United States District Court, D. New Jersey
PATRICIA THOMPSON, on behalf of herself and all others similarly situated, Plaintiff,
REAL ESTATE MORTGAGE NETWORK, INC., et al., Defendants.
OPINION & ORDER
a putative class action against employers for allegedly
failing to compensate employees for overtime work, in
violation of the Fair Labor Standards Act ("FLSA"),
29 U.S.C. §§ 201-219 and the New Jersey Wage and
Hour Law ("NJWHL"), N.J. Stat. Ann. §§
34:1 l-56a-34:1 l-56a38. Jockeying for minute procedural
advantages, the Plaintiff has created a procedural mess which
either party could have averted by scheduling a conference
call with the Magistrate Judge or with me.
before the Court are three motions:
(A) Motion (ECF No. 196) of Plaintiff Patricia Thompson to
conditionally certify a collection action under the FLSA and
to equitably toll die statute of limitations of the FLSA for
a putative class of opt-in plaintiffs.
(B) Motion (ECF No. 212) of Defendants Real Estate Mortgage
Network, Inc. ("REMN"), Security Atlantic Mortgage
Company, Inc. ("SAMC"), Noel Chapman, and Samuel
Lamparello (collectively, the "Employers") for
partial summary judgment and to compel arbitration as to two
of the opt-ins, McCourt and Pietryka.
(C) Motion (ECF No. 213) of Plaintiff Patricia Thompson to
strike Defendants' motion for partial summary judgment
(ECF No. 212), because it should have been filed as a
cross-motion. If the motion to strike is denied, Plaintiff
(who did not respond to the summary judgment motion) seeks a
period of 20 days to file a response.
"motion to strike" has created a logjam. Plaintiff
alleges that the Employers brought this motion for partial
summary judgment in lieu of properly filing a cross-motion to
Plaintiffs motion for conditional certification. (ECF No.
213-1 at 7-8) The abominable result, Plaintiff says, is that
(a) the Defendants will receive more pages to make their
arguments; and (b) the Defendants will "get the
'last word' on the tolling issue." (ECF No.
213-1 at 6).
gripes, of course, may easily be addressed directly: A party
may request an adjustment of page limits, or leave to file a
reply. Such minor procedural relief is routinely sought
informally. Plaintiff, however, has hit upon the strategy of
refusing to acknowledge the summary judgment motion at all-
granting herself an exemption from the deadline to respond
and treating the motion as a nullity via a "motion to
nullity? Because, says plaintiff, this summary judgment
motion should have been filed as a cross-motion. The Local
Rules, of course, authorize a cross-motion, returnable on the
same date as the main motion: "A cross-motion related to
the subject matter of the original motion may be filed by the
party opposing the motion together with that party's
opposition papers . . . ." D.N.J. Loc. R.
7.1(h). The Local Rules, however, provide only
that such a motion "may" be filed. No. rule
provides for a mandatory cross motion. In some cases,
including those cited by the Plaintiff, the court merely
points out that it is not necessary to "cross-move"
if the only relief sought is denial of the main motion. In
others, the court does the opposite of what Plaintiff
requests here- i, e., it rejects an attempt to shoehorn a
request for unrelated relief into a putative cross-motion,
and instead treats it as an independent motion. See A. Lite,
2019 N.J. Fed. Prac. R. 7.1 comment (5); ECF no. 213-1 at 8
& n.7 (citing cases). In no case does the court
"strike" an otherwise legitimate motion because it
should have been filed as a cross-motion. The whole premise
of this motion to strike, then, is flawed.
a general matter, motions to strike under Rule 12(f) are
highly disfavored." F.T.C v. Hope Now Modifications,
LLC, No. CIV. 09-1204 JBS/JS, 2011 WL 883202, at *1
(D.N.J. Mar. 10, 2011) (citations omitted). In addition, a
"motion to strike," to the extent it is available
at all, is a vehicle ill-suited to the minor, routine
procedural relief that plaintiff truly seeks here.
through the lens of the Civil Rule explicitly authorizing a
motion to strike, Fed.R.Civ.P. 12(f), this motion is invalid.
That Rule authorizes a court "to strike from a pleading
an insufficient defendant or any redundant, immaterial,
impertinent, or scandalous matter." Fed.R.Civ.P. 12(f)
(emphasis added). The "pleadings" in a federal
action consist of a complaint, an answer to a complaint, an
answer to a counterclaim, an answer to a crossclaim, a
third-party complaint, an answer to a third-party complaint,
and, if the court so orders, a reply to an answer.
Fed.R.Civ.P. 7(a). A summary judgment motion, however, is not
a "pleading." Consequently, "it is not proper
under Fed.R.Civ.P. 12(f) to [grant a] motion to strike a
motion." Structural Concrete Prod., LLC v. Clarendon
Am. Ins. Co., 244 F.R.D. 317, 324 (E.D. Va. 2007)
(citing Sidney-Vinstein v. A.H. Robins Co., 697 F.2d
880, 885 (9th Cir.1983)); see Bakhtiari v. Madrigal,
No. 3:18-CV-38, 2018 WL 4207713, at *1 (M.D. Pa. Sept. 4,
2018) (holding that a defendant's brief for summary
judgment "is not the appropriate subject of a motion to
strike."). The appropriate response is to oppose the
motion, not to demand its obliteration from the record.
Plaintiffs argue that the summary judgment motion should be
struck because it is at odds with the mandate of Fed.R.Civ.P.
1 that the rules "be construed, administered, and
employed by the court and the parties to secure die just,
speedy, and inexpensive determination of every action and
proceeding." A motion for summary judgment, however, is
not an inappropriate means of challenging time-barred FLSA
claims. See Smith v. Johnson & Johnson, No. CIV
A 06-4787(JLL), 2008 WL 5427802, at *3 (D.N.J. Dec. 30,
2008), order off d, appeal dismissed, 593 F.3d 280 (3d Cir.
2010); Bough v. CVS Rx Servs., INC., No. CV
15-00014-MAK, 2015 WL 12552067, at *2 (E.D. Pa. July 24,
2015). Indeed, if appropriately granted-and I do not prejudge
that issue-such a motion may streamline the case and
contribute to a just speedy, and inexpensive determination of
rely further on Fed.R.Civ.P. 83(b) and the court's
inherent power to "regulate practice in any manner
consistent with federal law, rules adopted under 28 U.S.C.
§§ 2072 and 2075, and the district's local
rules." I decline to exercise that power because in this
instance its exercise would not be consistent with the Rules,
as outlined above. It is true, of course, that the Court
retains inherent powers "governed not by rule or statute
but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and
expeditious disposition of cases." Dietz v.
Bouldin, 136 S.Ct. 1885, 1891 (2016). For the reasons
already stated, however, I decline to exercise that
discretionary power to strike the motion for summary
exercise that discretionary case-management power,
however-not to strike the motion, but to reorder the
presentation of issues here. The summary judgment and
arbitrability issues may profitably be addressed in advance
of the conditional certification issues. The partial summary
judgment motion however, has never gotten underway because of