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

Filing 235

OPINION. Signed by Judge Kevin McNulty on 6/26/2019. (dam, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

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

Civ. No. 11-1494 (KM) (MAR)

.

Plaintiff,
V.

OPINION

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

KEVIN MCNULTY. U.S.D.J.:
This is an FLSA collective action brought by Patricia Thompson, the
named plaintiff. In 2011, Thompson brought this collective action complaint
against her prior employers, defendants Noel Chapman, Samuel Lamparello,
Real Estate Mortgage Network, Inc. (“REMN”), and Security Atlantic Mortgage
Company, Inc. (“SAMC”, and together with Chapman, Lamparello, and REMN,
the “Defendants”). Today, over eight years after this action was filed, plaintiff
has yet to obtain conditional certification. Nevertheless, seven plaintiffs have
learned of the action by other means and have opted in.1

Actually, the total of opt-ins was formerly eight. Defendants assert that opt-in
Plaintiff Cheryl Matthews has effectively withdrawn from this action. (DE 223 p. 6, n.
5). Allegedly, Plaintiff’s counsel advised Defendants, in writing, that opt-in Plaintiff
Cheryl Matthews did not attend a deposition because she “was withdrawing from the
action.” (Id.). Further, allegedly, “Plaintiffs’ counsel assured Defendants that her
withdrawal would be forthcoming, and that any delay was due to Matthew’s health
condition.” (Id.). For purposes of this opinion, I will assume these statements to be
true. (See DE 224-1 (failing to address the Matthews issue)). They do not bear on the
result.
1

1

Now before this Court are three motions. First is the motion of
Defendants for summary judgment, arguing that all seven of the opt-in
plaintiffs’ claims are fully or partially time-barred under the FLSA. (DE 223).
Second is the motion to compel arbitration for opt-ins McCourt and Pietryka.

(Id.). Third is the motion of Thompson to equitably toll the statute of limitations
applicable to Thompson and other putative collective members from May 6,
2011, the date Defendants filed their first motion to dismiss, until the Court
rules on conditional certification. (DEl 224).
BACKGROUND2

I.

Procedural History

A.

I survey the history of this action in two parts: first, the broader history
of this interminable action and, second, the more recent happenings.
1.

Broader procedural history

Thompson first filed her Complaint on March 16, 2011. On March 30,
2011, Defendants were fully served with the complaint. (DE 3—6, 8; see also
DSOF, PR

¶

10).

On December 30, 2011, District Judge Dennis M. Cavanaugh granted
Defendants’ motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for
failure to plead with the requisite specificity. (DEl 23, 24).
On January 26, 2012, Thompson filed her Amended Complaint. (DEl 25).
She brought claims under the FLSA, 29 U.S.C.
N.J. Stat. Ann.
2

§

§

207 (Count 1) and the NJWHL,

34:11—56a—34:11—56a38 (Count II). On February 24, 2012,

For convenience, certain docket entries will be abbreviated as follows:

Schild Decl.
Sample Agrmt.

=

=

Declaration of Philip Schild [DEl 223-2]
Ex. A to the Schild Decl. [DE 223-2, p. 4]

This Court has subject matter jurisdiction over the federal law claim pursuant
to 28 U.S.C. § 1331 and the FLSA, 29 U.S.C. § 216(b). This Court exercises
supplemental jurisdiction over Thompson’s state-law claim pursuant to 28 U.S.C.
§ 1367(a).
2

Defendants filed a motion to dismiss the Amended Complaint. (DE 28).
On June 30, 2012, while awaiting Judge Cavanaugh’s decision on the
motion to dismiss, Thompson filed a motion to toll the statute of limitations.
(DE 35). The period of tolling she sought extended from the date Defendants
filed their first motion to dismiss until the grant of Thompson’s anticipated
motion for conditional certification and dissemination of notice to the class
members. (Id.). That motion for equitable tolling was eventually teiminated.’
On August 31, 2012, Judge Cavanaugh, again, granted Defendants’
motion to dismiss the Amended Complaint for failure to state a claim under
Fed. R. Civ. P. l2(b)(6). (DE 38, 39).
On September 28, 2012, Thompson filed a notice of appeal of Judge
Cavanaugh’s January 26, 2012 opinion and order. (DE 40). On April 3, 2014,
the Third Circuit vacated the dismissal and remanded. Thompson

ii.

Real Estate

Mortgage Network, 748 F.3d 142 (3d Cir. 2014) (DE 44).
On March 13, 2013, Thompson filed a notice of consent on behalf of Ms.
Cheryl Matthews, who is, apparently, no longer an opt-in to this action. (DE
42). Seen. 1, supra.
On remand from the Third Circuit, in May 2014, the case was reassigned
to me and Judge Hammer. (DE 45).
In June 2014, Defendants filed their answer without raising the subject
of the arbitration agreement. (see DE 49).
In July 2014, Defendants filed a motion for partial judgment on the
pleadings (DE 52), which I denied in April 2015. (DE 106).
In September 2014, Magistrate Judge Hammer held a teleconference with
the parties, in which they discussed equitable tolling and discovery related to
the putative class members. (Teleconference Transcr., DE 67). According to
Thompson, it was two days prior to that teleconference that Defendants first
advised Thompson of any arbitration agreement. (DE 67, p. 5:20—25, 6:1—14).

See Teleconference Transcr., DE 67 (Mag. Judge Hammer commenting that the
motion was terminated)).
3

