BRASHER et al v. Quincy Properties LLC, doing business as Welcome Inn et al

Filing 131

OPINION Entered by Judge Sue E. Myerscough on 03/07/2018. SEE WRITTEN OPINION. Plaintiffs' Motion for Tolling of the Statute of Limitations for FLSA Claims of Possible Collective Members (d/e 125 ) is DENIED with leave to refile. (DM, ilcd)

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E-FILED

Thursday, 08 March, 2018 08:45:58 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
APRIL R. BRASHIER, CHAD O.
)
LEBOW, and RICHARD M.
)
ORENCIA, individually and on
)
behalf of all persons similarly
)
situated as collective
)
representative under and/or as
)
members of the Collective as
)
permitted under the Fair Labor
)
Standards Act,
)
)
Plaintiffs,
)
)
v.
)
No. 3:17-CV-3022
)
QUINCY PROPERTY, LLC, doing )
business as Welcome Inn;
)
VANDIVER MOTEL, doing business)
as Welcome Inn Columbia;
)
WELCOME INN COLUMBIA;
)
JEFFERSON PROPERTY, doing
)
business as Extended Stay by
)
Welcome Inn; COUNTY LINE
)
PROPERTIES I LLC, doing
)
business as Welcome Inn;
)
AMERICAN MOTELS LLC, doing
)
business as Welcome Inn; B & W )
INVESTMENT PROPERTIES LLC, )
doing business as Holiday
)
Apartments; SPRINGFIELD
)
WELCOME INN; and BRETT
)
BURGE; KENNETH LOGAN;
)
QUENTIN KEARNEY; and JOE
)
WIMBERLY, as individuals under )
FLSA and Illinois Wage Laws,
)
)
Defendants.
)
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OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Motion for Tolling of the
Statute of Limitations for FLSA Claims of Possible Collective
Members (d/e 125) filed by Plaintiffs April R. Brashier, Richard M.
Orencia, and Chad O. Lebow. Under the particular circumstances
of this case, the Court DENIES the Motion with leave to refile.
I. BACKGROUND
Plaintiffs filed the original Complaint (d/e 1) on January 28,
2017, an Amended Complaint (d/e 4) on February 15, 2017, a
Second Amended Complaint (d/e 16) on April 19, 2017, and a Third
Amended Complaint (d/e 94) on August 28, 2017. Plaintiffs bring
claims under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201
et seq., the Illinois Minimum Wage Law, 830 ILCS 105/1 et seq.,
and the Illinois Wage Payment and Collection Act, 820 ILCS 115/1
et seq.
Plaintiffs filed Motions for Certification of Collective Action on
March 1, 2017 (d/e 5) and July 28, 2017 (d/e 82). Plaintiffs seek
certification of a collective action under the FLSA for all similarly
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situated employees and former employees. Several individuals have
filed consents to join the lawsuit. See d/e 93, 95, 97, 101, 116,
199, 123, 124, 126.
On July 28, 2017, the Court sua sponte1 stayed briefing on
the motions to conditionally certify a class until resolution of the
pending motions to dismiss and motions for a more definite
statement directed at the Second Amended Complaint. See July 28,
2017 Text Order. After Plaintiffs filed their Third Amended
Complaint, several defendants filed answers, several defendants
collectively filed a motion to transfer venue and for a more definite
statement, and Defendant American Motels LLC filed a motion to
dismiss for lack of personal jurisdiction and improper venue or, in
the alternative, a motion to transfer venue, a motion to dismiss for
failure to state a claim, and a motion for a more definite statement.2
These motions were fully briefed by September 20, 2017.
On November 8, 2017, the parties advised Magistrate Judge
Tom Schanzle-Haskins that they wanted to proceed with mediation.

