Adedje v. Westat, Inc.

HOTTEN, J. Following dismissal of a proposed collective action in the United States District Court for the District of Maryland, appellant, Judith Adedje, filed a complaint, individually, in the Circuit Court for Montgomery County against appellees, Westat, Inc. (“Westat”), Westat’s Senior Vice President, Renee Slobasky, Westat’s Vice President, Patricia Montalvan, and Westat’s Assistant Director of Survey Operations for the National Health and Nutrition Examination Surveys Project, Katrina Apodaca, alleging violations of Maryland’s Wage and Hour Law and Wage Payment and Collection Law, regarding unpaid overtime wages. 1 Appellees filed a motion to dismiss appellant’s complaint, asserting a failure to state a claim upon which relief could be granted and that appellant’s claims were barred by the statute of limitations. The circuit court granted ⁴ appellees’ motion. Appellant noted an appeal, and presents two questions for our consideration: 1. Is [appellant’s claim for overtime wages under the [Maryland Wage Payment and Collection Law] barred by the statute of limitations despite being tolled under class action judicial tolling during [appellant’s participation in prior collective action litigation in Syrja v. Westat under the [Fair Labor Standards Act]? 2.

Has [appellant stated a claim for overtime wages under the [Maryland Wage Payment and Collection Law] in claiming wages which [appellee was required by law to pay [appellant and which [appellee withheld from [appellant during [appellant’s employment and upon her termination? For the reasons outlined below, we answer the first question positively, and we need not address the second question. Accordingly, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND The procedural history of appellant’s efforts to obtain her alleged overtime wages originated with Syrja v. Westat, Inc., 756 F.Supp.2d 682 (D.Md.2010).

On July 27, 2009, the plaintiff-employee, Steven Syrja (“Mr. Syrja”), filed a complaint in the U.S. District Court for the District of Maryland (“Maryland U.S. District Court”), maintaining that Westat violated the Family and Medical Leave Act and Title VII of the Civil Rights Act of 1964 because it failed to compensate him for applicable overtime pay. Id. at 683 . On August 13, 2009, Mr. Syrja filed an amended complaint, on behalf of himself and all other similarly situated individuals, and further claimed a violation of the Fair Labor Standards Act and Maryland’s Wage Payment and Collection Law. 2 Id. The Maryland U.S. District Court offered a comprehensive description of Westat and its employees as follows: ⁵ Westat is a Rockville, Maryland-based statistical survey research company that collects and analyzes data on various subjects for government agencies, businesses, and foundations.

Since the 1980s, the federal Centers for Disease Control and Prevention [] have engaged Westat to assist with the collection of medical data for its National Health and Nutrition Examination Surveys (“NHANES”). The NHANES project, which endeavors to provide a statistical snapshot of the baseline health of Americans, requires that annual data be collected at several thousand selected households throughout the country. The data collected through the NHANES project eventually serve as a source for health science study and analysis for federal agencies, universities, and other public and private research entities. To facilitate the collection of data for NHANES, Westat employs “field interviewers”—also sometimes referred to as “data collectors” 1 1—whose job is to visit households selected by NHANES statisticians to request their participation in the study and to collect information about the background and health of the households’ members....

Westat’s NHANES field interviewers work at [specific locations] for approximately 48 weeks each year. They receive two vacation breaks-one in the summer and another in the winter—lasting approximately two weeks each. Given that the interviewers must work at several different [locations] each year, the job requires travel on a full-time basis. The interviewers stay in hotels or apartments in the general vicinity of their assigned [location] and receive per diem allowances to cover expenses for meals and incidentals.

After arriving at a [location], each field interviewer receives materials containing addresses and basic information for households that have been identified as possible candidates for the NHANES study. Each field interviewer travels to each address assigned to him, greets the person who answers the door, and describes the purpose of the NHANES project. The field interviewer then conducts a “household screening,” a process through which he collects demograph ⁶ ic data about the people in the household, enters the data in a portable computer, and receives feedback from the computer indicating whether one or more candidates for the NHANES study resides in the household. If at least one such candidate is identified, the field interviewer attempts to persuade the candidate(s) to submit to a comprehensive health interview, to be followed by a medical examination to be conducted by a different group of Westat personnel.