Defendants do not dispute that this was the first time they raised the
arbitration agreement. (DE 226 p. 5). Magistrate Judge Hammer instructed the
parties to renew the motion for equitable tolling. (DE 67).
In October 20 14, Thompson filed a renewed motion for equitable tolling.
She also sought a “protective order” invalidating the arbitration agreements
signed by putative class members and requiring the Defendants to “correct”
prior communications with them, which had not revealed the pendency of this
collective FLSA action. (DE 70). Thompson also requested that the proposed
corrective order instruct Defendants to provide Thompson with the names and
contact information for all putative class members. (Id.).
In June 2015, Magistrate Judge Hammer denied Thompson’s motions
without prejudice. As yet, no one had opted in (aside from Ms. Matthews, who
withdrew, seen. 1, supra). The issue, he found, would therefore be more
appropriately decided with the benefit of discovery, in connection with class
certification. (DE 108).
As of December 2015, Thompson had not yet filed her motion for
conditional certification. That month, Defendants filed a “motion to dismiss,”
treated as a motion on the pleadings, against opt-in plaintiff Matthews on
statute of limitations grounds. (DE 127). Plaintiffs Thompson and opt-in
Matthews opposed the motion and filed a cross-motion for equitable tolling.
(DE 132).
In August 2016, I denied both motions. I believed that the statute of
limitations issue was intertwined with the equitable tolling issue, which would
be decided in the context of Thompson’s anticipated motion for conditional
certification. (DE 152).
Further, Judge Hammer noted his inclination that putative class discovery
should include even potential class members who stood the chance of being excluded
from this action because of the statute of limitations or arbitration agreements (DE 67
pp. 18:17—25, 19:1—16; Id. pp. 18:24—25, 19:1—2 (“You can’t have it both ways where

there’s no mention made of the arbitration provision until three years into a case, and
now it’s being used as both a sword and a shield.”); Id. pp. 21:23—25, 22:1—20).

4

In October 2016, Magistrate Judge Hammer filed a discovery order
directing Defendants to produce the contact information of certain potential
class members, “any and all underwriters, closers, and HUD reviewers in
Georgia and New Jersey” from “March 16, 2008 to present.” (DE 160).
Defendants appealed (DE 162); I affirmed Judge Hammer’s order. (DE 178).
2.

Recent procedural history

On December 12, 2017, Thompson flied a motion for: (1) conditional
certification, (2) notice, and (3) equitable tolling. (DE 196).
In February 2018, Defendants filed (1) a brief in opposition to
Thompson’s motion for conditional certification (DE 207), and (2) a motion for
partial summary judgment denying equitable tolling, as well as a motion to
compel arbitration. (DE 212).
In March 2018, Thompson flied a motion to summarily deny or strike the
Employer’s motion for partial summary judgment, claiming that it should have
been filed as a cross-motion. (DE 213). In the meantime, Thompson filed no
response to that motion.
In September 2018, I denied Thompson’s motion to strike. The matter
having become hopelessly tangled in procedural disputes, I administratively
terminated the remaining motions and granted the Defendants permission to
reffle on the ordinary motion schedule. (DE 222).
In October 2018, Defendants refiled their motion for summary judgment
and to compel arbitration. (DE 223). That same month, Thompson filed an
opposition to arbitration (DE 224-2) as well as her own cross-motion for
summary judgment and opposition to Defendants’ summary judgment motion,
(DE 224, 2242).6
On May 1, 2019, I directed the parties to submit supplemental briefing
regarding the effects of a recent New Jersey Supreme Court opinion on the
Neither party’s arguments are very new—for several years, they have been
dueling over equitable tolling and enforcement of the arbitration agreements. (See e.g.,
DE 70, DE 75). Factual background on the arbitration agreements is provided infra
I.C.
6

5

motion to compel arbitration. (DE 228 (citing Kernahan v. Home Warranty
AdmofF1a., Inc., No. 07980 (N.J. Jan. 10, 2019)). Both parties complied. (DE
231, 232).
On June 10, 2019, both parties appeared before me for oral argument.
(DE 234). I reserved decision and informed the parties I would issue a written
opinion.
I now consider the parties’ motions, ruling that Defendants have waived
their right to arbitration and that the claims of the now-existing opt-ins are
equitably tolled, running from July 30, 2012 until further order of this Court,
post-conditional certification.
B.

Facts

As to the motion for summary judgment and equitable tolling, I begin by
surveying the circumstances of the opt-in Plaintiffs. I then review the history of
the arbitration agreements. Because I have determined that Defendants’ right
to enforce the arbitration agreements has been waived, I do not consider the
arguments that the arbitration provisions are themselves invalid.
1.

The opt-ins

I consider the claims of Thompson and seven opt-in Plaintiffs on this
motion for summary judgment. Two of the opt-ins, Arraya and Jones, are
former HUD reviewers. (DSOF, PR

¶J

16, 20). Jones worked for the Defendants

from November 5, 2007 to May 17, 2011. (Id.

¶

6). Arraya, who is also a former

closer, worked for the Defendants from June 3, 2008 to December 27, 2016.
(Id.

¶

20). It is an issue of fact whether Arraya was always classified as non-

exempt and paid overtime. (DSOF, PR

¶

21). It is also an issue of fact whether

Defendants included all overtime or bonus pay from April 2014 forward. (Id.

¶

22).
Several of the opt-ins are former underwriters: Sentman, Galida,
McCourt, Haines, and Pietyrka. (Id.

¶3J

14—15, 17, 19, 23). Sentman worked for

the Defendants from approximately June 2009 to November 2010. (DSOF, PR

¶

14). Galida worked for the Defendants from approximately October 2007 to

6

February 2011. (Id.

¶

15). McCourt worked for the Defendants from August 3,

2004 to June 27, 2012. (Id. ¶17). Haines worked for the Defendants from
March 1, 2011 to May 6, 2014. (Id.

¶

19). Pietyrka worked for the Defendants

from May 12, 2014 to February 3, 2017. (Id.

¶

23).

Both McCourt and Pietyrka have at-will employment agreements with
REMN, dated March 22, 2011 and May 12, 2014, respectively. (Id. ¶j 18, 24).
McCourt signed his agreement several years into his employment with the
Defendants, whereas Pietryka signed her agreement on her first day of
employment. Both agreements include an arbitration provision, a reference
that the employee has a nonexempt status, and the employee’s pay rate. (Id.).
As discussed infra, plaintiffs dispute the validity of the arbitration provisions
and assert that, by law, McCourt and Peityrka were not nonexempt. (PR

¶J

18,

24).

2.

The arbitration agreements

According to Defendants, in September 2010, REMN began to consider
implementing a new compensation structure for multiple positions, including,
but not limited to, its underwriters. (DSOF

¶

5 (citing Schild Decl.

¶

5)).8

Further, Defendants assert that they began to consider this new compensation
structure in response to the Second Circuit’s opinion in Davis v. JP. Morgan
Chase & Co., 587 F.3d 529, 534 (2d Cir. 2009) and new legislation created by
the Dodd-Frank Financial Reform Act. (DSOF

¶

5) (citing Schild Decl.