Some of the Defendants had filed Motions to Stay, but the Court denied those
as moot.
1

The Court notes that it does not appear that Defendant Welcome Inn
Columbia has filed any response to the Third Amended Complaint.
2

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In light of the pending mediation, this Court has taken no further
action on the pending motions. The parties’ settlement discussions
continue.
On February 12, 2018, Plaintiffs filed their Motion for Tolling
of the Statute of Limitations for FLSA Claims of Possible Collective
Members for the interim period of March 1, 2017 to January 28,
2018.3 The parties have reached an agreement to toll the statute of
limitations beginning January 29, 2018 pending mediation.
Defendants oppose Plaintiffs’ motion for additional tolling. See
Response (d/e 127). In Plaintiffs’ Reply (d/e 130), they also request
a hearing. The Court denies the request for a hearing because a
hearing is unnecessary at this time.
II. LEGAL BACKGROUND
Under the FLSA, employees may bring a collective action
against an employer to recover unpaid overtime compensation on
behalf of themselves and on behalf of other similarly situated
employees. 29 U.S.C. § 216(b). Unlike class actions under Federal

Confusingly, Plaintiffs assert in their Reply that they seek tolling from March
1, 2017 to March 2, 2018. This seems to ignore the parties’ agreement to toll
the statute of limitations beginning January 29, 2018.
3

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Rule of Civil Procedure 23(b), where potential plaintiffs are included
in the class unless they opt out, potential plaintiffs in FLSA
collective actions must affirmatively opt in to the suit. Alvarez v.
City of Chi., 605 F.3d 445, 448 (7th Cir. 2010).
Moreover, under the FLSA, the statute of limitations continues
to run for each potential plaintiff until he or she opts in to the
lawsuit. The FLSA requires that an action “be commenced within
two years after the cause of action accrued,” unless the violation
was willful, in which case a three-year statute of limitations applies.
29 U.S.C. § 255(a). An FLSA lawsuit commences as to an individual
claimant on: (1) the date the complaint was filed if the claimant is
specifically named as a party in the complaint and he files his
written consent to become a party plaintiff on such date; or (2) the
date on which written consent is filed. 29 U.S.C. § 256. Therefore,
the filing of the lawsuit does not toll the statute of limitations for
potential class members until they file their own consents.
The statute of limitations in FLSA suits is not jurisdictional
and equitable tolling applies. Bergman v. Kindred Healthcare, Inc.,
949 F. Supp. 2d 852, 860 (N.D. Ill. 2013). Equitable tolling is
warranted if the litigant establishes (1) that he has been pursuing
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his rights diligently; and (2) that some extraordinary circumstance
prevented timing filing. Knauf Insulation, Inc. v. S. Brands, Inc.,
820 F.3d 904, 908 (7th Cir. 2016); see also Knox v. Jones Group,
208 F. Supp. 3d 954, 967 (S.D. Ind. 2016), on reconsideration in
part 2016 WL 6083526 (S.D. Ind. Oct. 18, 2016).
III. ANALYSIS
Plaintiffs argue that the Court should equitably toll the statute
of limitations between March 1, 2017—the date Plaintiffs filed their
first motion for conditional certification—until January 28, 2018, to
avoid the possibility that opt-ins will lose out on the potential
benefits of the lawsuit.4 Defendants oppose equitable tolling,
arguing that Plaintiffs lack sufficient facts to establish diligence on
the part of potential opt-ins or to show that exceptional
circumstances exist that prevented the potential opt-ins from filing
their own FLSA claims or filing opt-in notices in this case.
Courts take several different approaches to equitable tolling.
Some courts find that a long delay in ruling on conditional

In their Reply, Plaintiffs also propose July 2017—when Defendants filed a
motion to stay—or October 10, 2017—the date the parties began negotiations—
as possible starting dates for tolling.
4

