BROWN, District Judge.

This matter comes before the Court on Defendant's Motion (#174) for Summary Judgment and Plaintiffs' Motion (#276) to Strike. For the reasons that follow, the Court GRANTS Defendant's Motion for Summary Judgment, DENIES as moot Plaintiffs' Motion to Strike, DISMISSES Plaintiffs' claims without prejudice.

BACKGROUND

On August 13, 2010, Plaintiffs Jessica Gessele, Ashley Gessele, Nicole Gessele, and Tricia Tetrault on behalf of all those similarly situated filed a putative class-action Complaint in this Court against Defendant Jack in the Box, Inc., for violation of the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and various Oregon wage-and-hour laws. Specifically, Plaintiffs alleged Defendant (1) failed to pay minimum wages in violation of the FLSA, (2) failed to pay overtime wages in violation of the FLSA, (3) failed to pay minimum wages in violation of Oregon Revised Statute § 653.025, (4) failed to pay overtime wages in violation of Oregon Revised Statute § 653.261, (5) failed to pay all wages due after termination of Plaintiffs' employment in violation of Oregon Revised Statute § 652.140, (6) deducted unauthorized amounts from Plaintiffs' paychecks in violation of Oregon Revised Statute § 652.610, (7) failed to issue wages in the form required by Oregon Revised Statute § 652.110, and (8) failed to pay all wages when due as required by Oregon Revised Statute § 652.120.

On December 15, 2010, Defendant moved to dismiss Plaintiffs' First through Fifth Claims. On January 31, 2011, 2011 WL 1357437, Magistrate Judge Janice M. Stewart issued Findings and Recommendation in which she recommended the Court grant Defendant's Motion to Dismiss.

On April 11, 2011, 2011 WL 1357356, Senior District Judge Ancer Haggerty issued an Order adopting the Findings and Recommendation, granting Defendant's Motion to Dismiss, and granting Plaintiffs leave to file an Amended Complaint.

On May 16, 2011, Plaintiffs filed a First Amended Complaint in which they asserted the same claims as in their initial Complaint but added Christina Luchau as a Plaintiff and included additional facts to support their claims.

On May 31, 2011, Defendant filed an Answer to Plaintiffs' First Amended Complaint in which it asserted, among other things, a statute-of-limitations defense as follows: "Plaintiffs' claims are barred in whole, or in part, by applicable statutes of limitations."

On July 18, 2011, Plaintiffs filed a Motion to Strike Defendant's Affirmative Defenses. In particular, Plaintiffs moved to strike Defendant's statute-of-limitations defense on the ground that Defendant did not "identify which claims are allegedly subject to this affirmative defense, nor in what way they are supposedly barred.... Plaintiffs therefore cannot substantially respond to nor pursue discovery on this issue."

On August 30, 2011, Magistrate Judge Stewart heard oral argument on Plaintiffs' Motion to Strike.

On September 2, 2011, 2011 WL 3881039, Magistrate Judge Stewart issued an Opinion in which she concluded, among other things, that Defendant's statute-of-limitations defense was "merely a precautionary defense without a sufficient factual basis." Magistrate Judge Stewart, therefore, granted Plaintiffs' Motion to Strike as to Defendant's statute-of-limitations defense "without prejudice to defendant's right to amend its answer."

On December 14, 2011, Magistrate Judge Stewart held a status conference in which she advised the parties that she was going to enter an order tolling the statute of limitations "for absent collective class members" beginning on December 14, 2011, and continuing "until class certification." Dec. 14, 2011, Hearing Tr. 54-55 (#148). On December 14, 2011, Magistrate Judge Stewart also issued the Order (#59) tolling the statute of limitations for "absent putative class members."

On March 20, 2012, Plaintiffs filed a Second Amended Complaint in which Plaintiffs allege Defendant (1) failed to pay minimum wages in violation of the FLSA, (2) failed to pay overtime wages in violation of the FLSA, (3) failed to pay minimum wages in violation of Oregon Revised Statute § 653.025, (4) failed to pay overtime wages in violation of Oregon Revised Statute § 653.261, (5) failed to pay all wages due after termination of Plaintiffs' employment in violation of Oregon Revised Statute § 652.140, (6) deducted unauthorized amounts from Plaintiffs' paychecks in violation of Oregon Revised Statute § 652.610, and (7) failed to pay all wages when due as required by Oregon Revised Statute § 652.120.

On April 12, 2012, Defendant filed an Answer to Plaintiffs' Second Amended Complaint in which it asserted Affirmative Defenses that again included the statute of limitations. As in Defendant's Answer to Plaintiffs' First Amended Complaint, Defendant alleged only that "Plaintiffs' claims are barred in whole, or in part, by applicable statutes of limitations."

On May 22, 2012, Magistrate Judge Stewart heard oral argument on various Motions pending at that time. At the hearing Plaintiffs made an oral Motion to Dismiss Defendant's Affirmative Defenses. The Magistrate Judge granted Plaintiffs' Motion and dismissed Defendant's statute-of-limitations defense without prejudice and with leave to amend. The Magistrate Judge noted:

Tr. (#185) at 7 (May 22, 2013). The Magistrate Judge specifically declined Plaintiffs' request to dismiss with prejudice the statute-of-limitations defense against the named Plaintiffs.

On August 13, 2012, Plaintiffs filed a Motion to Certify Oregon Rule 23(b)(3) Classes and Alternative Motions to Either Certify Hybrid FLSA Classes or Certify FLSA 216(b) Collectives.

On October 22, 2012, Defendant filed a Motion to Amend/Correct Answer in which it requested leave to file an Amended Answer to Plaintiffs' Second Amended Complaint that, among other things, did not include a statute-of-limitations Affirmative Defense.

On December 13, 2012, Plaintiffs filed a Third Motion for Leave to File Amended Complaint.

On December 20, 2012, Magistrate Judge Stewart issued an Order granting Defendant's Motion to Amend/Correct Answer. On December 27, 2012, Defendant filed its Amended Answer to Plaintiffs' Second Amended Complaint. Defendants' Amended Answer did not include a statute-of-limitations Affirmative Defense.

On January 7, 2013, Magistrate Judge Stewart denied Plaintiffs' Third Motion for Leave to File Amended Complaint on the grounds of undue delay and prejudice. Specifically, the Magistrate Judge noted:

Order (#157)(Jan. 7, 2013).

