Plaintiff, OPINION & ORDER

V.

REAL ESTATE MORTGAGE NETWORK,

INC., et at.,

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 Pair LaborStandards Act (“FLSA”), 29 U.S.C. § 201—2 19 and the New Jersey Wage and

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

Now 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 the

statute of limitations of the FLSA for a putative class of opt-in

plaintiffs. 1

(B) Motion (ECF No. 212) of Defendants Real Estate Mortgage Network,

Joining Ms. Thompson as plaintiffs, to date, are seven opt-ins: Yasmiin Anaya

(ECF No. 198); Wendy Galida (ECF No. 199); Brandy Halnes (ECF No. 200); Jonell

Jones (ECF No. 201); Kevin McCourt (ECF No. 202); Margaret Pietryka (ECF No. 203);

and James Sentman (ECF No. 204).
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.

DISCUSSION

The “motion to strike” has created a logjam. Plaintiff alleges that the

Employers brought this motion for partia] summary judgment in lieu ofproperly filing a cross-motion to Plaintiffs motion for conditional certification.

(ECF No. 2 13-1 at 7—8) The abominable result, Plaintiff says, is that (a) the

Defendants will receive more pages to make their arguments; and (b) theDefendants will “get[] the ‘last word’ on the tolling issue.” (ECF No. 2 13-1 at 6).2

Such gripes, of course, may easily be addressed directly: A party may

request an adjustment of page limits, or leave to file a reply. Such minorprocedural relief is routinely sought informally. Plaintiff, however, has hit uponthe strategy of refusing to acknowledge the summary judgment motion at all—

granting herself an exemption from the deadline to respond and treating themotion as a nullity via a “motion to strike.”

Why a 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 crossmotion related to the subject matter of the original motion may be filed by the

2 On an ordinary motion, replies are authorized by rule; on a cross-motion, theyare permitted only by leave of court. Compare D.N.J. Loc. Civ. R. 7. 1(d)(3) (authorizing

reply on ordinary motion) with Loc. R. 7.1(h) (not mentioning replies to cross-motions).

Page limits are also calculated differently.
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 (citingcases). In no case does the court “strike” an otherwise legitimate motionbecause it should have been filed as a cross-mo Lion. The whole premise of thismotion to strike, then, is flawed.

“As a general matter, motions to strike under Rule 12W are highly

disfavored.” F.T.C. u. 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 theminor, routine procedural relief that plaintiff tndy seeks here.

The entire Rule reads as follows:

(h) Cross-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’sopposition papers and may be noticed for disposition on the same day as theoriginal motion, as long as the opposition papers are timely filed. Upon therequest of the original moving party, the Court may enlarge the time for filing abrief and/or papers in opposition to the cross-motion and adjourn the originalmotion day. A party filing a cross-motion shall serve and file a combined brief inopposition to the original motion and in support of the cross-motion, whichshall not exceed 40 pages. No reply brief in support of the cross-motion shall beserved and filed without leave of the assigned district or magistrate judge. The

original moving party shall file a single combined reply brief in support of itsmotion and in opposition to the cross-motion, which shall not exceed 40 pages

(in contrast to the 15-page limit for replies as provided in L. Civ. R. 7.2(b)). The

provisions of L.Civ.R. 7.1(d)(5) [one adjournment of motion day as of right] applyto dispositive cross-motions.

D.N.J. Loc. R. 7.1(h).
a complaint, an answer to a counterclaim, an answer to a crossclaim, a thirdparty complaint, an answer to a third-party complaint, and, if the court soorders, 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. 12W to [grant a] motion to strike a motion.” Structural Concrete &od., LLC v.

ClarendonAm. Ins. Co., 244 F.R.D. 317, 324 (ED. 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, aL 1 (M.D. Pa. Sept. 4, 2018)

(holding that a defendant’s brief for summary judgment “is not the appropriatesubject 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 securethe just, speedy, and inexpensive determination of every action andproceeding.” 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 affd, appeal dismissed, 593 F.3d 280 (3d Cir. 2010); Baugh z,’. CVSRx Sen’s., 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,4

speedy, and inexpensive determination of the merits.

“[Statutes of limitations] promote justice by preventing surprises through the

revival of claims that have been allowed to slumber until evidence has been lost,
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 Lhe motion for summaiy judgment.5

I will 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 quibbles over page

limits, replies, and the like. I am therefore pressing the “reset” button.

memories have faded, and witnesses have disappeared. [E]ven if one has ajust claim it

is unjust not to put the adversary on notice to defend within the period of limitation

Moreover, the courts ought to be relieved of the burden of trying stale claims when a

plaintiff has slept on his rights.” Burnett a New Yorlc Cent. R. Co., 380 U.S. 424, 428

(1965) (citations omitted).

5 Citing Fed. R. Civ. P. 16(I)U1)(C), Plaintilfargiie that by bringing the summary

judgment motion separately, instead of as a cross-motion, the defendants “side

stepped” Magistrate Judge Hammer’s order scheduling the certification motion.Plaintiff is not very specific, and I do not see a basis for disallowing the filing of a

summary judgment motion just because a certification motion is in the works.
1. The motion to strike (ECF no. 213) is DENIED.

2. The motion for partial summary judgment motion and to compel

arbitration (ECF no. 212) and the conditional certification motion

(ECF no. 199) are ADMINISTRATIVELY TERMINATED.

3. The motion for partial summaiyjuclgrnent and to compel arbitration,

either in original or revised form, shall be refiled within seven days as

an ordinary motion returnable on the next available motion day, as to

which the ordinary 24-day briefing schedule and page limits of Local

Rule 7.1(d) shall apply. No extensions shall be granted absentextraordinary circumstances.

4. The conditional certification motion, either in original or revised form,

shall be refiled within seven days after the Court files its decision on

the summary judgment motion, as an ordinary motion returnable on

the next available motion day, as to which the ordinary 24-day

briefing schedule and page limits of Local Rule 7.1(d) shall apply. Noextensions shall be granted absent extraordinary circumstances.

KEVIN MCNULTY .

Unittd States Distnct Ju ge