United States District Court, D. South Carolina, Charleston Division
ANDREW GORDON, TAVIS MCNEIL, DONALD WRIGHTON, NICHOLAS COLE JACOB GRISSON, AND DAWN DEWEY, on behalf of themselves and others similarly situated, Plaintiffs,
TBC RETAIL GROUP, INC. d/b/a TIRE KINGDOM, Defendant.
C. NORTON, UNITED STATES DISTRICT JUDGE.
following matters are before the court on defendant TBC
Retail Group, Inc.’s (“defendant”) motion
to compel arbitration for plaintiff Nicholas Cole
(“Cole”), ECF No. 33; defendant’s motion to
compel arbitration for all opt-in plaintiffs who signed the
mutual arbitration agreement, ECF No. 81; defendant’s
motion for summary judgment, ECF No. 88; and
plaintiffs’ motion for joinder of additional parties,
ECF No. 92. For the reasons set forth below, the court denies
defendant’s motion to compel arbitration for Cole,
grants in part and denies in part defendant’s motion to
compel arbitration for all opt-in plaintiffs who signed the
mutual arbitration agreement, grants in part and denies in
part defendant’s motion for summary judgment, and
grants in part and denies in part plaintiffs’ motion
for joinder of additional parties.
August 20, 2014, Cole joined plaintiffs Andrew Gordon, Tavis
McNeil, Donald Wrighton, Jacob Grissom, and Dawn Dewey
(together with Cole, “plaintiffs”) in filing the
instant action on behalf of themselves and “all other
similarly situated employees.” Compl. at ¶ 2.
Plaintiffs allege that defendant violated the minimum wage
and overtime provisions of the Fair Labor Standards Act, 29
U.S.C. § 201, et seq. (“FLSA”), by
utilizing a compensation plan that did not provide plaintiffs
one and one-half times their regular rate of pay when they
worked more than forty hours in a workweek. Id. at
was employed by defendant as a mechanic at the Tire Kingdom
located at 7201-900 Two Notch Road in Columbia, South
Carolina, from approximately May 2013 until April 2014.
Id. ¶ 1. Between February 2013 and October
2013, defendant drafted and developed a Mutual Agreement to
Arbitrate Claims and Waiver of Class/Collective Actions (the
“Agreement”). ECF No. 32-2, Filoon Dec.
¶¶ 2-8; ECF No. 81-2, Third Filoon Dec.
¶¶ 2-4. Defendant finalized the Agreement in
October 2013, and began requiring all new hires to sign the
Agreement as of October or November 2013. Filoon Dec.
¶¶ 3, 4. Between October 2013 and March 2014,
defendant made the Agreement available for “electronic
signature” through the employee portal-a password
protected, computer-based document system. Id.
¶ 5; see also ECF No. 39-1, Second Filoon Dec.
¶ 9 (describing access and navigation of the employee
portal). In March 2014, defendant circulated a company-wide
communication notifying its employees that the Agreement and
a related memorandum (the “Memorandum”) were
available via the employee portal. Filoon Dec. ¶¶
7, 8; ECF No. 33-4, Memorandum 2.
Memorandum explained that the portal now allowed employees to
“review and acknowledge [defendant’s] policies,
processes, and documents, ” and that this feature was
being implemented with two important documents, one being the
Agreement. Id. The Memorandum further explained that
the Agreement was “a contract” intended “to
allow any [employee] to bring any legal claim(s) against
[defendant] in a quicker, less formal, and typically less
expensive forum than the traditional filing of a lawsuit in
court.” Id. All employees hired before October
15, 2013, were “required to acknowledge” the
Agreement no later than Friday March 21, 2014. Id.
Agreement provides that, except in certain circumstances not
[A]ny and all disputes, claims, complaints or controversies
(“Claims”) between you and TBC Corporation and/or
any of its parents, subsidiaries, affiliates, agents,
officers, directors, employees and/or any of its benefit
plans, benefit plan fiduciaries, sponsors or administrators
(collectively and individually the “Company”),
that in any way arise out of or relate to your employment,
the terms and conditions of your employment, your application
for employment and/or the termination of your employment will
be resolved by binding arbitration and NOT by a court or
jury. As such, the Company and you agree to forever waive and
relinquish their right to bring claims against the other in a
court of law.