On January 28, 2013, 2013 WL 1326563, Magistrate Judge Stewart issued Findings and Recommendation in which she recommended granting in part and denying in part Plaintiffs' Motion to Certify and specifically recommended conditional certification of Plaintiffs' proposed FLSA Workers Benefit Fund and Shoe Collectives and Subcollectives under § 216(b) and certification of Plaintiffs' proposed Rule 23(b)(3) Oregon Workers Benefit Fund and Shoe Classes and Subclasses.

On April 1, 2013, 2013 WL 1326538, Judge Haggerty entered an Order adopting the January 28, 2013, Findings and Recommendation; conditionally certifying Plaintiffs' proposed FLSA Workers' Benefit Fund and Shoe Collectives and Subcollectives under § 216(b);and certifying Plaintiffs' proposed Rule 23(b)(3) Oregon Workers Benefit Fund and Shoe Classes and Subclasses.

On May 7, 2013, Defendant filed a Motion for Leave to Amend Answer in which Defendant sought to include a statute-of-limitations defense. Specifically, Defendant asserted the named Plaintiffs failed to file written consent forms that are a prerequisite to commencing a collective action under §§ 216(b) and 256 of the FLSA and on March 31, 2013, the FLSA's three-year limitation period expired as to the named Plaintiffs. According to Defendant, therefore, for the first time Defendant had a specific factual basis to support its statute-of-limitations defense.

Also on May 7, 2013, Defendant filed a Motion for Summary Judgment as to all of Plaintiffs' claims on the grounds that Plaintiffs' FLSA claims are barred by the statute of limitations and this Court may not exercise supplemental jurisdiction over Plaintiffs' state-law claims.

On May 31, 2013, Plaintiffs filed a Response to Defendant's Motion for Leave to Amend Answer in which they objected to Defendant's Motion on numerous grounds.

On June 18, 2013, Magistrate Judge Stewart issued an Opinion and Order in which she granted Defendant's Motion for Leave to Amend Answer. On July 1, 2013, Plaintiffs filed Objections to the Opinion and Order.

On August 27, 2013, 2013 WL 4542033, this Court issued an Order affirming Magistrate Judge Stewart's Opinion and Order and granted Defendant's Motion for Leave to Amend Answer.

On October 16, 2013, the Court entered an Order granting Plaintiffs additional time to conduct discovery related to the statute-of-limitations issues before filing a response to Defendant's Motion for Summary Judgment. Because it was not clear to the Court how much additional time Plaintiffs were requesting or what "reasonable parameters the Court should set for the additional discovery," the Court directed counsel to confer and to submit no later than October 28, 2013, a joint statement setting forth their respective positions regarding the time necessary to complete the additional discovery as well as a proposed schedule to complete the briefing on Defendant's Motion for Summary Judgment.

On October 28, 2013, Defendant filed a Motion for Stay of Certain Proceedings and for a Status Conference instead of filing a joint statement. In its Motion Defendant sought a stay of proceedings as to Plaintiffs' Motions that were filed after Defendant's Motion (#174) for Summary Judgment; i.e., a stay as to Plaintiffs' Motion (#206) to Appoint Class Administrator and to Authorize Dissemination of Notice to Class and Collective Members, Plaintiffs' Motion (#212) for Spoliation Sanctions Re FLSA Shoe Claims and Defenses, and Plaintiffs' Alternative Motion (#214) for Partial Summary Judgment on FLSA Shoe Claims and Defenses.

On November 7, 2013, the Court held a status conference with counsel for the purpose of (1) considering and resolving the amount of time that should be permitted for additional discovery related to Defendant's pending Motion (#174) for Summary Judgment; (2) considering Defendant's Motion (#217) for Stay of Certain proceedings; and (3) managing the resolution of Plaintiffs' Motions ##206, 212, and 214.

On November 7, 2013, the Court also issued an Order that (1) set January 3, 2014, as the date for Plaintiffs to file their response to Defendant's Motion for Summary Judgment and January 20, 2014, as the date for Defendant to file its Reply; (2) scheduled oral argument on the parties' various motions to be heard on January 30, 2014; and (3) advised the parties they would not be permitted to file any additional motions without advance leave of Court.

On November 26, 2013, the parties filed a Joint Statement of Stipulated Facts in which they noted:

Joint Statement (#230) at 1.

On November 27, 2013, the parties advised the Court of a discovery dispute related to defense counsel's knowledge of the availability of the FLSA statute-of-limitations defense.

On December 12, 2013, the Court held a hearing on the parties' discovery issue. On December 12, 2013, the Court also entered an Order (1) setting December 27, 2013, as the date for Defendant's responses to interrogatories and briefing on any objections to the interrogatories; (2) setting January 6, 2014, as the date for Plaintiffs to file any response; (3) scheduling a further discovery conference on January 10, 2014; (4) extending Plaintiffs' deadline to respond to Defendant's Motion for Summary Judgment (#174) to January 17, 2014, and Defendant's reply to February 3, 2014; and (5) striking oral argument set on January 30, 2014.

On January 6, 2014, Plaintiffs filed a Motion to Compel Discovery and/or Strike Affirmative Defense in which Plaintiffs sought an order compelling production of discovery from Defendant and/or striking Defendant's affirmative defense of waiver on the grounds of Defendant's "(non)responses and its (non)briefing of its objections."

On January 15, 2014, the Court heard oral argument on Plaintiffs' Motion to Compel. On that same day the Court issued an Order denying Plaintiffs' Motion to Compel; setting January 21, 2014, as the date for Plaintiffs to respond to Defendant's Motion for Summary Judgment (#174) and January 28, 2014, as the date for Defendant to file its reply; and setting oral argument on February 10, 2014, regarding Defendant's Motion.

On February 10, 2014, the Court heard oral argument on Defendant's Motion for Summary Judgment. At oral argument Plaintiffs made an oral motion to strike certain evidence that Defendant submitted in support of Defendant's Reply in support of its Motion for Summary Judgment, and the Court permitted Plaintiffs to file a written motion to strike. Accordingly, on February 11, 2014, Plaintiffs filed their Motion to Strike various Declarations and their attachments.

