D.C. Law Library - Chapter 3. Adoption.
§ 16–302. Persons who may adopt.
§ 16–305. Petition for adoption.
§ 16–306. Notice of adoption proceedings.
§ 16–307. Investigation, report, and recommendation.
§ 16–308. Investigations when prospective adoptee is adult or petitioner is spouse or domestic partner of natural parent.
§ 16–310. Finality of decrees of adoption.
§ 16–311. Sealing and inspection of records and papers.
§ 16–312. Legal effects of adoption.
§ 16–313. Child as including adopted person.
(a) Subject to subsection (b) of this section, the Superior Court of the District of Columbia has jurisdiction to hear and determine petitions and decrees of adoption of any adult or child with authority to make such rules, not inconsistent with this chapter, as shall bring fully before the court for consideration the interests of the prospective adoptee, the natural parents, the petitioner, and any other properly interested party.
(4) the child to be adopted was born in the District of Columbia.
(c) The jurisdiction conferred upon the Superior Court of the District of Columbia by subsection (b)(4) of this section shall apply retroactively to all children born in the District of Columbia on or after July 18, 2009.
This section is referenced in § 16-4601.02.
The 2013 amendment by D.C. Law 19-233 added (b)(4); added (c); and made related changes.
Exclusive adoption jurisdiction, see § 11-1101.
Any person may petition the court for a decree of adoption. A petition may not be considered by the court unless petitioner’s spouse, if he has one, joins in the petition, except that if either the husband or wife is a natural parent of the prospective adoptee, the natural parent need not join in the petition with the adopting parent, but need only give his or her consent to the adoption. If the marital status of the petitioner changes after the time of filing the petition and before the time the decree of adoption is final, the petition must be amended accordingly.
A person, whether a minor or an adult, may be adopted.
(a) A petition for adoption may not be granted by the court unless there is filed with the petition a written statement of consent, as provided by this section, signed and acknowledged before an officer authorized by law to take acknowledgments, before a representative of a licensed child-placing agency, or before the Mayor of the District, or unless a relinquishment of parental rights with respect to the prospective adoptee has been recorded and filed as provided by section 4-1406.
(E) from the Mayor in any situation not otherwise provided for by this subsection.
(c) Minority of a natural parent is not a bar to that parent’s consent to adoption.
(d) When a parent whose consent is hereinbefore required, after such notice as the court directs, cannot be located, or has abandoned the prospective adoptee and voluntarily failed to contribute to his support for a period of at least six months next preceding the date of the filing of the petition, the consent of that parent is not required.
(e) The court may grant a petition for adoption without any of the consents specified in this section, when the court finds, after a hearing, that the consent or consents are withheld contrary to the best interest of the child.
(f) A person over eighteen years of age may be adopted, on the petition of the adopting parent or parents and with the consent of the prospective adoptee, if the court is satisfied that the adoption should be granted.
(g) The court may grant a petition for adoption without consent when there has been a relinquishment of parental rights and the termination of parental rights pursuant to [§ 4-1451.05].
This section is referenced in § 4-1451.05 and § 16-316.
D.C. Law 18-158, in the section heading, inserted “; exceptions”; and added subsec. (g).
For temporary (90 day) amendment of section, see § 201 of Newborn Safe Haven Emergency Act of 2009 (D.C. Act 18-321, March 1, 2010, 57 DCR 1842).
(7) any change of name which may be desired.
When any of the above facts is unknown to the petitioner, the petitioner shall state this fact. When any of the above facts is known to the Mayor, or a licensed child-placing agency that as a matter of social policy declines to disclose them to the petitioner, the facts may be disclosed to the court in an exhibit filed by the Mayor or the agency with the court. If more than one petitioner joins in a petition, the requirements of this section apply to each.
This section is referenced in § 4-1305.03 and § 16-308.
(a) Except as provided by subsection (b) of this section, due notice of pending adoption proceedings shall be given to each person whose consent is necessary thereto, immediately upon the filing of a petition. The notice shall be given by summons, by registered letter sent to the addressee only, or otherwise as ordered by the court.
(b) A party who formally gives his consent to the proposed adoption, as provided by this chapter, thereby waives the requirement of notice to him pursuant to this section.
This section is referenced in § 16-4603.09 and § 23-581.
(2) the Mayor, if the case is not supervised by a licensed child-placing agency.
(D) any other circumstances and conditions that may have a bearing on the proposed adoption and of which the court should have knowledge, including the existence and terms of a tentative adoption subsidy agreement entered into prior to the filing of the adoption petition under section 3 of the Act of July 26, 1892 (§ 4-301).
(3) a recommendation to the court whether a final decree declaring the adoption prayed for in the petition should be immediately granted, or whether the court should grant an interlocutory decree granting temporary custody of the prospective adoptee to the petitioner, as hereinafter set forth.
(c) The written report submitted to the court shall be filed with, and become part of, the records in the case.
This section is referenced in § 4-342 and § 16-309.
For temporary provisions requiring, on an emergency basis, criminal background investigations for individuals residing in foster family homes or other homes in which children are placed by order, see § 2-15 of the Criminal Background Investigation for the Protection of Children Emergency act of 1998 (D.C. Act 12-431, August 6, 1998, 45 DCR 5915) and § 2-11 of the Criminal Background Investigation for the Protection of Children Legislative Review Emergency Act of 1998 (D.C Act 12-505, November 20, 1998, 45 DCR 8134).
