645 F.2d at 761. In Owens v. Bethlehem Mines Corp., 630 F. Supp. 309, 313 (W.D. Va. 1986), the court, relying onPartlow, found that equitable tolling was warranted because it had delayed ruling on the plaintiffs' certification motion for over a year. In their reply, Plaintiffs do not address Defendants' argument that the cases they cited were inapposite.
The LaFleur court also distinguished one case applying the doctrine of equitable tolling based only upon the court's decision-making delay on the ground that the court failed to rule on the motion for almost one and one-half years and on the ground that the court's delay caused the claims of two specific—not theoretical—plaintiffs to become time-barred. See id. at *6 (citing Owens v. Bethlehem Mines Corp., 630 F. Supp. 309 (S.D.W. Va. 1986)). Similarly, in Young v. Dollar Tree Stores, the District of Colorado rejected the plaintiffs' argument that the court should toll the statute of limitations during the ten-month period that the plaintiffs awaited a decision on their motion for certification.
KathyBrown v. Consolidated Restaurant Operations, Inc. , No. 3:12–00788, 2013 WL 4804780, at *8 (M.D. Tenn. Sept. 6, 2013). Section 255, however, only serves as "a procedural limitation period under the Act," Ott v. Midland–Ross Corp. , 523 F.2d 1367 (6th Cir. 1975), and is thus subject to equitable measures such as tolling, Owens v. Bethlehem Mines Corp. , 630 F.Supp. 309, 311 (S.D.W.V. 1986) (citing Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) )."Equitable tolling is an extraordinary remedy that is sparingly applied and concerns cases involving extraordinary circumstances.
The MacGregor court notes one case that might be of particular relevance to the instant case regarding when procedural delays warrant tolling due to their extraordinary nature. See Owens v. Bethlehem Mines Corp., 630 F. Supp. 309 (S.D. W. Va. 1986). In Owens, the court equitably tolled the statute of limitations with respect to Age Discrimination in Employment Act (ADEA) claims because the court failed to rule on a motion to certify the potential class in that case for over a year.
“In the context of an opt-in collective action, diligence is measured by whether potential plaintiffs opted-in when given the opportunity, not by whether those plaintiffs chose to initially bring a lawsuit.” Baden-Winterwood, 484 F.Supp.2d at 828 (citing Owens v. Bethlehem Mines Corp., 630 F.Supp. 309, 312-13 (S.D.W.Va.1986)) (cleaned up). Considering that that potential opt-in plaintiffs are almost certain to have lacked knowledge of the pendency of this action, the Court likewise finds that their failure to opt into the suit alone does not indicate a lack of diligence.
However, in reaching its conclusion, the Court recognized that a longer delay might harm plaintiffs and warrant tolling, citing as an example another case where the statute of limitations was tolled because a motion to certify the potential class had been pending for over a year. Id. (citing Owens v. Bethlehem Mines Corp., 630 F.Supp. 309 (S.D. W.Va. 1986)).
However, in reaching its conclusion, the Court recognized that a longer delay might harm plaintiffs and warrant tolling, citing as an example another case where the statute of limitations was tolled because a motion to certify the potential class had been pending for over a year. Id. at *6-7 (citing Owens v. Bethlehem Mines Corp., 630 F.Supp. 309 (S.D. W.Va. 1986)).
Finally, courts have tolled the statute of limitations when "the delay of the court in ruling on the collective action motion caused claims to become time-barred." Hosking v. New World Mortg., Inc., 602 F. Supp. 2d 441, 447-48 (E.D.N.Y. 2009) (citing Owens v. Bethlehem Mines Corp., 630 F. Supp. 309, 312-13 (S.D.W.Va. 1986)). 2. Analysis
Rarely have district courts in the Fourth Circuit concluded that litigation delays were an extraordinary circumstance that warranted equitable tolling. See, e.g., Harbourt, 2017 WL 281992, at *3 (finding the four-month delay in granting a motion to dismiss and subsequent appeal was not an extraordinary circumstance); LaFleur v. Dollar Tree Stores, Inc., No. 2:12-cv-00363, 2012 WL 4739534, at *7 (E.D.Va. Oct. 2, 2012) (denying equitable tolling where motion for conditional certification was still pending after three months); MacGregor v. Farmers Ins. Exch., 2:10-CV-03088, 2011 WL 2731227, at *2 (D.S.C. July 13, 2011) (denying equitable tolling because the four-month time period in which a motion to dismiss was pending did not constitute an extraordinary circumstance). Courts have only found extraordinary circumstances when the delay was unusually lengthy. See, e.g., Owens v. Bethlehem Mines Corp., 630 F.Supp. 309, 312-13 (S.D.W.V. 1986) (allowing equitable tolling where motion for class certification was pending before the court for over a year). Here, granting the Plaintiffs' Motion for Conditional Certification six months after a full briefing did not present an unusual or unexpected delay.
As noted above, Coppernoll did not claim as much. Nevertheless, Hamcor asserts that it should not be penalized for trying to protect its interests, citing Owens v. Bethlehem Mines Corp., 630 F. Supp. 309, 312 (S.D. W.Va. 1986) (Judge Charles Haden). In the event any damages do result from the stay, they will be minor, as review of Morris is slated for our Supreme Court's October 2017 term and a decision is likely to be rendered by December.