The Court took Motion #174 and Motion #276 under advisement on February 14, 2014.

DEFENDANT'S MOTION (#174) FOR SUMMARY JUDGMENT

I. Standards.

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Washington Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). See also Fed. R.Civ.P. 56(a). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Id. "This burden is not a light one.... The non-moving party must do more than show there is some `metaphysical doubt' as to the material facts at issue." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010) (citation omitted).

A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.2010). "Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues." Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004) (citation omitted). A "mere disagreement or bald assertion" that a genuine dispute as to a material fact exists "will not preclude the grant of summary judgment." Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D.Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.1989)). When the nonmoving party's claims are factually implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.2009) (citation omitted).

The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir.2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.

II. Parties' Assertions.

Defendant moves for summary judgment on the grounds that the named Plaintiffs failed to file written consent forms as required by the FLSA; more than three years have passed since the claims against Defendant accrued, and, therefore, the named Plaintiffs' claims are now barred by the FLSA statute of limitations; and the Court may not exercise supplemental jurisdiction over Plaintiffs' state-law claims because this Court never acquired jurisdiction over Plaintiffs' federal claims.

Plaintiffs, in turn, contend (1) genuine disputes of material fact exist as to when Plaintiffs' claims accrued; (2) Plaintiffs need not file written consents or, in the alternative, Plaintiffs gave written consent; (3) Plaintiffs filed this action in a dual capacity, and, therefore, their individual claims are not foreclosed by the consent issue; and (4) equitable considerations should preclude the Court from finding Plaintiffs' claims are barred as untimely.

III. FLSA Generally.

As noted, Plaintiffs brought their federal wage-and-hour claims under 29 U.S.C. § 216(b) of the FLSA.

"The FLSA regulates minimum wage, overtime pay, equal pay, and child labor, and prohibits employers from retaliating against employees who exercise their rights under the Act." Fontes v. Drywood Plus, Inc., No. CV-13-1901-PHX-LOA, 2013 WL 6228652, at *4 (D.Ariz. Dec. 2, 2013) (citing Dellinger v. Sci. Applications Int'l Corp., 649 F.3d 226, 227-29 (4th Cir. 2011)). The FLSA provides no employer "shall employ any of his employees who in a workweek is engaged in commerce ... or is employed in an enterprise engaged in commerce ... for a workweek longer than forty hours unless such employee receives compensation" for hours worked beyond the forty-hour floor "at a rate not less than one and one half times" the rate at which he or she is regularly employed. 29 U.S.C. § 207(a)(1).

Section 216(b) of the FLSA further provides:

Section 216(b) also provides for a private right of action:

In addition, § 255(a) of the FLSA contains the following statute of limitations:

Accordingly, actions for violations of the FLSA must be commenced two years after the claim accrues or three years after the claim accrues if the defendant's violation is "willful."

Finally, § 256 of the FLSA provides:

Emphasis added.

IV. There is not a genuine dispute of material fact as to when Plaintiffs' claims accrued.

As noted, Defendant contends Plaintiffs failed to file written consents as required under § 216(b) within three years1 of Plaintiffs' termination, and, therefore, their claims are barred by the limitations period set out in § 255(a). Specifically, Defendant contends Plaintiffs' claims accrued no later than the dates on which Plaintiffs received their final paychecks:

Plaintiffs, in turn, contend a "discovery rule" applies to FLSA claims, and, therefore, their claims did not begin to accrue until February 2012 when they knew or had reason to know about the bases for all of their FLSA injuries at issue in this action.

A. The FLSA does not contain a discovery rule.

The regulations governing the FLSA note courts have held "a cause of action under the Fair Labor Standards Act for unpaid minimum wages or unpaid overtime compensation and for liquidated damages `accrues' when the employer fails to pay the required compensation for any workweek at the regular pay day for the period in which the workweek ends." 29 C.F.R. § 790.21(b). The parties do not cite nor could this Court find any provision in the regulations for a discovery rule. Plaintiffs, nevertheless, assert a discovery rule applies to accrual of an FLSA action. To support their position Plaintiffs cite James v. Fenske in which the court held "[an FLSA] claim accrues when plaintiff knows or has reason to know of the injury which is the basis of the action." 2012 WL 694351, at *5 (D.Colo. Mar. 1, 2012) (citing Oliver v. Layrisson, No. 95-cv-0003, 1995 WL 250450, at *3 (E.D.La. Apr. 27, 1995)). Oliver, however, relies on a Fifth Circuit case (Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980)) that cites the standard for accrual of a cause of action brought under § 1983 rather than the FLSA.

The Court could not find any case other than James in which a court applied a discovery rule to the FLSA. As noted, the regulations provide an FLSA claim accrues when the employer fails to pay the required compensation for any workweek at the regular payday for the period in which the workweek ends. In addition, numerous courts, including the Ninth Circuit, have held an FLSA cause of action accrues every payday an employer fails to comply with the FLSA. See, e.g., Keating-Traynor v. AC Square, 343 Fed.Appx. 214, 215 (9th Cir.2009) ("The statute of limitations for an FLSA claim accrues the day the employee's paycheck is normally issued, but isn't."); Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 198 (2d Cir.2013) ("The cause of action for FLSA and NYLL claims accrues on the next regular payday following the work period when services are rendered.")(citing 29 C.F.R. § 790.21(b)); Frye v. Baptist Memorial Hosp., Inc., 495 Fed.Appx. 669, 675 (6th Cir.2012) ("An FLSA cause of action accrues at each regular payday immediately following the work period during which the services were rendered for which the wage or overtime compensation is claimed."). Moreover, district courts in the Ninth Circuit, including courts in this District, have reached the same conclusion. See, e.g., Groce v. Claudat, No. 09CV01630 BTM WMC, 2013 WL 1828555 (S.D.Cal. Apr. 30, 2013); Black v. Colaska Inc., No. C07-823JLR, 2008 WL 4681567 (W.D.Wash. Oct. 20, 2008); Goudie v. Cable Commc'ns, Inc., No. 08-CV-507-AC, 2008 WL 4628394 (D.Or. Oct. 14, 2008); Long v. Idaho Rural Water Assoc., Inc., No. CV05-303-S-EJL, 2007 WL 1366534 (D.Idaho, Mar. 29, 2007).

