United States District Court, D. Arizona
G. Campbell United States District Judge.
Jared Ruder brought a claim against Defendant CWL
Investments, LLC to recover unpaid overtime under the Fair
Labors Standards Act (“FLSA”), 29 U.S.C. §
216(b), on behalf of himself and a proposed class of all
current and former Assistant Store Managers
(“AMSs”) who were employed by CWL within the last
three years at various Jimmy John's franchise locations
in Arizona and Michigan. Doc. 1. Ruder is also a member of a
conditionally-certified FLSA action pending in the District
Court for the Northern District of Illinois against Jimmy
John's, LLC; Jimmy John's Enterprises, LLC; and Jimmy
John's Franchise, LLC (“Jimmy John's
Action”). Doc. 16 at 2; Doc. 18 at 1; Doc. 16-1 at 2.
That action also seeks to recover unpaid overtime and was
brought in 2014 on behalf of ASMs who worked for both
corporate-owned and certain franchise-owned Jimmy John's
stores. Id. CWL is not a party to the Jimmy
John's Action. The judge presiding over the Jimmy
John's Action, Judge Kocoras, granted a motion for an
anti-suit injunction on March 9, barring several of the
opt-in plaintiffs in that case, including Ruder, from
proceeding with FLSA actions against certain Jimmy John
franchisees until otherwise instructed by the court.
did not file a motion for conditional class certification
before the anti-suit injunction was issued. He has now filed
a motion for equitable tolling, asking the Court to toll the
statute of limitations for potential opt-in plaintiffs. Doc.
two-year statute of limitations generally applies to FLSA
claims, but the period is extended to three years if the
cause of action is based on a “willful violation”
of the statute. 29 U.S.C. § 255(b). The statute of
limitations runs for each plaintiff individually until he
files his written consent to opt into an action. 29 U.S.C.
§ 256(b). For Ruder and the three plaintiffs who have
filed their consent to affirmatively opt in, the statute of
limitations is no longer running. For any other potential
opt-in members, the statute of limitations continues to run.
statute of limitations may be equitably tolled (1) when
extraordinary circumstances beyond a plaintiff's control
make it impossible to file a claim on time, or (2) when a
plaintiff is prevented from asserting a claim by wrongful
conduct on the part of the defendant.” Helton v.
Factor 5, Inc., No. C 10-04927 SBA, 2011 WL 5925078, at
*2 (N.D. Cal. Nov. 28, 2011) (citing Stoll v.
Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999)). CWL argues
that Ruder's motion for equitable tolling seeks an
advisory opinion from the Court and that, regardless, Ruder
has not shown that equitable tolling is warranted.
Supreme Court has made clear that “a federal court has
neither the power to render advisory opinions nor to decide
questions that cannot affect the rights of litigants in the
case before them. Its judgments must resolve a real and
substantial controversy admitting of specific relief through
a decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical
state of facts.” Preiser v. Newkirk, 422 U.S.
395, 401 (1975) (quotation marks and citations omitted). In
this case, a decision to equitably toll the statute of
limitations would have no effect on Ruder and the other
plaintiffs who have joined the case. Ruder argues, however,
that a decision not to grant the motion would directly affect
the scope of conditional certification and prejudice
potential opt-in plaintiffs. Doc. 19 at 3. But Ruder has not
filed a motion for conditional class certification, and it is
not certain that such a motion would be granted. Even if the
Court had already granted conditional class certification,
the Supreme Court has made clear that such certification
under the FSLA “does not produce a class with an
independent legal status, or join additional parties.”
Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523,
1530 (2013). Thus, neither the class itself nor individuals
who have not yet opted into the class would have status or
interests before the Court.
contends that courts have routinely granted motions for
equitable tolling to avoid prejudice to potential opt-in
members in FLSA cases. Doc. 16 at 5 (collecting cases); Doc.
19 at 3. True, but Ruder has not cited a single case that
considered whether the court has jurisdiction to grant
equitable tolling to protect potential opt-in plaintiffs. It
appears that “only a few [courts] have considered this
particular jurisdictional argument.” Sylvester v.
Wintrust Fin. Corp., No. 12 C 01899, 2013 WL 5433593, at
*10 (N.D. Ill. Sept. 30, 2013). All who have done so have
found a lack of jurisdiction. The Court of Appeals for the
Federal Circuit explained:
The district court's tolling order did not apply to the
seven plaintiffs before the court, each of whom had
unquestionably filed on time. Nor did it apply to the
employees who might possibly benefit from a tolling
(“employees as to whom discovery has been
directed”). Those employees have not filed claims, and
it is unknown whether they ever will. Under general
principles derived from the “case or controversy”
requirement of Article III, Section 2, Clause 1 of the U.S.
Constitution, a federal court is without power to give
advisory opinions, because such opinions cannot affect the
rights of the litigants in the case before it. Nor do courts
“sit to decide hypothetical issues or to give advisory
opinions about issues as to which there are not adverse
parties before [them].” When and if the time comes, the
district court will presumably apply the doctrine of
equitable tolling consistently with Congress' intent in
enacting the particular statutory scheme set forth in FLSA.
United States v. Cook, 795 F.2d 987, 994 (Fed. Cir.
1986) (citations omitted); see also Piekarski v. Amedisys
Illinois, LLC, No. 12-CV-7346, 2013 WL 2357536, at *3
(N.D. Ill. May 28, 2013) (finding that it would be premature
and improper for the court to toll the statute of limitations
for prospective plaintiffs in a FLSA action); Tidd v.
Adecco USA, Inc., No. CIV.A. 07-11214-GAO, 2010 WL
996769, at *3 (D. Mass. Mar. 16, 2010) (finding that
“the plaintiffs' request for equitable tolling of
the statute of limitations for potential class members is
premature. Because these persons have not yet opted into the
case, the plaintiffs are, in effect, asking for an advisory
opinion, which the Court cannot issue.”) (citation
Court agrees that granting equitable tolling for hypothetical
opt-in plaintiffs would constitute an impermissible advisory
opinion. In the current circumstances, it is not clear that
equitable tolling will ever be necessary. It may be that
conditional class certification is never granted or, even if
it is, that no individuals for whom equitable tolling is
necessary will opt in. Moreover, future opt-in plaintiffs
must show the diligence and extraordinary circumstances
required to obtain equitable tolling. Until the Court knows
the identities and circumstances of those potential
plaintiffs, it is unable to find that equitable tolling is
further argues that the Court should equitably toll the
statute of limitations for potential opt-in plaintiffs
because only those individuals who worked for CWL within the
3-years prior to the granting of conditional certification
will be notified of this action and given a chance to
participate. Doc. 19 at 3. But the scope of any eventual
notice is also a premature issue. Ruder will be free to make
appropriate arguments if and when the point of conditional
certification arrives in this action.
IS ORDERED that Plaintiffs motion for equitable
tolling (Doc. 16) is denied without