(2) The petitioner is a spouse or domestic partner of the natural parent of the prospective adoptee and the natural parents consents to the adoption or joins in the petition for adoption.
(b) In the circumstances specified in subsection (a)(2) of this section, the petition need not contain the information concerning race and religion as specified in § 16-305(4) and (5).
(c) For the purposes of this section, the term “domestic partner” shall have the same meaning as provided in § 32-701(3), but shall exclude a domestic partner who is the parent, grandparent, sibling, child, grandchild, niece, nephew, aunt, or uncle of the natural parent.
(d) Nothing in this section shall be construed to waive the requirements of §§ 4-1305.01 through 4-1305.09, including the requirement of a fingerprint-based criminal records check.
This section is referenced in § 16-307.
D.C. Law 18-33 rewrote the section.
D.C. Law 18-47 rewrote the section.
For temporary (90 day) amendment of section, see § 3 of Adoption and Safe Families Emergency Amendment Act of 2007 (D.C. Act 17-232, December 27, 2007, 55 DCR 233).
For temporary (90 day) amendment of section, see § 3 of Adoption and Safe Families Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-317, March 19, 2008, 55 DCR 3415).
For temporary (90 day) amendment of section, see § 3 of Adoption and Safe Families Continuing Compliance Emergency Amendment Act of 2008 (D.C. Act 17-559, October 27, 2008, 55 DCR 12010).
For temporary (90 day) amendment of section, see § 3 of Adoption and Safe Families Continuing Compliance Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-2, January 23, 2009, 56 DCR 1622).
For temporary (225 day) amendment of section, see § 3 of the Adoption and Safe Families Temporary Amendment Act of 2008 (D.C. Law 17-133, March 26, 2008, law notification 55 DCR 4464).
For temporary (225 day) amendment of section, see § 3 of the Safe families Continuing Compliance Temporary Amendment Act of 2008 (D.C. Law 17-297, March 20, 2009, law notification 56 DCR 3008).
(a) Within a period of ninety days, or such time as extended by the court, after a copy of the petition and the order providing for the report is served upon the agency directed to make the investigation, the agency shall make the report and recommendation required by section 16-307 to the court and thereupon the court shall proceed to act upon the petition.
(4) the adoption form has been completed by the petitioner pursuant to [§ 7-231.19].
(b-1) In determining whether the petitioner will be able to give the prospective adoptee a proper home and education, the court shall give due consideration to any assurance by the Mayor that he will provide or contribute funds for the necessary maintenance or medical care of the prospective adoptee under an adoption subsidy agreement under § 4-301.
(c)(1) Except as provided in paragraph (2) of this subsection, a final decree of adoption may not be entered unless the prospective adoptee has been living with the petitioner for at least 6 months (“6-month requirement”).
(2) A prospective adoptee shall be exempt from the 6-month requirement if he or she is 18 years of age or older.
(d) If it appears to be in the interest of the prospective adoptee, the court may enter an interlocutory decree of adoption, which shall by its terms automatically become a final decree of adoption on a day therein named, not less than six months nor more than one year, from the date of entry of the interlocutory decree, unless in the interim the decree shall have been set aside for cause shown. The supervising agency shall be permitted to visit the adoptee during the period of the interlocutory decree.
(e) The court may revoke its interlocutory decree for good cause shown at any time before it becomes a final decree, either on its own motion or on the motion of one of the parties to the adoption. Before the revocation, notice shall be given thereof to all those persons or parties who were given notice of the original petition for adoption, and an opportunity for all of them to be heard.
(f) All proceedings with reference to adoption shall be of a confidential nature and shall be held in chambers or in a sealed courtroom with as little publicity as the court deems appropriate.
The “Vital Records Act of 1981,” referred to in paragraph (b)(4), is D.C. Law 4-34.
An attempt to invalidate a final decree of adoption by reason of a jurisdictional or procedural defect may not be received by any court of the District, unless regularly filed with the court within one year following the date the final decree became effective.
From and after the filing of the petition, records and papers in adoption proceedings shall be sealed. They may not be inspected by any person, including the parties to the proceeding, except upon order of the court, and only then when the court is satisfied that the welfare of the child will thereby be promoted or protected. Such records and papers shall, upon written application to the court, be unsealed and provided to the Child Fatality Review Committee or the Violence Fatality Review Committee for inspection if the adoptee is deceased and inspection of the records and papers is necessary for the discharge of the relevant Committee's official duties. The clerk of the court shall keep a separate docket for adoption proceedings.
For temporary (90 days) amendment of this section, see § 3052(a) of Fiscal Year 2019 Budget Support Congressional Review Emergency Act of 2018 (D.C. Act 22-458, Oct. 3, 2018, 65 DCR 11212).
For temporary (90 days) amendment of this section, see § 3052(a) of Fiscal Year 2019 Budget Support Emergency Act of 2018 (D.C. Act 22-434, July 30, 2018, 65 DCR 8200).
For temporary (90 day) amendment of section, see § 20(a) of Child Fatality Review Committee Establishment Emergency Act of 2001 (D.C. Act 14-40, April 25, 2001, 48 DCR 5917).
For temporary (90 day) amendment of section, see § 20(a) of Child Fatality Review Committee Establishment Legislative Review Emergency Act of 2001 (D.C. Act 14-82, July 9, 2001, 48 DCR 6355).
