United States District Court, W.D. Missouri, St. Joseph Division
ALBERT J. ASTARITA, Plaintiff,
MENARD, INC., Defendant.
ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT.
the Court are several pending motions: (1) Plaintiff's
Motion for Conditional Certification of Class Claims under 29
U.S.C. § 216(b) (doc. 11); (2) Defendant's Motion to
Stay Briefing and for Extension of Time to Respond to
Plaintiff's Motion for Conditional Certification (doc.
22); (3) Defendant's Motion to Dismiss, or in the
Alternative, to Stay the Proceedings and Compel Arbitration
(doc. 24); and (4) Plaintiff's Motion to Stay
Consideration of Defendant's Motion to Dismiss, Pending a
Ruling on Conditional Certification (doc. 27). At this
juncture, the Court takes up the parties' competing
motions to stay and related suggestions (docs. 22, 23, 27,
28, 29, 32, and 41). For the reasons below, the Court
DENIES Defendant's motion to stay (doc.
22), DENIES Plaintiff's motion to stay
(doc. 27), and directs the parties to set a briefing schedule
for Plaintiff's motion for conditional certification and
Defendant's motion to dismiss/compel.
brings this lawsuit as: (a) a collective action under the
Fair Labor Standards Act, (“FLSA”), 29 U.S.C.
§ 201, et seq., to recover unpaid overtime
wages owed to Plaintiff and other similarly situated workers
employed by Defendant; and (b) a Rule 23 class action under
Missouri state law, including the Missouri Minimum Wage Law
(“MMWL”), RSMo. § 290.500, et seq.
(Doc. 1 at ¶ 3.) Plaintiff brings an FLSA claim in Count
I arising out of Defendant's alleged unlawful unpaid
training policy for which he seeks conditional certification
under 29 U.S.C. § 216(b). (Id. at ¶ 40.)
seeks a temporary stay of briefing pending this Court's
ruling on its motion to dismiss/compel. Then, if the Court
ultimately denies Defendant's motion to dismiss/compel,
Defendant requests a period of fourteen (14) days after the
Court's ruling to file its suggestions in opposition to
Plaintiff's motion for conditional certification.
Plaintiff, on the other hand, seeks to stay the briefing
scheduling and consideration of Defendant's motion to
dismiss/compel pending this Court's ruling on his motion
for conditional certification. Alternatively, if the Court
denies Plaintiff's request for a stay, Plaintiff requests
an extension of twenty-one (21) days to respond to
Defendant's motion to dismiss/compel. The key issue in
the parties' competing motions to stay is whether the
Court should decide Defendant's motion to dismiss/compel
(doc. 24) before or after ruling on Plaintiff's motion
for conditional certification (doc. 11).
unique nature of FLSA collective actions and the purpose of
the Federal Arbitration Act (FAA) are both relevant to the
Court's consideration of the competing motions to stay.
FLSA Collective Actions
actions brought under FLSA differ considerably from class
actions brought under Rule 23. Under 29 U.S.C. §216(b)
of the FLSA, employees may bring an action on behalf of
themselves and on behalf of other employees “similarly
situated.” “[A] similarly situated employee must
‘opt-in' to the collective action to be bound by
the proceeding's outcome[.]” Kautsch v. Premier
Communs., 504 F.Supp.2d 685, 688 (W.D. Mo. 2007). Put
another way, an employee will not become a plaintiff to the
action “unless he gives his consent in writing to
become such a party” and files this consent in the
district court where the case is pending. Davis v.
NovaStar Mortg., Inc., 408 F.Supp.2d 811, 815-16 (W.D.
Mo. Nov. 8, 2005) (quoting 29 U.S.C. § 216(b)). By
contrast, in a Rule 23 class action, plaintiffs are not
required to opt-in and instead, will be a part of the
litigation unless they specifically opt out of the class
action. This distinction is significant because an
employee's statute of limitations under an FLSA
collective action will toll when the employee files his or
her written consent to become a party plaintiff in the court
where the action is pending. 29 U.S.C. § 257. Prompt and
early notice is therefore important in FLSA collection
Federal Arbitration Act
relevant, Section 3 of the FAA provides:
If any suit or proceeding be brought in any of the courts of
the United States upon any issue referable to arbitration
under an agreement in writing for such arbitration, the court
in which such suit is pending, upon being satisfied that the
issue involved in such suit or proceeding is referable to
arbitration under such an agreement, shall on application of
one of the parties stay the trial of the action until such
arbitration has been had in accordance with the terms of the
agreement, providing the applicant for the stay is not in
default in proceeding with such arbitration.
9 U.S.C. § 3. “The preeminent concern of Congress
in passing the Act was to enforce private agreements into
which parties had entered, and that concern requires that we
rigorously enforce agreements to arbitrate[.]” Dean
Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985).
Congress's intent in enacting the FAA is to move
litigants who have executed an arbitration agreement
“out of court and into arbitration as quickly and
easily as possible.” Moses H. Cone
Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 22 (1983).