¶

2)).°

The preamble to McCourt’s Agreement states that it is made and entered into
on April 1,2011. (Ex. 3 p. 1). However, on the signature page, the date is entered as
March 22, 2010. (Id. p. 4). The month and date are hand-written, but the date is pre
typed. Because both parties presume the agreements were rolled out in 2011, I will do
the same. (DE 224 p. 25, DE 226 p. 7).
7

Defendants assert that all compensation and employment changes were
planned to go into effect simultaneously. (DSOF ¶ 6). Thompson responds that
Defendants have produced no records to support this assertion and Thompson has
not yet taken depositions. (PR ¶ 6).
8

o
Without reference to any particular provision, the Defendants assert that Dodd
Frank mandated certain compensation changes which went into effect by April 1,
2011. (DSQF ¶ 4 (citing Schild Decl. ¶ 2)). Defendants also present the alleged
7

Defendants allege that, over several months, REMN determined to revise
underwriter compensation. (DSOF

¶

7).10

Defendants assert that the new

compensation agreements for underwriters included an arbitration clause,
which was also included in the non-underwriter compensation agreements
drafted at the same time. (DSOF

¶

9 (citing Schild Decl.

¶

4; Ex. A to Schild

Deci.)).
On March 16, 2011, as noted in the procedural history, Thompson first
filed her Complaint. (DE 1). At that point Defendants had not been served. (DE
3-6, 8). However, Plaintiff asserts that she also issued a press release regarding
the action on March 18, 2011. (PR

10). On March 30, 2011, Defendants were

served with the complaint. (DE 3—6, 8; see also DSOF, PR

¶

10).

Defendants assert that on March 22, 2011, between the date the
complaint was filed and the date the Defendants were served, they rolled out
the undenvriter compensation agreements that included the arbitration clause.
(DSOF

¶

9). In support, Defendants rely on the statement of Philip Schild,

General Counsel for REMN. (Schild Decl.

¶

4). Defendants also rely on a sample

Wholesale Underwriter Employment Agreement dated April 1, 2011, (Sample
Agrmt. p. 1), and signed” on March 22, 2011. (Id. p. 4). Although Defendants
have at times seemed to imply that the arbitration provisions had something to
do with the requirements of Dodd-Frank, at oral argument they clarified that
the issues are independent; the Dodd-Frank revisions to employment
agreements merely provided the occasion or opportunin’ for the addition of the
implications of Davis and Dodd-Frank as material facts. (DSOF ¶7 1—4). In response,
Thompson repeatedly asserts that such factual assertions are veiled legal conclusions.
(PR 9 1—4).
The alleged revisions include: categorizing undenvriters in different
departments based on seniority and loan time, compensating loan officers on an
hourly basis, permitting and paying overtime, changing bonus structures, and
requiring time-keeping. (DSOF ¶ 8 (citing Schild Dccl. ¶ 4)).
tO

One signature block to the contract, presumably, that of the undenvriter
employee, has been redacted while the signature on behalf of REMN is visible. (Sample
Agrmt. p. 4).
11

8

arbitration clauses.
Thompson finds the timing suspicious, and urges that the arbitration
agreements be invalidated because they interfered with the employees’ rights in
this (then) recently-flied FLSA collective action. Thompson asserts that the
Defendants have produced no records to support the allegedly innocent
explanations for the timing and content of the new underwriter compensation
agreements. (PR

¶11

5_9).12

Further, Thompson points out that she has yet to

take any depositions. (Id.).
The process by which Defendants, in September 2014, first revealed the
existence of the arbitration agreements is discussed infra.
II.

DISCUSSION
A.

Legal standards
1.

Summary judgment

Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kreschollek v. S. Stevedoring Co.,
223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment,
a court must construe all facts and inferences in the light most favorable to the
nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d
386, 393 (3d Cir. 1998). The moving party bears the burden of establishing
that no genuine issue of material fact remains. See Celotex Corp. v. Cat rett, 477
U.s. 317, 322—23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[W}ith respect to an
issue on which the nonmoving party bears the burden of proof

...

the burden

on the moving party may be discharged by ‘showing’—that is, pointing out to

Plaintiff also argues that if the Defendants had been in possession of such
records, they would have produced them. (PR ¶J 5—9). The Court will not engage in
such speculation, and, as Plaintiff herself has highlighted, discovery is still ongoing.
(Id.).
12

9

the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party’ has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.s. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party
must present actual evidence that creates a genuine issue as to a material fact
for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth
types of evidence on which nonmoving party must rely to support its assertion
that genuine issues of material fact exist). “[Ujnsupported allegations

...

and

pleadings are insufficient to repel summary judgment.” Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Nonvest
Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created
a genuine issue of material fact if it has provided sufficient evidence to allow a
jury to find in its favor at trial.”). If the nonmoving party has failed “to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial,
there can be ‘nq genuine issue of material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53,
55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322—23).
In deciding a motion for summary judgment, the court’s role is not to
evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.
Ct. 2505. Credibility determinations are the province of the fact finder. Big
Apple BMW, Inc. z’. BMWof N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).
The summary judgment standard, however, does not operate in a
vacuum. “[I]n ruling on a motion for

summary

judgment, the judge must view

the evidence presented through the prism of the substantive evidentiary
burden.” Anderson v. Liberty Lobby,

ma,
10

477 U.S. 242, 254, 106 S. Ct. 2505,

2513, 91 L. Ed. 2d 202 (1986). That “evidentiary burden” is discussed in the
following section.
Motion to compel arbitration

2.

The Federal Arbitration Act (“FAA”), 9 U.S.C.

§ 1

et seq., creates a strong

federal policy in favor of arbitration. See Maths v. Green Tree Fin. Corp., 183
F.3d 173, 178-79 (3d

Cir. 1999) (noting that FAA “creates a body of federal

substantive law establishing and governing the duty to honor agreements to
arbitrate disputes.”).’3 To achieve that aim, the FAA authorizes a party to
enforce a valid arbitration agreement by moving to compel arbitration. 9 U.S.C.