For temporary (225 day) amendment of section, see § 20(a) of Child Fatality Review Committee Establishment Temporary Act of 2001 (D.C. Law 14-20, September 6, 2001, law notification 48 DCR 9090).
(a) A final decree of adoption establishes the relationship of natural parent and natural child between adopter and adoptee for all purposes, including mutual rights of inheritance and succession as if adoptee were born to adopter. The adoptee takes from, through, and as a representative of his adoptive parent or parents in the same manner as a child by birth, and upon the death of an adoptee intestate, his property shall pass and be distributed in the same manner as if the adoptee had been born to the adopting parent or parents in lawful wedlock. All rights and duties including those of inheritance and succession between the adoptee, his natural parents, their issue, collateral relatives, and so forth, are cut off, except that when one of the natural parents is the spouse of the adopter, the rights and relations as between adoptee, that natural parent, and his parents and collateral relatives, including mutual rights of inheritance and succession, are in no wise altered.
(b) While it is in force, an interlocutory decree of adoption has the same legal effect as a final decree of adoption. Upon the revocation of an interlocutory decree of adoption, the status of the adoptee, the natural parents of the adoptee, and the petitioners are as though the interlocutory decree were null and void ab initio.
(c) The family name of the adoptee shall be changed to that of the adopter unless the decree otherwise provides, and the given name of the adoptee may be fixed or changed at the same time.
In the District, “child” or its equivalent in a deed, grant, will, or other written instrument includes an adopted person, unless the contrary plainly appears by the terms thereof, whether the instrument was executed before or after the entry of the interlocutory decree of adoption, if any, or before or after the final decree of adoption became effective.
(a) Upon the issuance of a final decree of adoption, an adoption form shall be sent to the Registrar pursuant to [Chapter 2A of Title 7]. Unless otherwise requested in the petition by the adopters, the Registrar shall cause to be made a new record of the birth in the new name with the names of the adopters and shall then cause the original birth certificate and the order of the Court to be sealed and filed. The sealed package may be opened only by order of the Court or by the Registrar to properly administer [Chapter 2A of Title 7].
(b) If the adoption occurred outside the District either before or after August 25, 1937, a new certificate of birth shall be made pursuant to [§ 7-231.21]. The Registrar shall seal the original birth certificate. The sealed original birth certificate may be opened only by order of a court of competent jurisdiction or by the Registrar to properly administer [[Chapter 2A of Title 7]].
(c) If the birth of the adoptee occurred outside the District the clerk of the court shall, upon petition by the adopter, furnish him with a certified copy of the final decree of adoption.
(c-1) If the birth of the adoptee occurred outside of the United States, a new certificate of birth shall be made pursuant to [§ 7-231.21].
(d) When an adoption in the District occurred prior to August 25, 1937, the court shall, upon presentation of a motion by a party to the proceedings, order the clerk of the court to seal the records in the proceeding. Upon presentation of a certified copy of the order the Mayor shall cause to be made a new record of the birth in the new name and with the names of the adopters and shall then cause to be sealed and filed the original birth certificate with the order of the court. The sealed package may be opened only by order of the court.
This section is referenced in § 7-210.
New birth certificates, see § 7-210.
The “Vital Records Act of 1981,” referred to throughout subsections (a), (b), and (c-1), is D.C. Law 4-34. Section 11 of the Act is codified at § 7-210.
The provisions of this chapter have no effect prior to June 8, 1954, except to the extent that they specifically so provide. They do not affect in any way the rights and relations obtained by any decree of adoption entered prior to June 8, 1954.
(B) Validity of the foreign adoption has been verified by the granting of an IR-3 immigrant visa, or a successor immigrant visa, for the child by the United States Citizenship and Immigration Services.
(2) The foreign adoption that meets the requirement of paragraph (1) of this subsection shall be considered final under the laws of the District of Columbia and, notwithstanding any other provision of law to the contrary, no further petition for an adoption decree shall be required in the Superior Court of the District of Columbia.
(C) Presentation of evidence that the child was granted an IR-3 immigrant visa, or a successor immigrant visa, by the United States Citizenship and Immigration Services.
(b)(1) Notwithstanding subsection (a) of this section, an adoptive parent may elect to file a petition for a District adoption decree with the Superior Court of the District of Columbia.
(B) An adoption decree to the petitioner.
(3) A petition for a District adoption decree pursuant to this subsection may be combined with a petition for a name change.
(4) A petition for an adoption decree issued pursuant to this subsection shall be placed on an expedited calendar to ensure minimal expense of time and money to the petitioning party in attaining a adoption decree.


Engel v. Burlington Coat Factory Direct Corp.
In a scenario that seems to be playing out more and more throughout the country, given the prevalence of FLSA collective action filings, this court was faced with a decision regarding which type of scrutiny to apply to plaintiffs’ motion for conditional certification of a collective action. Although the plaintiffs filed their motion only three (3) months into discovery, by the time the court was able to address the motion, discovery had concluded. While the plaintiffs maintained that the court should apply Stage I scrutiny, the defendants argued that Stage II scrutiny (or “final certification” scrutiny) should be applied, because discovery had been completed after plaintiffs filed their motion. The court reasoned that the lower Stage I scrutiny should be applied, based on the posture of the case when plaintiffs filed their Motion, not when the decision was rendered.