33-3, Arbitration Agreement. The final page of the Agreement
informs the reader as follows:
YOUR SIGNATURE BELOW ATTESTS TO THE FACT THAT:
1. YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND
TO ALL OF THE ABOVE TERMS.
2. YOU ARE SIGNING THIS AGREEMENT VOLUNTARILY.
3. YOU ARE NOT RELYING ON ANY PROMISES OR REPRESENTATIONS BY
THE COMPANY EXCEPT THOSE CONTAINED IN THIS AGREEMENT.
4. YOU UNDERSTAND THAT BY SIGNING THIS AGREEMENT, YOU ARE
GIVING UP THE RIGHT TO HAVE CLAIMS DECIDED BY A COURT OR
5. YOU HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS
AGREEMENT WITH PRIVATE LEGAL COUNSEL AT YOUR EXPENSE.
Id. Directly below this language, the Agreement
contains signature blocks for both the
“Applicant/Employee” and the
employees were not asked to “sign” or
“execute” these signature blocks; instead,
employees would “acknowledge” the Agreement by
entering their employee number and the last four digits of
their social security number into a field located on a
separate portion of the Agreement’s signature page.
See Second Filoon Dec. Ex. A, 13-14. This field
appeared below a prompt which stated: “I,, hereby
certify and affirm that I have read the Mutual Agreement to
Arbitrate. Please enter your Employee Number and last four
digits of your Social Security Number as your electronic
signature.” Id. Defendant has produced records
indicating that numerous opt-in plaintiffs,  as well as Cole,
electronically “acknowledged” the Agreement in
this manner. See Third Filoon Dec. ¶ 12; ECF
Nos. 33-2, 33-3, Attachments to Third Filoon Dec. (collecting
signature pages, confirmation screen shots, and summary
charts of employees who filled out acknowledgment field); ECF
No. 33-5 (confirmation screenshot of Cole’s
acknowledgment, dated March 24, 2014). Cole, for his part,
claims that he “does not recall” ever doing so.
Cole Dec. ¶ 3.
then-current employees accessed the Agreement through the
employee portal. The process was significantly different for
new hires and rehires. These employees “signed”
the Agreement through an “electronic onboarding
process” known as the “Kronos System.”
Fifth Filoon Dec. ¶ 3. This system required newly hired
or rehired employees to log in using their name and portions
of their social security number. Id. The employees
then agreed to a block of text labeled “e-Signature
Acceptance, ” which stated that the employee agreed to
“use the electronic click as [his or her]
‘written’ signature.” Id. Attach.
22. The employee was then required to view a series of
documents, including the Agreement, and “sign”
each document by “clicking” an icon labeled
“Sign.” Id. After the employee provided
this electronic signature, a message appeared saying that the
document was now “signed, ” and giving the date
and time of the signature. Id. ¶ 4. Employees
could not complete the hiring process without
“signing” each document. Id.
September 30, 2015, the court granted plaintiffs’
motion for conditional class certification. ECF No. 40. As
part of that order, the court ordered defendant to provide
the names, address, and telephone numbers of all potential
opt-in plaintiffs, and authorized plaintiffs to mail a
court-approved notice to all potential opt-in plaintiffs.
Id. at 23. The court specifically required
plaintiffs to amend the proposed notice to provide putative
class members “sixty (60) days from the date of the
notice” to file a consent to join the action (a
“consent form”). Id. at 22. On November
12, 2015, plaintiffs filed their Notice of Mailing,
indicating the approved notice was mailed to 2, 733 putative
plaintiffs. ECF No. 42. This gave plaintiffs until January
11, 2016 to file any putative class members’ consent
this opt-in period, plaintiffs filed around 570 consent
forms. ECF Nos. 43-73. Notably, only one named plaintiff,
Tavis McNeil (“McNeil”), filed a formal consent
form. ECF No. 65. Following the conclusion of the scheduled
opt-in period, plaintiffs filed 34 additional consent forms.