To a significant degree, Westat’s NHANES field interviewers set their own schedules. Although they are obliged to report to their respective [ ] offices a few times each week, it is generally up to the interviewers to decide when to begin their work days, decide when to take breaks, determine their own daily and weekly travel itineraries, and decide when to end their respective work days. The quantity and nature of work assignments among field interviewers vary considerably. Some interviewers are assigned as few as 20 households in a [location], others as many as 100.

The variations depend upon the geography of the [location], the resulting time travel required, the preferences of the [location’s] managers, and the skill and experience levels of the field interviewers, among other things. The complexity of a given interview also varies from household to household. Because they generally work alone in the [locations] and largely set their own schedules, the interviewers are responsible for recording and reporting their work hours. To facilitate the reporting process, Westat provides each field interviewer with blank timesheets.

On a weekly basis, each field interviewer records his or her work hours on a time-sheet and submits the timesheet to his [or her] study manager for approval. Once the timesheet is approved, the study manager delivers the timesheet to Westat’s payroll department for processing. Id. at 683-85 . Appellant, an Alabama resident, was employed as a Westat field interviewer from April 2003 to May 2007.

After this ⁷ position ended, appellant alleged that she too was entitled to overtime wages for working in excess of forty hours per week. On September 15, 2009, in addition to other Westat employees, appellant filed written consent to join the Syrja case, stating, “I hereby consent and agree to opt-in to become a plaintiff in a lawsuit brought under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 , et seq., to recover unpaid wages and overtime wages from my current/former employer, Westat, Inc.” Thereafter, Mr. Syrja filed a motion for conditional class certification relating to his Fair Labor Standards Act claim. Id. The Maryland U.S. District Court determined that: [T]he adjudication of multiple claims in this case would require the parties, the Court, and perhaps eventually a jury, to engage in an unmanageable assortment of individualized factual inquiries.

At a minimum, these inquiries would require an examination of: each individual field interviewer’s work assignments; the nature and length of the assignments, his [or her] interactions with his [or her] respective managers; the details of how and when he [or she] was instructed to complete his [or her] timesheets; the notes he [or she] took during his [or her] household screenings; the computer entries he [or she] made during his [or her] household screenings; the policies in place regarding hours to be worked in his [or her] particular [location(s) ]; whether he [or she] was ever authorized to work overtime; and whether he [or she] was in fact compensated or uncompensated for his [or her] overtime hours[.][ 1 Id. at 688 . On November 2, 2010, the Maryland U.S. District Court issued an order that denied Mr. Syrja’s motion for conditional class certification. Id. at 690 . On December 2, 2010, appellant and nineteen other Syrja plaintiffs filed a new complaint in the Maryland U.S. District Court, alleging violations of the Fair Labor Standards Act and Maryland’s Wage Payment and Collection Law.

In response, appellees filed a motion to sever and dismiss. Following a motions hearing, the Maryland U.S. District Court issued ⁸ another order on September 1, 2011, stating (emphasis in original) (capitalization in original): 1. Defendants’ Motion to [s]ever and [dismiss [ ] is GRANTED IN PART AND DENIED IN PART. The [m]otion is GRANTED insofar as: (a) the claims of all [the] [plaintiffs other than Judith Adedje are DISMISSED WITHOUT PREJUDICE from this suit; to the extent those [p]laintiffs wish to pursue their claims against [defendants, they must do so by filing separate lawsuits; and (b) the claims of [p]laintiff Judith Adedje are DISMISSED WITH LEAVE TO AMEND.

