Menocal et al v. The GEO Group, Inc.

Filing 48

ORDER on Motion for Interlocutory Appeal. Defendant's Motion for an Interlocutory Appeal (Doc. 38 ) is DENIED and Defendant's request for a stay pending appeal is DENIED AS MOOT. By Judge John L. Kane on 03/17/2016. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 14-cv-02887-JLK
ALEJANDRO MENOCAL,
MARCOS BRAMBILA,
GRISEL XAHUENTITLA,
HUGO HERNANDEZ,
LOURDES ARGUETA,
JESUS GAYTAN,
OLGA ALEXAKLINA,
DAGOBERTO VIZGUERRA, and
DEMETRIO VALEGRA,
on their own behalf and on behalf of all others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC.,
Defendant.

ORDER ON MOTION FOR INTERLOCUTORY APPEAL
Kane, J.
Defendant has moved for an order certifying an interlocutory appeal under 28 U.S.C. §
1292(b) from my denial in part of its motion to dismiss. Doc. 38; see Doc. 23. In particular,
Defendant seeks appellate review of: (1) my finding that Plaintiffs have stated a claim under the
Trafficking Victims Protection Act (TVPA), Doc. 23 at 7-10; (2) my denial of Defendant’s motion
to dismiss Plaintiffs’ unjust enrichment claim, id. at 10-11; and (3) my rejection of the government
contractor defense as applied to the Plaintiffs’ claims, id. at 12-13. See Doc. 38 at 3. Defendant
also seeks a stay of this litigation pending the resolution of the requested interlocutory appeal. Id.
at 17-24.
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Under 28 U.S.C. § 1292(b), the Court is authorized to certify an order in a civil action for
interlocutory appeal if the order (1) “involves a controlling question of law,” (2) “as to which there
is substantial ground for difference of opinion,” and (3) “an immediate appeal from the order may
materially advance the ultimate termination of the litigation.” See 28 U.S.C. § 1292(b).
Because a complete reversal of my decision on Defendant’s motion to dismiss would
eliminate Plaintiffs’ remaining claims and end this litigation, I assume that the requested
interlocutory appeal “involves a controlling question of law” and would “materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b); see In re Grand Jury Proceedings
June 1991, 767 F.Supp. 222, 225 (D .Colo. 1991); Kerr v. Hickenlooper, No. 11-cv-01350, 2012
WL 4359076, at *2-3 (D. Colo. Sept. 21, 2012). I therefore turn to whether there is a “substantial
ground for difference of opinion” about the questions on which Defendant seeks appellate review.
Defendant argues that there is a “substantial ground for difference of opinion” as to
whether Plaintiffs have stated a TVPA claim because the issue is “novel,” a “matter of first
impression,” and one on which there is “no precedent.” Doc. 38 at 7, 10. However, “[t]he mere
presence of a disputed issue that is a question of first impression, standing alone, is insufficient to
demonstrate a substantial ground for difference of opinion.” Am. Fid. Assur. Co. v. Bank of New
York Mellon, No. CIV-11-1284-D, 2014 WL 8187951, at *4 (W.D. Okla. Dec. 12, 2014); 19
James Wm. Moore et al. Moore Federal Practice § 203.31[4] (2015). Defendant has not identified
any split in authority regarding the application of the TVPA in these circumstances, or any cases
conflicting with my application of that statute. See Couch v. Telescope Inc., 611 F.3d 629, 633-34
(9th Cir. 2010). Accordingly, Defendant’s motion for an interlocutory appeal with respect to
Plaintiffs’ TVPA claim is denied.

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Defendant next seeks an interlocutory appeal of the Court’s denial of Defendant’s motion
to dismiss Plaintiff’s unjust enrichment claim on the grounds that Plaintiffs had no “reasonable
expectation” of compensation as required to state an unjust enrichment claim. Doc. 38 at 11-13.
Defendant did not raise this issue in its original motion to dismiss, but instead raised it for the first
time in its motion for reconsideration. Doc. 38 at 11 n.1.
I am at a loss to understand Defendant’s suggestion that they did not raise their argument
regarding reasonable expectations until after the Court had ruled on Defendant’s motion to dismiss
because “Plaintiffs did not plead the ‘fair market value’ theory addressed in the Court’s order.”
Doc. 38 at n.1. My comments regarding “fair market value” were made in the context of
addressing whether Plaintiffs’ CMWO and unjust enrichment claims sought the same remedy and
were therefore duplicative, and did not purport to address the elements of unjust enrichment. Put
simply, if Defendant believes that Plaintiffs have failed to plead all of the elements of unjust
enrichment because they have not alleged that Plaintiffs had any reasonable expectation of
compensation for their services, Defendant should have raised that argument in its motion to
dismiss. As Defendant acknowledges, Doc. 38 at 11 n.1, it remains free to properly raise this issue
through an appropriate motion in the future, but unless and until it does so there are certainly no
grounds for reconsideration or for an interlocutory appeal.
Finally, Defendant seeks to appeal the Court’s rejection of Defendant’s government
contractor defense. Doc. 38 at 14-16. Defendant does not identify any grounds for a “substantial
difference of opinion,” other than their disagreement with the Court’s ruling and a rehashing of
their now twice rejected arguments regarding the operative contract. Id.; see Couch, 611 F.3d at
633 (“[A] party's strong disagreement with the Court's ruling is not sufficient for there to be a
‘substantial ground for difference.’”). Accordingly, Defendant is not entitled to an interlocutory
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appeal with respect to its assertion of the government contractor defense. In conclusion,
Defendant’s Motion for an Interlocutory Appeal (Doc. 38) is DENIED and Defendant’s request
for a stay pending appeal is DENIED AS MOOT.

Dated: March 17, 2016

s/ John L. Kane
Senior U.S. District Judge

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