United States District Court, D. South Carolina, Charleston Division
David Meller and Kerstin Robinson, individually and on behalf of all others similarly situated, Plaintiffs,
Wings Over Spartanburg, LLC; Wings Over America, Inc.; Aetius Companies, LLC; Aetius Franchising, LLC.; Aetius Holdings, LLC; Aetius Restaurant Holdings, LLC; and Aetius Restaurant Group, LLC, Defendants.
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' motion for
relief pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. (ECF No. 79). For the reasons set forth herein,
Plaintiffs' motion is denied.
AND PROCEDURAL HISTORY
FLSA collective action arises out of Plaintiffs'
allegations that Defendants required servers at several Wild
Wing Cafe restaurants to contribute to tip pools that were
shared with employees who did not customarily and ordinarily
receive tips. The Court approved the parties' consent
motion to certify a class on June 13, 2016. After the close
of the opt-in period, Plaintiffs and Defendants filed a joint
stipulation of dismissal on November 10, 2016. That
stipulation dismissed the claims of ten opt-in plaintiffs
whose consent forms were not timely submitted, including
Miranda Daly and Tyler Boland. Approximately nine months
later, Plaintiffs discovered that Daly and Boland's
consent forms might have actually been timely submitted. As a
result, Plaintiffs filed their motion for relief from that
stipulation of dismissal pursuant to Rule 60(b) on October
12, 2017. Defendants responded on October 26, and Plaintiffs
replied on October 31. Accordingly, this matter is now ripe
Rule of Civil Procedure 60(b) states:
On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “In order to obtain relief under
Rule 60(b) the moving party must ‘show (1) that the
Rule 60(b) motion is timely; (2) that [the non-moving party]
will not suffer unfair prejudice if the default judgement is
set aside; and (3) that [the movant's defense] is
meritorious.'” State Farm Life Ins. Co. v.
Murphy, No. 2:15-cv-4793-DCN, 2017 WL 4551488, at *2
(D.S.C. Oct. 12, 2017) (quoting Westlake Legal Grp. v.
Yelp, Inc., 599 Fed.Appx. 481, 484 (4th Cir. 2015)).
Additionally, “[w]hen a moving party seeks relief under
the catch-all provision of subsection (b)(6), he must also
show the existence of ‘extraordinary
circumstances.'” Id. (quoting
Murchison v. Astrue, 466 Fed.Appx. 225, 229 (4th
Cir. 2012)). “Extraordinary ...