Montoya v. 3PD Incorporated et al
ORDER granting 62 Stipulation on Equitable Tolling: See order for details. Signed by Senior Judge Stephen M McNamee on 9/25/2013. (LMR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Dennis Montoya, individually and on)
behalf of those similarly situated,
3PD, Inc., The Home Depot, Inc. et al., )
For good cause shown, the Court GRANTS the Parties’ Stipulation on Equitable
Tolling, as follows. (Doc. 62.)
IT IS HEREBY ORDERED that:
Subject to Paragraph 2 below, the “Tolling Period” begins on September 4,
2013, the date of the Conference in which the tolling issue was first discussed, and ends on
the 30th day after the Court issues the last ruling on the Summary Judgment Motion.
In the event that any summary judgment order disposes of the Fair Labor
Standards Act (“FLSA”) claims, or any part thereof, the Parties are unable to reach
agreement regarding whether the limitations period should be tolled until after a final order
is issued on any subsequent appeal of the Court’s summary judgment order. Plaintiff will
submit this issue to the Court in a Motion for Equitable Tolling.
Defendants agree to waive completely any argument that the Tolling Period
should be included or used in determining the applicability of any statute of limitations, class
period, defense of laches, or any other defense on grounds of timeliness with respect to
claims pursuant to the Wage and Hour Laws, possessed by Plaintiff and/or members of the
Collectives against Defendants, where such claims arose during the Tolling Period or were
still timely as of the beginning of the Tolling Period.
During this Tolling Period, the running of all statutes of limitation applicable
to the Wage and Hour Laws, whether styled as a collective action or not, that could be filed
by Plaintiff or any member of the Collectives will be suspended and tolled. The intent of this
Stipulation is that during the Tolling Period, the Parties will stand in their respective
positions as to the FLSA claims and are not prejudiced by the passage of time until the
Tolling Period ends.
Except as provided in the Stipulation, in entering into this Stipulation,
Defendants in no manner waive any defenses they may have with respect to any claims that
might be raised by Plaintiff or Collectives and Subclasses which he seeks to represent,
including any defense as to whether the proposed action could be brought as a collective or
class, the appropriateness of the proposed collective or class, or the Plaintiff’s ability to serve
as a representative of the proposed collective or class.
The Stipulation binds Plaintiff, Defendants, and their successors in interest.
The Stipulation shall not be admissible in any proceeding in any court, agency,
or other forum for any purpose other than to enforce the express terms of the Stipulation
The Stipulation contains the entire agreement among the Parties and constitutes
the complete, final, and exclusive embodiment of the Parties’ agreement regarding the
subject matter hereof. The terms of this Stipulation are contractual and not a mere recital.
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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