Astarita v. Menard, Inc.

Filing 186

ORDER denying Defendant's 185 motion for continued stay. Signed on 2/6/2020 by District Judge Roseann Ketchmark. (Phillips, Caleb)

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

Case No. 5:17-06151-CV-RK

ORDER DENYING CONTINUED STAY
Before the Court is Defendant Menard, Inc.’s (“Menard’s”) motion for a 14-day continued
stay or, in the alternative, for an order setting a schedule on the issue of arbitrability. (Doc. 185.)
For the reasons below, the motion is DENIED.
Background
On November 27, 2018, in this action brought under the Fair Labor Standards Act
(“FLSA”), the Court conditionally certified this case as a collective action and authorized Plaintiff
to send notice of the case to other potential plaintiffs whose employment agreements did not
include class or collective action waivers. (Doc. 118.) The parties then continued with discovery,
and Plaintiff filed several notices that other class members consented to joining the case.
On August 25, 2019, Plaintiff informed the Court during a telephone conference that, while
this case was pending but before the class notice was issued, Menard required many more of its
employees to sign arbitration agreements containing class and collective action waivers—16,896
employees to be exact—and excluded these people from the original class list that was produced
to Plaintiff in November 2018. (Doc. 185 at 1 n.1.) Plaintiff then filed a motion for a corrective
class notice to give these people notice, and Menard responded. On November 8, 2019, after
considering the parties’ arguments during the telephone conference, the motion, and Menard’s
response, the Court found that Menard’s communications with potential class members were
improper because Menard did not notify them about this case, inform them about the effect of the
waiver, or give them an opportunity to opt out of the waiver. (Doc. 173.) As a result, the Court
ordered Menard to produce a supplemental class list containing all of the people who were
improperly contacted and authorized Plaintiff to send them a corrective notice. (Id.)
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Thereafter, Menard requested leave to file an interlocutory appeal, which the Court denied.
However, upon Menard’s request, the Court stayed its November 8, 2019 Order to allow Menard
to seek a writ from the Eighth Circuit. (Doc. 176; Doc. 177.) The Court then later extended the
stay, again upon Menard’s request, to allow it to seek en banc review from the Eighth Circuit.
(Doc. 182.) The Eighth Circuit en banc has now denied all relief, and Menard’s production of a
supplemental class list has come due. (Doc. 182; Doc. 184.) However, rather than producing the
supplemental class list, Menard has filed a motion in this Court seeking (1) an additional 14-day
stay to contemplate whether it will file a petition for writ of certiorari in the Supreme Court of the
United States or (2) an order setting a schedule to allow Menard to contest the corrective notice.
Discussion
I.

Request for Stay
The relevant factors for issuing a stay pending appeal in this situation are: “(1) whether the

stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether
the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will
substantially

injure

the

other

(4) where the public interest lies.”

parties

interested

in

the

proceeding;

and

Hilton v. Braunskill, 481 U.S. 770, 776 (1987);

Blacktop, Inc. v. Edible Arrangements Int’l, LLC, No. 4:14-CV-00005-DGK, 2014 WL 12695690,
at *1 (W.D. Mo. Apr. 30, 2014) (similar factors for a stay pending a decision on a motion to dismiss
under the Court’s inherent authority to control its docket).
The Court finds that a continued stay is not appropriate under the present circumstances.
Menard is unlikely to succeed on the merits of a petition for a writ of certiorari for the reasons
previously stated in the Court’s November 8, 2019 Order (Doc. 173) and because the Eighth
Circuit has denied Menard’s writ petition without comment. Regarding irreparable harm, although
this Court previously acknowledged that Menard may have been irreparably harmed if a stay was
not entered and Menard thereafter received a favorable appellate ruling, this factor has now
changed. Irreparable injury to Menard is now outweighed by the substantial injury that would be
caused to the other parties by a significant delay.
This case was filed in December 2017. The parties then filed various motions and extensive
briefing on whether to prioritize conditional certification or Menard’s motion to compel Plaintiff
Albert Astarita to arbitration (which has been granted). Although these issues were resolved and
a class notice was issued in November 2018, the parties are still in the initial stages of this
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collective action due to the present dispute about Menard’s improper contacts with class members
and the scope of the class notice. Menard’s petition for a writ of certiorari would not be due until
April 29, 2020. Plaintiff and those who have opted into this case should not be made to wait any
longer; nor should the public. Accordingly, Menard’s request for a stay is denied.
II.