This Court finds that this suit is in the first phase of inquiry. Discovery closed on March 29, 2013, and Plaintiffs’ motion was filed in October 2012. Thus, discovery had not completed by the time Plaintiffs’ motion was filed. Moreover, as Plaintiffs correctly point out, only three out of eight total months of discovery took place before their motion was filed.
In ruling on Plaintiff’s motion, the Court’s analysis will employ the first phase of inquiry.
Click Engel v. Burlington Coat Factory Direct Corp. to read the entire Order & Opinion.
This case was before the court on the defendant’s motion to strike the consents of opt-in plaintiffs filed after the court-imposed deadline (45 days from mailing of notice), and plaintiff’s cross-motion for order allowing late opt–ins. Citing judicial economy and the remedial principles underlying the FLSA, the court denied the defendant’s motion to strike and granted plaintiff’s cross-motion, allowing the opt-in plaintiffs to remain in the case. Significantly, the court granted plaintiff’s motion without requiring a showing of good cause as to why the opt-ins filed their consents up to 2 months beyond the deadline imposed by the court.
“The FLSA provides the procedure for potential plaintiffs to opt-in to a collective action but does not specify when the potential plaintiff must opt-in. See 29 U.S.C. §§ 216(b), 255, 256. Consequently, deadlines to opt-in are established by the trial court. The FLSA also does not “provide a standard under which a court should consider whether to include opt-in plaintiffs whose consent forms are filed after the court-imposed deadline has passed.” Ruggles v. Wellpoint, Inc., 687 F.Supp.2d 30, 37 (N.D.N.Y.2009).
Although the caselaw on this issue is wide-ranging, courts have generally decided the question by balancing various combinations of the following factors: (1) whether ‘good cause’ exists for the late submissions; (2) prejudice to the defendant; (3) how long after the deadline passed the consent forms were filed; (4) judicial economy; and (5) the remedial purposes of the FLSA. Id. (citing Ayers v. SGS Control Servs., Inc., 2007 WL 3171342, at *4–5 (S.D.N.Y. Oct.9, 2007) (requiring that late opt-in plaintiffs show good cause for their untimely consent filings), Robinson–Smith v. Gov’t Empl. Ins. Co., 424 F.Supp.2d 117, 123–24 (D.D.C.2006) (considering the potential prejudice to the defendant and the purposes of the FLSA), Raper v. State of Iowa, 165 F.R.D. 89, 92 (S.D.Iowa 1996) (considering potential prejudice to the defendant and judicial economy), Monroe v. United Air Lines, Inc., 94 F.R.D. 304, 305 (N.D.Ill.1982) (considering how long after the deadline the consent forms were filed); but see Reyes v. Texas Ezpawn, L.P., 459 F.Supp.2d 546, 566–67 (S.D.Tex.2006) (dismissing plaintiffs who filed consent forms after the opt-in period without any discussion of the above factors)).
Balancing all of the above factors, the Court finds that the 21 opt-in plaintiffs may be properly added despite their failure to submit consent notices prior to the Court’s deadline. Although Plaintiffs have offered no good cause for their failure to timely file these consent forms, all of the other factors weigh in their favor. See id. (permitting late consent opt-in plaintiffs to join collective class even though the plaintiffs offered no good cause for their failure to timely file, but all other factors weighed in their favor); In Re Wells Fargo Home Mortgage Overtime Pay Litigation, No. MDL 06–01770 MHP, 2008 WL 4712769 at *2 (N.D.Cal. Oct.23, 2008) (rejecting a “rigid application of a ‘good cause’ standard” because it “does not fully respond to the various factors with which the court must concern itself” such as judicial economy and prejudice to the defendant) (citing Raper, 165 F.R.D. at 89).
Given that over 200 persons have consented to opt-in, the inclusion of these 21 plaintiffs, approximately 10% increase in the size of the potential class, will not overly burden or prejudice Defendants. See Abubakar v. Co. of Solano, No. Civ. S–06–2268, 2008 WL 550117 at *2 (E.D.Cal. Feb.27, 2008) (holding a 15% increase in liability, 23 plaintiffs added to a class of 155, was not prejudicial). Also, all of these consent notices were filed with the Court within a few months after the deadline and the majority of them within one month, not presenting any unfair surprise or requiring that Defendants take any additional steps to defend this action. See Raper, 165 F.R.D. at 92 (finding no prejudice to the defendant by allowance of the addition of plaintiffs even after liability had been determined). Thus, Defendant has not been prejudiced by a significant delay and the addition of these opt-in plaintiffs should not hamper the discovery process already underway.
In terms of judicial economy, were the Court to deny the admission of these plaintiffs, they would still be able to file separate claims for relief against Defendant, who would still face the prospect of defending against their individual FLSA claims. See Ruggles, 687 F.Supp.2d at 37 (citing 29 U.S.C. § 256(b)). Indeed, Plaintiffs suggest that they would file separate actions and then request consolidation with the instant action. (ECF No. 85 at 6) (the untimely plaintiffs “only option will be to file identical, individual claims with the Court” and this Court would be permitted to consolidate those individual lawsuits under Fed.R.Civ.P. 42(a) “because the cases will all ‘involve a common question of law or fact’ ”). “Obviously, there is little economy in spawning identical FLSA lawsuits that themselves might be properly joined with this lawsuit in the future.” Ruggles, 687 F.Supp.2d at 38 (citing Abubakar, 2008 WL 550117 at *2) (noting the futility in requiring late opt-in plaintiffs to file separately given the foreseeability of a consolidation order pursuant to Fed.R.Civ.P. 42(a)).
