Calderone et al v. Scott
Filing
89
OPINION AND ORDER denying 86 Plaintiffs' Motion to Stay district court proceedings. Signed by Judge John E. Steele on 5/5/2016. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN
CALDERONE,
an
individual, GEORGE SCHWING,
an
individual,
MICHAEL
ZALESKI, an individual, and
SELENA LEE, an individual,
Plaintiffs,
v.
Case No: 2:14-cv-519-FtM-29CM
MICHAEL SCOTT, as the duly
elected
Sheriff
of
Lee
County, Florida,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Plaintiffs' Motion to
Stay and
Incorporated
February 29, 2016.
#87)
on
March
14,
Memorandum
of
Law
(Doc.
#86)
filed
on
Defendant filed a Response in Opposition (Doc.
2016.
For
the
reasons
set
forth
below,
Plaintiffs’ Motion is denied.
I.
Plaintiffs, former employees of the Lee County Sheriff’s
Office, filed an Amended Collective & Class Action Complaint (Doc.
#11), on their own behalf and on behalf of others similarlysituated,
against
Michael
Scott
(Defendant)
capacity as Sheriff of Lee County, Florida.
in
his
official
Plaintiffs contend
they were not compensated for the off-the-clock work they were
required to perform while employed, in violation of the Fair Labor
Standards Act (FLSA) and the Florida Minimum Wage Act (FMWA).
They also claim they did not receive proper FLSA overtime pay.
On June 5, 2015, Plaintiffs filed a Motion to Certify Class
(Doc. #43) seeking to conditionally certify the case as an FLSA
collective action under 29 U.S.C. § 216(b), to equitably toll the
statute of limitations, and to declare a Rule 23(b)(3) class action
on the FMWA claims.
On July 16, 2015, the Court issued an Opinion
and Order (Doc. #54) granting Plaintiffs’ request to conditionally
certify a collective action on the FLSA claims but denying the
requests for equitable tolling and declaration of an FMWA class
action.
As to the latter denial, the Court concluded that because
La Chapelle v. Owens-Illinois, Inc. held that FLSA “opt-in” actions
and
Rule
23
“opt-out”
actions
are
“mutually
exclusive
and
irreconcilable,” 513 F.2d 286, 289 (5th Cir. 1975), an FMWA class
action may not proceed simultaneously with an FLSA collective
action.
(Doc. #54, p. 12.)
The Court acknowledged, however, that
“[t]he Eleventh Circuit has yet to squarely address the issue, and
courts
within
Chapelle”.
this
District
have
not
uniformly
Petition
for
Permission
followed
La
(Id. pp. 14-15.)
Plaintiffs
filed
a
to
Appeal
(Petition) (Doc. #69-1) the denial of certification of the FMWA
class action under Federal Rule of Civil Procedure 23(f).
On
September 21, 2015, the Eleventh Circuit granted the Petition.
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(Doc. #69.)
2016.
Oral argument is scheduled for the week of June 6,
(Doc. #88-1.)
Plaintiffs proceeded with the FLSA certification process, and
sixty-four additional plaintiffs have opted in.
(Doc. #87, ¶ 7.)
Discovery has been limited to Defendant’s Requests for Admissions
and Interrogatories and Plaintiffs’ responses thereto.
p. 2.)
(Doc. #86,
The discovery cut-off date is November 1, 2016, and trial
is set for the March 2017 term.
(Doc. #41.)
Plaintiffs now move to stay all proceedings in this case
pending the outcome of their appeal, arguing a stay will: (i)
“allow the Eleventh Circuit to decide a case of first impression”;
(ii)
“protect
the
putative
Rule
23
class”; 1 (iii)
“conserve
judicial resources” and those of the parties; and (iv) “allow the
Eleventh Circuit to determine the form and scope of the class and
any thus future class notice.”
(Doc. #86, p. 6.)
Defendant
objects to a stay of these proceedings, arguing that Plaintiffs
have not adequately demonstrated a stay is warranted.
p. 5.)
(Doc. #87,
He also claims that granting a stay at this late juncture
would be unfair, since he “has been actively litigating the case
in compliance with the deadlines.”
1
(Id. p. 8.)
This argument is based on Plaintiffs’ incorrect belief that the
statute of limitations for the putative class members’ claims is
currently tolled.
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II.
It has long been observed that:
the power to stay proceedings is incidental to
the power inherent in every court to control
the disposition of the causes on its docket
with economy of time and effort for itself,
for counsel, and for litigants. How this can
best be done calls for the exercise of
judgment, which must weigh competing interests
and maintain an even balance.
Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (citations
omitted).
In determining whether a stay pending interlocutory
appeal is appropriate, this Court asks whether the movant has
carried its burden of clearly establishing the following:
(i) that the movant is likely to prevail on
the merits of its appeal, (ii) that the movant
will suffer irreparable injury if a stay . .
. is not granted, (iii) that other parties
will suffer no substantial harm if a stay . .
. is granted, and (iv) in circumstances where
the public interest is implicated, that the
issuance of a stay . . . will serve, rather
than disserve, such public interest. 2
In re Basil St. Partners, LLC, No. 2:12-MC-6-FTM-29, 2012 WL
749415, at *1 (M.D. Fla. Mar. 7, 2012) (citation omitted).
The
Supreme Court has cautioned that, because “the traditional stay
factors contemplate individualized judgments in each case, the
formula cannot be reduced to a set of rigid rules.”
2
Hilton v.
Although the Eleventh Circuit has not articulated the proper
standard for resolving a motion to stay pending appeal of a Rule
23(f) certification decision, it has applied a similar four-factor
test to determine whether a stay is appropriate in other contexts.
Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986).
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Braunskill, 481 U.S. 770, 777 (1987).
The weight afforded each
factor thus depends on the facts and circumstances of the case.
III.
A.
Likelihood of Plaintiffs’ Success on the Merits
Not
surprisingly,
the
parties
likelihood of success on appeal.
disagree
on
Plaintiffs’
Because the Eleventh Circuit
typically “use[s] restraint in accepting Rule 23(f) petitions,”
Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1277 (11th
Cir. 2000), the grant of Plaintiffs’ Rule 23(f) Petition suggests
that
the
Circuit
Court
believes
important, “unsettled legal issue.”
the
appeal
will
resolve
an
Id. at 1275.
In the last ten years, at least five circuit courts of appeals
have rejected the contention that FLSA collective actions and Rule
23 class actions are inherently incompatible. 3
This Court thus
agrees with Plaintiffs that the Eleventh Circuit may very well
“follow its sister circuits in permitting state law wage claims to
proceed under Rule 23, together with FLSA claims under the opt-in
procedure
of
the
FLSA.”
(Doc.
#86,
p.
2.)
Accordingly,
Plaintiffs have established they are likely to succeed with their
3
“The concept of inherent incompatibility has not fared well at
the appellate level.” Knepper v. Rite Aid Corp., 675 F.3d 249,
258 (3d Cir. 2012) (citing Shahriar v. Smith & Wollensky Rest.
Grp., Inc., 659 F.3d 234, 247–49 (2d Cir. 2011); Ervin v. OS Rest.
Servs., Inc., 632 F.3d 971, 976–79 (7th Cir. 2011); Wang v. Chinese
Daily News, Inc., 623 F.3d 743, 760 (9th Cir. 2010), vacated on
other grounds, 132 S. Ct. 74 (2011); Lindsay v. Gov't Emps. Ins.
Co., 448 F.3d 416, 424 (D.C. Cir. 2006)).
- 5 -
appeal - although they may need to wait until the Eleventh Circuit
sits en banc for a decision. 4
B.
Plaintiffs’ Allegations of Irreparable Harm Absent a Stay
Even
though
Plaintiffs
have
established
a
likelihood
of
success on appeal, the Court finds a stay inappropriate at this
juncture.
Plaintiffs
demonstrating
they
will
have
not
incur
any
carried
their
significant
–
burden
let
of
alone
irreparable - harm if this case proceeds while the appeal is
pending.
Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd.,
262 F.3d 134, 140 (2d Cir. 2001) (holding that stay pending appeal
of a Rule 23(f) certification decision is unwarranted “unless the
likelihood of error on the part of the district court tips the
balance of hardships in favor of the party seeking the stay”).
Plaintiffs’ first argument is that, absent a stay, they may
suffer administrative and financial burdens, since a favorable
opinion on appeal would supposedly result in the dissemination of
new notice, potentially require different discovery, and raise new
claims administration issues.
Each of these allegations of harm
is premised on the premature conclusion that Plaintiffs will be
able to proceed with a FMWA class action.
However, the appeal
will likely resolve only whether Plaintiffs’ FMWA class action may
4
To the extent the Eleventh Circuit needs to overrule La Chapelle
to hold that both an FMWA class action and an FLSA collective
action can be certified in the same case, such opinion must be
rendered “by the court sitting en banc.”