ECF Nos. 73-79. Over the course of the opt-in process,
plaintiffs also filed a number of consent forms presenting a
variety of unique issues. Specifically, defendant has
identified five opt-in plaintiffs who were mistakenly
included on the opt-in list, four opt-in plaintiffs defendant
has not been able to identify, three John Doe opt-in
plaintiffs, and two consent forms that appear to have been
filed by a single opt-in plaintiff. Defendant has also
identified those opt-in plaintiffs whose consents were filed
either two or three years after their final paycheck for work
as a Tire Kingdom mechanic under the “turned
hour” compensation plan. Fourth Filoon Dec. ¶ 4.
filed a motion to compel arbitration against Cole on August
3, 2015, well before the opt-in period began. Plaintiffs
filed a response to this motion on August 26, 2015, and
defendant filed its reply in support on September 8, 2015. On
March 7, 2016, defendant filed a second motion to compel
arbitration against all opt-in plaintiffs who signed the
Agreement and asked the court to stay a scheduled hearing on
its first motion to compel arbitration, until both matters
could be heard together. Defendant then filed a motion for
summary judgment on April 22, 2016. Plaintiffs responded to
the second motion to compel arbitration on April 29, 2016.
Plaintiffs then filed a motion for the joinder of additional
parties on May 6, 2016. On May 9, 2016, defendant filed its
reply in support of its second motion to compel arbitration,
and on May 20, 2016, defendant filed a response to
plaintiffs’ motion for joinder of parties. On May 23,
2016, plaintiffs filed a response in opposition to
defendant’s motion for summary judgment, and on May 31,
2016, plaintiffs filed a reply in support of their motion for
joinder. Finally, on June 3, 2016, defendant filed a reply in
support of its motion for summary judgment. The court held a
hearing on June 24, 2016, and the motions are now ripe for
the court’s review.
Motion to Compel Arbitration
moves to compel arbitration under Section 4 of the Federal
Arbitration Act (“FAA”), which provides in part
that a “party aggrieved by the alleged failure,
neglect, or refusal of another to arbitrate under a written
agreement for arbitration may petition any United States
district court . . . for an order directing that such
arbitration proceed in the manner provided for in such
agreement.” 9 U.S.C. § 4. Section 2 of the FAA
states that a written arbitration agreement “shall be
valid, irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. “[Q]uestions of
arbitrability must be addressed with a healthy regard for the
federal policy favoring arbitration . . .[and] any doubts
concerning the scope of arbitrable issues should be resolved
in favor of arbitration.” Moses H. Cone Mem’l
Hosp. v. Mercury Const. Corp., 460 U.S. 1, 23-24 (1983).
Although federal law governs the arbitrability of disputes,
ordinary state-law principles resolve issues regarding the
formation of contracts. Am. Gen. Life & Accident Ins.
Co. v. Wood, 429 F.3d 83, 87 (4th Cir. 2005).
to compel arbitration in which the parties dispute the
validity of the arbitration agreement are treated as motions
for summary judgment.” Rose v. New Day Fin.,
LLC, 816 F.Supp.2d 245, 251 (D. Md. 2011).
“Accordingly, arbitration should be compelled where
‘the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.’” Erichsen v. RBC Capital
Markets, LLC, 883 F.Supp.2d 562, 566-67 (E.D. N.C. 2012)
(quoting Fed.R.Civ.P. 56). A trial is necessary if the
material facts regarding the making of an agreement to
arbitrate are in dispute. Avedon Engineering, Inc. v.
Seatex, 126 F.3d 1279, 1283 (10th Cir. 1997).
Motion for Summary Judgment
judgment shall be granted “if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c). “By its
very terms, this standard provides that the mere existence of
some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). “Only disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is
‘genuine, ’ that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Id. at 249. When the party moving for
summary judgment does not bear the ultimate burden of
persuasion at trial, it may discharge its burden by
demonstrating to the court that there is an absence of
evidence to support the non-moving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The non-movant must then “make a showing sufficient to
establish the existence of an element essential to that
party’s case, and on which that party will bear the
burden of proof at trial.” Id. at 322. The
court should view the evidence in the light most favorable to
the non-moving party and draw all inferences in its favor.
Anderson, 477 U.S. at 255.