§ 2-4; In re Pharmacy Benefit Managers Antitrust Litig., 700 F.3d 109, 116 (3d
Cir. 2012).
Arbitration is a matter of contract between parties, so a judicial mandate
to arbitrate must be predicated on the parties consent. Guidotti v. Legal
Helpers Debt Resolution, L.L.C., 716 P.3d 764, 771 (3d Cir. 2013) (quoting ParKnit Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir. 1980)).
When a district court is presented with a motion to compel arbitration, the
Court must first determine whether the agreement to arbitrate is valid, and
then decide whether the dispute falls within the agreement’s scope. Century
Indem. Co. v. Certain Underwriters at Lloyd’s, 584 F.3d 513, 523 (3d Cir. 2009).
In assessing a motion to compel arbitration, the court applies the same
summary judgment standard described above. ACE Am. Ins. Co. v. Guethero,
73SF. App’x 72, 77 (3d Cir. 2018). Thus, arbitration will be compelled if the
arbitrability issue presents no genuine, material issues of fact, with “jt]he party
opposing arbitration

...

given the benefit of all reasonable doubts and

inferences that may arise.” Id. (quoting Kaneff v. Del. Title Loans, 587 F.3d 616,
620 (3d Cir. 2009)). If, on the other hand, there are material factual disputes
regarding arbitrability, the court should proceed to trial “regarding ‘the making
The FAA’s purpose is “to reverse the longstanding judicial hostility to arbitration
agreements that had existed at English common law and had been adopted by
American courts, and to place arbitration agreements upon the same footing as other
contracts.” Gilmer v Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S. Ct. 1647
(1991).
13

11

of the arbitration agreement or the failure, neglect, or refusal to perform the
same,’ as Section 4 of the FAA envisions.” Id. (quoting Somerset Consulting, LLC
u. United Capital Lenders, LLC, 832 F.Supp.2d 474, 482 (E.D. Pa. 2011)).
B.

Analysis

The first motion before me is that of the Defendants to compel
arbitration. Because I find that Defendants have waived arbitration, I do not
reach the parties’ arguments as to the formation and interpretation of the
arbitration agreements in dispute. The second motion before me is the
Defendants’ motion for partial summary judgment dismissing the opt-ins’
claims on statute of limitations grounds. In response, Plaintiff has filed a
motion for equitable tolling. I will grant in part Plaintiffs motion for equitable
tolling as to the current opt-in Plaintiffs, but I will deny the motion as to the
absent members of the putative, as-yet-uncertified class.
1.

Waiver of the right to enforce arbitration

Plaintiff asserts that Defendants have waived their right to enforce
arbitration. Given the strong preference to enforce arbitration agreements, see
Harris, 183 F.3d at 178—179, waiver of the right to enforce arbitration will not
be inferred lightly. Nino v. Jewelry Exch., Inc., 609 F.3d 191, 208 (3d Cir.2010).
Typically, waiver will be found only when “the demand for arbitration came
long after the suit commenced and when both parties had engaged in extensive
discovery.” Id. at 208 (internal citations omitted). However, if a party acts
“inconsistently with the right to arbitration, (the courtj will not hesitate to bold
that the right to arbitrate has been waived where a sufficient showing of
prejudice has been made by the party seeking to avoid arbitration.” In re
Pharmacy Ben. Managers Antitrust Litig., 700 F.3d 109, 117 (3d Cir. 2012).
The court considers six nonexclusive factors, known as the Hoxworth
factors, when determining whether a party has waived the right to arbitrate.
Gray Holdco v. Cassady, 654 F.3d 444, 451 (3d Cir. 2011) (citing Hoxwo,th

‘.‘.

Blinder, Robinson & Co., Inc., 980 F.2d 912, 926—27 (3d Cir.1992)). Those
Honuorth factors are: (1) “timeliness or lack thereof of the motion to arbitrate;”
12

(2) “extent to which the party seeking arbitration has contested the merits of
the opposing party’s claims;” (3) “whether the party seeking arbitration
informed its adversary of its intent to pursue arbitration prior to seeking to
enjoin the court proceedings;” (4) “the extent to which a party seeking
arbitration engaged in non-merits motion practice;” (5) “the party’s
acquiescence to the court’s pretrial orders;” and (6) “the extent to which the
parties have engaged in discovery.” In re Phannacy Ben. Managers Antitrust
Litig., 700 F.3d 109, 117 (3d Cir. 2012) (citing Gray Holdco, 654 P.3d at 451).
“The factors, however, are ‘nonexciusive’ and ‘not all the factors need be
present to justify a finding of waiver.’” Id. at 118 (quoting Nino, 609 F.3d at
209).
i.

Timeliness

I begin with the Honvorth factor of timeliness. When the party’s motion
to compel arbitration occurred in a reasonably timely fashion, this factor
weighs against waiver. Paloko v. Airborne Express, Inc., 372 F.3d 588, 598 (3d
Cir.2004) (38 days); Paine Webber Inc. v. Faragalli, 61 F.3d 1063, 10669 (3d
Cir. 1995) (two months); Wood v. Prudential Ins. Co. of Am., 207 F.3d 674, 680
(3d Cir.2000) (one-and-a-half months); Gaulik Constr. Co. v. H.F. Campbell Co.,
526 F.2d 777, 783—84 (3d Cir. 1975) (immediately after removal to federal
court). Where, on the other hand, a motion to compel arbitration is significantly
delayed, the Third Circuit has found a waiver. In re Pharmacy Ben. Managers
Antitrust Litig., 700 F.3d at 118 (ten months); Gray Holdco, 654 F.3d at 454
(ten months); Hoxwodh. 980 F.2d at 925 (11 months); Nino, 609 F.3d at 210
(15 months); Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 223 (3d Cir.2007)
(four years). The court may consider, not just the length of the delay, but
whether there is a satisfactory explanation for it. See In re Pharmacy Ben.
Managers Antitrust Litig., 700 F.3d at 118.
Defendants, who alone possess the pertinent facts, did not assert
arbitration as a defense, and indeed never raised the subject at all until
September 2014. The Defendants first filed a motion to compel arbitration on