In the absence of any clear authority from the Ninth Circuit that a discovery rule applies to claims under the FLSA and in light of the weight of authority holding a claim for relief under the FLSA accrues "at each regular payday," the Court concludes the discovery rule does not apply to claims under the FLSA. Accordingly, Plaintiffs' claims accrued when Defendant allegedly failed to pay compensation owed to Plaintiffs for any workweek at the regular payday for the period in which the workweek ended and the limitations period began to run on the date of Plaintiffs' final paychecks.

B. Even if a discovery rule applies, Plaintiffs' FLSA claims are untimely.

Even if a discovery rule applies in FLSA cases, Plaintiffs have not established they did not "discover" their FLSA claims until the February 2012 deposition of Gene James.

Courts applying Oregon's discovery rule have explained:

Bechler v. Macaluso, No. CV 08-3059-CL, 2010 WL 2034635, at *13 (D.Or. May 14, 2010).

Plaintiffs contend their final pay stubs "would not necessarily give [them] the knowledge of th[e] particular violations." Specifically, Plaintiffs assert:

Pls.' Resp. at 5-6.

As Defendant points out, however, Plaintiffs included allegations related to Defendant's slip-resistant shoe program (Shoes for Crews) in their initial Complaint filed in August 2010. Specifically, Plaintiffs alleged in that Complaint that "[a]t all relevant times, JACK IN THE BOX required its employees to purchase a specific type of shoes from a specific company (called Shoes for Crews) and that they re-purchase new pairs of said shoes from time to time, and willfully deducted the price of said shoes from the pay of its employees without meeting the statutory requirements to do so." Compl. at ¶ 7. Plaintiffs also alleged "the evidence available to date strongly suggests additional wage and hour violations have taken place," which resulted in Defendant failing to pay Plaintiffs the federal minimum wage due to "nonpayments and deductions." Compl. at ¶¶ 12, 19. Plaintiffs included the same allegations in their May 16, 2011, First Amended Complaint. Finally, in their March 20, 2012, Second Amended Complaint Plaintiffs included additional factual allegations to support their claims, but the substance of the allegations did not change and the claims (violation of the FLSA) remained the same.

In addition, Plaintiffs stated in their April 15, 2011, Reply in support of their Motion to Compel that they had "discovered from other sources" that Shoes for Crews pays the first $5,000 of any workers' — compensation claim by an employee who slips while wearing Shoes for Crews shoes. This statement undermines Plaintiffs' assertion that they did not know about the rebates (or kickbacks) from Shoes for Crews until James mentioned them at his February 2012 deposition.

Thus, on this record the Court concludes even if Plaintiffs did not know the exact parameters of their FLSA claims related to Shoes for Crews or the medical indemnity benefits until James's February 2012 deposition, they were aware as early as August 2010 that "some harm" had been incurred and that a claim existed under the FLSA related to the shoe program and other deductions.

V. Plaintiffs were required to file written consents and Plaintiffs' FLSA claims could not commence until the written consents were filed.

Defendant contends it is entitled to summary judgment as to Plaintiffs' FLSA claims because Plaintiffs were required to file written consents with this Court pursuant to §§ 216(b) and 256 of the FLSA, and Plaintiffs did not file those consents within three years of their final paydays or paychecks.

Plaintiffs assert Defendants are not entitled to summary judgment because (1) named plaintiffs are not required to file written consents under the FLSA; (2) Plaintiffs filed this case in a dual capacity as individuals and as a collective action, and written consents are not required for FLSA claims brought as individuals; and (3) Plaintiffs gave Defendant constructive notice of Plaintiffs' FLSA claims.

A. Named plaintiffs are required to file written consents to commence an FLSA collective action.

As noted, § 216(b) of the FLSA provides for a private right of action:

Emphasis added. In addition, § 256 of the FLSA provides:

Emphasis added.

Although the Ninth Circuit has not directly addressed the issue, other circuit courts as well as district courts within the Ninth Circuit have dismissed FLSA collective-action claims when named plaintiffs have not filed timely consents. For example, in Frye v. Baptist Memorial Hospital, Inc., the court affirmed the district court's dismissal of the FLSA collective action because the named plaintiff failed to file a written consent with the court within the FLSA's limitations period. 495 Fed.Appx. 669, 677 (6th Cir.2012). It was undisputed that the plaintiff's last payday was April 27, 2007, and that he failed to file a written consent to collective action in the district court within three years of his final paycheck. Id. at 675. The plaintiff, like Plaintiffs here, asserted the FLSA does not require named plaintiffs to file written consents. The Eleventh Circuit, however, rejected that argument:

Id. The plaintiff in Frye (again, like Plaintiffs here) relied on Arias v. United States Service Industries, Inc., No. 93-2261, 1994 WL 193901, at *1 (D.D.C. May 4, 1994), to support his assertion that named plaintiffs are not required to file written consents. The Eleventh Circuit, however, pointed out that

Id. at 675-76.

Here Plaintiffs point to several cases from a variety of courts outside of the Ninth Circuit to support their assertion that named plaintiffs do not have to file written consents. Those cases, however, do not address the issue raised here or, in any event, are distinguishable. For example, Knepper v. Rite Aid Corporation did not involve the issue of written consents. 675 F.3d 249 (3d Cir.2012). The court in that case concluded federal jurisdiction was not precluded as to class actions asserting claims under state statutory wage-and-overtime laws paralleling the FLSA, that the FLSA does not preempt various state wage-and-hour laws, and certification of class actions in which plaintiffs assert claims under the state statutes does not violate the Rules Enabling Act. 675 F.3d 249, 261, 264-65 (3d Cir.2012). Although Knepper included a general discussion of the legislative history of the opt-in provision of the FLSA, it did not explicitly address the written-consent issue.

In Symczyk v. Genesis Healthcare Corporation the Third Circuit stated without analysis:

656 F.3d 189, 200 (3d Cir.2011), reversed on other grounds by Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). In Symczyk, however, the issue was whether an FLSA collective action became moot when the named plaintiff received a Rule 68 offer in full satisfaction of her individual claim before she moved for conditional certification and before any other plaintiffs had opted-in to the action. Although Plaintiffs cite a number of other cases from district courts in the Third Circuit, those cases rely on Symczyk, do not engage in any analysis of the assertions related to the named plaintiffs in those cases, and involve the issue of equitable tolling.