The Motion is DENIED insofar as the Court declines to address limitations issues at this time; 2. Plaintiffs [M]otion for [L]eave to [A]dd [Plaintiffs [Paper No. 20] is DENIED; and 3. Plaintiff Adedje shall have 20 DAYS to file an [a]mended [e]omplaint containing allegations sufficiently specific to satisfy the plausibility standard articulated by the [U.S.] Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 [ 127 S.Ct. 1955 , 167 L.Ed.2d 929 ] (2007), and Ashcroft v. Iqbal [ 556 U.S. 662 ], 129 S.Ct. 1937 [ 173 L.Ed.2d 868 ] (2009). Thereafter, on September 30, 2011, appellant filed a complaint in the Circuit Court for Montgomery County, alleging that she “was entitled to overtime premium compensation from [appellees] of one and one-half times her regular rate of pay for hours she worked beyond the forty per week for [appellees,]” pursuant to Maryland’s Wage and Hour Law and Wage Payment and Collection Law. 3 On December 9, 2011, ⁹ appellees filed a motion to dismiss, asserting that (1) appellant’s claims were time-barred because her employment ended in May 2007, and equitable tolling pursuant to 28 U.S.C. § 1367 (d) did not apply; 4 (2) appellant failed to allege a violation of the Wage and Hour Law in the Syrja action; and (3) appellant failed to state a claim upon which relief could be granted regarding the Wage Payment and Collection Law. 5 On January 10, 2012, appellant filed an opposition to the motion, maintaining that equitable tolling under 28 U.S.C. § 1367 (d) did toll the statute of limitations and that there was a valid Wage Payment and Collection Law claim.

During a hearing on March 15, 2012, appellees submitted three “statute of limitations” charts that included all the relevant dates relating to appellant’s and other Westat employees’ filings and dismissals. The circuit court offered appellant the option to submit a supplemental brief and/or respond to appellees’ charts. On March 30, 2012, appellant filed a supplemental memorandum and a chart to address alleged inaccuracies in appellees’ charts. On April 16, 2012, appellees filed a response to appellant’s supplemental brief, and averred that appellant’s submission did not survive the motion to dismiss.

On May 4, 2012, the circuit court issued an opinion and order, stating: ... [S]ince the Wage and Hour Law was never asserted by [appellant] in either federal case, the tolling provision of [28 ¹⁰ U.S.C. §] 1367(d) will not be applied to Count One. [6] Count One is limited to any alleged claims occurring on and after September 30, 2008. Given that [appellant’s] employment ended in May 2007, Count One is barred by the statute of limitations. [Appellant] did assert the Wage Payment and Collection Law state claim in [Adedje, et al. v. Westat, et al., Civil Action No. 10-3378], filed on December 2, 2010, which was subsequently dismissed September 2, 2011, thereby tolling Count Two of the state law claim for ten (10) months. However, even with the application of the tolling provision, the statute of limitations still expired in March 2011, thereby barring Count Two. [Appellant] does not assert that Westat failed to pay her regularly or all that was due upon termination, and therefore Count Two of [appellant’s] complaint is dismissed. [ (citation omitted).] Appellant noted a timely appeal. STANDARD OF REVIEW According to the Court of Appeals, under Md. Rule 2-322(b)(2), [A] defendant may, in a civil suit in a circuit court, seek dismissal of a case through preliminary motion when the complaint fails “to state a claim upon which relief can be granted.” A defendant asserts in such a motion that, despite the truth of the allegations, the plaintiff is barred from recovery as a matter of law....

North Am. Specialty Ins. v. Boston Med. Group, 170 Md.App. 128, 135 , 906 A.2d 1042 (2006) (quoting Porterfield v. Mascari ¹¹ II, Inc., 374 Md. 402, 413-14 , 823 A.2d 590 (2003)) (additional citations omitted). ... We must assume the truth of, and view in a light most favorable to the non-moving party, all well-pleaded facts and allegations contained in the complaint, as well as all inferences that may reasonably be drawn from them, and order dismissal only if the allegations and permissible inferences, if true, would not afford relief to the plaintiff____We must confine our review of the universe of facts pertinent to the court’s analysis of the motion to the four comers of the complaint and its incorporated supporting exhibits, if any.

Kumar, 426 Md. at 193, 43 A.3d 1029 (quoting Parks v. Alpharma, Inc., 421 Md. 59, 72 , 25 A.3d 200 (2011)). Similar to motions for summary judgment, we examine the circuit court’s ruling to determine whether it was legally correct. Id. (quoting Parks, 421 Md. at 72 , 25 A.3d 200 ) (quotations omitted), accord Doe v. Roe, 419 Md. 687, 693 , 20 A.3d 787 (2011) (“ ‘In reviewing the [circuit [cjourt’s grant of a motion to dismiss, our task is confined to determining whether the [circuit] court was legally correct in its decision to dismiss.’ ”) (quotations omitted).

