THOMPSON v. REAL ESTATE MORTGAGE NETWORK, INC. et al

Filing 222

ORDER administratively terminating 196 Conditional Motion to Certify Class; terminating 212 Motion for Partial Summary Judgment; denying 213 Motion to Strike, etc. Signed by Judge Kevin McNulty on 9/24/18. (cm, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

PATRICIA THOMPSON, on behalf of
herself and all others similarly situated,

Civ. No. 2:11-1494 (KM)(MAH)

OPINION & ORDER

Plaintiff,
V.

REAL ESTATE MORTGAGE NETWORK,
INC., et at.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
This is a putative class action against employers for allegedly failing to
compensate employees for overtime work, in violation of the Pair Labor
Standards Act (“FLSA”), 29 U.S.C.

§

Hour Law (“NJWHL”), N.J. Stat. Ann.

201—2 19 and the New Jersey Wage and

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34:1 1—56a—34: 1 1—56a38. Jockeying for

minute procedural advantages, the Plaintiff has created a procedural mess
which either party could have averted by scheduling a conference call with the
Magistrate Judge or with me.
Now before the Court are three motions:
(A) Motion (ECF No. 196) of Plaintiff Patricia Thompson to conditionally
certify a collection action under the FLSA and to equitably toll the
statute of limitations of the FLSA for a putative class of opt-in
plaintiffs. 1
(B) Motion (ECF No. 212) of Defendants Real Estate Mortgage Network,

Joining Ms. Thompson as plaintiffs, to date, are seven opt-ins: Yasmiin Anaya
(ECF No. 198); Wendy Galida (ECF No. 199); Brandy Halnes (ECF No. 200); Jonell
Jones (ECF No. 201); Kevin McCourt (ECF No. 202); Margaret Pietryka (ECF No. 203);
and James Sentman (ECF No. 204).

Inc. (“REMN”), Security Atlantic Mortgage Company, Inc. (“SAMC”),
Noel Chapman, and Samuel Lamparello (collectively, the “Employers”)
for partial summary judgment and to compel arbitration as to two of
the opt-ins, McCourt and Pietiyka.
(C) Motion (ECF No. 213) of Plaintiff Patricia Thompson to strike
Defendants’ motion for partial summary judgment (ECF No. 212),
because it should have been filed as a cross-motion. If the motion to
strike is denied, Plaintiff (who did not respond to the summary
judgment motion) seeks a period of 20 days to file a response.
DISCUSSION

The “motion to strike” has created a logjam. Plaintiff alleges that the
Employers brought this motion for partia] summary judgment in lieu of
properly filing a cross-motion to Plaintiffs motion for conditional certification.
(ECF No. 2 13-1 at 7—8) The abominable result, Plaintiff says, is that (a) the
Defendants will receive more pages to make their arguments; and (b) the
Defendants will “get[] the ‘last word’ on the tolling issue.” (ECF No. 2 13-1 at 6).2
Such gripes, of course, may easily be addressed directly: A party may
request an adjustment of page limits, or leave to file a reply. Such minor
procedural relief is routinely sought informally. Plaintiff, however, has hit upon
the strategy of refusing to acknowledge the summary judgment motion at all—
granting herself an exemption from the deadline to respond and treating the
motion as a nullity via a “motion to strike.”
Why a nullity? Because, says plaintiff, this summary judgment motion
should have been filed as a cross-motion. The Local Rules, of course, authorize
a cross-motion, returnable on the same date as the main motion: “A crossmotion related to the subject matter of the original motion may be filed by the

On an ordinary motion, replies are authorized by rule; on a cross-motion, they
are permitted only by leave of court. Compare D.N.J. Loc. Civ. R. 7. 1(d)(3) (authorizing
reply on ordinary motion) with Loc. R. 7.1(h) (not mentioning replies to cross-motions).
Page limits are also calculated differently.
2

party opposing the motion together with that party’s opposition papers

.

D.N.J. Loc. R. 7.1(h).3 The Local Rules, however, provide only that such a
motion “may” be filed. No rule provides for a niandatory cross motion. In some
cases, including those cited by the Plaintiff, the court merely points out that it
is not necessary to “cross-move” if the only relief sought is denial of the main
motion. In others, the court does the opposite oF what Plaintiff requests here—
i.e., it rejects an attempt to shoehorn a request for unrelated relief into a
putative cross-motion, and instead treats it as an independent motion. See A.
Lite, 2019 N.J. Fed. Prac. R. 7.1 comment (5); ECF no. 213-1 at 8 & n.7 (citing
cases). In no case does the court “strike” an otherwise legitimate motion
because it should have been filed as a cross-mo Lion. The whole premise of this
motion to strike, then, is flawed.
“As a general matter, motions to strike under Rule 12W are highly
disfavored.” F.T.C. u. Hope Now Modifications, LLC, No. CIV. 09-1204 JBS/JS,
2011 WL 883202, at *1 (D.N.J. Mar. 10, 2011) (citations omitted). In addition, a
“motion to strike,” to the extent it is available at all, is a vehicle ill-suited to the
minor, routine procedural relief that plaintiff tndy seeks here.