Motion for Joinder of Additional Parties
the FLSA, plaintiffs may institute a collective action
against their employer on behalf of themselves and other
similarly situated employees. Section 216(b) of the FLSA
An action . . . may be maintained against any employer . . .
in any Federal or State court of competent jurisdiction by
any one or more employees for and in behalf of himself or
themselves and other employees similarly situated. No
employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and
such consent is filed in the court in which such action is
29 U.S.C. § 216(b). The mechanism outlined in §
216(b) is designed to facilitate the efficient adjudication
of similar claims by “similarly situated”
employees by permitting the consolidation of individual
claims and the pooling of resources in prosecuting such
actions against their employers. See Hoffmann-La Roche
Inc. v. Sperling, 493 U.S. 165, 170 (1989); LaFleur
v. Dollar Tree Stores, Inc., 2014 WL 934379, at *2 (E.D.
Va. Mar. 7, 2014); Lynch v. United Servs. Auto.
Ass’n, 491 F.Supp.2d 357, 367 (S.D.N.Y. 2007).
While § 256(b) outlines the procedures for putative
plaintiffs to join a collective action, it does not specify
when the putative plaintiffs must opt-in to the action.
Regan v. City of Charleston, S.C., No. 2:13-cv-3046,
2015 WL 1299967, at *2 (D.S.C. Mar. 23, 2015). Rather, opt-in
deadlines are set by the district court. Id. The
FLSA also does not explicitly set forth or otherwise indicate
the standard under which a trial court should consider
whether putative plaintiffs may join a collective action
beyond the specified deadline. Ruggles v. Wellpoint,
Inc., 687 F.Supp.2d 30, 37 (N.D.N.Y. 2009). However,
courts within this district have weighed 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.” Regan, 2015 WL 1299967, at *2
(citing Ruggles, 687 F.Supp.2d at 37).
motions addressed in this order each relate, in one way or
another, to the requirements for class membership. Despite
this general theme, the motions deal with a variety of legal
issues and different sets of facts. Defendant’s motions
to compel can be analyzed together, as they rely on the same
Agreement. Defendant’s motion for summary judgment asks
the court to settle four distinct questions: (1) whether the
named plaintiffs were required to file consent forms to join
this action; (2) whether any plaintiffs who failed to file
consent forms within the 60 day opt-in period may be included
in this action; (3) whether a two- or three-year statute of
limitations applies to plaintiffs’ claims; and (4)
whether the various opt-in plaintiffs who were inadvertently
included on the putative plaintiff list, or cannot be
identified, may be included in this action. Plaintiffs’
motion for joinder of additional parties overlaps with the
second issue presented by defendant’s motion for
summary judgment. The court first addresses defendant’s
motions to compel arbitration and then analyzes each issue
presented by the motion for summary judgment in turn. To the
extent defendant’s motion for summary judgment overlaps
with plaintiff’s motion for joinder of additional
parties, the issues will be analyzed together.
Motions to Compel Arbitration
argues that Cole and all opt-in plaintiffs who signed the
Agreement (the “arbitration plaintiffs”) must be
compelled to arbitrate such claims based on the terms of the
Agreement. ECF No. 91-1 at 8-13. Plaintiffs contend that the
arbitration plaintiffs never actually entered into the
Agreement and, therefore, are not bound by its
terms. ECF No. 36 at 3-4; ECF No. 89 at 7-12.
as the party seeking to enforce the Agreement, bears the
initial burden of “persuading this court that the
parties entered into an enforceable arbitration
agreement.” Drake v. Mallard Creek Polymers,
Inc., 2014 WL 7405762, at *1 (W.D. N.C. Dec. 30, 2014).