We therefore review a motion to dismiss pursuant to the de novo standard. Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 142 , 46 A.3d 443 (2012) (citing Reichs Ford Rd. Joint Venture v. State Rds. Comm’n of the State Highway Admin., 388 Md. 500, 509 , 880 A.2d 307 (2005)).

DISCUSSION Whether Appellant’s Claim For Overtime Wages Under The Maryland Wage Payment And Collection Law Was Barred By The Statute Of Limitations. The Court of Appeals has traditionally concluded that “the question of accrual in [Md.Code (1974, 2013 Repl. Vol), § 5-101 of the Courts and Judicial Proceedings Article (hereinafter “Cts. & Jud. Proc.”) ] is left to judicial determination.” Shailendra, Kumar, P.A. v. Dhanda, 426 Md. 185, 193 , 43 A.3d 1029 (2012) (quoting Frederick Rd.

Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 95 , 756 A.2d 963 (2000)). Cts. & Jud. Proc. § 5-101 provides: ¹² A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced. Therefore, on a general basis, because appellant’s employment ended in May 2007, the filing deadline would have been in May 2010.

Appellant filed her complaint in the circuit court on September 30, 2011. Ordinarily, the action would have been a year and four months beyond the filing deadline, and thus, time-barred by the statute of limitations. Appellant acknowledges the abovementioned contention, but maintains that: [Her claim] was tolled on September 15, 2009, when she opted in to the Syrja collective action.[ ] ..., This added 13 months and 17 days, the time between when [appellant] opted in the Syrja action and when the [Maryland U.S. District] [C]ourt denied certification on November 2, 2010, to the statute of limitations. The statute of limitations was tolled again on December 2, 2010, when [appellant] filed her action in federal court, through the action’s dismissal on September 2, 2011.

This added 9 months, plus an additional 30 days, under [28 U.S.C.] § 1367(d), to the statute of limitations. The [circuit] court [] correctly tolled [appellant’s] claim for the 10 months that the federal Adedje action was pending, but did not address [class action] tolling for the time of the Syrja collection action. Thereby, appellant contends that her claim was timely pursuant to 28 U.S.C. § 1367 (d) and the class action tolling doctrine. Appellees aver that 28 U.S.C. § 1367 (d) was appellant’s exclusive means of tolling, and that the class action tolling doctrine did not apply to Syrja .

Furthermore, appellees alleged that Maryland does not recognize cross-jurisdictional class action tolling, and that appellant only opted-in Mr. Syrja’s Fair Labor Standards Act, not the Wage Payment and Collection Law claim. ¹³ Although some courts have often merged equitable tolling and class action tolling, we agree with the jurisdictions that have found principal differences between the two, stating: [W]e believe that there is a fundamental distinction between equitable tolling and class action tolling. In a class action, the putative class representative has satisfied the prerequisites to suit [sic], including filing within the applicable limitations period; tolling is applied to preserve the rights of absent class members during the pendency of certification proceedings. In contrast, equitable tolling seeks to excuse untimely filing by an individual plaintiff and is generally applicable where the plaintiff has been induced or tricked by the defendant’s conduct into allowing the filing deadline to pass. Because the purpose behind class action tolling is different from the purpose behind equitable tolling, we find that the cases concerning equitable tolling are inapposite.

Hess v. I.R.E. Real Estate Income Fund, Ltd., 255 Ill.App.3d 790 , 195 Ill.Dec. 935 , 629 N.E.2d 520, 531 (1993). See also Stransky v. HealthONE of Denver, Inc., 868 F.Supp.2d 1178, 1181 (D.Co.2012) (“Furthermore, equitable tolling applies only when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant’s control.”) (additional citations omitted) (internal quotations omitted); Hatfield v. Halifax PLC, 564 F.3d 1177, 1188 (9th Cir.2009) (The purpose of equitable tolling “is to toll the statute of limitations in favor of a plaintiff who acted in good faith where the defendant is not prejudiced by having to defend against a second action.”) (additional citation omitted). Though distinct, we do acknowledge that jurisdictions can apply the equitable tolling doctrine in their class actions to toll their statute of limitations. See Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 33 (Tenn.2007) (“A majority of other states have adopted a rule allowing equitable tolling during the pendency of a class action in their own courts.”) (additional citations omitted).