Plaintiffs also cite a number of cases from courts outside of the Third Circuit, but none of those cases were decided by courts in the Ninth Circuit and some of the cases have been addressed and distinguished by Frye. For example, Plaintiffs rely on Allen. As the Eleventh Circuit noted in Frye, however, Allen involved plaintiffs who asserted individual claims (which are subject to different FLSA commencement rules) rather than plaintiffs who joined a collective action. 724 F.2d at 1135 ("This suit consists of a number of individual actions, not a collective or class action subject to sections [216(b)] and 256."). Plaintiffs also rely on Arias, but that case did not involve a statute-of-limitations issue under § 256 and the court cited only Allen to support its conclusion.

Plaintiffs also rely on Anderson v. Montgomery Ward & Company, Inc., 852 F.2d 1008, 1018-19 (7th Cir.1988). Anderson, however, was an age-discrimination case rather than an FLSA action. Although the ADEA incorporates the provisions of § 216(b) as to collective actions, courts have held "[s]ection 256 is not incorporated by reference into the ADEA, and therefore [the commencement of an action only after written consents is not] applicable to age discrimination suits." Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir.1978).

Plaintiffs also rely on Tate v. Showboat Marina Casino Partnership, No. 02 C 3432, 2002 WL 31253843 (N.D.Ill. Oct. 8, 2002), in which the court held "[t]he lone exception to [the FLSA written consent] requirement is for the named plaintiff, who need not file a separate signed consent to join the lawsuit that he himself filed." Id., at *1. On reconsideration, however, the court significantly revised that holding and concluded "regardless whether signed consents are necessary for named plaintiffs to join a representative action, Section 256 makes clear that even for named plaintiffs signed consents are required to mark the commencement of the action." Tate v. Showboat Marina Casino Partnership, No. 02 C 3432, 2002 WL 31443124, at *6 (N.D.Ill. Oct. 31, 2002). The court's analysis in the revised Tate decision is illuminating:

Id., at *5-*6 (citations omitted) (emphasis in original). Accordingly, the court in Tate concluded on reconsideration that written consents by named plaintiffs are required in order for an FLSA collective action to commence.

Defendant cites a number of cases by district courts in the Ninth Circuit in which courts dismissed FLSA collective-action claims when the named plaintiffs did not file timely written consents. For example, in Cancilla v. Ecolab, Inc., No. C 12-03001 CRB, 2013 WL 1365939 (N.D.Cal. Apr. 3, 2013), the court held an FLSA collective action does not commence until the named plaintiff files a written consent. Id., at *2. The court granted the defendant's motion for summary judgment and dismissed the FLSA collective action because the plaintiff did not file a written consent within the limitations period, and, therefore, the FLSA collective action did not commence within the limitations period and was barred as untimely. Id., at *4. The court relied on Frye as well as Harkins v. Riverboat Services, Inc., 385 F.3d 1099, 1101 (7th Cir.2004). In Harkins the court concluded:

385 F.3d at 1101. See also Chavez v. Lumber Liquidators, Inc., No. C-09-04812 S.C. 2011 WL 809453 (N.D.Cal. Mar. 2, 2011) (same).

523 F.Supp.2d 1150, 1155 (E.D.Cal.2007) (citations omitted). The court cautioned the plaintiffs that "because this action has yet to be properly commenced, the statute of limitations will continue to run until Plaintiffs file their consent to suit forms with this court." Id. at 1159.

Similarly, in Bonilla v. Las Vegas Cigar Company the court held

61 F.Supp.2d 1129, 1132-33 (D.Nev.1999). The court noted:

Id. at 1139 (citations omitted).

The court in Thomas v. Talyst, Inc., No. C07-202JLR, 2008 WL 570806 (W.D.Wash. Feb. 28, 2008), agreed with the sentiment expressed in Bonilla. The court noted:

Id., at *4 (quotations and citations omitted).

This Court finds persuasive the reasoning of the cases cited by Defendant. In particular, the Court agrees with the analysis in the revised Tate decision and, therefore, adopts the reasoning of that court. Thus, the Court concludes the language of § 256 is clear: In a representative action a plaintiff's case is deemed to have commenced only when his or her written consent has been filed. Named plaintiffs, therefore, are required to file written consents with the court to commence an FLSA collective action even if written consents are not necessary for named plaintiffs to join a collective action.

Accordingly, the Court concludes Plaintiffs were required to file written consents with this Court to commence their FLSA collective-action claims, and those claims did not commence until such consents were filed in September 2013.

B. Plaintiffs have not established they brought this action in a dual capacity.

Plaintiffs argue even if written consents were required to commence their FLSA collective-action claims, Plaintiffs filed their FLSA claims in a dual capacity (i.e., they filed as individuals and as collective representatives). Because written consents by named plaintiffs are not required to commence FLSA individual claims, Plaintiffs maintain their claims brought in their individual capacity are still viable.

Defendant asserts Plaintiffs did not make any suggestion in any of their Complaints or briefings on certification that they were proceeding in dual or individual capacities until after May 2013 when Defendant asserted Plaintiffs failed to file timely written consents. Defendant notes Plaintiffs in each of their Complaints have stated in the caption that the action is a "Collective and Class Allegation Complaint." In addition, although all of Plaintiffs' Complaints purport to be brought by named Plaintiffs "suing on behalf of themselves and all others similarly situated," none of the Complaints have clearly set out individualized claims. Instead all of Plaintiffs' claims have been styled as "Collective and Class Allegation[s]." Although Plaintiffs assert in their Response to Defendant's Motion that the "common facts" sections of their Complaints have reflected an individualized intent, Plaintiffs, nevertheless, state in their introduction to the "common facts" section of the Second Amended Complaint that "Plaintiffs base this collective and class action on three categories of violations." Second Am. Compl. at ¶ 6. Moreover, as Defendant notes, Plaintiffs did not state in their briefs related to the issue of class certification that they intended to proceed on an individual or dual-capacity basis.

