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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12261
____________________
ANTHONY WRIGHT,
Plaintiff-Appellant,
versus
WASTE PRO USA, INC.,
WASTE PRO OF FLORIDA, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-62051-KMM
____________________
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2 Opinion of the Court 22-12261
Before WILLIAM PRYOR, Chief Judge, and LUCK and MARCUS, Cir-
cuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal concerns the circumstances in which courts will
toll the period of limitations for claims under the Fair Labor Stand-
ards Act. Anthony Wright sued his former employer for allegedly
underpaying him for overtime hours. Wright worked in Florida,
but he sued Waste Pro USA, Inc., and its subsidiary, Waste Pro of
Florida, Inc., as one of several named plaintiffs in a purported col-
lective action in the District of South Carolina. That court dis-
missed Wright’s claims against Waste Pro USA and Waste Pro of
Florida for lack of personal jurisdiction, and it denied as moot his
motion to sever his claims and transfer them to a district court in
Florida. Instead of appealing or seeking other relief in the South
Carolina court, Wright filed a complaint in the Southern District of
Florida, alleging the same claims. The Florida district court granted
summary judgment in favor of Waste Pro USA and Waste Pro of
Florida because it determined that Wright’s complaint was un-
timely. We affirm.
I. BACKGROUND
Waste Pro USA is the parent company of Waste Pro of Flor-
ida. Anthony Wright worked in Florida as a driver for Waste Pro
USA and Waste Pro of Florida from September 2014 to November
2015. He alleges that they willfully violated the overtime provi-
sions of the Fair Labor Standards Act of 1938,
29 U.S.C. § 201 et seq.
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22-12261 Opinion of the Court 3
A cause of action under the Act must be commenced within
two years of accrual or within three years if the violation was will-
ful. See
id. § 255(a). It accrues on each payday that follows a period
for which the employee is underpaid. Knight v. Columbus,
19 F.3d
579, 581 (11th Cir. 1994). So, unless tolled, the period of limitations
for Wright’s last-in-time claim of a willful violation expired in No-
vember 2018.
Wright and two other drivers filed a complaint against
Waste Pro USA and its Florida, North Carolina, and South Carolina
subsidiaries in the District of South Carolina in October 2017. See
Wright v. Waste Pro USA Inc., No. 17-cv-02654,
2019 WL 3344040,
at *1 (D.S.C. July 25, 2019). They sued individually and on a collec-
tive basis on behalf of other drivers.
Id. In December 2017, Waste
Pro USA and Waste Pro of Florida moved to dismiss for lack of
personal jurisdiction, among other grounds.
Id. In December 2018,
the drivers moved to sever the claims against Waste Pro USA and
Waste Pro of Florida and transfer those claims to Florida.
Id. at *14.
The South Carolina court “declined to enter an order granting the
motion to sever and transfer, preferring instead to reach a decision
on the merits of the motions to dismiss for lack of personal juris-
diction.”
Id.
The South Carolina court dismissed the claims against
Waste Pro USA and Waste Pro of Florida for lack of personal juris-
diction in July 2019.
Id. at *3, *14. It also dismissed all plaintiffs—
including Wright—who were not employees of the remaining de-
fendants, the North Carolina and South Carolina subsidiaries.
Id. at
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4 Opinion of the Court 22-12261
*14. It determined that the motion to sever and transfer claims
against Waste Pro USA and Waste Pro of Florida was moot.
Id.
Wright did not appeal the order dismissing him from the case. No
motion to conditionally certify the collective action had been filed
when Wright’s claims were dismissed.
In August 2019, Wright filed the instant action in the South-
ern District of Florida, alleging the same claims as in the South Car-
olina action and again suing both individually and on a collective
basis. The district court conditionally certified a collective action
but later decertified it and dismissed without prejudice all of the
plaintiffs who had opted to join the collective action. Only Wright’s
individual claims remained.
The parties filed motions for summary judgment. The dis-
trict court ruled, and Wright concedes, that Wright’s claims were
untimely unless tolling applies. The district court then ruled that
the South Carolina action did not toll the limitations period and
that Wright was not entitled to equitable tolling, so it granted sum-
mary judgment in favor of Waste Pro USA and Waste Pro of Flor-
ida.