Most of appellant’s argument is predicated on Philip Morris USA, Inc., et al. v. Christensen, et al., 394 Md. 227 , 905 ¹⁴ A.2d 340 (2006) [hereinafter “Christensen II ”]. In Christensen II, the Court of Appeals determined “whether the commencement of a class action suspends the applicable statute of limitations as to asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 231 , 905 A.2d 340 . Similar to the case at bar, the procedural history of the plaintiffs’ efforts to obtain damages commenced with another case, Richardson, et al. v. Phillip Morris Inc., et al. [hereinafter “Richardson”]. See Philip Morris Inc., et al. v. Angeletti, 358 Md. 689, 701 , 752 A.2d 200 (2000). 7 In Richardson, an injured party filed a complaint, on behalf of similarly situated individuals [hereinafter “Richardson ” parties], against the defendants-cigarette manufacturers, for diseases sustained as a result of smoking the defendants’ tobacco products.

Christensen, et al. v. Philip Morris USA, Inc., et al., 162 Md.App. 616, 620 , 875 A.2d 823 (2005) [hereinafter “Christensen I”]. The Richardson parties requested a class certification, which the circuit court granted. Id. Russell Christensen (“Mr. Christensen”) was not a named party in Richardson, but was highly involved.

Id. at 621 , 875 A.2d 823 . Mr. Christensen submitted an affidavit on behalf of the Richardson parties, and presented a de bene esse deposition, where he explained his cigarette usage and contraction of lung cancer. Id. The defendants petitioned the Court of Appeals to order the circuit court to vacate the class certification, which the Court issued.

Id. (additional citation omitted). Thereafter, the Richardson parties moved for a “stipulation of dismissal” in the circuit court, where they reached an agreement that: [F]or the purpose of limitations, any claims reasserted by the named parties within six months of the dismissal would be deemed filed on the same date that Richardson had been ¹⁵ filed. The [stipulation, however, did not extend to [non-named parties].

Id. A few months later, Mr. Christensen died of lung cancer, id. at 618 , 875 A.2d 823 , and his wife and children filed a survival and wrongful death action in the circuit court against the defendants. Christensen II, 394 Md. at 232 , 905 A.2d 340 . The defendants filed a motion for summary judgment, averring that the statute of limitations expired, and the circuit court agreed.

Id. at 234 , 905 A.2d 340 . On appeal, our Court vacated the grant of summary judgment, determining that “during the pendency of the class action lawsuit in Richardson, limitations was [sic] suspended for potential class members.”[] Christensen I, 162 Md.App. at 659 , 875 A.2d 823 . The defendants appealed to the Court of Appeals, and argued that if Maryland Courts acknowledged a class action tolling exception, it did not apply. Christensen, 394 Md. at 236 , 905 A.2d 340 .

The Court of Appeals indicated that it would recognize a tolling exception if “(1) there [was] persuasive authority or persuasive policy considerations supporting the recognition of the tolling exception, and (2) [if] recognizing the tolling exception [was] consistent with the generally recognized purposes for the enactment of statutes of limitations.” Id. at 238 , 905 A.2d 340 (additional citations omitted). Furthermore, the Court emulated its additional factors from the U.S. Supreme Court’s American Pipe and Construction Co., et al. v. Utah, et al., 414 U.S. 538 , 94 S.Ct. 756 , 38 L.Ed.2d 713 (1974) [hereinafter “American Pipe ”], stating: In particular, we emphasize that, in order to claim the benefits of class action tolling, the individual suit must “ ‘concern the same evidence, memories, and witnesses as the subject matter of the original class suit,’ ” American Pipe, 414 U.S. at 562 [ 94 S.Ct. 756 ] ... (Blackmun, J., concurring), and that “ ‘[c]laims as to which the defendant was not fairly placed on notice by the class suit [were] not protected under American Pipe.’ ” [ (citation omitted) ]. In our view, these notice restrictions on the scope of the ¹⁶ American Pipe class action tolling rule are necessary because they ensure that the rule is consistent with the purposes of statutes of limitations.

