Astarita v. Menard, Inc.
ORDER denying 22 Defendant's Motion to Stay and 27 Plaintiff's Motion to Stay. The parties are directed to jointly submit a briefing schedule for Plaintiffs Motion for Conditional Class Certification and the Defendants Motion to Dismiss/Compel Arbitration by 3/16/2018. Signed on 3/9/2018 by District Judge Roseann Ketchmark. (Stout, Courtney)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
ALBERT J. ASTARITA,
Case No. 5:17-06151-CV-RK
Before the Court are several pending motions: (1) Plaintiff’s Motion for Conditional
Certification of Class Claims under 29 U.S.C. § 216(b) (doc. 11); (2) Defendant’s Motion to Stay
Briefing and for Extension of Time to Respond to Plaintiff’s Motion for Conditional
Certification (doc. 22); (3) Defendant’s Motion to Dismiss, or in the Alternative, to Stay the
Proceedings and Compel Arbitration (doc. 24); and (4) Plaintiff’s Motion to Stay Consideration
of Defendant’s Motion to Dismiss, Pending a Ruling on Conditional Certification (doc. 27). At
this juncture, the Court takes up the parties’ competing motions to stay and related suggestions
(docs. 22, 23, 27, 28, 29, 32, and 41). For the reasons below, the Court DENIES Defendant’s
motion to stay (doc. 22), DENIES Plaintiff’s motion to stay (doc. 27), and directs the parties to
set a briefing schedule for Plaintiff’s motion for conditional certification and Defendant’s motion
Plaintiff brings this lawsuit as: (a) a collective action under the Fair Labor Standards Act,
(“FLSA”), 29 U.S.C. § 201, et seq., to recover unpaid overtime wages owed to Plaintiff and
other similarly situated workers employed by Defendant; and (b) a Rule 23 class action under
Missouri state law, including the Missouri Minimum Wage Law (“MMWL”), RSMo. § 290.500,
et seq. (Doc. 1 at ¶ 3.) Plaintiff brings an FLSA claim in Count I arising out of Defendant’s
alleged unlawful unpaid training policy for which he seeks conditional certification under
29 U.S.C. § 216(b). (Id. at ¶ 40.)
Defendant seeks a temporary stay of briefing pending this Court’s ruling on its motion to
dismiss/compel. Then, if the Court ultimately denies Defendant’s motion to dismiss/compel,
Defendant requests a period of fourteen (14) days after the Court’s ruling to file its suggestions
in opposition to Plaintiff’s motion for conditional certification. Plaintiff, on the other hand,
seeks to stay the briefing scheduling and consideration of Defendant’s motion to dismiss/compel
pending this Court’s ruling on his motion for conditional certification. Alternatively, if the Court
denies Plaintiff’s request for a stay, Plaintiff requests an extension of twenty-one (21) days to
respond to Defendant’s motion to dismiss/compel. The key issue in the parties’ competing
motions to stay is whether the Court should decide Defendant’s motion to dismiss/compel
(doc. 24) before or after ruling on Plaintiff’s motion for conditional certification (doc. 11).
The unique nature of FLSA collective actions and the purpose of the Federal Arbitration
Act (FAA) are both relevant to the Court’s consideration of the competing motions to stay.
FLSA Collective Actions
Class actions brought under FLSA differ considerably from class actions brought under
Rule 23. Under 29 U.S.C. §216(b) of the FLSA, employees may bring an action on behalf of
themselves and on behalf of other employees “similarly situated.”
“[A] similarly situated
employee must ‘opt-in’ to the collective action to be bound by the proceeding’s outcome[.]”
Kautsch v. Premier Communs., 504 F. Supp. 2d 685, 688 (W.D. Mo. 2007). Put another way, an
employee will not become a plaintiff to the action “unless he gives his consent in writing to
become such a party” and files this consent in the district court where the case is pending. Davis
v. NovaStar Mortg., Inc., 408 F.Supp. 2d 811, 815-16 (W.D. Mo. Nov. 8, 2005) (quoting 29
U.S.C. § 216(b)). By contrast, in a Rule 23 class action, plaintiffs are not required to opt-in and
instead, will be a part of the litigation unless they specifically opt out of the class action. This
distinction is significant because an employee’s statute of limitations under an FLSA collective
action will toll when the employee files his or her written consent to become a party plaintiff in
the court where the action is pending. 29 U.S.C. § 257. Prompt and early notice is therefore
important in FLSA collection actions.
Federal Arbitration Act
Also relevant, Section 3 of the FAA provides:
If any suit or proceeding be brought in any of the courts of the United States upon
any issue referable to arbitration under an agreement in writing for such
arbitration, the court in which such suit is pending, upon being satisfied that the
issue involved in such suit or proceeding is referable to arbitration under such an
agreement, shall on application of one of the parties stay the trial of the action
until such arbitration has been had in accordance with the terms of the agreement,
providing the applicant for the stay is not in default in proceeding with such
9 U.S.C. § 3. “The preeminent concern of Congress in passing the Act was to enforce private
agreements into which parties had entered, and that concern requires that we rigorously enforce
agreements to arbitrate[.]” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985).
Congress’s intent in enacting the FAA is to move litigants who have executed an arbitration
agreement “out of court and into arbitration as quickly and easily as possible.” Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 (1983).