13

February 16, 2018 (DE 212), nearly seven years after this litigation was first
filed. (see DE 1) (filing the first complaint on March 16, 2011). That is years
beyond the point at which the Third Circuit has previously found significant
delay justifying a finding of waiver.
To explain the delay, Defendants note that Thompson herself has no
arbitration agreement, having left the job in advance of the restructuring
pursuant to which arbitration clauses were inserted in the employment
agreements. Thus they assert that, “[p]rior to opt-in Plaintiffs McCourt and
Pietryka joining this action, there were no live claims by plaintiffs with
arbitration agreements and no question of arbitrability for this court to
resolve.” (DE 226 p. 2) Before that time, they say, the Court could not have
written anything but an impermissible advisory opinion on an absent, putative
class member. (Id. p. 3). Defendants therefore urge the Court to measure the
timing of the motion to compel arbitration not from the date the action was
filed, but from the date the first plaintiff with an arbitration agreement opted
in. (DE 226 p. 4). Measured from that point, they say, the delay was only seven
weeks. (See Opt-in McCourt’s notice of consent, DE 202; Opt-in Pietiyka’s
notice of consent, DE 203; Defendants’ First Motion to Compel Arbitration, DE
212).
Defendants’ contentions have significant force, but I cannot accept them
as a complete excuse. This action is and always was conceived of as a collective
action. Defendants’ protestations that their hands were tied as to an actual
motion to compel arbitration takes them only so far; it does not explain their
complete silence on the issue until 2014.
In addition, the plaintiffs have raised an issue of fact as to the timing of
the arbitration agreements. The timing, they say, is suspicious; the rollout of
the new contracts containing the arbitration provisions occurred immediately
after the filing of this collective action ELSA complaint, and did not inform the
employees they might be signing away their right to opt in. The Defendants, to
be sure, have a contrary story to tell: the rollout, they say, was pursued in good
faith, and had been in the works for some time.
14

The seven-year delay, then—and particularly the three-year delay from
2010 until the Defendants first raised the subject of arbitration in 2014—is
significant. Still, I must agree with Defendants that the significance is
substantially reduced in light of the fact that they could not have brought a
motion to compel arbitration until more recently.
ii.

Alerting adversary to arbitration provision

I jump ahead to factor three: whether the Defendants informed their
adversary of the right to pursue arbitration prior to filing the motion to compel.
Here, the court will consider whether the party raised arbitration as a defense
in their answer or elsewhere. In re Pharmacy Ben. Managers Antitrust Litig.,

700 F.3d 109, 1119 (3d Cir. 2012). In this case, a collective action, the factor
weighs heavier than timeliness because, ripeness aside, the defendants are the
parties with knowledge and control over the facts about whether the claims of
the putative class members are arbitrable.
The Defendants’ current protestations have a certain faux quality. The
status and viability of claims against the potential class members has been of
vital concern to the defendants from the very outset of this action.
Defendants’ motion to dismiss the amended complaint, for example, filed
on February 24, 2012, sought to dismiss the collective action because
Thompson’s claims were not representative or typical of those of the putative
class members, whose claims were fact-dependent and would require
individualized scrutiny. (Brief in support of motion to dismiss, DE 28-1, pp.
12—18). Defendants had recently undergone a massive restructuring of
employment-related agreements, in which arbitration provisions were inserted.
But not a peep about arbitration here.
Apparently a period of mediation followed. Such negotiations would
naturally include an assessment of the strengths and weaknesses of the case
as a collective action. Here, too, the subject of arbitration apparently never
came up.
Instead, the Defendants held the arbitration issue in reserve. They knew
very well, however, that the arbitration agreements existed and that they would
15

be asserting them in opposition to class certification. The parties agree that the
Defendants first flagged the existence of arbitration agreements on September
15, 2014. (DE 226 p. 5; DE 214 p. 10). On the eve of a conference before the
Magistrate Judge, Defendants floated an argument that certification-related
discovery should be limited, because the putative class members had signed
arbitration agreements and therefore would not be part of any certified class.
A similar scenario played out in relation to the issue of equitable tolling.
The issue of equitable tolling of putative class members’ claims was first raised
in a motion by plaintiff filed on June 30, 2012. (DE 35). Defendants’ response
had much to say about the status of those putative class members, but said
nothing about their having signed arbitration agreements. In October 2014, it
turned out that the now-revealed arbitration provisions would be relevant to
Plaintiffs motions for equitable tolling. (See Tr. of Conference, DE 67, passim.

See also renewed motion for equitable tolling, DE 70; response, DE

75).14

I agree with Magistrate Judge Hammer that an actual motion to compel
arbitration was not yet ripe at that point. I also agree with Judge Hammer,
however, that Defendants behaved opportunistically. (See Tr. of conference, DE
67 pp. 18:24—25, 19:1—2 (“You can’t have it both ways where there’s no
mention made of the arbitration provision until three years into a case, and
now it’s being used as both a sword and a shield.”)).
In short, from 2011 to the fall of 2014, Defendants never raised the
arbitration agreements— not in their motions to dismiss, (DE 9, 28), not in
their previous response to Plaintiffs motion for equitable tolling, (DE 35), not in
their answer to the amended complaint, (DE 49), not in their motion for
judgment on the pleadings, (DE 52), and not in any letters or discussions with
Plaintiff suggested, among other things, that the (unrevealed) arbitration
agreements, entered after the filing of this collective action, would have led the
potential opt-ins to believe they could not opt to assert their rights in federal court.
This, in plaintiffs view, interfered with those employees’ tights in the collective action
and required invalidation of the arbitration agreements. (DE 70) Magistrate Judge
Hammer denied the motion without prejudice, finding that it would more appropriately
be resolved after discovery, in the context of the anticipated motion for class
certification. (DE 108)
14

16

their adversary or the Court. In the meanwhile, the case was vigorously
litigated, both in this court and the Court of Appeals. All the while, the
Defendants knew dozens of potential opt-ins had arbitration agreements, but
failed to mention that fact to Plaintiff or the Court until they found it
convenient as a matter of litigation strategy.
This factor weighs significantly against the Defendants.
iii.