The entire Rule reads as follows:
(h) Cross-Motion A cross-motion related to the subject matter of the original
motion may be filed by the party opposing the motion together with that party’s
opposition papers and may be noticed for disposition on the same day as the
original motion, as long as the opposition papers are timely filed. Upon the
request of the original moving party, the Court may enlarge the time for filing a
brief and/or papers in opposition to the cross-motion and adjourn the original
motion day. A party filing a cross-motion shall serve and file a combined brief in
opposition to the original motion and in support of the cross-motion, which
shall not exceed 40 pages. No reply brief in support of the cross-motion shall be
served and filed without leave of the assigned district or magistrate judge. The
original moving party shall file a single combined reply brief in support of its
motion and in opposition to the cross-motion, which shall not exceed 40 pages
(in contrast to the 15-page limit for replies as provided in L. Civ. R. 7.2(b)). The
provisions of L.Civ.R. 7.1(d)(5) [one adjournment of motion day as of right] apply
to dispositive cross-motions.
D.N.J. Loc. R. 7.1(h).

Viewed through the lens of the Civil Rule explicitly authorizing a motion
to strike, Fed. R. Civ. P. 12(0, this motion is invalid. That Rule authorizes a
court “to strike from a pleading an insufficient defendant or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. I?. Civ. P. 12W (emphasis
added). The “pleadings” in a federal action consist of a complaint, an answer to
a complaint, an answer to a counterclaim, an answer to a crossclaim, a thirdparty complaint, an answer to a third-party complaint, and, if the court so
orders, a reply to an answer. Fed. R. Civ. P. 7(a). A summary judgment motion,
however, is not a “pleading.” Consequently, “it is not proper under Fed. R. Civ.
P. 12W to [grant a] motion to strike a motion.” Structural Concrete &od., LLC v.
ClarendonAm. Ins. Co., 244 F.R.D. 317, 324 (ED. Va. 2007) (citing Sidney—
Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983)); see Bakhtiari v.
Madrigal, No. 3:18-CV-38, 2018 WL 4207713, aL 1 (M.D. Pa. Sept. 4, 2018)
(holding that a defendant’s brief for summary judgment “is not the appropriate
subject of a motion to strike.”). The appropriate response is to oppose the
motion, not to demand its obliteration from the record.
Plaintiffs argue that the summary judgment motion should be struck
because it is at odds with the mandate of Fed. R. Civ. P. 1 that the rules “be
construed, administered, and employed by the court and the parties to secure
the just, speedy, and inexpensive determination of every action and
proceeding.” A motion for summary judgment, however, is not an inappropriate
means of challenging time-barred FLSA claims. See Smith v. Johnson &
Johnson, No. CIV A 06-4787(JLL), 2008 WL 5427802, at *3 (D.N.J. Dec. 30,
2008), order affd, appeal dismissed, 593 F.3d 280 (3d Cir. 2010); Baugh z,’. CVS
Rx Sen’s., INC., No. CV 15-00014-MAK, 2015 WL 12552067, at *2 (E.D. Pa.
July 24, 2015). Indeed, if appropriately granted—and I do not prejudge that
issue—such a motion may streamline the case and contribute to a just,4
speedy, and inexpensive determination of the merits.

“[Statutes of limitations] promote justice by preventing surprises through the
revival of claims that have been allowed to slumber until evidence has been lost,

Plaintiffs rely further on Fed. R. Civ. P. 83(b) and the court’s inherent
power to “regulate practice in any manner consistent with federal law, rules
adopted under 28 U.S.C.

§

2072 and 2075, and the district’s local rules.” I

decline to exercise that power because in this instance its exercise would not be
consistent with the Rules, as outlined above. It is true, of course, that the
Court retains inherent powers “governed not by rule or statute but by the
control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.” Dietz v. Bouldin, 136 S. Ct.
1885, 1891 (2016). For the reasons already stated, however, I decline to
exercise that discretionary power to strike Lhe motion for summaiy judgment.5
I will exercise that discretionary case-management power, however—not
to strike the motion, but to reorder the presentation of issues here. The
summary judgment and arbitrability issues may profitably be addressed in
advance of the conditional certification issues. The partial summary judgment
motion however, has never gotten underway because of quibbles over page
limits, replies, and the like. I am therefore pressing the “reset” button.

memories have faded, and witnesses have disappeared. [E]ven if one has ajust claim it
is unjust not to put the adversary on notice to defend within the period of limitation
Moreover, the courts ought to be relieved of the burden of trying stale claims when a
plaintiff has slept on his rights.” Burnett a New Yorlc Cent. R. Co., 380 U.S. 424, 428
(1965) (citations omitted).
5
Citing Fed. R. Civ. P. 16(I)U1)(C), Plaintilfargiie that by bringing the summary
judgment motion separately, instead of as a cross-motion, the defendants “side
stepped” Magistrate Judge Hammer’s order scheduling the certification motion.
Plaintiff is not very specific, and I do not see a basis for disallowing the filing of a
summary judgment motion just because a certification motion is in the works.

ORDER

Accordingly, for the reasons stated above,
IT IS this 24th day of September, 2018,
ORDERED as follows:
1. The motion to strike (ECF no. 213) is DENIED.
2. The motion for partial summary judgment motion and to compel
arbitration (ECF no. 212) and the conditional certification motion
(ECF no. 199) are ADMINISTRATIVELY TERMINATED.
3. The motion for partial summaiyjuclgrnent and to compel arbitration,
either in original or revised form, shall be refiled within seven days as
an ordinary motion returnable on the next available motion day, as to
which the ordinary 24-day briefing schedule and page limits of Local
Rule 7.1(d) shall apply. No extensions shall be granted absent
extraordinary circumstances.
4. The conditional certification motion, either in original or revised form,
shall be refiled within seven days after the Court files its decision on
the summary judgment motion, as an ordinary motion returnable on
the next available motion day, as to which the ordinary 24-day
briefing schedule and page limits of Local Rule 7.1(d) shall apply. No
extensions shall be granted absent extraordinary circumstances.

KEVIN MCNULTY
Unittd States Distnct Ju ge
.