Lucas v. JJ's of Macomb, Inc.
Filing
40
OPINION: Defendant's Motion for Extension to File Response to Plaintiff'sMotion for Step-One Notice 33 is GRANTED. Defendant shall file its response to Plaintiff's Motion for Step-One Notice on or before July 26, 2018. No tolling of the statute of limitations shall apply during this time. If Plaintiff wishes to file a reply following Defendant's response, he may do so on or before August 9, 2018. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 07/23/2018. (SKN, ilcd)
E-FILED
Wednesday, 25 July, 2018 03:30:45 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SEBASTIAN LUCAS, on behalf of
himself and all others similarly
situated,
Plaintiff,
v.
JJ’S OF MACOMB, INC.,
Defendant.
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No. 16-cv-3328
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
I. BACKGROUND
Plaintiff Sebastian Lucas brings this action on behalf of
himself and other similarly situated assistant managers of Jimmy
John’s franchises owned by Defendant, JJ’s of Macomb, Inc. The
Complaint alleges that Defendant failed to pay Plaintiff and the
putative plaintiffs overtime wages as required by the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201, et seq.
On June 28, 2018, this Court tolled the statute of limitations
for the period during which the Northern District of Illinois enjoined
the proceedings in this Court—from March 9, 2017 to December 14,
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2017 (d/e 32). Also on June 28, 2018, Plaintiff filed his Motion for
Step-One Notice (d/e 30). Defendant’s response to the motion was
due on July 12, 2018. On that day, Defendant filed its Motion for
Extension to File Response to Plaintiff’s Motion for Step-One Notice
(d/e 33). Defendant seeks a two-week extension to allow
Defendant’s newly-substituted counsel an opportunity to respond.
See Defendant’s Motion to Substitute Counsel, July 19, 2018 (d/e
35). On July 17, 2018, Plaintiff responded to Defendant’s request
for an extension. Plaintiff objects to the motion because Defendant
refused to agree to toll the statute of limitations for the duration of
the extension.
II. ANALYSIS
In an FLSA action, equitable tolling of the statute of limitations
is warranted if the litigant establishes (1) that he has pursued his
rights diligently; and (2) that extraordinary circumstances exist.
Knauf Insulation, Inc. v. Southern Brands, Inc., 820 F.3d 904, 908
(7th Cir. 2016). Plaintiff argues that equitable tolling is warranted
because Defendant’s substitution of counsel during its response
time is an extraordinary circumstance. Plaintiff suggests that
Defendant’s intent in seeking the extension is to engage in delay
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tactics and to accelerate the expiration of the putative plaintiffs’
rights.
Plaintiff has presented no evidence to support a finding that
Defendant is engaging in a litigation strategy to frustrate the
putative plaintiff’s efforts to pursue their claims. On the other
hand, Defendant has offered a good reason for seeking the
extension—the substitution of new counsel, who will surely have to
get caught up on the proceedings. Defendant’s July 19, 2018
Motion to Substitute Counsel supports the basis of Defendant’s
request.
Further, two weeks is a reasonable length of time to request.
This type of extension is commonplace in litigation, and typical
delay is not an extraordinary circumstance. Sylvester v. Wintrust
Financial Corp., No. 12 C 01899, 2014 WL 10416989, at *2 (N.D.
Ill. Sept. 26, 2014) (refusing to toll statute of limitations while
motion for conditional certification was pending because “there is
nothing extraordinary about a motion for conditional certification
and the delay in notice while that motion is pending . . . . [t]o hold
otherwise would be to opine that equitable tolling should be granted
in every § 216(b) case as a matter of course during the pendency of
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a conditional class certification request, thereby transforming this
extraordinary remedy into a routine, automatic one.”) (internal
quotations omitted). Defendant’s request for a two-week extension
of time is reasonable. Equitable tolling during this time is not
warranted.
III.
CONCLUSION
Defendant’s Motion for Extension to File Response to Plaintiff’s
Motion for Step-One Notice (d/e 33) is GRANTED. Defendant shall
file its response to Plaintiff’s Motion for Step-One Notice on or
before July 26, 2018. No tolling of the statute of limitations shall
apply during this time. If Plaintiff wishes to file a reply following
Defendant’s response, he may do so on or before August 9, 2018.
ENTERED: July 23, 2018
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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