     Case: 15-20204      Document: 00513627928         Page: 1    Date Filed: 08/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                   FILED
                                                                               August 8, 2016
                                      No. 15-20204
                                                                                Lyle W. Cayce
                                                                                     Clerk
JOANNA MARIE WILSON; ASHLEY RACHEL DELEON; STEVE
VINKLER; SHEILA COLLINS; JEFF SVEHLAK; et al.,

               Plaintiffs–Appellants,

v.

NAVIKA CAPITAL GROUP, L.L.C.; PEARL HOSPITALITY, L.L.C.; RUBY
HOSPITALITY, INCORPORATED; NAVEEN C. SHAH; EMERALD
HOSPITALITY TULSA, INCORPORATED,

               Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC 4:10-CV-1569


Before PRADO, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       This appeal arises from a collective action brought under the Fair Labor
Standards Act (“FLSA”). A group of hotel employees brought suit against
Defendants–Appellees (collectively, “Navika”) seeking overtime pay and
unpaid wages. On March 14, 2015, the district court granted two pending


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 15-20204
motions—a motion for reconsideration of a prior equitable tolling ruling and a
motion to dismiss, each involving distinct groups of plaintiffs. 1 Plaintiffs–
Appellants have challenged both rulings on appeal. For the reasons stated
below, we affirm in part and dismiss in part.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       In May 2010, Joanna Wilson and Ashley DeLeon filed suit against
Navika under the FLSA to recover overtime pay and unpaid wages “on behalf
of themselves and other similarly situated persons.” The district court
conditionally certified a class of current and former Navika employees, and
approximately 330 individuals joined the class. This appeal involves the
district court’s ruling on two distinct motions: 1) Navika’s Motion for
Reconsideration of Order on Motion for Extension of Time (“Motion for
Reconsideration”) and 2) Navika’s Motion in Limine to Dismiss (“Motion to
Dismiss”).
A.     Motion for Reconsideration
       On June 4, 2014, the district court decertified the class and dismissed
without prejudice the claims of all plaintiffs that had opted to join. In order
“[t]o avoid prejudice to individual opt-in Plaintiffs who have been dismissed,”
the court “invoke[d] its equity powers to toll the applicable statute of
limitations for 30 days,” which gave the decertified plaintiffs the opportunity
to file individual suits.
       On July 7, 2014, the Opt-In Plaintiffs filed for a seven-day extension of
the district court’s equitable tolling ruling, explaining that it had “dutifully
filed lawsuits in the local jurisdictions where the consenting plaintiffs reside”



       1 This appeal involves a complex mix of parties and claims. The plaintiffs purportedly
appealing the motion for reconsideration are referred to as the “Opt-In Plaintiffs.” The
plaintiffs appealing the motion to dismiss are referred to by name, Joanna Wilson and Ashley
DeLeon. When discussing both sets of plaintiffs, we refer to “Plaintiffs–Appellants.”
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                                     No. 15-20204
but that filing problems in the United States District Court for the Western
District of Missouri prevented them from timely filing suit in that jurisdiction.
Before the district court ruled on this motion, the Opt-In Plaintiffs filed an
amended motion (“Motion to Extend Equitable Tolling”), citing “filing
complications” with several jurisdictions and requesting a fourteen-day
extension. Before Navika filed a response, the district court granted the Motion
to Extend Equitable Tolling. 2
      On July 24, 2014, Navika filed a Motion for Reconsideration of the
district court’s ruling, arguing that the extension should not have been granted
because the Opt-In Plaintiffs failed to diligently file their individual suits. On
March 14, 2015, the district court granted the Motion for Reconsideration and
denied the Opt-In Plaintiffs’ Motion to Extend Equitable Tolling, stating that,
as a result, the equitable tolling deadline actually expired on July 7, 2014—
thirty days after decertification. The Opt-In Plaintiffs now appeal.
B.     Motion to Dismiss
       In January 2014, the district court ordered “that all Plaintiffs who
remain a party to this action . . . are required to provide Defendants with
individual damages computations within twenty (20) days of entry of this
order.” The court further ordered that “Plaintiffs who do not provide an
individual computation of damages will be dismissed without prejudice.” On
March 31, 2014, Navika moved to dismiss any plaintiffs that had failed to
provide an individualized damages computation pursuant to Federal Rules of
Civil Procedure 37 and 41(b) and the January 2014 order. On March 14, 2015,
the district court granted Navika’s motion and dismissed all remaining
plaintiffs without prejudice pursuant to Federal Rules of Civil Procedure 37