II. STANDARDS OF REVIEW
We review a summary judgment de novo. MSP Recovery
Claims, Series LLC v. United Auto. Ins. Co.,
60 F.4th 1314, 1318 (11th
Cir. 2023). “The question of whether or not equitable tolling ap-
plies is a legal one and thus is subject to de novo review, but we are
bound by the trial court’s factual findings unless they are clearly
erroneous.” Miranda v. B&B Cash Grocery Store, Inc.,
975 F.2d 1518,
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22-12261 Opinion of the Court 5
1531 (11th Cir. 1992). Whether a plaintiff has been diligent is a fac-
tual determination. See Arthur v. Allen,
452 F.3d 1234, 1252 (11th
Cir.), modified on other grounds,
459 F.3d 1310 (11th Cir. 2006).
III. DISCUSSION
We divide our discussion into two parts. First, we explain
that this action is untimely unless equitable tolling applies.
Wright’s earlier action in South Carolina has no effect on the limi-
tations period for this action. Second, we explain that Wright has
not satisfied his burden to prove that he is entitled to equitable toll-
ing.
A. This Action Is Untimely Unless Equitable Tolling Applies.
Wright’s primary argument—that the Florida action is
timely because the limitations period was tolled while the South
Carolina action was pending—fails because the South Carolina ac-
tion is not related to this action. For purposes of a limitations pe-
riod, an action that is dismissed without prejudice is ordinarily
treated as never filed. Suits under the Fair Labor Standards Act are
not an exception to that rule. The decision on which Wright relies
to argue that the limitations period was tolled by the South Caro-
lina action is inapposite. The parties also dispute whether the lack
of personal jurisdiction over the Waste Pro entities in the South
Carolina court means that the South Carolina action was not
properly commenced under the Act, but we need not reach that
question to conclude that the Florida action is untimely.
As “a general rule,” “the filing of a lawsuit [that] later is dis-
missed without prejudice does not automatically toll the statute of
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6 Opinion of the Court 22-12261
limitations.” Justice v. United States,
6 F.3d 1474, 1478–79 (11th Cir.
1993); see also Willard v. Wood,
164 U.S. 502, 523 (1896) (“The gen-
eral rule in respect of limitations . . . [is] that if . . . from any cause
. . . the action abates or is dismissed, and, during the pendency of
the action, the limitation runs, the remedy is barred.”). For pur-
poses of a limitations period, courts treat a complaint that is dis-
missed without prejudice as though it were never filed. See Elmore
v. Henderson,
227 F.3d 1009, 1011 (7th Cir. 2000); cf. Dade Cnty. v.
Rohr Indus., Inc.,
826 F.2d 983, 989 (11th Cir. 1987) (“[T]he subse-
quent voluntary dismissal of the federal action has the effect of
placing the parties in a position as if the suit had never been filed.”).
We have recognized on many occasions that when a timely
complaint is dismissed without prejudice, a later action that is filed
outside the period of limitations is untimely, as it would be if the
previous action had never existed. See, e.g., Boazman v. Econ. Lab’y,
Inc.,
537 F.2d 210, 212–13 (5th Cir. 1976); Burden v. Yates,
644 F.2d
503, 505 (5th Cir. Unit B 1981); Stein v. Reynolds Secs., Inc.,
667 F.2d
33, 34 (11th Cir. 1982). That rule makes sense because when a plain-
tiff files a second complaint after his first is dismissed, the second
complaint commences a new action. That new action is what must
satisfy the limitations period. Cf. Dade Cnty., 826 F.2d at 989.
Wright suggests that contrary to the ordinary rule, the com-
mencement of a Fair Labor Standards Act action tolls the limita-
tions period even when it is later dismissed without prejudice. He
bases his argument on the text of the Act about commencement of
an action and our holding that certain plaintiffs who are dismissed
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22-12261 Opinion of the Court 7
without prejudice from a purported collective action under the Act
are entitled to tolling for the pendency of their participation in the
action. Both arguments fail.
Wright’s statutory argument fails because it relates to
whether the South Carolina action was “commenced” under the
Act, which has no bearing on whether the later Florida action was
timely. Nothing in the Act exempts actions under it from the ordi-
nary rule that an action dismissed without prejudice does not toll
the limitations period to make a new action timely. Section 216
provides a private cause of action “in any Federal or State court of
competent jurisdiction.”