In Plaintiffs' initial Complaint they did not seek relief for themselves, but instead for all members of the class:

Compl. at 20. Plaintiffs also titled their initial Complaint as "Collective and Class Allegation Complaint." Each of the claims in Plaintiffs' initial Complaint contained an allegation that Plaintiffs and the "collective members" are entitled to recovery. As noted, Plaintiffs' First Amended Complaint is titled a "Collective and Class Allegation Complaint." Each of the FLSA allegations in Plaintiffs' First Amended Complaint contains an assertion that only the "[c]ollective members" are entitled to relief. Finally, the requests for relief remain the same as those in Plaintiffs' initial Complaint and those requests for relief are on a class-wide basis rather than on an individual basis.

Plaintiffs' Second Amended Complaint also is titled a "Collective and Class Allegation Complaint," and its allegations contain either an assertion that only the "Collective members" are entitled to relief or that "Plaintiffs and the FLSA ... Collective members" are entitled to relief. Finally, the requests for relief in Plaintiffs' Second Amended Complaint remain the same as that in the first two Complaints, and those requests are also on a class-wide basis rather than on an individual basis.

In other district court cases in the Ninth Circuit, courts have concluded similar allegations did not indicate an action was brought in a dual capacity. For example, in Bonilla the court noted:

61 F.Supp.2d at 1139 (citation omitted). Similarly, in Thomas the court concluded the plaintiff "never made his intention known to convert his collective action for overtime pay into an individual action until the three-year statute of limitations for willful FLSA violations expired." 2008 WL 570806, at *4. The court noted:

Id., at *2.

In Faust v. Comcast Cable Communications Management, LLC, cited by Plaintiffs, the court concluded the plaintiffs did not provide sufficient notice that it was a dual-capacity FLSA action when

No. WMN-10-2336, 2013 WL 5587291, at *8 (D.Md. Oct. 9, 2013).

The Court concludes Plaintiffs, like the plaintiffs in Bonilla, Thomas, and Faust, have not established they brought FLSA claims in an individual, a dual capacity, or any other way than as an FLSA collective action.

C. Constructive notice is insufficient under the FLSA.

Finally, Plaintiffs assert even though they did not file written consents with the Court until September 2013, they gave Defendant constructive notice of their FLSA claims and of this action, which Plaintiffs contend should be sufficient to satisfy the written-consent requirement. Specifically, Plaintiffs rely on letters signed by Jon Egan, Plaintiffs' counsel, and sent to Defendant in May 2010. In those letters Egan provided Defendant with "ORS 652.150 written notice of nonpayment and ORS 652.200 written notice of a wage claim and demand that you pay my client the" wages due and owing. See, e.g., Docket # 187, Ex. 1 at 1. Attached to those letters were Plaintiffs' signed Authorization[s] for the Release of Personnel Records.

It is questionable whether Plaintiffs' signed authorizations for the release of their personnel records in connection with state-law wage claims are sufficient to constitute the required written consents to become a party to an FLSA collective action because there is not any indication in those documents of any FLSA claims. As noted, those letters referenced only state wage-and-hour claims. In addition to the forms signed by Plaintiffs, there were authorizations for Defendant to release Plaintiffs' personnel records without any statement that Plaintiffs were bringing or joining in an FLSA collective action.

Moreover, even if Plaintiffs' authorizations for Defendant to release their personnel records were construed as written consents under the FLSA, Plaintiffs did not file the authorizations with the Court until May 31, 2013, which is more than three years after the final paycheck of the last named Plaintiff to receive a paycheck (Christina Luchau) and well over three years after the final paychecks of the other named Plaintiffs.

Finally, even if the May 2010 authorization forms signed by the named Plaintiffs constituted written consent and were filed with the Court within three years of their final paychecks, several courts have rejected the argument that constructive notice of an FLSA collective action is sufficient to satisfy the written-consent requirement. For example, in Harkins v. Riverboat Services, Inc., the Seventh Circuit concluded:

385 F.3d at 1101. As noted, in Bonilla the court stated

61 F.Supp.2d at 1139. Similarly, in Thomas the court noted "[t]he requirement to file a consent with the court, or sign the complaint, is hardly onerous or burdensome. Regardless, wasteful or not, wise or not, it is not for the courts to rewrite unambiguous statutory language." 2008 WL 570806, at *4.

The Court agrees with the analysis in Bonilla, Thomas, and Harkins and concludes the language of § 216(b) and § 256 is unambiguous: An FLSA collective action does not commence until the plaintiffs give written consent and those written consents are filed with the Court. Perhaps the written consent requirement is repetitive as other courts have noted, but it is unambiguously required by the FLSA to commence a collective action.

In summary, on this record the Court concludes Plaintiffs failed to file the required written consents with the Court within the limitations period, and, therefore, their FLSA collective action was not commenced within the limitations period. Accordingly, unless equitable tolling or estoppel applies, Plaintiffs' FLSA action is time-barred.

VI. Equitable Considerations.

Plaintiffs contend even if they were required to file written consents to commence their FLSA action, "equitable considerations" should toll the limitations period. Plaintiffs assert in their Response that

Resp. at 20. At oral argument, however, Plaintiff agreed the Ninth Circuit applies only two equitable doctrines to toll the FLSA limitations period: (1) equitable tolling and (2) equitable estoppel. See Stallcop v. Kaiser Found. Hosp., 820 F.2d 1044 (9th Cir.1987).

A. Equitable Tolling.

"Equitable tolling is extended sparingly and only where claimants exercise diligence in preserving their legal rights." Smith v. Bimbo Bakeries USA, Inc., No. CV 12-1689-CAS (JWX), 2013 WL 4479294, at *5 n. 3 (C.D.Cal. Aug. 19, 2013) (quotation omitted). In Kwai Fun Wong v. Beebe the Ninth Circuit explained:

732 F.3d 1030, 1052 (9th Cir.2013) (quotations and citations omitted).

Plaintiffs assert Defendant failed to allege specific underlying facts to support its statute-of-limitations defense, and, therefore, Defendant either waived the defense or misled Plaintiffs as to the nature of the defense. The record, however, reflects Defendant asserted the statute-of-limitations defense early and continued to assert it at various times throughout this litigation. Magistrate Judge Stewart noted at the May 22, 2012, hearing: "I think what is going to happen in this case is at some point, if the defendant decides that it has, for example, a valid statute of limitations defense with a particular class member with respect to a particular claim, they're going to have to seek leave of court to amend and add that affirmative defense with specific factual allegations to go forward." At that hearing defense counsel specifically requested the limitations defense be dismissed without prejudice, which is an indication that at some point Defendant believed there would be a factual basis for the defense and Defendant wanted to preserve it. The Magistrate Judge granted that request. At oral argument on Defendant's Motion for Summary Judgment before this Court, defense counsel represented to the Court that Defendant was not "looking at" the written-consent issue before May 2012. Tr. 98. Counsel also represented to the Court that in the fall of 2011 or before May 2012 Defendant "didn't know if [it] had any statute of limitations facts." Tr. 100.