Click Heaps v. Safelite Solutions, LLC to read the entire Opinion and Order.
Bell v. Citizens Financial Group, Inc.
Although all circuit courts that have taken up the issue have held that so-called hybrid wage and hour cases- comprised of both opt-in collective actions (FLSA) and opt-out class action (state wage and hour law)- are permissible, some courts within the Third Circuit continue to hold otherwise. As a result, not surprisingly, defendant-employers in such cases continue fighting the class action components of such cases on “inherent incompatibility” grounds. Such was the case here, where the court had previously conditionally certified the FLSA claims, but denied plaintiffs related motion for class certification of Pennsylvania Minimum Wage Act (“PMWA”) claims on compatibility grounds. However, in what may become a frequently cited case going forward, the plaintiffs took the logical next step and asked the court to dismiss the PMWA claims so they could re-file them in state court alone, where there would be no issue of compatibility. Not surprisingly, the defendants then threw up their arms, essentially arguing that the plaintiffs should not be able to bring their class claims in federal court and therefore not be able to proceed as a class in any venue. The court rejected the defendants argument, permitting the voluntary dismissal of the state law claims to be pursued separately in state court.
“Here, defendants have already filed an answer and do not stipulate to the dismissal. Therefore, the court must weigh the equities and decide whether to enter an order of dismissal. Defendants do not assert, and the court cannot ascertain, that they would suffer any plain legal prejudice as a result of dismissal of Watson’s claims. Watson’s intent to re-file a PMWA claim in state court is not plain prejudice. Pouls, 1993 WL 308645, at *1.
Upon weighing the factors set forth in Pouls, we conclude that it is appropriate to grant Watson’s motion to voluntarily dismiss her case. Defendants are not prejudiced by their efforts and expenses in this litigation, because other opt-in plaintiffs remain and the instant suit will continue. Defendants have failed to identify any efforts or expenses unique to Watson. Similarly, the progression of the litigation and Watson’s diligence in moving for dismissal are not determinative factors, due to the ongoing nature of the collective action suit. Consideration of the final factor, the duplicative or excessive expense of subsequent litigation, yields some possibility of prejudice to defendants. If Watson does file a PMWA case in state court and if defendants successfully remove it to federal court, defendants might incur some duplicative expenses in future federal court litigation on issues of claim incompatibility. However, at this time, such expenses are highly speculative. Therefore, we do not find plain prejudice to defendants based on duplicative expenses.
With the issue of permissibility of so-called hybrids up at the Third Circuit right now it will be interesting to see if this decision gains legs in its trial courts. For now however it is safe to say that defendants in so-called hybrid cases should be careful what they wish for in seeking dismissal of state classes, because two is not always better than one.
Click Bell v. Citizens Financial Group, Inc. to read the entire Memorandum and Order.
Spellman v. American Eagle Exp., Inc.
In one of the first decisions, post-Dukes, to clarify what affect the Supreme Court’s recent decision will have on conditional certification of FLSA cases, the answer appears to be not much.
In Dukes, the Supreme Court held that the trial court had inappropriately certified a class of over a million women employed by Wal-mart, based on claims of gender bias. The Supreme Court reasoned that the plaintiffs had not met their burden to demonstrate the requisite commonality required by FRCP 23. In the wake of Dukes, there was much speculation as to whether courts would extend the reasoning in Dukes to cases seeking conditional certification of collective actions under 216(b) of the FLSA. In one of the first decisions rendered on this issue, the answer appears to be a resounding no.
This case was before the court on the defendant’s motion seeking reconsideration of the court’s prior order conditionally certifying a class of drivers employed by defendant. Plaintiffs alleged that defendant, a trucking company, improperly misclassified all of its drivers as independent contractors, when they were really employees. Holding that plaintiffs had met their lenient burden of proof as so-called stage one, the court conditionally certified a nationwide class of drivers, all of whom had been classified as independent contractors. Following the Duke’s decision, the defendant sought reconsideration of the order conditionally certifying the class. Denying the motion, the court explained that the differences between FRCP 23, the class action provision under which Dukes was decided and 216(b), the opt-in provision for FLSA collective actions render Dukes inapplicable in the context of an FLSA collective action. As such, the court denied defendant’s motion.
Click Spellman v. American Eagle Exp., Inc. to read the entire Order.
Yahraes v. Restaurant Associates Events Corp.
This case was before the court on plaintiffs’ motion seeking equitable tolling of their FLSA claims. During oral argument on plaintiffs’ motion to certify that this case may proceed as a collective action pursuant to 29 U.S.C. § 216(b), the court had questioned whether the 2007 FLSA claims, even assuming that defendants’ violation was willful, were still viable or were now time-barred. Plaintiffs conceded that, absent an order equitably tolling the statute of limitations, their claims were indeed outside of the statute of limitations. However, Plaintiffs argued that, since they had moved for conditional certification very early on in the case and only through events outside of their control had a decision on same been delayed, the court was due to toll the statute of limitations. The court agreed and tolled the statute of limitations.