29 U.S.C. § 216(b). A plaintiff may sue in-
dividually or collectively with “other employees similarly situ-
ated.”
Id. Section 255 provides a limitations period for that cause of
action: two years by default or three years if the violation of the
statute was willful.
Id. § 255(a). Section 256 explains that for pur-
poses of that limitations period, an action “shall be considered to
be commenced on the date when the complaint is filed; except that
in the case of a collective . . . action[,] . . . it shall be considered to
be commenced in the case of any individual claimant” when he files
his written consent to become a party in the court in which the
action was brought. Id. § 256. None of these sections provides for
tolling the limitations period for the pendency of a dismissed suit.
Wright argues that because section 256, unlike section
216(b), speaks of a complaint being filed but does not mention a
“court of competent jurisdiction,” an action must be treated as
“commenced” under section 256 even if the court in which the
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8 Opinion of the Court 22-12261
action was filed lacked jurisdiction. He argues that he satisfied the
statute of limitations by “commencing” the South Carolina action
even though that action was dismissed for a jurisdictional defect.
But whether the South Carolina action was “commenced” under
section 256 despite the absence of personal jurisdiction is beside the
point. We need not decide whether the Act separates jurisdictional
requirements from filing requirements, as Wright contends. Sec-
tion 256, in defining when an action commences, says nothing
about the effect of dismissal, so it gives us no reason to depart from
the ordinary rule that an action that is commenced but later dis-
missed without prejudice is a nullity for purposes of a limitations
period.
When Congress provides for tolling as a matter of law, it
says as much. For example, the Act provided for the “suspension”
of the period of limitations in certain circumstances related to the
1974 amendments to the Act. Id. § 255(d). It also provided a grace
period after the 1947 amendments. Id. § 255(c). And when Con-
gress has decided in other statutory contexts to override the ordi-
nary rule that a dismissed action has no tolling effect, it has done
so clearly. See, e.g.,
28 U.S.C. § 1367(d) (tolling the limitations pe-
riod for a claim over which a district court exercises supplemental
jurisdiction during the pendency of the claim and for 30 days after
dismissal);
id. § 2415(e) (providing a one-year grace period for re-
commencing certain actions brought by the United States after a
dismissal without prejudice). Section 256, by contrast, does not
state that the commencement of an action that is dismissed has any
tolling effect for a later-filed action.
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Wright contends that the rule that a dismissed action has no
tolling effect is applicable only where a complaint is sufficient to
commence an action. He argues that because a collective-action
plaintiff must fulfill an additional requirement—filing written con-
sent to join the action—before his action is “commenced” under
section 256, a different tolling rule should apply. We disagree.
That section 256 requires a plaintiff who seeks to join a col-
lective action to file written consent to become a party for his ac-
tion to commence adds nothing to the analysis because a second
action filed after a dismissal is still a new action. Cf. Albritton v. Ca-
gle’s, Inc.,
508 F.3d 1012, 1019 (11th Cir. 2007) (holding that consent
forms filed in a purported collective action did not carry over to
new actions filed later). Commencement is a separate issue from
the effect of dismissal. Wright fails to connect them.
Wright also argues that our precedent dictates that the limi-
tations period was tolled from the date he filed his consent to join
the South Carolina action to the date he was dismissed from that
action. He cites Mickles v. Country Club Inc.,
887 F.3d 1270 (11th Cir.
2018), to argue that “[i]n [Fair Labor Standards Act] actions, courts
should apply statutory tolling from the date individuals file their
written notices of consent to the day they are dismissed from the
action.” But Wright reads too much into Mickles. The holding of
Mickles does not extend to original plaintiffs whose complaints are
dismissed.
Mickles pertained to opt-in plaintiffs who were dismissed
from a decertified collective action, not to original plaintiffs whose
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10 Opinion of the Court 22-12261
complaints, like Wright’s, were filed and would have remained
pending regardless of collective-action status. Wright was dis-
missed from the South Carolina action not because it could not be
maintained as a collective action—indeed, he was dismissed before
any motion to conditionally certify a collective action was even
filed—but because he could not maintain his complaint against the
Waste Pro entities in that court.
The Act allows an employee to file a complaint individually
as well as on behalf of “other employees similarly situated.”
