The Fair Labor Standards Act’s statute of limitations is not tolled when a plaintiff files an FLSA action that is later dismissed and then files a new, untimely, action. This was the court’s holding in Wright v. Waste Pro USA, Inc., 696 F.4th 1332 (June 13, 2023), which also rejected the plaintiff’s request for equitable tolling and affirmed summary judgment for the defendants.
Wright was employed in Florida as a driver for Waste Pro of Florida, Inc., a subsidiary of Waste Pro USA, Inc., until November 2015. In October 2017, he and two other named plaintiffs (employed by Waste Pro subsidiaries in North Carolina and South Carolina, respectively) brought a putative FLSA collective action in federal court in South Carolina. In July 2019, before any motion to conditionally certify the collection action was filed, the court dismissed the claims against Waste Pro of Florida and Waste Pro USA for lack of personal jurisdiction and dismissed Wright’s claims.
Wright then filed a new FLSA action in the Southern District of Florida. This action also failed, this time on the court’s grant of summary judgment to the defendants on the basis that the action was filed outside the applicable statute of limitations. (The statute of limitations for FLSA violations is two years, or three years for willful violations.)
Wright appealed, arguing that the statute of limitations should have been tolled during the period that the South Carolina case was pending. The Eleventh Circuit disagreed. For purposes of a limitations period, the court explained, an action that is dismissed without prejudice is treated as never filed, so that a later action filed outside of the limitations period is untimely.
The court rejected Wright’s argument that this general rule does not apply to FLSA claims because of the statutory language. The court also noted that Wright’s position was different from that of an FLSA opt-in plaintiff, whose claim is considered commenced at the time of the filing of their written consent. In that instance, the limitations period may be tolled for a dismissed opt-in plaintiff, just as the commencement of a class action under Rule 23 tolls the limitations period for unnamed members of the putative class until class certification is denied. This rule has nothing to do with an original plaintiff like Wright, whose claims are treated the same as any other plaintiff who sues on his own behalf.
The court also rejected Wright’s appeal for equitable tolling. Wright did not meet his burden to show entitlement to this “extraordinary remedy.” He did not act with reasonable diligence, failing to pursue available legal remedies to preserve his claims. He could have, for example, filed a protective action in Florida prior to expiration of the statute of limitations. Or he could have moved for reconsideration in the South Carolina case and asked for a transfer to Florida rather than dismissal. He did neither, and any harm to him was the consequence of his own failure to purse his remedies.