IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID A. SYLVESTER,

Plaintiff,

v.

WINTRUST FINANCIAL 

CORPORATION, et al.,

Defendants.

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No. 12 C 01899

Judge John J. Tharp, Jr.

ORDER

For the reasons explained below, the Court denies the plaintiffs’ motion [76] to extend 

the equitable tolling of the statute of limitations.

STATEMENT

The plaintiffs ask this Court to extend the equitable tolling of the FLSA statute of 

limitations for members of the conditionally certified collective who have not yet received notice 

of this action. Wintrust’s position is that this Court does not have jurisdiction to issue an order 

tolling the statute for prospective opt-in plaintiffs because they are not yet before the court. The 

Court agrees with Wintrust and concludes for several reasons that this motion is premature.

The plaintiffs are correct that in Hoffmann-La Roche Inc. v. Sperling, the Supreme Court 

decided that district courts had a “managerial responsibility to oversee the joinder of additional 

parties.” 493 U.S. 165, 170–71 (1989). More recent Supreme Court precedent indicates,

however, that this responsibility to oversee joinder does not extend as far as the plaintiffs argue.

In Genesis, the Court held that a collective action brought by a single employee on behalf of 

herself and all similarly situated employees was no longer justiciable when her individual claim 

became moot. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1529 (2013). The Court 

made it clear that potential opt-in plaintiffs are not before the court until the point at which they

consent to opt in. Id. at 1530. As for the role of district courts in facilitating communication from 

named plaintiffs to potential plaintiffs, the Court explained that “[t]he sole consequence of 

conditional certification is the sending of court-approved written notice to employees, who in 

turn become parties to a collective action only by filing written consent with the court.” Id.

(citations omitted).

The plaintiffs’ argument that this “managerial responsibility” extends to rulings regarding 

the rights of those parties who have not yet opted in goes too far. The prospective opt-in 

collective members are not yet before the Court. In the end, it may be that no member of the 
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conditionally certified class for whom equitable tolling would be necessary will in fact opt in, 

thus mooting the issue. Alternatively, while perhaps unlikely, it may be that the defendant will 

not raise the statute of limitations as a defense to the claim of an individual plaintiff. Finally, it 

may be that those members of the conditionally certified class that eventually opt in may not be 

able to demonstrate the diligence and extraordinary circumstances necessary to justify equitable 

tolling. See Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010). Equitable tolling is an 

“extraordinary remedy,” not an automatic doctrine to be granted whenever a party so moves. 

Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013) (quoting Simms, 595 F.3d at 781). As an 

equitable doctrine, it should be available only to those who need it; otherwise, defendants should 

not be deprived of the protection of the statute of limitations. It is therefore the petitioner seeking 

equitable tolling that “bears the burden of establishing that it is warranted.” Id. (citing Williams 

v. Buss, 538 F.3d 683, 685 (7th Cir. 2008)).

For the above reasons, the Court denies the plaintiffs’ motion to further extend the 

equitable tolling of the FLSA statute of limitations without prejudice to those who may 

eventually opt in and move for similar relief.

Entered: October 22, 2013 John J. Tharp, Jr.

United States District Judge