If defendant makes such a showing, then “the burden
shifts to the plaintiff[s] to show that even though there was
some written contract, [they] did not actually agree to
it-because the[ir] signature was forged, the terms of the
contract were misrepresented, or some other reason evincing
lack of true agreement.” Czopek v. TBC Retail Grp.,
Inc., 2014 WL 5782794, at *4 (M.D. Fla. Nov. 6, 2014);
see also U.S. ex rel. TBI Investments, Inc. v. BrooAlexa,
LLC, 119 F.Supp.3d 512 (S.D. W.Va. 2015) (applying
summary judgment standard to motion to compel arbitration and
stating that “[o]nce the moving party has met its
burden, the burden shifts to the nonmoving party to
demonstrate that a genuine issue of material fact exists for
trial.”). “When deciding whether the parties
agreed to arbitrate a certain matter[, ] courts  should
apply ordinary state-law principles that govern the formation
of contracts.” First Options, 514 U.S. at 944.
there is no question that the language of the Agreement would
obligate the arbitration plaintiffs to submit their claims to
arbitration. See Agreement 2 (“[A]ny and all
disputes, claims, complaints or controversies  between you
and [defendant] . . . that in any way arise out of or relate
to your employment . . . will be resolved by binding
arbitration NOT by a court or jury.”). The true
question is whether the arbitration plaintiffs actually
entered into the Agreement. Defendant has produced printouts
relating to each arbitration plaintiff, showing either (1) a
screenshot of a confirmation page indicating the plaintiff
“acknowledged” the Agreement via the employee
portal, or (2) a typed name in the Agreement’s
signature block indicating the plaintiff “signed”
the Agreement via the Kronos System. Compare Third
Filoon Dec. Attachment 103 (confirmation screenshot of opt-in
plaintiff Hector Miranda); with Third Filoon Dec.
Attachment 104 (electronic signature page of opt-in plaintiff
Prima Facie Showing
first argue that this evidence is insufficient to meet
defendant’s initial burden because defendant has failed
to authenticate these purported “signatures” and
“acknowledgments.” ECF No. 89 at 8. In response,
defendant highlights evidence that the employee portal was
password secured, and the Agreement’s electronic
“acknowledgment” required employees to enter
their employee number and a portion of their social security
number. Second Filoon Dec. ¶ 9, Ex. A.
establish that evidence is authentic, a proponent need only
present ‘evidence sufficient to support a finding that
the matter in question is what the proponent
claims.’” United States v. Vidacak, 553
F.3d 344, 349 (4th Cir. 2009) (quoting Fed.R.Evid. 901(a)).
“[T]he burden to authenticate under Rule 901 is not
high-only a prima facie showing is required, ” and a
“district court’s role is to serve as gatekeeper
in assessing whether the proponent has offered a satisfactory
foundation from which the jury could reasonably find that the
evidence is authentic.” Id. “A signature
demonstrates that the signer intends to authenticate a
document as her own act through the use of a mark.”
Hamdi Halal Mkt. LLC v. United States, 947 F.Supp.2d
159, 164 (D. Mass. 2013). The arbitration plaintiffs all
worked in states that have adopted the Uniform Electronic
Transactions Act (“UETA”). See Florida
Statues § 668.001, et seq.; O.C.G.A. §
10-12-1, et seq. (Georgia); LA Rev. Stat. §
9:2601, et seq. (Louisiana); MS Code § 75-12-1,
et seq. (2015) (Mississippi); N.C. Gen. Stat. §
66-311, et seq.; S.C. Code Ann. § 26-6-10,
et seq.; 9 VSA § 270, et seq.
(Vermont). South Carolina’s version of the UETA
provides the following:
An electronic record or electronic signature is attributable
to a person if it is the act of the person. The act of the
person may be shown in any manner, including a showing of the
efficacy of a security procedure applied to determine the
person to which the electronic record or electronic signature
S.C. Code Ann. § 26-6-90.
courts “have found the declaration of the human
resource employees sufficient to authenticate electronic
signatures.” Tagliabue v. J.C. Penney Corp.,
Inc., 2015 WL 8780577, at *2 (E.D. Cal. Dec. 15, 2015)
(collecting cases). Other courts have focused on the factual
circumstances surrounding the purported signature. See
Jones v. U-Haul Co. of Mass. & Ohio Inc., 16
F.Supp.3d 922, 934 (S.D. Ohio 2014) (assessing security
measures used to protect defendants’ online system and
finding employee’s claim that her signature was not
authentic failed to create a genuine issue of material fact);
Kerr v. Dillard Store Servs., Inc., 2009 WL 385863,
at *5 (D. Kan. Feb. 17, 2009) (“While the record
establishes that Champlin and plaintiff were at the kiosk on