Rough v. Costco Wholesale Corporation

Filing 83

ORDER signed by Senior Judge Morrison C. England, Jr on 11/16/2021 DENYING 77 Motion to Certify Order for Interlocutory Appeal. (Coll, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MEGAN ROUGH, individually and on
behalf of all similarly situated current
and former employees of
DEFENDANTS in the State of
California,

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No. 2:19-cv-01340-MCE-DB

ORDER

Plaintiff,
v.
COSTCO WHOLESALE
CORPORATION, a Delaware
corporation; and DOES 1-50, inclusive,
Defendants.

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By way of this action, Plaintiff Megan Rough (“Plaintiff”) seeks relief on behalf of

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herself and others similarly situated against their former employer, Defendant Costco

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Wholesale Corporation (“Defendant”). According to the First Amended Complaint

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(“FAC”) (ECF No. 32), Defendant failed to correctly pay Plaintiff all minimum, regular,

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and overtime wages owed by failing: (1) to factor a “nondiscretionary punctuality bonus”

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into the regular rate of pay for purposes of calculating overtime wages and (2) to

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compensate employees for off-the-clock time employees accrued between clocking out

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and completing Defendant’s exit security procedures. As a result, when Plaintiff’s

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employment ended, she and members of the putative class purportedly failed to receive

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unpaid wages owed and received inaccurate wage statements. Plaintiff’s FAC thus
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alleged five wage-and-hour causes of action for violations of the California Labor Code,

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the Industrial Welfare Commission Wage Order, and the California Business and

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Professions Code.

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This Court recently granted Defendant’s Motions for Partial Summary Judgment

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and to Deny Class Certification and denied Plaintiff’s Motion for Class Certification.

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Plaintiff now seeks leave to pursue an interlocutory appeal of the Court’s ruling on

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Defendant’s dispositive motion pursuant to 28 U.S.C. § 1292(b). ECF No. 77

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(“Motion”).1 For the reasons that follow, Plaintiff’s Motion is DENIED.2

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Pursuant to 28 U.S.C. § 1292(b), a district court may certify an order for

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interlocutory appeal if it (1) “involves a controlling question of law,” (2) there is

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“substantial ground for difference of opinion,” and (3) “an immediate appeal from the

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order may materially advance the ultimate termination of the litigation.” See Reese v. BP

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Expl. (Alaska) Inc., 643 F.3d 681, 687-88 (9th Cir. 2011). None of these requirements

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are met here. Although Plaintiff’s theory of liability was novel, it did not raise controlling

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issues over which there is any substantial ground for differing opinions. See Couch v.

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Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010). Moreover, given that only Plaintiff’s

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individual claims remain, claims which may be expeditiously litigated so all appellate

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issues may be addressed together in the first instance, it would prolong rather than

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advance this case to allow an interlocutory appeal. Accordingly, Plaintiff’s Motion to

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Certify Order for Interlocutory Appeal (ECF No. 77) is DENIED.

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IT IS SO ORDERED.

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Dated: November 16, 2021

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Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs. See E.D. Cal. Local Rule 230(g).
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The parties and the Court are intimately familiar with the factual and procedural background of
this case as well as the legal issues, and they are not recounted here.

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