JONES et al v. HEALTHCARE STAFFING/SILVER CARE
Filing
93
MEMORANDUM OPINION & ORDER granting 89 Motion to Stay pending the resolution of defendant's appeal. Signed by Judge Noel L. Hillman on 2/19/2016. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TYMECO JONES, IESHA BULLOCK,
and TEAIRRA PIZARRO, on
behalf of themselves and
those similarly situated,
Civil No. 13-7910 (NLH/AMD)
MEMORANDUM OPINION & ORDER
Plaintiffs,
v.
SCO, SILVER CARE OPERATIONS
LLC d/b/a ALARIS HEALTH AT
CHERRY HILL,
Defendant.
APPEARANCES
JUSTIN L. SWIDLER
MATTHEW D. MILLER
SWARTZ SWIDLER, LLC
1101 KINGS HWY N, STE. 402
CHERRY HILL, NJ 08034
On behalf of plaintiffs
STUART WEINBERGER
GOLDBERG & WEINBERGER LLP
630 THIRD AVENUE
18TH FLOOR
NEW YORK, NY 10017
On behalf of defendant
HILLMAN, District Judge
WHEREAS, in this Fair Labor Standard Act case, this Court
having granted plaintiffs’ motion to conditionally certify two
classes as collective actions [34], and denied defendant’s
motion for reconsideration of that decision [81]; and
WHEREAS, in the Court’s Opinion and Order granting
plaintiffs’ motion to conditionally certify two classes as
collective actions, the Court having directed:
Plaintiffs’ notice and consent form shall be modified to
incorporate defendant’s objections, except for the five
points plaintiffs seek to maintain. Plaintiffs shall
prepare a revised notice and consent form within 14 days,
and provide it to defendant and the Court for review, along
with a proposed Order approving the revised notice and
consent form. Defendant shall have 14 days from the time
plaintiffs submit their revised notice to advance any other
objections.
(Docket No. 59); and
WHEREAS, the parties having followed the Court’s direction
(see Docket Nos. 61, 62, 68, 69); and
WHEREAS, the Court having considered the parties’
submissions, as well as supplemental letters submitted to this
Court (see Docket Nos. 74, 75); but
WHEREAS, prior the Court having issued a decision on the
proper content of the notice and consent form, defendant having
filed an appeal with the Third Circuit Court of Appeals as to
the Court’s grant of conditional certification and denial of
defendant’s motion for reconsideration (see Docket No. 84); and
WHEREAS, defendant having also filed a motion to stay this
matter pending its appeal, arguing that its position that
plaintiffs’ claims should be arbitrated is a dispositive legal
issue ripe for appeal and divests this Court of jurisdiction to
take further action in this case (Docket No. 89); and
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WHEREAS, plaintiffs having filed a letter in response,
indicating that they will be opposing defendant’s motion to
stay, and will also be filing a motion for equitable tolling
(Docket No. 90); and
WHEREAS, plaintiffs having repeatedly argued to the Court
that defendant’s series of motions and its current appeal is a
delay tactic designed to intentionally run out the statute of
limitations on potential opt-in collective action members,
because the statute of limitations is not tolled for potential
opt-in collective action members in FLSA cases until those
members have affirmatively opted-in; and
WHEREAS, plaintiffs arguing that those members cannot optin until the Court approves the notice and consent form, and the
notice and consent form are distributed to the potential
members; and
WHEREAS, the Court recognizing that the denial of
defendant’s motion to compel arbitration provides for appellate
jurisdiction over defendant’s appeal, and divests this Court of
jurisdiction to take further action until the appeal is decided,
see Palcko v. Airborne Express, Inc., 372 F.3d 588, 591 (3d Cir.