      2   Five lawsuits were filed by different groups of Opt-In Plaintiffs, two within the
original thirty-day equitable tolling deadline and three during the fourteen-day extension.
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                                    No. 15-20204
and 41(b). Two plaintiffs dismissed in that order, Ashley DeLeon and Joanna
Wilson, now appeal.
                                 II. DISCUSSION
      The district court had jurisdiction under 28 U.S.C. § 1331. This court has
jurisdiction to review the district court’s final judgment pursuant to 28 U.S.C.
§ 1291.
A.    Notice of Appeal
      As a preliminary matter, Navika contends that the notice of appeal filed
by Plaintiffs–Appellants did not comply with Federal Rule of Appellate
Procedure 3(c)(1). The caption of the notice of appeal states the names of five
individuals: Joanna Marie Wilson, Ashley Rachel DeLeon, Sheila Collins,
Steve Vinkler, and Jeff Svehlack. The body of the notice of appeal provides:
       Notice is hereby given that Plaintiffs Wilson et al. hereby appeal
       to the United States Court of Appeals for the Fifth Circuit from
       the Final Order of Dismissal (Doc. #468) entered March 14, 2015
       and the Opinion and Order (Doc. #467) entered March 14, 2015
       granting Defendants’ Motion in Limine to Dismiss, granting
       Defendants’ Motion for Reconsideration, denying Plaintiffs’
       Motion for Reconsideration and Extension and Plaintiffs’
       Amended Motion for Reconsideration and Extension, the
       revocation of equitable tolling.
      Federal Rule of Appellate Procedure 3(c)(1) “identifies the minimum
prerequisites for a sufficient notice” of appeal. Kinsley v. Lakeview Reg’l Med.
Ctr. LLC, 570 F.3d 586, 589 (5th Cir. 2009). Rule 3(c)(1)(A) states that a notice
of appeal must “specify the party or parties taking the appeal by naming each
one in the caption or body of the notice.” Fed. R. App. P. 3(c)(1)(A). However,
“an attorney representing more than one party may describe those parties with
such terms as ‘all plaintiffs,’ ‘the defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all
defendants except X.’” Id. Because one attorney represents all potential



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                                      No. 15-20204
plaintiffs in this appeal, Plaintiffs–Appellants argue that the use of “Plaintiffs
Wilson et al.” is sufficient to comply with the requirements of Rule 3(c).
      Although courts should “liberally construe” the requirements of Rule 3,
“[t]his   principle   of    liberal   construction   does   not,   however,   excuse
noncompliance with the Rule.” Smith v. Barry, 502 U.S. 244, 248 (1992); see
also Bailey v. Cain, 609 F.3d 763, 767 (5th Cir. 2010). In this case, Plaintiffs–
Appellants’ use of “Plaintiffs Wilson et al.” does little to “specify the party or
parties taking the appeal,” Fed. R. App. P. 3(c)(1)(A). As explained in the
advisory committee notes to Rule 3(c), “Plaintiffs Wilson et al” is only a
sufficient descriptor if “it is objectively clear that a party intended to appeal.”
Fed. R. App. P. 3(c) advisory committee’s note to 1993 amendment; cf. Kinsley,
570 F.3d at 589 (“[T]he notice afforded by the document, not litigant’s
motivation in filing it, determines the document’s sufficiency as a notice of
appeal.” (quoting Smith, 502 U.S. at 248)).
      As evidenced by a review of the district court record and the briefing on
appeal, it is anything but clear which individuals “Plaintiffs Wilson et al.”
encompasses. Similar to Dodson v. Hillcrest Securities Corp., 95 F.3d 52, 1996
WL 459770 (5th Cir. 1996) (unpublished), the plaintiffs in this case were in
“continual flux” at the district court, as various groups of plaintiffs were
dismissed at different times. Id. at *4. Therefore, “one must make a close
examination of the record to determine who were [the] plaintiffs at any
particular time.” Id. at *4. Because we conclude that “Plaintiffs Wilson et al.”
does not make it “objectively clear” which Plaintiffs–Appellants are involved in
this appeal, we find that the descriptor is insufficient to comply with Rule 3(c).




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                                       No. 15-20204
       But, the notice of appeal is not deficient as to all Plaintiffs–Appellants.
We hold, and both parties agree, that Ashley Deleon and Joanna Wilson 3
properly gave notice of their intent to appeal the district court’s ruling on
Navika’s Motion to Dismiss. See Fed. R. App. P. 3(c)(1)(A) (“The notice of appeal
must: specify the party or parties taking the appeal by naming each one in the
caption or body of the notice.” (emphasis added)). Therefore, with the exception
of Ashley DeLeon and Joanna Wilson, all other Plaintiffs–Appellants are
dismissed for want of jurisdiction. Because DeLeon and Wilson only challenge
the district court’s order on Navika’s Motion to Dismiss, we need not address
any arguments related to Navika’s Motion for Reconsideration.
B.     Motion to Dismiss
       Named plaintiffs DeLeon and Wilson argue that the district court abused
its discretion in dismissing their claims under Federal Rule of Civil Procedure
37(c)(1). On March 14, 2015, the district court dismissed DeLeon and Wilson
without prejudice “pursuant to Fed. R. Civ. P. 37 and/or 41(b).” But, in their
brief DeLeon and Wilson only contest the district court’s dismissal pursuant to
Rule 37. Because DeLeon and Wilson failed to raise any challenge to the
district court’s dismissal pursuant to Rule 41(b), they have waived the issue on
appeal. See, e.g., Kleibrink v. Kleibrink (In re Kleibrink), 621 F.3d 370, 371 n.1
(5th Cir. 2010). Accordingly, this Court need not reach the parties’ arguments
related to Rule 37.




       3The caption of the notice of appeal states the names of three other individuals: Sheila
Collins, Steve Vinkler, and Jeff Svehlack. As Plaintiffs–Appellants brief contains no
arguments related to Sheila Collins, Steven Vinkler, and Jeff Svehlack, these individuals
have abandoned their appeal. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
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                                No. 15-20204
                            III. CONCLUSION
      For the foregoing reasons, the district court’s dismissal of DeLeon and
Wilson is AFFIRMED, and we dismiss for want of jurisdiction all other
Plaintiffs–Appellants.




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