Extent to which Defendants contested the
merits

Coming back to factor two, I consider the extent to which the Defendants
contested the merits of the Plaintiffs claim. Here, the Defendants have filed a
motion to dismiss, (DE 9), a second motion to dismiss, (DE 28), a Third Circuit
appeal (DE 47), a motion for judgment on the pleadings (DE 52), and a third
“motion to dismiss” (considered a motion for judgment on the pleadings) (DE
127, 152).
In effect, Defendants have required the Plaintiff to extend “substantial
amounts of time, effort, and money in prosecuting” issues that would
potentially have been mooted or transformed by the timely disclosure of the
arbitration agreements. Nino, 609 F.3d at 212 (quoting Hoxworth, 980 F.2d at
926). Defendants may assert that they were merely filing proper motions and
that they bear no responsibility for the late appearance of opt-ins. Defendants
did, however, set up additional procedural obstacles to the participation of optins, while back-pocketing the arbitration issue. (DE 162). Courts have found
waiver based on much less substantial motion practice than this. See e.g.,
Nino, 609 F.3d at 210—11 (no motions on the merits); Honvorth, 980 F.2d at
925—26 (motion to dismiss for failure to state a claim, and opposition to motion
for class certification).
This factor weighs against Defendants.
iv.

Extent of non-merits motion practice

Moving to the fourth factor, I consider the extent to which Defendants
engaged in non-merits motion practice. First, as discussed supra, Defendants
appealed Magistrate Judge Hammer’s discovery order that the Defendants
17

provide the Plaintiff with the contact information, job title, dates of
employment, company name and work location of any and all underwriters,
closers, and HUD reviews in Georgia and New Jersey. (DE 161, 162). Further,
Defendants requested and obtained permission to depose the named Plaintiff,
along with opt-ins, in advance of Plaintiff’s briefing on a motion for conditional
certification. (DE 184). For the very substantial delays in this action, there is
surely blame to go around. But I focus here on the Defendants’ actions, which
tended to string out issues seriatim and delay the notification of potential optins.
I do not say that Defendants’ conduct has been abusive or extreme. They
have not engaged in, for example, dilatory motions to disqualify counsel and
the like. Compare Hoxworth, 980 F.2d at 925—26 (finding waiver when the party
filed motions to disqualify counsel and stay discovery, and opposed motions to
compel discovery), with Paicko, 372 F.3d at 598 (finding no waiver in the
absence of any non-merits motions). Nevertheless, the fourth factor “is not an
absolute requirement,” and the Third Circuit has found waiver “even where no
significant non-merits motion practice occurred.” In re Phamiacy Ben.
Managers Antitrust Lit., 700 F.3d at 119.
On balance, this factor weighs somewhat against Defendants, although I
would not find it dispositive in isolation.
v.

Acquiescence to pre-trial orders

Continuing to the fifth factor, I consider the party’s acquiescence in pre
trial orders. Generally, cases in which the Third Circuit has found no waiver,
the cases “were not litigated long enough to feature any acquiescence in
pretrial orders.” Id. (citing Paine Webber, 61 F.3d at 1065; Gaulik, 526 F.2d at
783—84. But see Wood, 207 F.3d at 680 (finding no waiver even where the court
had already filed a joint discovery plan). The Third Circuit has considered
orders setting hearings on motions to dismiss and instructions regarding
discovery plans to weigh against the moving party on this factor. Id. at 119—
120. Here, the Defendants, without raising the bar of arbitration, have litigated

18

the case under the parameters set by pretrial orders (see e.g., DE 55 (ordering,
among other things, fact discovery to be complete by the end of January
2015)), and have engaged in status conferences (see e.g., DE 50, 55).
This factor is mildly adverse to Defendants.
vi.

Extent of discovery

The sixth and final factor concerns the extent to which the parties have
engaged in discovery. In the recent past, it was uniform that cases finding
waiver featured “significant discovery activity in the district court.” In re
Pharmacy Ben. Managers Antitrust Lit., 700 F.Sd at 120; see also, e.g.,

Hoxworth, 980 F.2d at 925—26 (finding waiver when the parties engaged in
several depositions, answered several discovery requests, and litigated
discovery disputes). That being said, the Third Circuit has found waiver even
when no discovery at all had taken place. In re Pharmacy Ben. Managers
Antitrust Litig., 700 F.3d at 121.

Here, discovery has been meaningful. (See DE 124, 126, 141 (orders
compelling discovery)). Defendants have resisted discovery—for example,
appealing Magistrate Judge Hammer’s discretionary order requiring them to
supply basic information, such as the names and contact information for the
potential opt-ins, see supra. (DE 182, 184). Defendants also sought and were
granted leave to depose three plaintiffs in advance of certification. (DE 184).
Thus, this final factor also weighs against Defendants, who knowingly required
the Plaintiff (and the Court) to devote time, effort and money to discovery in
advance of certification.
vii.

Weighing the factors

In sum, weighing all of the factors, I reach the conclusion that
Defendants have waived the right to compel arbitration. The “purpose behind
arbitration itself’ is to “streamline the proceedings, lower costs, and conserve
private and judicial resources,” Nino, 609 F.3d at 209, a goal which has been
frustrated here. Having found waiver, I do not reach the parties’ arguments on
the enforceability of the terms of the arbitration agreements.

19

2.

Equitable tolling and the statute of limitations

As noted above, this matter still has not been certified as a collective
action, and formal notification of potential claimants has not occurred.
Nevertheless, some seven employees have learned of this litigation and have
elected to opt in.
Defendants move for summary judgment, arguing that the opt-ins’
claims are wholly or partially time-barred. (DE 223). In response, Plaintiff has
filed an opposition and cross-moved for equitable tolling for all current and
putative opt-in members from May 6, 2011, the date the Defendants filed their
first motion to dismiss, until the date the Court rules on the Plaintiffs motion
for conditional certification. (DE 224). In support, Plaintiff asserts that the
delay was caused by Defendants’ failed motion practice and the fact that
Defendants actively misled Plaintiff regarding the arbitration agreements. Albeit
for different reasons, I will in part grant Plaintiffs motion for equitable tolling.
i.

The FLSA statute of limitations

An ELSA claim must be commenced within two years after accrual15
(three years in the case of a willful violation). 29 U.S.C.

§ 255(a). When a

named plaintiff files the collective action complaint, that plaintiffs claim is
deemed commenced. Depalma a Scotts Co. LLC, Civ. No. 13-7740, 2017 WL
1243134, at *2 (D.N.J. Jan. 20, 2017). However, an opt-in plaintiffs claim is
deemed commenced only later, when her written consent is filed. Id. (citing 29
U.S.C.

