LAPLANTE v. WRIGHT FOOD SERVICES LLC et al

Filing 99

MEMORANDUM. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 6/4/2013. 6/5/2013 ENTERED AND COPIES E-MAILED AND FAXED BY CHAMBERS.(jmf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE CHICKIE’S & PETE’S
WAGE AND HOUR LITIGATION

:
:

Civil Action
No. 12-6820

SURRICK, J.

JUNE 4

, 2013

MEMORANDUM
Presently before the Court is Defendants Packer Café, Inc., CPC Bucks County, LLC, CPC
International, LLC, Warrington CPC, LLC, 4010, Inc., Chickie’s and Pete’s Inc., Peter Ciarrocchi,
Jr., and Wright Food Services, LLC’s Motion to Stay Proceedings Pending Conclusion of the
Department of Labor’s Wage and Hour Audit (ECF No. 79). For the following reasons, the

Motion will be denied.
I.

BACKGROUND
Defendant Peter Ciarrocchi is the owner and chief executive of Packer Café, Inc., CPC

Bucks County, LLC, CPC International, LLC, Warrington CPC, LLC, 4010, Inc., and Chickie’s and
Pete’s Inc. (Defs.’ Mot. 3 n.1, ECF No. 79.) Defendant Wright Food Services LLC is an

independent entity responsible for managing Chickie’s & Pete’s locations in the Philadelphia
International Airport. (Id.) Each of the corporate Defendants is a restaurant or sports bar doing
business as “Chickie’s & Pete’s.” (Id. at 3.) Each location employs waiters, waitresses, and
bartenders — employees compensated, in part, by tips from customers. (Compl. ¶ 2, ECF No.
87.) Plaintiffs are current or former employees of Chickie’s & Pete’s. The present matter is a
Consolidated Action combining four class and collective actions. (See March 28, 2013 Order,

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ECF No. 80.)1 The consolidation of these cases resulted from a stipulation and proposed pretrial
order presented by all parties involved. (See Stipulation, ECF No. 77.) On April 11, 2013,
Plaintiffs filed a Consolidated Complaint. (Compl., ECF No. 87.) In the Complaint, Plaintiffs
assert ten claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 206, et seq., the
Pennsylvania Minimum Wage Act, 43 Pa. C.S.C. §§ 333.101, et seq., the Pennsylvania Wage
Payment Collection Act, 43 Pa. S. §§ 260.1, et seq., Pennsylvania’s unjust enrichment doctrine,
the Philadelphia Gratuity Protection Bill, Section 9-614 of The Philadelphia Code, the New Jersey
Wage and Hour Law, N.J.S.A. §§ 34:11-56a, et seq., and the New Jersey Wage Payment Law,
N.J.S.A. §§ 34:11-4.1, et seq. (See Compl. ¶¶ 119-196.)
On March 29, 2013, the day after the Court granted the order consolidating the four class
and collective actions, Defendants filed the instant Motion to Stay Proceedings Pending
Conclusion of the Department of Labor’s Wage and Hour Audit. (Defs.’ Mot.) The Motion
references a November 28, 2012 letter sent by the Department of Labor (“DOL”) to Defendants
requesting a number of records covering a three year time-period from January of 2010 through
December of 2012. (DOL Letter, Defs.’ Mot. Ex. A.) The letter indicates that the DOL is
conducting an investigation into Defendant Ciarrocchi’s establishments under the FLSA. (DOL
Letter.) Based on the DOL investigation, Defendants request that the Court stay the consolidated
action until the DOL concludes its audit. On April 12, 2013, Plaintiffs filed a response in
opposition requesting that the Court deny Defendants’ request to stay. (Pls.’ Resp., ECF No. 86.)

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The prior individual class and collective actions were captioned as LaPlante et al. v.
Wright Food Services, LLC, et al., No. 12-06820 (E.D. Pa. Dec. 6, 2013), Tygh et al. v. Packer
Café, Inc., et al., No. 12-07008 (E.D. Pa. Dec. 14, 2012), Kocher, et al. v. Chickie’s & Pete’s,
Inc., No. 13-00277 (E.D. Pa. Jan. 16, 2013), and Overline v. Chickie’s & Pete’s, Inc., et al., No.
13-01037 (E.D. Pa. Feb. 27, 2013).
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II.

