Montoya v. 3PD Incorporated et al

Filing 66

ORDER granting 62 Stipulation on Equitable Tolling: See order for details. Signed by Senior Judge Stephen M McNamee on 9/25/2013. (LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dennis Montoya, individually and on)
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behalf of those similarly situated,
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Plaintiff,
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vs.
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3PD, Inc., The Home Depot, Inc. et al., )
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Defendants.
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No. CV-13-8068-PCT-SMM

ORDER

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For good cause shown, the Court GRANTS the Parties’ Stipulation on Equitable
Tolling, as follows. (Doc. 62.)

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IT IS HEREBY ORDERED that:

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1.

Subject to Paragraph 2 below, the “Tolling Period” begins on September 4,

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2013, the date of the Conference in which the tolling issue was first discussed, and ends on

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the 30th day after the Court issues the last ruling on the Summary Judgment Motion.

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2.

In the event that any summary judgment order disposes of the Fair Labor

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Standards Act (“FLSA”) claims, or any part thereof, the Parties are unable to reach

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agreement regarding whether the limitations period should be tolled until after a final order

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is issued on any subsequent appeal of the Court’s summary judgment order. Plaintiff will

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submit this issue to the Court in a Motion for Equitable Tolling.

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3.

Defendants agree to waive completely any argument that the Tolling Period

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should be included or used in determining the applicability of any statute of limitations, class

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period, defense of laches, or any other defense on grounds of timeliness with respect to

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claims pursuant to the Wage and Hour Laws, possessed by Plaintiff and/or members of the

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Collectives against Defendants, where such claims arose during the Tolling Period or were

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still timely as of the beginning of the Tolling Period.

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4.

During this Tolling Period, the running of all statutes of limitation applicable

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to the Wage and Hour Laws, whether styled as a collective action or not, that could be filed

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by Plaintiff or any member of the Collectives will be suspended and tolled. The intent of this

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Stipulation is that during the Tolling Period, the Parties will stand in their respective

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positions as to the FLSA claims and are not prejudiced by the passage of time until the

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Tolling Period ends.

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5.

Except as provided in the Stipulation, in entering into this Stipulation,

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Defendants in no manner waive any defenses they may have with respect to any claims that

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might be raised by Plaintiff or Collectives and Subclasses which he seeks to represent,

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including any defense as to whether the proposed action could be brought as a collective or

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class, the appropriateness of the proposed collective or class, or the Plaintiff’s ability to serve

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as a representative of the proposed collective or class.

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6.

The Stipulation binds Plaintiff, Defendants, and their successors in interest.

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7.

The Stipulation shall not be admissible in any proceeding in any court, agency,

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or other forum for any purpose other than to enforce the express terms of the Stipulation

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itself.

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8.

The Stipulation contains the entire agreement among the Parties and constitutes

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the complete, final, and exclusive embodiment of the Parties’ agreement regarding the

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subject matter hereof. The terms of this Stipulation are contractual and not a mere recital.

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9.

The Stipulation may be executed by way of electronic signature, including by

facsimile or electronic mail.
DATED this 25th day of September, 2013.

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