§ 256(a)-(b)). Thus, if a potential opt-in plaintiff has not received notice

of an action, that person may be unaware of her right to halt the running of the
statute of limitations by opting in. Thus the statute of limitations, unless tolled,
may operate to bar such a person’s claim.

A claim for unpaid overtime accrues each and every time the employer fails to
pay the required compensation for any workweek at the regular pay day for the period
in which the workweek ends. 29 C.F.R. § 790.2 1(b); Henchy v. City of Absecon, 148 F.
Supp. 2d 435, 437 (D.N.J. 2001).
15

20

Ordinarily, the statute of limitations begins to run “once [the] events
satisfying all elements of a cause of action have taken place.” William A.
Graham Co. v. Haughey, 646 F.3d 128, 147 (3d Cir. 2011). “There exist,
however, various statutory and judge-made rules that operate to toll the
limitations period—that is, ‘to stop its running’; ‘to abate it’; or ‘[t]o suspend or
interrupt’ it.” Id. (internal citations omitted). Id. One of those judge-made rules,
equitable tolling, “can rescue a claim othenvise barred as untimely by a statute
of limitations when a plaintiff has ‘been prevented from filing in a timely
manner due to sufficiently inequitable circumstances.’” Santos v. United
States, 559 F.3d 189, 198 (3d Cir. 2009) (citing Seitzingerv. ReathngHosp. &
Med. Cti-. 165 F.3d 236, 240 (3d Cir. 1999)).
ii.

Application of statute of limitations

Here, the seven current opt-in Plaintiffs all filed their notices of consent
on December 28, 2017. (DSOF

¶

13, 198—204). That implies that (for a violation

not found to be willful) their claims may encompass no more than the two-year

limitations period—i.a, they will be barred as to claims accruing before
December 28, 2015.16 See 29 U.S.C.

§

255. The claims of five opt-in Plaintiffs,

Sentman, Galida, Jones, McCourt, and Haines, fall outside the limitations
period; they all ended their employment before December 2014. (See DSOF

¶J

13—17, 19) (listing employment dates).’7 The two remaining opt-in Plaintiffs,
Arraya and Peitrvka, remained employed within the limitations period, but
some portion of their claims may have arisen before December 28, 2015. (Id.

¶)

20, 23) (listing Arraya as having been employed for Defendants until December
In the case of a willful violation, the claims might date back an additional year
December 28, 2024, see 29 U.S.C. § 255. Plaintiff appears to concede, however, that
to
the two-year statute applies, and the limitation date is December 28, 2015. (DE 224-1)
(“Unless the statute of limitations is tolled, the only employee who could obtain FLSA
relief is plaintiff Patricia Thompson. The eight other opt-in plaintiffs now on file would
get nothing.”).
‘7
Defendants argue that opt-in plaintiff Arraya, who worked for the company from
January 2008 to December 2016, and opt-in Peitnjka, who worked for the company
from May 2014 to February 2017, may have timely claims, but that any such claims
should be dismissed because they were properly paid overtime during that period. (DE
223 pp. 3. 8, 21). 1 will return to this argument after considering equitable tolling.
16

21

27, 2017 and Pietiyka having been employed for Defendants until February 3,
2017). All that being said, if I were to grant equitable tolling, which in this
instance I shall, then the opt-in Plaintiffs might bring claims that would
otherwise be wholly or partly time-barred. See infra.
iii.

Equitable tolling

Under the usual rules of equitable tolling, a plaintiff must establish two
elements: (1) “that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuilielmo, 554 U.S.
408. 418 (2005). While equitable tolling is an “extraordinary” remedy to be
used “only sparingly,” Santos, at 197, tolling relief has been found proper in
several situations. See, e.g.. Seitzinger, 165 F.3d at 242 (tolling may be
appropriate in some instances of attorney neglect, “when a claimant received
inadequate notice of her right to file suit, [or] where a motion for appointment
of counsel is pending”).
There are three classic, but nonexclusive, scenarios in which the inequity
of enforcing a statute of limitations against an unwary plaintiff is so obvious
that tolling may be appropriate: “(1) where the defendant has actively misled
the plaintiff respecting the plaintiffs cause of action; (2) where the plaintiff in
some extraordinary way has been prevented from asserting his or her rights; or
(3) where the plaintiff has timely asserted his or her rights mistakenly in the
wrong forum.” Id. (quoting Hedges v. United, 404 F.3d 744, 751 (3d Cir. 2005));
see also Santos, 559 F.3d at 197; Jones v. Morton, 195 F.3d 153, 159 (3d Cir.
1999). Equity. however, is flexible, and the list is not exhaustive. Oshiver v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994) (“We
have instructed that there are three principal, though not exclusive, situations in
which equitable tolling may be appropriate: [reciting the three situationsj.”)
(emphasis added). Whether a statute of limitations should be tolled requires a
case-specific inquiry into what is fair and in the interests of justice. See Miller
v. New Jersey State Dept of Corn, 145 F.3d 616, 618 (3d Cir. 1988) (equitable
tolling is proper when “the principles of equity would make [the] rigid

22

application [of a limitation period] unfair”) (alterations in original); Jones, 195
F.3d at 159 (“In the final analysis

...

‘a statute of limitations should be tolled in

the rare situation where equitable tolling is demanded by sound legal principles
as well as the interests of justice.’

“)

(quoting United States u. Midgley, 142 F.3d

174, 179 (3d Cir. 1998).
iv.

Application of equitable tolling

I consider the facts of this case as a whole, in light of equity and the
interests ofjustice. I am presented with a plaintiff who did not file for
conditional certification until six years and nine months after the complaint
was initially filed. (DE 196). It was just two weeks after the Plaintiff filed for
conditional certification, however, that the opt-in Plaintiffs joined in. (DE 198—
204). Defendants, with cause, point out that a great deal of time has elapsed
since the action was first filed. In the Court’s experience, conditional
certification in the general run of FLSA cases has not been a cumbersome or
protracted process. Defendants, however, have aggressively defended the case.
They have attacked the case of the named plaintiff via multiple motions to
dismiss, and it required a lengthy sojourn in the Third Circuit to reverse Judge
Cavanaugh’s grant of the second of those motions. The Defendants have
thrown up procedural roadblocks to conditional certification, part of which, as
detailed above, involved the withholding of information about putative class
members’ arbitration agreements.
Plaintiff is not without fault here. There is reason to question whether
counsel pursued the case with maximum diligence. At least one motion—a
pettifogging application to “strike” certain of Defendants’ motions because they
were brought on a standalone basis, rather than as cross-motions—had the
effect, if not the intent, of needless delay. I would also be remiss if I did not
shoulder some of the blame on behalf of this overburdened district judge and
his predecessor. None of these considerations, however, persuade me that
innocent third parties, current or potential opt-ins, should be denied equitable
tolling and their day in court.

