(KM)(MAH) Plaintiff,

OPINION & ORDER

REAL ESTATE MORTGAGE NETWORK,

INC., Security Atlantic Mortgage

Company, Inc., Noel Chapman, andSamuel Lamparello,

Defendants.

KEVIN MCNULTY U.S.D.J.:

This is 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. § 20 1—219 and the New

Jersey Wage and Hour Law (“NJWHL”), N.J. Stat. Ann. § 34:1 1—56a—

34:1 1—56a38.

Now before the court is the motion (ECF no. 127) of the

defendants, Real Estate Mortgage Network, Inc. (“REMN”), Security

Atlantic Mortgage Company, Inc. (“SAMC”), Noel Chapman, and Samuel

Lamparello (collectively, the “Employers”), to dismiss the claim of opt-in

plaintiff Cheryl Matthews on statute of limitations grounds. Plaintiff

Thompson and Matthews have opposed the motion and cross-moved

(ECF no. 132) to toll the statute of limitations from March 16, 2011, the

date this action was filed, until the court rules on plaintiff’s anticipated

motion for conditional certification and the period to opt in is closed.

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that “Plaintiff’s claims, and those of alleged similarly situated persons,

are also barred by the statute of limitations because the claims, in whole

or in part, predate the applicable statutory period of limitations.” (ECF

no. 49 at 9)

The Employers’ notice of motion is designated as one under “the

Couft’s equitable powers and Rule 83 of the Federal Rules of Civil

Procedure.” (ECF no. 127) In their brief, the Employers designate their

motion as a motion to dismiss. They cite no particular standard of

review.

The Employers’ motion to dismiss is obviously inappropriate and is

denied. The motion may be considered one for judgment on the

pleadings, pursuant to Fed. R. Civ. P. 12(c).’ Aside from incorporating

defendant’s denials and affirmative defenses, such a motion is ordinarily

analyzed as if it were a Rule 12(b)(6) motion to dismiss. See Fed. R. Civ.

P. 12(h)(2); Turbe v. Gov’t of Virgin Islands, 938 F.2d 427, 428 (3d Cir.

1991). Thus the court will apply the familiar standards of Bell Ati. Corp.

u. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

A motion to dismiss on statute of limitations grounds may be

1 Defendants have already filed two motions to dismiss and, most

1)ertinently, one for judgment on the pleadings under Rule 12(c). (ECF no. 52).

The rules discourage such serial motions. See Fed. R. Civ. P. 12(g)(2). It is true,

as the Employers say, that Rule 12(h)(2) permits assertion of such legaldefenses in a Rule 12(c) motion. I do not take that as authorization for serial

Rule 12(c) motions. I set aside this procedural bar, however, recognizing that I

may, in an appropriate case, opt to consider such a motion.

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25 (3d Cir. 1989). “If the bar is not apparent on the face of the complaint,

then it may not afford the basis for a dismissal of the complaint under

Rule 12(b)(6).” Bethel, 570 F.2d at 1174.

The time bar is not apparent from the pleadings. First, it requires

reference to payroll records (which the Employers attach to their motion).

Second, it is subject to plaintiffs’ claim that the statute should be

equitably tolled, a highly fact-bound issue.

The defendant Employers’ motion to dismiss is therefore denied

without prejudice.

Plaintiffs’ motion

Plaintiffs have attempted to widen the issues, cross-moving obtain

a preemptive ruling that the claims of opt-in plaintiff Matthews, and

indeed all potential opt-in plaintiffs, are subject to equitable tolling,

running from the date this action was filed. Predictably, what has

followed is a flurry of legal arguments and exhibits, designed to establish

or disprove the many facts that should influence an equitable tolling

decision.

I recognize that I might opt to exercise my discretion to rule on this

issue in advance of plaintiffs’ motion for conditional certification. Where,

for example, a motion to dismiss may establish that the complaint itself

is not viable, that may be a wise exercise of discretion. See Babcock v.

Butler County, No. 12CV394, 2014 WL 688122, at *3 (W.D. Pa. Feb. 21,

2014), aff’d, 806 F.3d 153 (3d Cir. 2015).

This is not such a dispositive motion, however, and I choose not to

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issues may moot, or at least alter the contours of, the issue presented

here. Indeed, it is conditional certification itself that is designed to flush

out, at least preliminarily, the whole panoply of issues that may

influence the suitability, or not, of final class certification. See Camesi v.

University ofPittsburgh Med. Ctr., 729 F. 3d 239, 243 (3d Cir. 2013). I will

not pick out a single issue, in relation to hypothetical opt-ins to an asyet-undefined class. The cross-motion is therefore be denied without

prejudice.

ORDER

Accordingly, based on this Opinion, and for good cause shown;

IT IS this 2nd day of August, 2016

ORDERED that Defendants’ motion under Rule 83 and the court’s

equitable powers (ECF no. 127) to dismiss the claim of opt-in Cheryl

Matthews DENIED; and it is further

ORDERED that the plaintiffs’ cross-motion (ECF no. 132) to toll

the statute of limitations is likewise DENIED.

Both denials are without prejudice to the consideration of statute

of limitations issues in connection with conditional or final certification

of a class, or at any other appropriate time.

1) I)

Kevin McNulty

United States District Judge L—”

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