LEGAL STANDARD
Neither party disputes that “the power to stay an action is ‘incidental’ to a court’s

‘inherent’ power.” Sheetz v. Kares, 534 F. Supp. 278, 279 (E.D. Pa. 1982) (quoting Landis v. N.
Am. Co., 299 U.S. 248, 254 (1936)). Such a decision is “left to the trial court’s broad discretion,
and call[s] for the exercise of the court’s judgment in ‘weigh[ing] competing interests and
maintain[ing] an even balance.’” Infinity Computer Prods. Inc. v. Brother Int’l Corp., No. 103175, 2012 WL 6619200, at *4 (E.D. Pa. Nov. 16, 2012) (quoting Landis, 299 U.S. at 254-55)).
Even so, a stay is an extraordinary measure that should only be granted in “exceptional
circumstances.” J.B. Hunt Transport, Inc. v. Liverpool Trucking Co., Inc., No. 11-1751, 2012
WL 2050923, at *4 (E.D. Pa. June 7, 2012) (citing Colo. River Water Conservation Dist. v.
United States, 424 U.S. 800, 813 (1976)). In considering whether to grant a motion to stay,
district courts are to evaluate: “(1) the length of the requested stay; (2) the hardship that the
movant would face if the stay was not granted; (3) the injury that a stay would inflict on the
non-movant; and (4) whether granting a stay would streamline the proceedings by simplifying
issues and promoting judicial economy.” Vasvari v. Rite Aid Corp., No. 09-2069, 2010 WL
3328210, at *2 (M.D. Pa. Aug. 23, 2010) (citing Landis, 299 U.S. at 254-55).
III.

DISCUSSION
Defendants request that the Court grant the Motion to Stay on either of two grounds. First,

Defendants maintain that the Court should use its inherent equitable power to stay proceedings to
promote judicial economy without prejudicing the parties. (Defs.’ Mot. 6.) Second, Defendants
assert that the Court should stay proceedings based on adherence to the primary jurisdiction
doctrine. (Id. at 10.) Plaintiffs respond that granting a stay would cause substantial and

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irreparable damage to class members, that halting proceedings at this juncture would add limited
utility, and that the claims at issue are within the ordinary experience and competence of the Court.
Plaintiffs argue that the primary jurisdiction doctrine does not apply. (Pls.’ Resp. 6, 9, 12, 15.)
A.

Equitable Power

Defendants maintain that the Court should stay the proceedings under its equitable powers
to manage its docket. (Defs.’ Mot. 6.) In considering whether to grant Defendants’ Motion, we
analyze the four factors discussed in Landis. First, with regard to the length of the requested stay,
Defendants do not identify the length of the requested stay, but estimate that the DOL will
conclude its investigation in a few months. (Id. at 8.) Plaintiffs respond that the requested stay is
indefinite and there is no way for the Defendants to accurately predict the length of the DOL
investigation. (Pls.’ Resp. 7.) We agree with Plaintiffs. Defendants’ predictions with regard to
the length of the DOL investigation are speculative at best. Like complex litigation, Government
investigations can last for years. This factor counsels against granting a stay.
Next, we evaluate the hardship Defendants would face if a stay were not granted.
Defendants claim that they will be subjected to excessive expenditures of time and money to
litigate a class and collective action involving complex issues while also managing a DOL
investigation. (Defs.’ Mot. 9.) Plaintiffs respond that defending a litigation while facing a
concurrent investigation is not a legally cognizable hardship justifying a stay of the proceedings.
(Pls.’ Resp. 13.) While litigation can be time-consuming and expensive, it is not an irreparable
harm or hardship that should halt proceedings. See Renegotiation Bd. v. Bannercraft Clothing
Co., Inc., 415 U.S. 1, 24 (1974) (“Mere litigation expense, even substantial and unrecoupable cost,
does not constitute irreparable injury.”); In re Countrywide Home Loans, Inc., 387 B.R. 467, 474

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(Bankr. W.D. Pa. 2008) (“To the extent that this is a complaint about cost and expense, this Court
can summarily conclude that it is an insufficient basis to impose a stay. It has long been
recognized that mere litigation expense, even if substantial and unrecoupable, does not constitute
irreparable injury.”). Defendants have not identified any other ways in which the continuance of
this action would constitute a hardship. This factor councils against granting a stay.
The third factor in the analysis is whether a stay would inflict injury upon Plaintiffs.
Defendants maintain that staying the current action pending the conclusion of the DOL’s
investigation would benefit Plaintiffs by resolving the matters in a more expedient fashion while
including all potential class-members involved and avoiding years of costly litigation. (Defs.’
Mot. 7-9.) Plaintiffs respond that the potential class members are harmed because the statute of
limitations will continue to run under the FLSA until the plaintiff files a written consent with the
Court. (Pls.’ Resp. 8.) Under the FLSA, a cause of action arising out of a non-willful violation of
the statute must be commenced within two years after the cause of action accrued, while a cause of
action asserting a willful violation must be brought within three years of accrual. See 29 U.S.C. §
255(a). For opt-in plaintiffs, the statute of limitations is only tolled once that individual plaintiff
files written consent. See 29 U.S.C. § 256 (“In determining when an action is commenced for
purposes of section 255 of this title . . . . [a collective or class action] shall be considered to be
commenced in the case of any individual claimant — (a) on the date when the complaint is filed, if
he is specifically named as a party plaintiff in the complaint and his written consent to become a
party plaintiff is filed on such date in the court in which the action is brought; or (b) if such written
consent was not so filed or if his name did not so appear — on the subsequent date on which such
written consent is filed in the court in which the action was commenced.”); Titchenell v. Apria