As the court noted in Faust, "the defendant `ha[s] no duty to inform' the plaintiff of his or her failure to file a written consent to join the collective action, `or to assert that he [or she] was required to do so [prior to the running of the limitations period].'" 2013 WL 5587291, at *4 (quoting Frye v. Baptist Memorial Hosp., Inc., No. 07-2708, 2011 WL 1595458, at *8 (W.D.Tenn. Apr. 27, 2011)).

On this record the Court concludes Plaintiffs have not established Defendant waived the limitations defense or that extraordinary circumstances were the cause of Plaintiffs' untimely filing of written consents.

B. Equitable Tolling Based on Plaintiffs' Ignorance.

Plaintiffs also argue for equitable estoppel or tolling on the ground that "Plaintiffs are faultless." Specifically, Plaintiffs assert they were ignorant of the law because they are not attorneys. Plaintiffs, however, have been represented by counsel since at least May 2010 when Egan sent the Oregon wage-and-hour demand letters to Defendant on behalf of Plaintiffs.

The Ninth Circuit has explained:

Leong v. Potter, 347 F.3d 1117, 1123 (9th Cir.2003). See also Syntrix Biosystems, Inc. v. Illumina, Inc., No. C10-5870 BHS, 2013 WL 364722, at *4 (W.D.Wash. Jan. 30, 2013) ("Equitable tolling focuses on a plaintiff's excusable ignorance and lack of prejudice to the defendant. However, once a claimant retains counsel, tolling ceases because she has gained the means of knowledge of her rights and can be charged with constructive knowledge of the law's requirements" (quotations omitted)).

On this record the Court concludes Plaintiffs' personal lack of legal knowledge cannot support equitable tolling because Plaintiffs were represented by counsel well before the statute of limitations passed, and, therefore, Plaintiffs are charged with constructive knowledge of the FLSA's written-consent requirements and statute of limitations.

C. Equitable Tolling Based on FLSA Posters.

Plaintiffs also assert the statute of limitations should be equitably tolled because Defendant did not post "the mandatory FLSA posters in any of its Oregon stores during the time that Plaintiffs worked there." Based on a number of cases from other districts, Plaintiffs assert Defendant's failure to display posters advising employees of their FLSA rights tolls the running of any limitations period. The cases on which Plaintiffs rely, however, all involve unrepresented plaintiffs who were unaware of their rights under the FLSA due to their employers' alleged failure to put up the posters and whose claims became untimely before the plaintiffs retained counsel.

Here it is undisputed that Plaintiffs last worked at Defendant's restaurants no later than the following dates: Tricia Tetrault, July 11, 2008; Ashley Gessele December 26, 2008; Nicole Gessele, March 20, 2009; Jessica Gessele, November 23, 2009; and Christina Luchau, March 30, 2010. The record also reflects each of these Plaintiffs was represented by counsel no later than May 2010 (i.e., at the time that Egan sent Defendant the demand for wages pursuant to Oregon's wage-and-hour laws). Because they were represented, Plaintiffs had constructive knowledge of the FLSA limitations period and written-consent requirement no later than May 2010.

As one court explained:

Patraker v. Council on Env't of New York City, 2003 WL 22703522, at *2 (S.D.N.Y. Nov. 17, 2003) (citations omitted). See also Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir.1987) (court concluded equitable tolling did not apply when the plaintiff consulted counsel before the limitations period expired).

The Court concludes on this record that Plaintiffs have not established any basis for equitable tolling arising from the alleged failure of Defendant to put up posters at Plaintiffs' work.

D. Equitable Tolling Related to Efforts to Discover the Limitations Defense.

As noted, Plaintiffs contend they should be excused from the limitations period because Egan sought to ascertain the basis for Defendant's limitations defense, but the underlying factual basis for the defense was not disclosed until May 2013. Plaintiffs rely on Adams v. Inter-Con Sec. Systems, Inc., 242 F.R.D. 530 (N.D.Cal. 2007), in which the court concluded equitable tolling was appropriate because the defendant's misconduct induced the plaintiff's failure to meet the written-consent deadline. Specifically, the defendant refused to provide the potential class-plaintiffs' contact information to the named plaintiffs. Id. at 543. Adams, however, is distinguishable. Here Defendant did not withhold any information that was otherwise unavailable to Plaintiffs' counsel. In fact, Plaintiffs were aware or through counsel should have been aware of (1) their final pay dates, (2) the applicable limitations period, and (3) the written-consent requirement. As Magistrate Judge Stewart noted, the lack of any written consents filed in this matter "was just as apparent to plaintiffs. Plaintiffs could have filed their individual opt-in consent forms with (or at any time after) the filing of their Complaint."

The Court concludes Plaintiffs have not established any basis for equitable tolling of the limitations period related to their efforts to discover Defendant's factual basis for the limitations defense.

E. Equitable tolling by Magistrate Judge Stewart.

Plaintiffs also assert the limitations period was equitably tolled by Magistrate Judge Stewart on December 14, 2011, and, therefore, Plaintiffs' written consents were not untimely. The transcript of the December 14, 2011, hearing before Magistrate Judge Stewart, Tr. (# 148) at 54, and in the subsequent Order (# 59) she issued, however, make clear that Magistrate Judge Stewart tolled the limitations period only "for absent putative collective class members." The Magistrate Judge's Order, therefore, did not apply to named Plaintiffs, who were not "absent" from this matter as of December 14, 2011.

The Court, therefore, concludes Magistrate Judge Stewart did not toll the limitations period for Plaintiffs, and her December 14, 2011, Order does not equitably toll the limitations period for the named Plaintiffs.