29
U.S.C. § 216(b). Unlike in a class action under Federal Rule of Civil
Procedure 23, an individual who seeks to join a Fair Labor Stand-
ards Act suit that was filed as a collective action must affirmatively
opt in by filing with the court his written consent to join the action.
Mickles,
887 F.3d at 1275–76; see
29 U.S.C. § 216(b).
We have recommended that district courts use a two-step
approach to determine whether a purported collective action
meets the statutory requirements. See Hipp v. Liberty Nat’l Life Ins.
Co.,
252 F.3d 1208, 1219 (11th Cir. 2001). First, the court may con-
ditionally certify a collective action based on the pleadings and send
notice to individuals who may be “similarly situated” to the origi-
nal plaintiffs. See Mickles,
887 F.3d at 1276. Second, following dis-
covery, the court must determine whether the opt-in plaintiffs are
in fact similarly situated to the original plaintiffs.
Id.
If the opt-in plaintiffs are not similarly situated to the original
plaintiffs, the district court must decertify the collective action; the
original plaintiffs then proceed with their individual complaints.
Id.
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Ordinarily, opt-in plaintiffs are dismissed without prejudice to their
ability to refile.
Id. at 1280. In this case, for example, the Florida
court decertified the collective action and tolled the limitations pe-
riod for the dismissed opt-in plaintiffs for twenty-one days after the
decertification order.
In Mickles, this Court held that opt-in plaintiffs become par-
ties to the case immediately upon filing their written consents to
become plaintiffs, regardless of whether the district court has al-
ready granted conditional collective-action certification.
Id. at 1277.
We reasoned that section 216(b) makes plain that filing written
consent to join is the sole requirement for an opt-in plaintiff to be-
come a party.
Id. at 1278. So, we held that the district court had
erred when it determined that opt-in plaintiffs who were dismissed
when the court denied a motion for conditional certification had
never been parties in the case at all.
Id. at 1275–78. But the district
court did not abuse its discretion when it denied the motion for
conditional certification as untimely, so we affirmed the denial of
that motion.
Id. at 1279–80.
We next explained that the order deeming those dismissed
opt-in plaintiffs non-parties “was tantamount to dismissing them
with prejudice, as the applicable statute of limitations would prob-
ably bar them from refiling their claims.”
Id. at 1280. We reiterated
that opt-in plaintiffs are ordinarily dismissed without prejudice,
id.,
and held that the opt-in plaintiffs were “entitled to statutory tolling
of their claims beginning on the dates they filed their written con-
sents,”
id. at 1281 (citing
29 U.S.C. § 256(b) (providing that an opt-
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12 Opinion of the Court 22-12261
in plaintiff’s action commences, for purposes of the limitations pe-
riod, when he files his written consent to join)). Although we used
the phrase “statutory tolling,” we did so only in reference to the
statutory provision regarding the commencement of an action.
Id.
Except for narrow provisions related to the 1947 and 1974 amend-
ments to the Act—which were not at issue in Mickles and are not at
issue here—there is no mandatory, statutory basis for an exception
to its limitations period. See
29 U.S.C. § 255(b)–(d).
Mickles is inapposite. Tolling the limitations period for a dis-
missed opt-in plaintiff makes sense for many of the same reasons
that the commencement of a class action under Federal Rule of
Civil Procedure 23 tolls the limitations period for unnamed mem-
bers of the putative class until class certification is denied. See
Crown, Cork & Seal Co. v. Parker,
462 U.S. 345, 353–54 (1983). Col-
lective actions under section 216(b) benefit plaintiffs by allowing
them to pool resources and benefit the judicial system by promot-
ing the efficient resolution of common issues. See Hoffmann-La
Roche Inc. v. Sperling,
493 U.S. 165, 170 (1989), superseded by rule on
other grounds, see 2000 Amendments to Federal Rules of Civil Pro-
cedure. In the light of those benefits, courts permit tolling for opt-
in plaintiffs so that they can join collective actions without the risk
of their complaints becoming stale while certification is pending.
But that analysis—and our reasoning in Mickles—has nothing to do
with an original plaintiff, like Wright, whose complaint remains
pending even after decertification. See Mickles,
887 F.3d at 1280.
Wright’s circumstances are indistinguishable from those of a plain-
tiff who sues solely on his own behalf to begin with and who does
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22-12261 Opinion of the Court 13
not enjoy any tolling when an action is dismissed without preju-
dice.