“The FLSA provides for a two-year statute of limitations generally, with an additional one-year extension for willful violations. 29 U.S.C. § 255(a). In a FLSA collective action, the statute of limitations runs for each plaintiff until he files written consent with the court to join the lawsuit. Id. § 256(b). Thus, unlike the statute of limitations in a Rule 23 class action which is tolled for all putative class members upon the filing of the complaint, the limitations periods in a FLSA action continues to run until an individual affirmatively opts into the action. Moreover, “[s]igned consents do not relate back to the original filing date of the complaint.” Lee v. ABC Carpet & Home, 236 F.R.D. 193, 199 (S.D.N.Y.2006). Nonetheless, the court has the discretion to equitably toll the limitations period.
Federal courts should grant equitable tolling “sparingly,” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and “only … in [ ] rare and exceptional circumstance[s],” Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir.2003) (alteration in original) (internal quotation marks omitted). Equitable tolling is generally reserved for situations “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin, 498 U.S. at 96. Nevertheless, “[a] statute of limitations may be tolled as necessary to avoid inequitable circumstances.” Iavorski v. U.S. Immigration & Naturalization Serv., 232 F.3d 124, 129 (2d Cir.2000). In determining whether equitable tolling is warranted, the Second Circuit has stated that a court “must consider whether the person seeking application of the equitable tolling doctrine (1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.” Zerilli-Edelglass, 333 F.3d at 80-81 (internal quotation marks omitted).
The delay caused by the time required for a court to rule on a motion, such as one for certification of a collective action in a FLSA case, may be deemed an “extraordinary circumstance[ ]” justifying application of the equitable tolling doctrine. See Abadeer v. Tyson Foods, Inc., 2010 WL 5158873, at *2-4 (M.D.Tenn. Dec.14, 2010); Israel Antonio-Morales v. Bimbo’s Best Produce, Inc., 2009 WL 1591172, at *1 (E.D.La. Apr.20, 2009) (collecting cases for the proposition that “[c]ourts routinely grant equitable tolling in the FLSA collective action context to avoid prejudice to actual or potential opt-in plaintiffs that can arise from the unique procedural posture of collective actions”); Stickle v. Sciwestern Mkt. Support Ctr., 2008 WL 4446539, at *22 (D.Ariz. Sept.30, 2008) (collecting cases); Owens v. Bethlehem Mines Corp., 630 F.Supp. 309, 312 (S.D.W.V.1986). But see Hintergerger v. Catholic Health Sys., 2009 WL 3464134, at *14-15 (W.D.N.Y. Oct.21, 2009) (denying tolling for the time period while certification motion was pending).
Plaintiffs argue for equitable tolling primarily on the ground that they have diligently pursued their claims and, through no fault of their own, have been frustrated in their attempts to send notice any sooner to potential 216(b) opt-in plaintiffs. Docket Entry 96. I find that the circumstances of this case, and in particular plaintiffs’ diligence in pursuing the FLSA claims on behalf of putative opt-ins, warrant equitable tolling to avoid an inequitable result. A discussion of the procedural history of this case will explain the “extraordinary circumstances” present here that justify tolling.
In addition, plaintiffs contend that Judge Townes’ tolling is still ongoing. Docket Entries 96, 102. For the reasons just stated, I do not reach this question either.
Less than one month after filing an amended complaint, plaintiffs filed a fully-briefed motion to certify the collective action.FN4 Docket Entries 33-39. In their opposition to plaintiffs’ certification motion, defendants noted that one of the defendants, Amerivents, had recently entered into an agreement with the New York State Department of Labor (“NYSDOL”) to pay unpaid wages. Docket Entry 41 at 14. During a conference in June, 2010, Judge Townes issued a stay of the proceedings until November 19, 2010, to await the result of the NYSDOL investigation. The parties agree that plaintiffs’ claims were tolled for approximately 160 days while the stay was in place. See Docket Entry 102 n. 3 (stating that 160 days is “the minimum undisputed number of days the statute of limitations was tolled”); see also Tr. 5.
After the stay was lifted, defendants requested leave to re-brief their opposition to the certification motion, and sought to defer the certification motion until Judge Townes decided their motion to dismiss, which had not yet even been filed. Docket Entry 81. During a telephone conference held in December, 2010, I set a short briefing schedule for the certification motion, with the fully-briefed motion due at the end of January, 2011. At the oral argument held on February 9, 2011, I granted plaintiffs’ motion for certification of the collective action.
This procedural history demonstrates that plaintiffs have vigorously pursued their claims and, through no fault of their own, have been delayed in prosecuting their action and distributing 216(b) notice to potential opt-in plaintiffs. Moreover, defendants’ actions-re-briefing the certification motion, seeking to defer certification in anticipation of dispositive motions, and failing to produce documents in connection with the NYSDOL investigation have frustrated plaintiffs’ diligent attempts to ensure that claims did not expire. I attribute no trickery or wrongdoing on the part of defendants. I do, however, conclude that defendants will not be prejudiced by any tolling because they have been on notice since the complaint was served in March, 2010, that they were potentially liable for 2007 FLSA claims. Accordingly, in the interest of fairness, I find equitable tolling is warranted from the date plaintiffs served their original certification motion, May 3, 2010, to June 8, 2010, the date Judge Townes issued the stay (a period of 37 days), and from the date plaintiffs re-filed their certification motion, December 17, 2010, to February 9, 2011, the date I granted it (a period of 55 days). The additional 92 days will permit any collective member who timely opts in to maintain a FLSA claim based on wages allegedly due for labor performed in September, 2007, assuming plaintiffs establish defendants’ willful violation of the statute.
