Werner, Doug v. Waterstone Mortgage Corporation
Filing
103
OPINION & ORDER denying 83 Motion for Partial Summary Judgment; denying 88 Motion for Order Declaring Plaintiffs Have Waived Right to Arbitrate and Enjoining Plaintiffs from Pursuing Arbitration. Signed by District Judge James D. Peterson on 10/1/2018. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DOUG WERNER AND WILLIAM
WIESNESKI, both individually and on behalf
of all other similarly situated persons,
Plaintiffs,
OPINION & ORDER
v.
17-cv-608-jdp
WATERSTONE MORTGAGE
CORPORATION,
Defendant.
Plaintiffs Doug Werner and William Wiesneski are suing their former employer,
Waterstone Mortgage Corporation, for violating the Fair Labor Standards Act. Waterstone has
filed two motions that are ready for review: (1) a motion for partial summary judgment, Dkt.
83; and (2) a motion “for order declaring plaintiffs have waived right to arbitrate and enjoining
plaintiffs from pursuing arbitration,” Dkt. 88. Because the first motion is moot and the second
motion is premature, the court will deny both motions.
In its first motion, Waterstone seeks to dismiss the claims of Christopher Pulan,
Michael Schafer, Angela Sherer, and Albert Winquist on the ground that they are time-barred.
But none of those individuals are plaintiffs in this case. Although each of them filed consent
forms to join plaintiffs’ proposed collective action under 29 U.S.C. § 216(b), the court denied
plaintiffs’ motion for certification of a collective action, a result that Waterstone requested.
Plaintiffs never amended their complaint to join Pulan, Schafer, Sherer, and Winquist as coplaintiffs, so those individuals never became parties to the case. Espenscheid v. DirectSat USA,
LLC, No. 09-cv-625, 2011 WL 2009967, at *8 (W.D. Wis. May 23, 2011) (once court
decertifies collective action, “only the named plaintiffs' claims remain in the case”). If
Waterstone wanted to adjudicate the merits of those employees’ claims, it should not have
opposed plaintiffs’ motion for certification. A defendant cannot prevent an employee from
certifying a collective action and then litigate the claims of nonparties who would have been
included in the collective.
In its second motion, Waterstone wants to enjoin “Plaintiffs” from pursuing their claims
in arbitration. But this motion is premature because plaintiffs have not moved to dismiss this
case to pursue arbitration and Waterstone does not allege that either Werner or Wiesneski has
submitted an arbitration demand or threatened to do so. A party cannot obtain a declaration
or injunction about speculative future events. Capeheart v. Terrell, 695 F.3d 681, 685–86 (7th
Cir. 2012).
Waterstone does say that it received an arbitration demand from Deanna Downey, who
filed a consent form in this case. But again, once the court denied plaintiffs’ motion for
conditional certification, those consent forms had no legal effect. Because Downey is not a
party, any request for relief against her or anyone else who previously filed a consent form is
outside the scope of this case.
2
ORDER
IT IS ORDERED that Waterstone Mortgage Corporation’s motions for partial
summary judgment, Dkt. 83, and motion “for order declaring plaintiffs have waived right to
arbitrate and enjoining plaintiffs from pursuing arbitration,” Dkt. 88, are DENEID.
Entered October 1, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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