Astarita v. Menard, Inc.

Filing 137

ORDER granting 117 Plaintiff's Motion for Equitable Tolling. The Court tolls the FLSA statute of limitations for potential class members from 5/10/2018 through 12/7/2018. Signed on 2/5/19 by District Judge Roseann Ketchmark. (Phillips, Caleb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
ALBERT J. ASTARITA, DIANA M.
OWENS,

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Plaintiffs,
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Case No. 5:17-06151-CV-RK
v.
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MENARD, INC.,
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Defendant.
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ORDER GRANTING PLAINTIFF’S MOTION FOR EQUITABLE TOLLING
Before the Court is Plaintiff Diana M. Owens’s Motion for Equitable Tolling. (Doc. 117.)
Plaintiff requests that equitable tolling be ordered for potential class members from the date of
Plaintiff’s motion for conditional certification (May 10, 2018) through the Court’s order on
conditional certification (December 7, 2018). (Doc. 127 at 5.) Defendant opposes the motion, and
it is fully briefed and ready for decision. (Doc. 119; Doc. 127.) After careful consideration and
for the reasons below, the motion is GRANTED.
The statute of limitations in an FLSA collective action does not toll for potential class
members until they file written consent to become plaintiffs. 29 U.S.C. § 257. Under appropriate
circumstances, “[a]n applicable statute of limitations may . . . be tolled by the doctrine of equitable
tolling.” Henderson v. Ford Motor Co., 403 F.3d 1026, 1033 (8th Cir. 2005). The Court finds
equitable tolling appropriate here due to the postponement of the issue of conditional certification
while the Court resolved the issue of arbitrability. See Larson v. Isle of Capri Casinos, Inc., No.
4:16-cv-902-ODS, Doc. 84 at *4-5 (W.D. Mo. April 4, 2018) (tolling the statute of limitations in
an FLSA action because of the delay in resolving other threshold pretrial motions before ruling on
conditional certification) Arwine-Lucas v. Caesars Enters. Servs., LLC, No. 4:17-cv-451-HFS,
Doc. 112 at *4-5 (W.D. Mo. Oct. 22, 2018) (same).
In support of the Court prioritizing the resolution of arbitrability ahead of conditional
certification, Defendant previously argued the Court could remedy any prejudice to putative
plaintiffs by granting a motion by Plaintiff for equitable tolling. The Court is not persuaded by
Defendant’s revised position against equitable tolling.

Tolling is warranted here to preserve fairness, allow careful consideration of the legal
issues by the Court, and to avert prejudice.
Accordingly, the motion for equitable tolling is GRANTED. The Court tolls the FLSA
statute of limitations for potential class members from May 10, 2018, through December 7, 2018.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: February 5, 2019

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