F. Equitable Estoppel.

The Ninth Circuit explained in Estate of Amaro v. City of Oakland:

653 F.3d 808, 813 (9th Cir.2011).

Tompkins v. Union Pac. R. Co., No. 2:12-cv-01481 JAM-GGH, 2013 WL 904897, at *3 (E.D.Cal. Mar. 8, 2013).

Plaintiffs assert they did not know the basis for Defendant's statute-of-limitations defense until the Defendant filed its Motion to Amend its Answer on May 7, 2013, which was after the limitations period had passed. Plaintiffs, however, do not assert that not knowing the basis for Defendant's limitations defense prevented Plaintiffs from filing their written consents.4

The cases on which Plaintiffs rely for the application of equitable estoppel are distinguishable because in those cases specific actions by the defendant caused the plaintiff's failure to act. For example, in Westinghouse Elec. v. James Stewart Co., 336 F.2d 777 (9th Cir.1964), a supplier promised to tell the general contractor if the subcontractor failed to pay. When the supplier failed to do so, the court held whether the supplier might be estopped from proceeding against the general contractor was a question for the jury. In M.N.O. v. Magana, 2006 WL 559214 (D.Or. March 6, 2006), physical threats by persons in authority positions discouraged the plaintiff from coming forward.

Here Defendant did not promise or suggest it would advise Plaintiffs about its defensive intentions or that it would not pursue the limitations defense. To the contrary, at the May 22, 2012, hearing before Judge Stewart, defense counsel clearly stated Defendant wanted to preserve the ability to assert the limitations defense against the named Plaintiffs at a later date and requested the court to dismiss that (insufficiently pleaded) defense without prejudice for that reason. The Magistrate Judge did so. Thus, Plaintiffs have failed to establish any facts from which the Court could find Defendant had a duty to advise Plaintiffs of the written-consent requirement. Plaintiffs also failed to show that any action by Defendant misled Plaintiffs as to Plaintiffs' final pay date, the FLSA's statute of limitations, the written-consent requirement, or Defendant's intent to assert a limitations defense.

Plaintiffs also assert Defendant attempted to "run out the clock" in this action by extending matters until the March 31, 2013, limitations deadline had passed. The record, however, reflects Plaintiffs' decision to engage in extensive pre-certification discovery and in a class-certification process involving two theories under Federal Rule of Civil Procedure 23 and the FLSA collective action itself extended the litigation during this same time. The Court does not find any evidence that Defendant deliberately delayed these proceedings for this purpose at any stage.

Finally, although, as Plaintiffs point out, equitable estoppel and tolling issues are often questions for the jury, such matters may be decided by the Court when the factual context makes those claims implausible to a degree that no reasonable juror could conclude estoppel was warranted. See, e.g., Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987); Guerrero v. Gates, 442 F.3d 697, 706 (9th Cir.2006).

Here the Court finds the factual context of Plaintiffs' equitable tolling and estoppel claims makes them implausible primarily because Defendant had no duty to inform Plaintiffs' counsel of the statute-of-limitations requirement under these circumstances. Thus, the Court concludes as a matter of law that equitable tolling and equitable estoppel do not apply to the statute of limitations in this matter.

In summary, the Court concludes Plaintiffs were required to file written consents with the Court to commence their FLSA collective action; Plaintiffs did not file written consents until after the applicable limitations period; Plaintiffs' FLSA collective-action claims, therefore, are untimely; and neither equitable tolling nor equitable estoppel apply.

Accordingly, the Court grants Defendant's Motion for Summary Judgment as to Plaintiffs' FLSA claims. Because the Court has concluded it never obtained jurisdiction over Plaintiffs' FLSA claims, the Court dismisses those claims without prejudice.

VII. Plaintiffs' State-Law Claims.

Plaintiffs also bring wage-and-hour claims under state law. The sole basis for this Court's jurisdiction asserted by Plaintiffs, however, was federal-question jurisdiction arising from Plaintiffs' FLSA claims.

Defendant points out that the Court may exercise supplemental jurisdiction only when the Court first has original jurisdiction. See Hunter v. United Van Lines, 746 F.2d 635, 649 (9th Cir.1984) ("[I]t makes no sense to speak of [supplemental] jurisdiction until after a court has independently acquired jurisdiction over a federal cause of action."). Because Plaintiffs' federal claims never "commenced" under the FLSA, Defendant asserts this Court has never properly had original jurisdiction over those claims, and, therefore, the Court cannot exercise supplemental jurisdiction over Plaintiffs' state-law claims. See Herman Family Rev. Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001) (supplemental jurisdiction may only be invoked after a court has established original jurisdiction). See also Orozco v. Borenstein, 2012 WL 3762408, 2012 U.S. Dist. LEXIS 122642 (D.Ariz. Aug. 28, 2012) ("Because we have dismissed the federal claim as moot, we have no original jurisdiction upon which supplemental jurisdiction could attach. Accordingly, the state law claims are also dismissed.").

The Court agrees. Because the Court never had original jurisdiction over the federal claims in this matter, it cannot exercise supplemental jurisdiction over Plaintiffs' state-law claims. Accordingly, the Court grants Defendant's Motion for Summary Judgment as to Plaintiffs' state-law claims and dismisses without prejudice Plaintiffs' state-law claims for lack of jurisdiction.

PLAINTIFFS' MOTION (# 276) TO STRIKE

Plaintiffs move to strike the Declarations of Lee Estes, Alison Layfield, Wendy Sanderlin, and Douglas Parker filed by Defendant in support of its Reply to its Motion for Summary Judgment.

In its Response to Plaintiffs' Motion to Strike, Defendant withdraws the Declarations of Lee Estes, Alison Layfield, and Wendy Sanderlin. The Parker Declaration contains excerpts of Plaintiffs' deposition testimony and signature pages of Plaintiffs' Declarations. Because the Court did not rely on the evidence in the Parker Declaration in deciding Defendant's Motion for Summary Judgment, the Court denies as moot Plaintiffs' Motion to Strike.

CONCLUSION

For these reasons, the Court GRANTS Defendant's Motion (# 174) for Summary Judgment, DENIES as moot Plaintiffs' Motion (#276) to Strike, DISMISSES without prejudice Plaintiffs' FLSA claims, DISMISSES without prejudice Plaintiffs' state-law claims, and DENIES as moot all other pending Motions.

IT IS SO ORDERED.