Christensen, 394 Md. at 256 , 905 A.2d 340 . Thereafter, the Court determined that the requisites for the Christensen plaintiffs were satisfied. Id. at 265 , 905 A.2d 340 . The Court found that Mr. Christensen was a member of the Richardson putative class of persons.

Id. With an exception for one cigarette manufacturer, the defendants and claims were the same from Richardson. Id. Furthermore, neither party contested that the Christensen plaintiffs’ claims did not accrue prior to the circuit court’s grant of the class action certification in Richardson.

Id. at 266, 905 A.2d 340 . Because Mr. Christensen was actively involved in Richardson, the defendants possessed sufficient notice of the action. Id. As a result, the Court concluded that class action tolling applied, and the Christensen plaintiffs’ complaint was timely.

Id. at 267 , 905 A.2d 340 . Appellees support their contentions with Antar, et al. v. Mike Egan Ins. Agency, Inc., et al., 209 Md.App. 336 , 58 A.3d 609 (2012). In Antar, the plaintiffs owned a Baltimore City building, which was destroyed by a fire.

Id. at 338 , 58 A.3d 609 . The plaintiffs filed a claim -with the defendants-insurance companies, which was denied because an inspection indicated that the plaintiffs failed to use smoke detectors. Id. On February 4, 2008, the plaintiffs filed an action in a Pennsylvania circuit court for breach of contract and bad faith.

Id. at 339 , 58 A.3d 609 . One of the defendants moved for a dismissal, which the court granted with leave to refile the complaint in a Maryland court. Id. Instead, however, on June 15, 2010, the plaintiffs appealed their case to Pennsylvania’s intermediate appellate court, which affirmed the circuit court’s decision.

Id. On May 18, 2011, the plaintiffs finally filed a complaint in a Maryland circuit court, averring that the defendants breached their contract and were negligent. Id. The defendants filed a motion to dismiss, which the court granted, holding that the claim was time-barred.

Id. ¹⁷ On appeal, the plaintiffs maintained that the circuit court erred because “the running of the limitations period in Maryland should have been tolled for the entire length of time that the suit was pending in Pennsylvania.” Id. at 340 , 58 A.3d 609 . Our Court stated: [T]he [plaintiffs] did not need the benefit of [Md.] Rule 2-101(b)’s [8] 30 day grace period, because when the Philadelphia County Court dismissed the case on the grounds of forum non conveniens on July 24, 2008, they still had two years and seven months within which to refile the case timely in Baltimore. Even figuring from the affirmance of the dismissal by the Pennsylvania intermediate appellate court on June 15, 2010, they still had eight months within which to accomplish a timely refiling of the case in Baltimore (or four months and eight days figuring from September 27, 2010). Under any of those languid and latitudinarian deadlines, they utterly failed to exhibit a shred of diligence.

Dissatisfied by the only relief provided by rule or statute, the [plaintiffs] would have us invent a new form of relief. We have no such power, even were we so inclined. (We are not). Even if the Maryland [s]tatute of [[limitations had run out on the case while it was still pending in Pennsylvania, the only relief available to the [plaintiffs] would have been pursuant to [Md.] Rule 2—101(b), which would have given them a 30-day period of grace within which to file, following the dismissal of the suit in Philadelphia County.

As a matter of law, there would be no other avenue of relief ¹⁸ available. And even if, purely arguendo, other forms of relief had been available, the [plaintiffs], because of their utter lack of diligence, would have failed to qualify for such relief, as a matter or fact. Id. at 355-56 , 58 A.3d 609 . Accordingly, our Court affirmed the circuit court’s ruling.