Schedule Regarding Arbitration
Menard’s request for a “schedule” on the issue of arbitration stems from

Bigger v. Facebook, No. 19-1944, 2020 WL 401804, at *4 (7th Cir. Jan. 24, 2020), which the
Seventh Circuit handed down while Menard’s writ petition was pending before the Eighth Circuit.
In Bigger, the court held that district courts in the Seventh Circuit must follow a particular
procedure when a defendant alleges that a proposed collective action notice includes those who
executed arbitration agreements. Id. Specifically, Bigger requires district courts to allow a
defendant to present evidence to prove its claim that there are valid arbitration agreements for
those on the class list when the plaintiff contests the issue. See id.
Even if the Court were to agree that Bigger provides a workable framework for addressing
the question of whether arbitration employees should be included on a class list as an initial
matter,1 the Court believes applying this framework at this stage in the proceedings would be
improper. Menard has already had a chance to argue that the arbitration employees it contacted
while this case was pending should not be on the class list, and allowing Menard a second chance
to make the same arguments would only result in additional, unnecessary delay.
When Plaintiff raised the issue of whether Menard had improperly contacted potential class
members, the Court gave Menard an opportunity to respond both during the August 25, 2019
telephone conference and in briefing. Plaintiff directed the Court and Menard to case law showing
that arbitration agreements may be unenforceable due to the timing and manner of their imposition,
particularly when a putative FLSA collective action was already pending and the agreements were
imposed without an opt-out provision or adequate notice about the lawsuit or the waiver. See
Balasanyan v. Nordstrom, Inc., Nos. 11-cv-2609-JM-WMC, 10-CV-2671-JM-WMC, 2012 WL
760566, at *2-4 & nn.2-3 (S.D. Cal. Mar. 8, 2012) (refusing to compel arbitration for failure to
give notice about the lawsuit); Jimenez v. Menzies Aviation Inc., No. 15-CV-02392-WHO, 2015

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Menard provided the Eighth Circuit with a citation to Bigger before the court denied the writ.
However, given the stringent standard for an extraordinary writ and the particular facts at issue in this case,
the Court does not read the Eighth Circuit’s rejection of Menard’s writ petition as a rejection of Bigger.

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WL 4914727, at *5-6 (N.D. Cal. Aug. 17, 2015) (refusing to compel arbitration for failure to give
notice about the effect of the waiver and clear opportunities to opt out). Menard failed to engage
with these cases or with Plaintiff’s argument that Menard had improperly contacted potential
plaintiffs.

Instead, Menard opted to argue that the Supreme Court’s decision in

Epic Systems Corporation v. Lewis, 138 S. Ct. 1612 (2018), and a subsequent administrative ruling
showed that arbitration agreements are “presumptively” enforceable despite the National Labor
Relations Act—which is clearly beside the point even if accurate. (Doc. 177 at 3 (Order denying
leave to appeal but granting stay); see also Doc. 169 (Menard’s brief).)
Menard has already been granted an opportunity to be heard on this issue, both by this
Court and by the Eighth Circuit. The present motion provides no indication that Menard, if given
a second bite at the apple under the framework announced in Bigger, would have any additional
basis to prevent those on the supplemental class list from receiving notice of this lawsuit.
Accordingly, Menard’s motion for a schedule to further address the arbitration issue is denied.
Conclusion
For the foregoing reasons, Menard’s motion is DENIED. (Doc. 185.)
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: February 6, 2020

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