B. Wright Is Not Entitled to Equitable Tolling.
Mickles establishes that equitable tolling is available in Fair
Labor Standards Act cases, although the decision did not treat the
tolling of the plaintiffs’ claims as a matter of equity. See also Irwin v.
Dep’t of Veterans Affairs,
498 U.S. 89, 95 (1990) (explaining that time
requirements in suits between private litigants are presumptively
subject to equitable tolling). The Waste Pro entities do not argue
otherwise. But Wright admits that Waste Pro never misled him
about the limitations period, so Waste Pro is not estopped from
asserting that Wright’s action is barred. See Browning v. AT&T Para-
dyne,
120 F.3d 222, 226 (11th Cir. 1997). “The remaining question
is whether equitable tolling is warranted here.” Justice,
6 F.3d at
1478. We hold that it is not.
Equitable tolling “is an extraordinary remedy [that] should
be extended only sparingly.”
Id. at 1479. Wright must prove that
equitable tolling is appropriate “because of extraordinary circum-
stances that [we]re both beyond his control and unavoidable even
with diligence.” Sandvik v. United States,
177 F.3d 1269, 1271 (11th
Cir. 1999). Relatedly, “relief in equity generally is inappropriate
when the moving party has an adequate remedy at law.” Justice,
6
F.3d at 1480. “[O]ur inquiry is not the propriety of the [South Car-
olina] dismissal per se, but whether equity is the proper vehicle for
relief. Equity’s reach is quite modest when adequate legal remedies
are available.”
Id. at 1482.
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14 Opinion of the Court 22-12261
Wright has not satisfied his burden. The district court’s find-
ing that Wright did not act with reasonable diligence was not
clearly erroneous. Wright failed to pursue available legal remedies
to preserve his claims.
Wright could have filed a protective action in Florida. We
held that the plaintiff in Booth v. Carnival Corp. was entitled to equi-
table tolling when he filed suit in a district court after the limita-
tions period had run but while his state-court case was still pending.
522 F.3d 1148, 1149–50 (11th Cir. 2008). Booth filed his federal
claim approximately three months after the defendant first raised
the issue of improper venue, which was the defense that eventually
resulted in the dismissal of the state case.
Id. at 1153. In this case,
by contrast, Wright did not file in Florida until after his South Car-
olina action was dismissed, and the Florida filing came more than
a year and a half after the Waste Pro entities contested personal
jurisdiction in South Carolina. He did not move to sever and trans-
fer his claims until nearly a year after the Waste Pro entities con-
tested personal jurisdiction. So, Wright was far less diligent than
Booth in pursuing available legal remedies.
Even after his South Carolina action was dismissed, Wright
had “alternate ways of preserving his cause of action short of in-
voking the doctrine of equitable tolling.” Justice,
6 F.3d at 1480. He
could have filed a motion for reconsideration of or for relief from
the dismissal order and argued that transfer was in the interest of
justice. See
id. at 1480–81; cf. Burnett, 380 U.S. at 430 n.7 (“Numer-
ous cases hold that when dismissal of an action for improper venue
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22-12261 Opinion of the Court 15
would terminate rights without a hearing on the merits because
[the] plaintiff’s action would be barred by a statute of limitations,
the interest of justice requires that the cause be transferred.” (inter-
nal quotation marks omitted)). He also could have appealed the
dismissal. “The right to appeal generally is regarded an adequate
legal remedy [that] forecloses equitable relief.” Justice,
6 F.3d at
1481; see also Elmore,
227 F.3d at 1013 (“[The plaintiff’s] complaint
is that his suit was erroneously dismissed, as a result of which . . .
his claim was lost because the statute of limitations ran before he
refiled. Equitable tolling is not a remedy for an erroneous judg-
ment; appeal . . . is.”).
A diligent plaintiff would have filed a protective action or
pursued a legal remedy in the South Carolina proceeding. “To the
extent [Wright] will suffer irreparable harm if equitable tolling does
not apply in this case, that is the consequence of his own failure to
pursue his remedies at law. Equity will not intervene in such cir-
cumstances.” Justice,
6 F.3d at 1482.
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Waste Pro
USA and Waste Pro of Florida.