In Defendant’s motion to stay, Defendant makes the following arguments: (1) arbitration
is the threshold issue and should be determined first; (2) Plaintiff will not be prejudiced because
Plaintiff is free to assert his rights through arbitration; and (3) Defendant’s response to Plaintiff’s
motion for conditional certification may be unnecessary in that the motion will be moot or
postponed if the case goes to arbitration.
Plaintiff raises the following arguments in support of Plaintiff’s motion to stay and in
opposition to Defendant’s motion to stay: (1) expedited notice to the putative class members is
essential to avoid prejudice to claims of putative class members due to the nature of the statute
of limitations in FLSA cases; (2) Defendant’s motion presents merit-based issues that are
inappropriate at the first stage of conditional certification; and (3) efficiency is best served by
deciding conditional certification first because the issue of arbitrability of all opt-in plaintiffs can
be addressed at one time as opposed to facing multiple rounds of motions to compel arbitration
as class members join.
Evaluation of the Competing Motions to Stay
The Court is not persuaded that staying the briefing for either motion is necessary. With
respect to judicial economy, if the motion to dismiss/compel is granted, deciding class
certification would be unnecessary, but if the motion to dismiss/compel is denied, the Court
could be faced with individual motions to compel each time a plaintiff opts-in. As to any
prejudice to the parties, denying both motions ensures prompt notice to the putative class
members and recognizes the FAA’s purpose to enforce valid arbitration agreements as quickly as
The Eighth Circuit has not addressed the specific issue that is before the Court. While
Plaintiff cites to a case in the Western District of Missouri for his position, Defendant presents
case law outside of this circuit to support a contrary position.
Compare Brooks v. C.H.
Robinson, Int’l, Inc., No. 4:16-CV-00939-HFS (W.D. Mo. May 9, 2017) (the court granted the
plaintiff’s motion to stay the motion to compel arbitration finding that conditional certification is
merely notice and should be ruled upon before addressing the merits-based arbitration issue),
with Reyna v. Int’l Bank of Commerce, 39 F.3d 373, 377-78 (5th Cir. 2016) (the district court
was required to address arbitrability of the plaintiff’s claims as a threshold question prior to
considering the plaintiff’s motion for class certification), Doe #1 v. Déjà Vu Consulting Inc.,
2017 WL 3837730, at *8 (M.D. Tenn. Sept. 1, 2017) (concluding that a motion to compel
arbitration must take precedence over any other pending motion, and noting that consideration of
arbitrability does not reach the merits of the parties’ claims), and Hughes v. S.A.W.
Entertainment, LTD, 2017 WL 6450485, at *9 (N.D. Ca. Dec. 12, 2017) (“the issue of whether
the named plaintiffs can litigate their claims in a court or must arbitrate their claims is a
Defendant suggests, without supporting case authority, that equitable tolling is an available
remedy to Plaintiff’s prejudice argument regarding the statute of limitations and putative class members.
However, “equitable tolling is an exception to the rule, and therefore should be used only in exceptional
circumstances.” Firstcom, Inc. v. Qwest Corp., 555 F.3d 669, 675 (8th Cir. 2009) (equitable tolling is
only available when: (1) a party has pursued its rights diligently and (2) extraordinary circumstances
exist). Further, equitable tolling is not uniformly available to protect putative FLSA class members as it
is an exceedingly narrow window of relief. Compare Bergman v. Kindred Healthcare, Inc., 949
F.Supp. 2d 852, 860 (N.D. Ill. June 11, 2013) (“[t]he long delay in issuing a ruling [on a motion for
conditional certification] is an extraordinary circumstance that should not cause the opt-ins to lose out on
the potential benefits of this lawsuit”), with Sylvester v. Wintrust Fin. Corp., 2014 WL 10416989, at *2
(N.D. Ill. Sept. 26, 2014) (a court’s delay in ruling on a plaintiff’s motion for conditional certification is
not an extraordinary circumstance to justify equitable tolling), and Soto v. Wings ‘R Us Romeoville, Inc.,
No. 15-CV-10127, at *10 (N.D. Ill. Sept. 8, 2016) (the doctrine of equitable tolling would not be an
extraordinary remedy if it were available during the pendency of every conditional class certification
After considering the arguments presented by the parties, the Court determines the
appropriate course is to deny both parties’ motions to stay. The parties are directed to create a
briefing schedule to address the Plaintiff’s Motion for Conditional Certification and the
Defendant’s Motion to Dismiss/Compel Arbitration. After the parties confer, the parties are
directed to file a briefing schedule with the Court within seven (7) days of the date of this Order.
Accordingly, it is hereby ORDERED as follows:
Defendant’s Motion to Stay Briefing and for Extension of Time to Respond to
Plaintiff’s Motion for Conditional Certification (doc. 22) is DENIED.
Plaintiff’s Motion to Stay Consideration of Defendant’s Motion to Dismiss,
Pending a Ruling on Conditional Certification (doc. 27) is DENIED.
The parties are directed to jointly submit a briefing schedule for Plaintiff’s Motion
Dismiss/Compel Arbitration. The briefing schedule is due within seven (7) days
of the date of this Order.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: March 9, 2018
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