Click Yahraes v. Restaurant Associates Events Corp. to read the entire decision.
Velez v. Perrin Holden & Davenport Capital Corp.
Plaintiff brought this action alleging violations of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) on behalf of himself and other similarly situated stock brokers employed or formerly employed by defendant Perrin Holden & Davenport Capital Corp. (“PHD Capital”) and its officers and owners. Plaintiff sought designation of the case as as a collective action pursuant to FLSA section 216 for his FLSA claims and as a class action pursuant to Fed.R.Civ.P. 23 for his state law claims.
Defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, to compel arbitration pursuant to the Federal Arbitration Act (“FAA”), 9 U.S .C. §§ 3, 4, on the ground that Plaintiff had agreed to arbitrate his FLSA claims at the time he was hired. In line with other courts that have decided the issue, the court held that a “collective action” is not encompassed within the term “class action” as that term is used in FINRA’s rules, and thus compelled arbitration of Velez’s FLSA claims, allowing for a collective action in FINRA arbitration.
“FINRA Rule 13200 mandates arbitration of disputes between the parties “except as otherwise provided.” (FINRA Rule 13200, Ex. B to Declaration of Matthew D. Kadushin dated Aug. 27, 2010 (“Kadushin Decl.”).) Notably, FINRA Rule 13204 prohibits arbitration of “class action claims.” (FINRA Rule 13204, Ex. A to Kadushin Decl.) It is thus uncontested that Velez’s state law claims-which plaintiff has asserted as a class action pursuant to Fed.R.Civ.P. 23-are ineligible for arbitration. The parties dispute, however, whether that exemption of class action claims from arbitration also applies to plaintiff’s FLSA collective action claims. While defendants contend that collective actions are distinct from class actions and therefore subject to FINRA arbitration, Velez argues that the phrase “class action” in FINRA Rule 13204 encompasses a collective action and therefore collective action claims are not arbitrable. Velez looks to the interpretation by FINRA staff members of FINRA’s rules to support his position.
Every court to address whether an FLSA collective action is arbitrable pursuant to FINRA’s rules has found in favor of arbitrability. See Gomez v. Brill Securities, Inc., No. 10 Civ. 3503, 2010 WL 4455827 (S.D.N.Y. Nov. 2, 2010); Suschil v. Ameriprise Financial Servs., Inc., No. 07 Civ. 2655, 2008 WL 974045, at *5 (N.D.Ohio Apr. 7, 2008); Chapman v. Lehman Bros., Inc., 279 F.Supp.2d 1286, 1290 (S.D.Fla.2003). This Court agrees with its sister district courts.
FINRA Rule 13204 clearly states that “[c]lass action claims may not be arbitrated” under FINRA’s Code of Arbitration Procedure. However, that rule says nothing about collective action claims. Although collective and class actions have much in common, there is a critically important difference: collective actions are opt-in actions, i.e., each member of the class must take steps to opt in to the action in order to participate in it, whereas class actions are opt-out actions, i.e., class members automatically participate in a class action unless they take affirmative steps to opt out of the class action. Collective actions bind only similarly situated plaintiffs who have affirmatively consented to join the action.
Velez urges the Court to defer to the opinions of FINRA staff who have issued letters construing collective actions to come within the ambit of class actions for the purposes of FINRA arbitration. (See, e.g., Letter from Jean I. Feeney, NASD Assistant General Counsel, dated Sept. 21, 1999, Ex. C. to Kadushin Decl.; Letter from George H. Friedman, NASD Executive Vice President, Dispute Resolution, Director of Arbitration, dated Oct. 10, 2003, Ex. D to Kadushin Decl.) However, those letters do not contain any substantial analysis, and the Feeney letter itself includes the disclaimer that “the opinions expressed herein are staff opinions only and have not been reviewed or endorsed by the Board of Directors of [the] NASD.” Moreover, FINRA’s website specifically states that “[s]taff-issued interpretive letters express staff views and opinions only and are not binding on FINRA and its Board.” (FINRA-Interpretive Letters, Ex. 1 to Affirmation of Emily A. Hayes dated Sept. 9, 2010). Such “staff opinion letters are not the sort of agency interpretation that is entitled to deference by this Court.” Gomez, 2010 WL 4455827 at *1; see also Auer v. Robbins, 519 U.S. 452, 461 (1997); Skidmore v. Swift & Co., 323 U.S. 134 (1944). If FINRA wanted to prohibit arbitration of collective action claims, FINRA is certainly able to amend its rules to do so. See FINRA Rulemaking Process, available at http://www.finra.org/In dustry/Regulation/FINRARules/RulemakingProcess (Feb. 2, 2010); see also Gomez, 2010 WL 4455827 at *2.
Accordingly, defendants’ motion was granted to the extent that the court compelled arbitration of Plaintiff’s FLSA claims.
Fiore v. Goodyear Tire & Rubber Co.
“A district court reviews an objection to a non-dispositive order of a magistrate judge to determine whether the order was clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Defendant argues that the Magistrate Judge was clearly erroneous and disregarded Middle District of Florida Local Rule 3.04(b), and that Wandell should appear for his deposition in the Middle District of Florida. Because the Order was neither clearly erroneous nor contrary to law, defendant’s objection is overruled.