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Healthcare Inc., No. 11-563, 2011 WL 5428559, at *7 (E.D. Pa. Nov. 8, 2011) (citing Symczyk v.
Genesis HealthCare Corp., 656 F.3d 189, 200 (3d Cir. 2011)). Until that point, the statute of
limitations continues to run against class-members. Perella v. Colonial Transit, Inc., 148 F.R.D.
147, 149 (W.D. Pa. 1991). Once the signed consents are filed with the Court, they do not “relate
back” to the filing date of the Consolidated Complaint. See Cahill v. City of New Brunswick, 99 F.
Supp. 2d 464, 479 (D.N.J. 2000). Nor would staying the present action automatically toll the
statute of limitations.2 Accordingly, as Plaintiffs observe, there is a strong potential harm against
non-parties to the collective action, as the two or three-year statute of limitations continues to run
against potential plaintiffs until the claimant’s individual written consent is filed with the Court.
This factor favors denying Defendants’ Motion to Stay.
Finally, with regard to the question of whether a stay would streamline the proceedings by
simplifying issues and promoting judicial economy, Defendants argue that judicial economy will
be promoted by staying the current action since the DOL investigation might make any civil
litigation moot as the DOL is authorized to oversee repayments, if necessary, to current and former
employees. (Defs.’ Mot. 9-10.) Plaintiffs respond that the civil litigation will need to proceed
irrespective of the DOL’s investigatory conclusions since the Consolidated Complaint contains
numerous claims under Pennsylvania and New Jersey state law. (Pls.’ Resp. 9-10.) Plaintiffs
assert eight claims under Pennsylvania, Philadelphia, and New Jersey law that cannot be
adjudicated by the DOL. (See Compl.) As such, Defendants have not established that it would

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A stay can toll the statute of limitations by agreement of the parties. In Wilcox v.
Alternative Entm’t, Inc., No. 09-659, 2010 WL 691702, at *1 (W.D. Wisc. Feb. 25, 2010), the
court entered an order granting a stay in an FLSA suit involving a DOL investigation where the
parties to the lawsuit agreed to toll the statute of limitations and stipulated to the stay.
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streamline proceedings to stay an action that would necessarily be litigated anyway.
Under the circumstances, and after consideration of the factors courts analyze in
determining whether to grant a motion to stay, we conclude that it would be inappropriate at this
juncture to grant Defendants’ Motion.
B.

Primary Jurisdiction Doctrine

Defendants contend that the Court should stay proceedings out of deference to the DOL
based upon the primary jurisdiction doctrine. (Defs.’ Mot. 10.) As the Supreme Court stated in
United States v. W. Pac. R.R. Co., 352 U.S. 59, 63 (1956), “[t]he doctrine of primary jurisdiction,
like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper
relationships between the courts and administrative agencies charged with particular regulatory
duties.” Under the doctrine, courts are to defer to the expertise of administrative agencies where
“‘cases rais[e] issues of fact not within the conventional experience of judges . . . .’” MCI
Commc’ns Corp. v. Am. Tel. & Tel. Co., 496 F.2d 214, 220 (3d Cir. 1974) (quoting Far East
Conference v. United States, 342 U.S. 570, 574 (1952)).
In determining whether the doctrine of primary jurisdiction applies, courts evaluate four
factors, “including whether the question at issue: (1) is within the conventional experience of
judges or involves technical and policy considerations within the agency’s particular field of
expertise; (2) calls for the exercise of the agency’s discretion; (3) presents a substantial danger of
inconsistent rulings; and (4) has already been presented to the agency.” FBN Am., Inc. v. Athena
Int’l, L.L.C., No. 97-6427, 1997 WL 698492, at *3 (E.D. Pa. Nov. 4, 1997) (citing Nat’l
Commc’ns Ass’n, Inc. v. Am. Tel. & Tel. Co., 46 F.3d 220, 222-23 (2d Cir. 1995)). Plaintiffs argue
that the primary jurisdiction doctrine does not apply where, as here, the Court has before it an

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issue that is fully within its competence. (Pls.’ Resp. 14.)
We agree that the primary jurisdiction doctrine is inapplicable. There is nothing especially
technical about a determination as to whether Defendants were fairly compensating Plaintiffs and
opt-in former and current employees. Courts in this District regularly adjudicate FLSA cases.
See, e.g., Mayan v. Rydbom, Exp., Inc., No. 07-2658, 2009 WL 3152136, at *11 (E.D. Pa. Sept.
30, 2009) (granting in part and denying in part a motion for summary judgment regarding a group
of delivery drivers who contended that their employer failed to pay them overtime compensation
in violation of the FLSA and finding that “determining whether any individual employee was
entitled to receive overtime compensation is well within the court’s abilities”). Moreover, with
respect to the state law claims, there is no risk of inconsistent rulings as the investigation by the
DOL will not impact those causes of action.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion will be denied.

An appropriate Order follows.
BY THE COURT:

R. BARCLAY SURRICK, J.

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