-PHX-DLR 

ORDER 

 Plaintiff filed this Fair Labor Standards Act (“FLSA”) collective action on January 

9, 2018. (Doc. 1.) Six months later, he moved for conditional class certification. (Doc. 

31.) Both parties requested and received extensions of time in which to file responsive and 

reply memoranda. (Docs. 34, 35, 37, 38.) As a result, Plaintiff’s motion for conditional 

class certification became fully briefed, and therefore ripe for the Court’s consideration, on 

August 3, 2018. (Doc. 39.) On December 21, 2018, the Court issued an order granting 

Plaintiff’s motion and conditionally certifying the following class: 

All persons who worked as computer help desk workers (or in other positions with similar job titled or job duties) and worked more than 40 hours in a given workweek for Defendant at any time from three years prior to the filing of this Complaint through the entry of judgment (“the Collective Members”). 

(Doc. 40.) The Court also directed Defendants to provide Plaintiff with the names, last 

known mailing addresses, last known email addresses, and dates of employment for all 

potential class members by no later than January 11, 2019. (Id.) 
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 As currently formulated, the conditionally certified class includes computer help 

desk workers who performed overtime work from January 9, 2015 through the present. 

Defendants, however, have filed a Motion for Clarification/Modification of Order Granting 

Conditional Certification (Doc. 41), in which they correctly note that the statute of 

limitations for each plaintiff who opts-in to an FLSA collective action runs from the date 

that he or she files a notice of consent to join the lawsuit, not the date the complaint was 

filed. 29 U.S.C. § 256; see also Rose v. Wildflower Bread Co., No. CV09-1348-PHX-JAT, 

2011 WL 208044, at *2 (D. Ariz. Jan. 20, 2011) (“Under the FLSA, the statute of 

limitations for each individual party plaintiff is not tolled until he or she filed a written 

consent to opt-in to the action.”). The FLSA imposes a two-year statute of limitations for 

unpaid wage claims, and a three-year statute of limitations in the case of willful violations. 

29 U.S.C. § 255(a). Defendants therefore ask the Court to modify the conditionally 

certified class to include only those relevant employees who were employed between 

January 11, 2016 and the present—representing three years from the date Defendants are 

required to provide Plaintiff with a list of potential class members and their contact 

information.1

 Defendants contend that such a limitation is appropriate at this point to avoid 

the needless expenditure of time and resources to notify individuals with time-barred 

claims and to potentially litigate those claims. 

 Plaintiff does not dispute that the statute of limitations for class members’ claims 

generally runs from the date those members opt-in to the action. He argues, however, that 

the Court should deny Defendants’ request for three reasons: (1) the statute of limitations 

should be equitably tolled because Defendants failed to conspicuously post at the 

workplace a notice of the FLSA’s requirements, as required by 29 C.F.R. § 516.4; (2) the 

statute of limitations should be equitably tolled beginning June 15, 2018 (when Plaintiff 

filed his motion for conditional class certification) to account for the time it took for the 

Court to issue a decision on the motion; and (3) it is premature to narrow the potential class 

 1

 Defendants do not concede that the three-year statute of limitation applies but are willing to apply the longer limitations period for purposes of the present motion and this early phase of the litigation. 
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because Defendants can raise these same arguments at a later stage of the litigation. (Doc. 

43.) Plaintiff’s arguments are not persuasive. 

 To the first point, the Court acknowledges a split in authority concerning whether 

an employer’s failure to post at the workplace a notice of the FLSA’s requirements, without 

more, equitably tolls the statute of limitations. Both parties cite cases supporting their 

positions on this point, and the Ninth Circuit does not appear to have weighed in on the 

issue. This Court, however, does not need to resolve this legal question at this stage to rule 

on the pending motion because Plaintiff has done nothing more than speculate that 

Defendants did not post the required notice. Nowhere in his complaint does Plaintiff allege 

that Defendants failed to post the notice, nor was the issue raised in the parties’ Joint 

Proposed Case Management Plan. (Doc. 18.) Plaintiff likewise offered no evidence in his 

response brief to support this factual assertion. Though Plaintiff cites cases in which the 

statute of limitations was tolled because of an employer’s failure to post a required FLSA 

notice, in all of those cases the plaintiffs at the very least alleged those facts. Here, Plaintiff 

has done nothing more than speculate in a response memorandum. 

 To the second point, the Court finds Plaintiff’s contention that the statute of 

limitations should be tolled beginning on the date he filed his motion for class certification 

to be meritless. First, this District’s Local Rules of Practice (as well as basic notions of 

fairness) allowed Defendants to respond to the motion, and for Plaintiff to reply to that 

response. Plaintiff offers no explanation as to why equitable tolling should apply as of the 

date he filed his motion for class certification (June 15, 2018), as opposed to the date the 

motion became fully briefed (August 3, 2018). Second, in most cases a motion seeking 

substantive relief (as opposed, for example, to a motion seeking an extension of a deadline 

or page limit) will not be ruled on by the Court the very day it becomes ripe for 

consideration. The Court has other cases besides this one on its docket, and even if the 

Court could immediately direct its attention to any given motion upon the filing of the reply 

memorandum, it reasonably takes time to review the briefs, conduct legal research, 

consider and weigh the issues, reach a decision, write a reasoned order, and have that order 
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docketed and served on the parties. To the extent Plaintiff argues that the statute of 

limitations should be equitably tolled for at least part of the time that the Court had the 

fully briefed motion under advisement, he fails to identify precisely when that tolling 

should begin. That is, if Plaintiff is implying that the Court took too long after August 3, 

2018 to rule, he does not propose how much time would have been reasonable for the Court 

to take considering the issues raised in the briefs and the demands of the rest of the Court’s 

civil and criminal docket. 

 Lastly, Plaintiff’s argument that it is premature to narrow the proposed class is not 

well-taken. Although Defendants could raise these issues at a later stage of the litigation, 

that would happen only after the expenditure of significant resources on potentially timebarred claims. Moreover, nothing would prevent Plaintiff from later moving to modify the 

temporal scope of the class if discovery produces evidence that Defendants failed to post 

the required FLSA notice. See Summa v. Hofstra Univ., No. CV 07-3307(DRH)(ARL), 

2008 WL 3852160, *6 (E.D.N.Y. Aug. 14, 2008) (rejecting plaintiff’s equitable tolling 

argument at the conditional class certification stage but leaving open the possibility that 

the temporal scope of the class could be modified “should further discovery prove that 

FLSA notices were not posted in accordance with the requirements of law”). Considering 

Plaintiff’s equitable tolling argument is, at this point, purely speculative, the Court finds it 

more appropriate to narrow the class now while leaving open the possibility that it may be 

expanded should discovery produce evidence to back up Plaintiff’s equitable tolling theory. 

For these reasons, 

IT IS ORDERED that Defendants’ Motion for Clarification/Modification of Order 

Granting Conditional Certification (Doc. 41) is GRANTED as follows: 

1. The conditionally certified class is modified to include all persons who worked 

as computer help desk workers (or in other positions with similar job titled or 

job duties) and worked more than 40 hours in a given workweek for Defendants 

at any time from three years prior to January 11, 2019 through the entry of 

judgment (“the Collective Members”). 
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2. By no later than January 11, 2019, Defendants shall produce the names, last 

known mailing addresses, last known email addresses, and dates of employment 

for all potential class members. 

3. The remainder of the Court’s prior order granting Plaintiff’s motion for 

conditional class certification (Doc. 40) remains operative. 

 Dated this 4th day of January, 2019. 

Douglas L. Rayes 

United States District Judge