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certification or other motions is an extraordinary circumstance that
justifies applying equitable tolling. See Bergman v. Kindred
Healthcare, Inc., 949 F. Supp. 2d 852, 860-61 (N.D. Ill. 2013)
(involving a 24-month delay in ruling on a motion for conditional
certification and finding that the argument that potential opt-ins
could have joined in or brought their own lawsuit while the motion
was pending “ignored the realities of FLSA claims”); see also
Kellegren v. Petco, No. 13cv644-L(KSC), 2014 WL 2558688, at *5
(S.D. Cal. June 6, 2014) (finding the potential opt-in plaintiffs
would be unfairly prejudiced by the court’s delay in resolving the
defendant’s motion to dismiss and tolling the time between the date
the first motion to dismiss became fully briefed until the defendant
files its answer).
Other courts recognize that equitable tolling should be granted
sparingly and require strict compliance with the equitable tolling
standard—diligence and extraordinary circumstances. See Perez v.
Comcast, No. 10 C 1127, 2011 WL 5979769, *4 (N.D. Ill. Nov. 29,
2011) (refusing equitable tolling in light of the Seventh Circuit’s
admonition—in other contexts—that equitable tolling is used
sparingly and finding the plaintiff did not satisfy either prong of the
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equitable tolling test, even though the court had stayed the case
pending the outcome of a motion for preliminary approval of
settlement in another case, which delayed the court’s consideration
of the plaintiffs’ motion for conditional certification). These courts
find that the common consequence of crowded court dockets is not
an extraordinary circumstance. Sylvester v. Wintrust Fin. Corp.,
2014 WL 10416989, at * 2 (N.D. Ill. Sept. 26, 2014) (noting some
period of delay in ruling on a motion must be considered “normal,
rather than extraordinary”); Knox, 208 F. Supp. 3d at 967 (ninemonth delay caused by the pending motion to dismiss did not
constitute extraordinary circumstances).
In addition, these courts note that Congress clearly intended
that some period of time would pass while the courts considered
whether to conditionally certify a class but did not see fit to stop the
statute of limitations until a potential plaintiff opted into the case—
an action that often does not occur until after a class is
conditionally certified and notice is sent. Sylvester, 2014 WL
10416989, at *3. Moreover, these courts note that the equitable
tolling standard requires a showing that the potential opt-in
plaintiffs were prevented from joining the lawsuit because of the
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extraordinary delay and find that the absence of conditional
certification does not prevent potential plaintiffs from asserting
their rights. Nicks v. Koch Meat Co., Inc., 265 F. Supp. 3d 841
(N.D. Ill. 2017) (finding that the plaintiffs did not show that the onemonth delay in ruling on motion for conditional certification was
extraordinary or that the delay prevented any potential opt-in from
diligently asserting his or her rights); Sylvester, 2014 WL 10416989
at *3 (providing that a court ruling is not necessary to permit a
party to file his own lawsuit or opt in to the pending lawsuit).
Still other courts find that the issue should not be addressed
until after conditional class certification is granted or after the
defendant challenges a plaintiff’s or opt-in party’s claim on statute
of limitations grounds. These courts reason that a precertification
request for equitable tolling implicates too many contingences.
That is, the court may decide not to conditionally certify the class,
the defendant may decide not to raise a statute of limitations
defense, or individuals may not opt in to the class, in which case
the court’s equitable tolling decision would likely be an advisory
opinion. Davis v. Vanguard Home Care, LLC, No. 16-CV-7277,
2016 WL 7049069, at *2 (N.D. Ill. Dec. 5, 2016); Miller-Basinger v.
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Magnolia Health Sys., Inc., 2:15-cv-00089-WTL-DKL, 2016 WL
773191 at *2 (S.D. Ind. Feb. 22, 2016) (finding it premature to toll
the statute of limitations for potential plaintiffs before ruling on the
motion for conditional certification). Some of these courts have also
noted that the court cannot assess the diligence of a plaintiff who
has not opted in. Davis, 2016 WL 7049069, at *1 (but also noting
that the “court need not go as far as holding that equitable tolling
claims on a class-wide basis are always unripe before a plaintiff
opts in but it does find that Plaintiffs’ request for equitable tolling is
unripe given the posture of this case”).
In light of the status of this case, the Court agrees with those
courts that find that too many variables exist to determine, prior to
conditional certification, whether equitable tolling should apply.
The parties have agreed to toll the statute of limitations beginning
January 29, 2018. Therefore, a finite period of time is at issue in
this case—March 1, 2017 through January 28, 2018. If a class is
conditionally certified, this Court will ensure that notice is sent to
those individuals who would fall within the class if that time period
is ultimately deemed tolled. The Court will thereafter address
equitable tolling if necessary. In addition, if at any time the parties
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withdraw their agreement to continue tolling the statute of
limitations beginning January 29, 2018, Plaintiffs may refile their
motion for equitable tolling, even if a class has not yet been
conditionally certified.
IV. CONCLUSION
Plaintiffs’ Motion for Tolling of the Statute of Limitations for
FLSA Claims of Possible Collective Members (d/e 125) is DENIED
with leave to refile.
ENTERED: March 7, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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