23

I find this case comparable to a previous case before this Court, Depalma
v. Scotts Co. LLC, in which the defendants appealed a magistrate judge’s order
*7 (D.N.J.
granting equitable tolling. Civ. No. 13-7740, 2017 WL 1243134, at
Jan. 20, 2017). “Viewing the case as a whole,” I granted equitable tolling based
on the following procedural history:
[Tihe picture that emerges is a case delayed somewhat by
unavoidable transfers among district judges and magistrate; an
early three month delay at Scotts request; commencement of pre
certification discovery without any evident dilatory conduct; the
prompt filing of a motion for conditional certification two months
after the close of that discovery; and, nine months later, the
plaintiffs filing of a motion for equitable tolling as the statute of
limitations loomed. Nothing about that procedural history suggests
that p].aintiffs have prosecuted this case with a lack of diligence or
without an eye towards protecting the rights of the opt-in plaintiffs.
Depalma, 2017 WL 1243134 at *7

Here, as in Depalma, I trace the delay to several sources. As already
outlined above, the Defendants have engaged in substantial pre-certification
motion practice. (See e.g., DE 9, 28, 52, 162). Two motions to dismiss occupied
the docket for over a year. (DE 9, 39). An appeal to the Third Circuit occupied
another year and a half. (DE 40, 44) On remand, after the case was reassigned
to me and to a new Magistrate Judge, neither of us familiar with the case. The
Plaintiff attempted without success to obtain equitable tolling, but the motion
was found to be premature. (DE 35). A third motion directed to the pleadings
ensued. (DE 52, 106). During that same period, the Plaintiff (having learned of
the arbitration agreements in the interim) filed another motion to toll the
statute of limitations. (DE 70, 108). Later, while the parties were engaged in
pre-certification discovery (see e.g., DE p. 14: 1—16), the Defendants engaged in
additional motion practice that delayed Plaintiff’s ability to file for conditional
certification. (See e.g., Appeal of Magistrate Judge Hammer’s Discovery Order,
DE 162).
Further, I note that the Defendants waited three years and six months
before even mentioning that the opt-ins may be subject to an arbitration
24

provision, and during that time the parties engaged in settlement discussions.
The court’s views on that aspect are stated above. See I.B.2.ii.
Plaintiff has made several other arguments for equitable tolling,
including one that the Defendants have actively misled the Plaintiff. (DE 224-1
pp. 15—18). The largely uncontested procedural facts being sufficient for
present purposes, I will not consider these unproven accusations at the present
time.
On the whole, I will not blame the entirety of this mess on the
Defendants; judicial error played a part, as did the Plaintiff’s pokiness in filing
its motion for conditional certification. Plaintiff has acted perhaps not perfectly,
but diligently enough, and has attempted to preserve this tolling issue since
fourteen months after the action was first filed. (DE 35). Viewing the history as
a whole, I find that it is in the interest of justice to grant Plaintiffs motion for
equitable tolling for the opt-in plaintiffs.
I will therefore grant Plaintiff’s motion for equitable tolling as to the optins who have already joined this action. The period of tolling shall be deemed to
begin as of July 30, 2012, the date that the Plaintiff first filed a motion for
equitable tolling. (DE 35). That display of initiative was derailed by rulings of
the Court to the effect that the motion was premature, but I think it was
sufficient to establish an equitable date for tolling to commence. It would not
be equitable, I find, to rule that a tolling motion was too early until it

was

too

late. 18

[8
Plaintiff seeks equitable tolling for the period beginning May 6, 2011, the date
that Defendants first filed their motion to dismiss. (DE 224; see also DE 9). (Plaintiff
also suggests her brief that tolling should being as of the date she filed the original
complaint.) (DE 224-1, p. 19). Defendants, on the other hand, argue that equitable
tolling should date only from December 12, 2017, when Plaintiff first filed for
conditional certification. (DE 223 p. 17; see also DE 196). Plaintiffs counsel
“intentionally and consciously chose to wait to file her motion [for conditional
certiflcationj, focusing instead on collection claims by time and type over the years.”
(DE 223, p. 18). I find insufficient indication that Plaintiff or her counsel acted so
improperly or inequitably as to defeat tolling.

25

Plaintiff also argues that equitable tolling should apply not only to
existing opt-ins, but also to potential opt-ins who might join after certification.
(DE 224). As I have said in the past (DE 108), I will not write an advisory
opinion on that speculative basis.
The period of tolling shall run until further order of the Court. Most
likely, that will occur upon conditional certification (if granted) and a
reasonable period thereafter for notification and submission of opt-in claims.
3.

Miscellaneous arguments

First, in tidbits sprinkled throughout their briefing, Defendants argue
that Arraya’s claim in particular must be dismissed. (DE 223, pp. 3, 8, n. 9,
21). Defendants’ argument, however, is addressed to the more recent claims
and requires the assumption that equitable tolling would not apply. (See id. p.
21). I therefore deny summary judgment as to opt-in Arraya.
Second, as to opt-ins Pietryka and McCourt, Defendants argue that
overtime was properly paid during the limitations period. (Id. pp. 27—28). Again,
the application of equitable tolling subverts that argument, and I will deny
summary judgment on this basis.
III.

CONCLUSION

For the reasons set forth above, Defendants’ motion (DE 223) for
summary judgment and to compel arbitration is DENIED.
Plaintiffs motion for equitable tolling (DE 224) is GRANTED in part. The
statute of limitations is tolled for current opt-ins starting from July 30, 2012,
until further order of the court. It is othenvise denied.
An appropriate order follows.

Dated: June 26, 2019

United States District Jui

26