Id. at 365 , 58 A.3d 609 . In addition to the abovementioned cases, our Courts have examined other issues relating to tolling the statute of limitations. See Kumar, 426 Md. at 210 , 43 A.3d 1029 (The Court of Appeals determined that a mandatory arbitration proceeding did not suspend the statute of limitations because the plaintiff should have initiated arbitration before limitations expired.); Walko Corp. v. Burger Chef Sys., Inc., 281 Md. 207, 216 , 378 A.2d 1100 (1977) (The Court of Appeals concluded that the statute of limitations was not tolled when a motion to intervene was pending in the U.S. District Court for the District of Columbia.); Bertonazzi v. Hillman, 241 Md. 361, 369-70 , 216 A.2d 723 (1966) (The Court of Appeals determined that the filing of an action in an improper venue tolled the statute of limitations because the defendant had notice and the Court’s ruling incorporated the “spirit” of Cts. & Jud. Proc. § 5-101.).

Cross-jurisdictional class-action tolling is “ ‘a rule whereby a court in one jurisdiction tolls the applicable statute of limitations based on the filing of a class action in another jurisdiction.’ ” Patterson v. Novartis Pharms. Corp., 909 F.Supp.2d 116, 122 (D.R.I.2012). We acknowledge that Christensen and Antar concern class action judicial tolling and cross-jurisdictional tolling respectively. However, we have not found any Maryland cases that have analyzed these topics together, as the circuit court noted, “Christensen did not analyze [28 U.S.C.] § 1367 nor did it involve a class action filed in federal court and a subsequent individual claim filed in state court.” While this issue is one of first impression in Maryland, see Christensen, 394 Md. at 255, n. 9 , 905 A.2d 340 (“We express no opinion as to whether we would recognize the doctrine of cross-jurisdictional class action tolling....”), “[t]he supreme courts of states that recognize class action tolling ¹⁹ have split on the issue of whether to adopt cross-jurisdictional tolling.” Id.

Specifically, our sister states’ cases only involve class actions. To determine the difference between these types of lawsuits, we examine them on a federal level. Unlike [the Federal] Rule [of Civil Procedure] 23 [ (“Rule 23”) ] class actions, plaintiffs must “opt in” to a [Fair Labor Standards Act (“FLSA”) ] collective action.... There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided by FLSA § 16(b).

In a Rule 23 proceeding a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he [or she] has “opted out” of the suit. Under § 16(b) of FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he [or she] affirmatively “opted in” the class; that is, given his [or her] written consent----This difference means that every plaintiff who opts in to a collective action has party status, whereas unnamed class members in Rule 23 class actions do not. Consequently, although the original plaintiffs in a collective action may pursue the suit on a representative basis, each FLSA claimant has the right to be present in court to advance his or her own claim. Conversely, only those plaintiffs who have opted in are bound by the results of the litigation. [ (citation omitted) ].

McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 808 (S.D.Tex.2010) (quoting La Chapelle v. Owens-Ill., Inc., 513 F.2d 286 , 288 (5th Cir.1975)) (internal quotations omitted). Because the instant case concerns collective action, we limit our focus to the analysis and reasoning of other jurisdictions to assist us in determining whether the filing of a collective action in a federal court tolls the running of the statute of limitations when the federal court dismisses the action for ²⁰ improper collective action status, and the complainant thereafter files a complaint in the state court. All cases concerning cross-jurisdictional class action tolling began with an analysis of American Pipe . In American Pipe , the plaintiff-state (“Utah”) filed a complaint in its federal district court, against the defendants-companies, alleging that the defendants engaged in illegal price fixing concerning the sale of concrete and steel.

Id. at 541 , 94 S.Ct. 756 . As a result of countless actions against the defendants, the U.S. District Court for the District of Utah transferred the case to the U.S. District Court for the Central District of California (“California U.S. District Court”). Id. at 542 , 94 S.Ct. 756 . Thereafter, the defendants filed a motion, alleging that Utah did not satisfy class action requirements, and the court agreed.

Id. Several days after the court issued its order, additional parties moved to intervene as plaintiffs. Id. at 543-44 , 94 S.Ct. 756 . The California U.S. District Court denied the parties’ motion, determining that the statute of limitations had expired.

Id. at 544 , 94 S.Ct. 756 . The U.S. Court of Appeals for