A reviewing court applies an abuse of discretion standard in its review of a decision on a motion to compel. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir.2006). A judge abuses her discretion if she applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir.2008). Additionally, a court “abuses its discretion when it misconstrues its proper role, ignores or misunderstands the relevant evidence, and bases its decision upon considerations having little factual support.” Serra Chevrolet, Inc. v. GMC, 446 F.3d 1137, 1147 (11th Cir.2006). Absent such situations, discretion means that a magistrate judge is allowed a range of choices, and should not be second-guessed unless the decision reflects a clear error of judgment. Holloman, 443 F.3d at 837.
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Jackson v. Papa John’s USA, Inc.
Gieseke v. First Horizon Home Loan Corp., No. 04-2511-CM-GLR, 2007 WL 445202 (D.Kan. Feb. 7, 2007).
After weighing these various interests, the Court held that the costs associated with compelled production of absent class members’ social security numbers outweighed the benefits and denied Plaintiff’s Motion to Compel.
Although, in theory, FLSA claim could become moot when purported representative of collective action receives offer that would satisfy his or her individual claim and no other plaintiffs have opted in, when FLSA plaintiff files timely motion for certification of collective action, that motion relates back to date plaintiff filed initial complaint; relation back is warranted only when plaintiff files for certification without undue delay.


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MacMullen, Jerry. Paddle-Wheel Days in California. Photo available. Stanford. Stanford University Press. 1970. 157 pps. Octavo. Hardcover. Reprint. Illustrated. Important reference work. Fine copy (book plate) in fine dust jacket (in mylar).
MacNamara, Mark. In Pursuit of Ideas. A Year in the Life of the University of California (Berkeley). San Francisco. Collins. 1992. 192 pps. Folio. Hardcover. First edition. Illustrated in color and black & white. Fine copy in near fine dust jacket (in mylar).
MacQuitty, William. Island of Isis. Philae Temple of the Nile. New York. Charles Scribners & Sons. 1976. 192 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Maddocks, Melvin. The Great Liners. The Seafarers. New York. Time Life Books. 1978. 171 pps. 4to. Hardcover. First edition. Illustrated in color and black & white. Fine copy.
Maddox, Robert. Toyota Celica RWD Automotive Repair Manual. 1971 Through 1985. Newbury. Haynes. 1992. 4to. Soft cover. Illustrated. Fine copy.
Madge, Tim. Royal Yachts of The World. Photo available. East Molesey. Thomas Reed Pub. 1997. 193 pps. 4to. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
Madsen, Lars. Sverige Fran Ovan. Stockholm. Bokforlaget Trevi. 1972. 239 pps. Octavo. Hardcover. First edition. Illustrated in color and black & white. Fine copy in near fine (light edge chipping) dust jacket (in mylar).
Magadi, Athi-Mara. Santa Fe Originals. Photo available. Santa Fe. Museum of New Mexico Press. 2003. 4to. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Magi, Giovanna. All Pompeii. The City Rediscovered. Firenze. Bonechi Editore. 1979. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Magi, Giovanna. All Pompeii. The City Rediscovered. Frienze. Bonechi Editor. nd. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Magnusson, Magnus. Vikings! Photo available. New York. E.P. Dutton & Co. 1980. 320 pps. Octavo. Hardcover. First edition. Illustrated in color and black & white. Fine copy in fine dust jacket (in mylar).
Magoun, F. Alexander. The Frigate Constitution and Other Historic Ships. New York. Bonanza. 1977. 4to. Hard cover. Reprint. Illustrated. Fine copy in fine dust jacket (in mylar).
Magoun, F. Alexander. The Frigate Constitution and other Historic Ships. Photo available. New York. Bonanza. 1978. 155 pps. 4to. Hardcover. Reprint. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Maher, Kevin (ed). Chilton's Truck and Van Manual. 1993-97. West Chester. Chilton. 1998. 4to. Hard cover. First edition. Illustrated. Near fine copy (very light shelf wear).
Mahoney, Jeff (ed). A Tribute to Dale Earnhardt. A Retrospective of Earnhardt's Career. Middletown. Checkerbee. 2001. 190 pps. Octavo. Soft cover. First edition. Illustrated in color and black & white. Fine copy (owner name inside cover).
Malcolm, Andrew. U.S. 1. America's Original Main Street. Photo available. New York. St. Martin's Press. 1991. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Malek, Jaromir. In the Shadows of the Pyramids. Egypt during the Old Kingdom. Norman. University of Oklahoma. 1986. 4to. Soft cover. Illustrated in black, white and color. Fine copy (owner blind stamp).
Malo, John. Wilderness Canoeing. The Complete Guide to North American Water-Woods Wilderness. New York. Macmillan. 1971. 4to. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).

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The item American government for children, (DVD) represents a specific, individual, material embodiment of a distinct intellectual or artistic creation found in Garland County Library.
V. 6: What is government?
2 teacher's guides (V. 1 & 4).
V. 1: American citizenship -- V. 2: Federal, state and local government -- V. 3: The history of American government -- V. 4: A history of the presidency -- V. 5: The three branches of government -- V. 6: What is government?

matches: V. V. V. V. V. V. V.