United States District Court, W.D. Wisconsin
DOUG WERNER AND WILLIAM WIESNESKI, both individually and on behalf of all other similarly situated persons, Plaintiffs,
WATERSTONE MORTGAGE CORPORATION, Defendant.
OPINION & ORDER
D. PETERSON District Judge
proposed collective action under the Fair Labor Standards
Act, plaintiffs Doug Werner and William Wiesneski allege that
they are mortgage loan originators for defendant Waterstone
Mortgage Corporation and that Waterstone failed to pay them
overtime wages. Two motions are now before the court: (1)
Waterstone's motion to strike portions of plaintiffs'
amended complaint, Dkt. 19; and (2) plaintiffs' motion
for a “tolling order, ” Dkt. 38. Plaintiffs also
filed a motion for conditional certification of a collective
action, Dkt. 22, but Magistrate Judge Stephen Crocker stayed
briefing on that motion pending a decision on
Waterstone's motion to strike.
motion to strike, Waterstone objects to references that
plaintiffs made in their amended complaint to Herrington
v. Waterstone, No. 11-cv-779-bbc (W.D. Wis.), another
case in which loan originators employed by Waterstone raised
claims under the FLSA. Waterstone says that the references
should be stricken because (1) there is no final judgment in
Herrington;(2) the rulings in Herrington
are not binding on this court; and (3) plaintiffs cannot rely
on Herrington to toll the statute of limitations in
court will deny Waterstone's motion, which was a waste of
both the parties' and court's time and resources.
Waterstone cites Rule 12(f) on the Federal Rules of Civil
Procedure, which states that “[t]he court may strike
from a pleading . . . any redundant, immaterial, impertinent,
or scandalous matter.” But it is well established in
this district that “[m]otions to strike are disfavored;
they delay proceedings, usually unnecessarily, ”
Rizzo v. Discover Bank, No. 17-cv-408, 2017 WL
3130440, at *1 (W.D. Wis. July 24, 2017) (citing Heller
Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286,
1294 (7th Cir. 1989)), and that “a party should not
move ‘to strike extraneous matter unless its presence
in the complaint is actually prejudicial, '”
id. (quoting Davis v. Ruby Foods, Inc., 269
F.3d 818, 821 (7th Cir. 2001)). Cf. Redwood v.
Dobson, 476 F.3d 462, 471 (7th Cir. 2007)
(“Motions to strike words, sentences, or sections out
of briefs serve no purpose except to aggravate the
opponent-and though that may have been the goal here, this
goal is not one the judicial system will help any litigant
does not even attempt to show that any of the information in
plaintiffs' amended complaint is prejudicial. And it
could not make such a showing because the information about
Herrington is a matter of public record. Rather,
Waterstone's objections are all legal. That is,
Waterstone appears to be anticipating contentions that
plaintiffs may raise later in the case and it is attempting
to use Rule 12(f) to preclude plaintiffs from doing so.
initial matter, one of Waterstone's objections is moot
because final judgment has been entered in
Herrington in favor of the plaintiffs. No.
11-cv-779-bbc, Dkt. 135. Regardless, Waterstone cites no
authority for the view that Rule 12(f) may be used to obtain
preliminary legal determinations before an issue is ripe for
review. If Waterstone believed that some of plaintiffs'
claims could be dismissed as a matter of law, it should have
filed a motion under Rule 12(b)(6) to dismiss for failure to
state a claim upon which relief may be granted. Otherwise,
determinations about Herrington's legal
implications on this case will have to wait until plaintiffs
actually attempt to rely on Herrington to prove
their claims or overcome a defense in the context of a motion
for summary judgment or otherwise.
motion to strike continues an unfortunate trend. In
Herrington, Judge Crabb criticized Waterstone on
multiple occasions for filing improper motions that
accomplished nothing but unnecessary and undue delay.
E.g., No. 11-cv-779-bbc, Dkt. 72 at 2-3 (discussing
Waterstone's “repeated” and
“improper” motions and admonishing Waterstone
“not to make the proceedings even more contentious and
expensive”). The court expects Waterstone to use better
judgment when deciding whether to file future motions.
court will also deny plaintiffs' request for an order
tolling the statute of limitations until the court decides
plaintiffs' motion for conditional certification.
Plaintiffs' concern about the statute of limitations is
understandable because the statute of limitations on an FLSA
claim continues to run until an employee files his or her
consent to join the lawsuit. 29 U.S.C. § 256; Kelly
v. Bluegreen Corp., No. 08-cv-401, 2008 WL 4962672, at
*2 (W.D. Wis. Nov. 19, 2008) (“In FLSA collective
actions, potential class members have no shelter; to preserve
their claims they must either file an opt-in consent form in
a pending action or file a separate lawsuit before the
statute of limitations has run.”). And conditionally
certifying a collective actions and authorizing notice to be
sent to potential members of the collective action are
important steps in obtaining consent forms from other
employees. But plaintiffs' motion is premature. Until
Waterstone seeks to dismiss a claim or a portion of it on the
ground that it is untimely, any determination about tolling
would be an advisory opinion. Davis v. Vanguard Home
Care, LLC, No. 16-cv-7277, 2016 WL 7049069, at *2 (N.D.
Ill.Dec. 5, 2016) (“Plaintiffs' precertification
request for equitable tolling of the potential opt-in class
members' FLSA claims implicates too many contingencies to
be ripe. “). Plaintiffs do not identify any authority
that the court has to preemptively decide a potential statute
of limitations question.
being said, Waterstone acknowledges in its opposition to
plaintiffs' motion for a tolling order that its motion to
strike is the reason for the stay on briefing plaintiffs'
motion for conditional certification and it says that it
“is agreeable to tolling the statute of limitations for
the period during which the briefing schedule was delayed due
to its request to stay briefing.” Dkt. 39, at 2. Thus,
the court expects that Waterstone will not raise a statute of
limitations defense related to the delay that it caused, and
if it does raise such a defense, its role in the delay will
be a relevant factor in determining whether tolling is
appropriate. Stuart v. Local 727, Int'l Bhd. of
Teamsters, 771 F.3d 1014, 1020 (7th Cir. 2014)
(“[E]quitable estoppel [is] the doctrine that tolls the
statute of limitations if the defendant engages in conduct
that prevents the plaintiff from filing suit or a claim
within the statutory deadline.”).
Defendant's motion to strike portions of the amended
complaint, Dkt. 19, is DENIED.
Plaintiffs' motion for a “tolling order, ”
Dkt. 38, is DENIED.
Defendant may have until January 16, 2017, to file a response
to plaintiffs' motion for conditional certification.