2004) (citations omitted) (“The FAA, 9 U.S.C. § 16(a), provides
for appellate jurisdiction over Airborne's appeal from the
District Court's order denying its motion to compel
arbitration.”); Sandvik AB v. Advent Int'l Corp., 220 F.3d 99,
3
103 (3d Cir. 2000) (“The more natural reading [the FAA] would
therefore be to treat all orders declining to compel arbitration
as reviewable.”); Tae In Kim v. Dongbu Tour & Travel, Inc., 529
F. App'x 229, 233 (3d Cir. 2013) (citing Ehleiter v. Grapetree
Shores, Inc., 482 F.3d 207, 215 n.6 (3d Cir. 2007))
(“[O]rdinarily an appeal from an order denying a motion for
arbitration divests a district court of jurisdiction over the
action that a party seeks to have submitted to arbitration, and
thus the appeal automatically stays proceedings in the district
court.”); see also Sandvik AB v. Advent Int'l Corp., 220 F.3d
99, 104 (3d Cir. 2000) (“The question whether there was a
binding arbitration clause is quite possibly inextricably bound
with the underlying merits of the case-that is, the question
whether the parties entered into the underlying contract.”); and
WHEREAS, the Court understands plaintiffs’ position, but
the Court cannot preclude defendants from filing motions or an
appeal, unless plaintiffs can demonstrate that defendant’s
actions are in violation of Fed. R. Civ. P. 11 (“By presenting
to the court a pleading, written motion, or other paper . . . an
attorney
. . .
certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances: (1) it is not being
presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of
4
litigation.”); Tae In Kim, 529 F. App'x at 233 (citing Ehleiter
v. Grapetree Shores, Inc., 482 F.3d 207, 215 n.6 (3d Cir. 2007))
(“[A]n appeal from an order denying a motion for arbitration
will not stay the district court proceedings if it is “frivolous
or forfeited.”); and
WHEREAS, to the extent that potential opt-in members’
rights under the FSLA are being affected by the protracted
litigation process, and plaintiffs feel that they should be
entitled to equitable tolling or other equitable relief, such
arguments can now be appropriately advanced before the Third
Circuit, as there is no binding authority on the issue, see
Harrison v. DelGuerico's Wrecking & Salvage, Inc., 305 F.R.D.
85, 90 (E.D. Pa. 2015) (citing Podobnik v. U.S. Postal Serv.,
409 F.3d 584, 591 (3d Cir. 2005)) (explaining that the Third
Circuit has identified three principal situations in which
equitable tolling is appropriate: (1) “where the defendant has
actively misled the plaintiff respecting the plaintiff's cause
of action, and that deception causes non-compliance with an
applicable limitations provision”; (2) “where the plaintiff in
some extraordinary way has been prevented from asserting his
rights”; or (3) “where the plaintiff has timely asserted his or
her rights mistakenly in the wrong forum.”); id. (citing Adami
v. Cardo Windows, Inc., 299 F.R.D. 68, 83 (D.N.J. 2014) (“The
Third Circuit, however, has yet to address the issue of whether
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equitable tolling is appropriate where a defendant fails to
disclose the names of potential collective action members [in
FLSA] actions.”); Adami, 229 F.R.D. at 83 (internal citations
omitted) (“Congress knew when it enacted 29 U.S.C. § 256 that
time would lapse between the filing of the collective action
complaint by the named plaintiff and the filing of written
consents by the opt-in plaintiffs, yet it chose not to provide
for tolling of the limitations period. . . . [G]ranting the
remedy of equitable tolling any time the defendant fails to
provide contact information effectively would require that the
statute of limitations for FLSA claims be tolled for all
potential plaintiffs whenever plaintiff files the complaint.
Such a requirement is contrary to the clear language of 29
U.S.C. § 256.”); and
WHEREAS, the Court finding that staying the matter until
the Third Circuit’s resolution of defendant’s appeal is not only
required, it will also serve to foster the efficient
determination of the legal arguments advanced by defendant
(i.e., plaintiffs’ claims must be arbitrated under the
arbitration clause in the collective bargaining agreement and
cannot be maintained as a collective action) and plaintiffs
(i.e., a defendant’s litigation strategy to delay notice to
potential collective action members in FSLA cases so that those
members’ claims are barred by the now-run statute of limitations
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should not be countenanced);
THEREFORE,
IT IS on this
19TH
day of
February
, 2016
ORDERED that defendant’s motion to stay pending the
resolution of defendant’s appeal [89] be, and the same hereby
is, GRANTED.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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