Bonner v. City of
Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981).
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be certified alongside the FLSA collective action, not whether it
will be. 5
Accordingly, the harms Plaintiffs advance are only
hypothetical and thus insufficient to establish a likelihood of
irreparable injury.
Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 22 (2008) (“Issuing a preliminary injunction based only on
a
possibility
of
irreparable
harm
is
inconsistent
with
our
characterization of injunctive relief as an extraordinary remedy
that may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.”).
Even assuming Plaintiffs ultimately succeed in having their
FMWA class action certified, the Court fails to see what harm
Plaintiffs will suffer merely because they may have to provide
“new notice” in the future.
Nor is it clear how that “harm” can
be
stay
avoided
by
granting
a
of
these
proceedings,
since
Plaintiffs have already provided notice to the potential FLSA class
members.
Plaintiffs’ argument that a stay is warranted because a classaction
certification
discovery
is
may
similarly
enlarge
the
unavailing.
parameters
“‘Mere
and
injuries,
cost
of
however
substantial, in terms o[f] money, time and energy necessarily
expended in the absence of a stay, are not enough’” to establish
5
Defendant’s Response opposing certification (Doc. #47) raised
several arguments as to why Rule 23 certification is not warranted,
none of which this Court has yet addressed.
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“any injury at all, much less irreparable injury.” 6
Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1112 n.20 (11th Cir. 2004)
(quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)).
in
fact presumes
that
“discovery
(at
the
very
Rule 23(f)
least,
merits
discovery) will continue notwithstanding the pendency of an appeal
of the class certification order.”
1273
n.8.
That
presumption
is
Prado-Steiman, 221 F.3d at
rightly
heeded
here,
since
Plaintiffs have other “live” claims upon which individualized
merits discovery is presumably needed, 7 including the same one –
FMWA violations – underlying the class action.
Merits discovery
on those claims should yield most, if not all, of the substantive
information needed for the FMWA class action claim.
discovery is thus unwarranted.
A stay of
See Beattie v. CenturyTel, Inc.,
No. 02-10277-BC, 2006 WL 1722207, at *8 (E.D. Mich. June 20, 2006).
Plaintiffs also contend that a stay is needed to avoid harm
to the putative class plaintiffs, who may find their claims time-
6
Plaintiffs cite to In re Lorazepam & Clorazepate Antitrust
Litig., 208 F.R.D. 1 (D.D.C. 2002), in support of their argument
that discovery burdens justify a stay pending appeal of a class
certification decision.
This argument is unavailing since, in
that case, reversal by the Circuit Court would have ended the
entire case and thus rendered useless any discovery the parties
had obtained. 208 F.R.D. at 5.
7
Individualized discovery of all opt-in plaintiffs in a collective
FLSA action is often deemed appropriate and not unduly burdensome.
Schumann v. Collier Anesthesia, P.A., No. 2:12-CV-347-FTM-29CM,
2014 WL 1285910, at *3 (M.D. Fla. Mar. 28, 2014); Coldiron v. Pizza
Hut, Inc., No. CV03-05865TJHMCX, 2004 WL 2601180, at *2 (C.D. Cal.
Oct. 25, 2004) (permitting individualized discovery of 306 opt-in
plaintiffs).
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barred if this Court adjudicates and dismisses Plaintiffs’ claims
before a favorable decision on the appeal is rendered.
Not only
do Plaintiffs lack standing to rest their own right to relief on
this hypothetical allegation of harm to putative class members, In
re Checking Account Overdraft Litig., 780 F.3d 1031 (11th Cir.
2015), 8 the
argument
is
illogical.
If
this
Court
dismisses
Plaintiffs’ lawsuit, including the individual FMWA claims, prior
to the Circuit Court’s decision – itself a doubtful proposition,
given the absence of discovery and pending dispositive motions the statute
of
limitations
will
not
be
the
putative
problem, the non-viability of their claims will be.
class’s
Moreover, as
Defendant correctly points out, the statute of limitations has
been running on those claims since this Court’s July 16, 2015 Order
denying Plaintiffs’ request to declare a class action.
Armstrong
v. Martin Marietta Corp., 138 F.3d 1374, 1391 (11th Cir. 1998).
In sum, although the Court believes Plaintiffs are likely to
succeed
with
the
merits
of
the
interlocutory
appeal,
their
hypothetical claims of irreparable injury are not well-taken and
8
Admittedly, whether the putative plaintiffs’ FMWA claims are
time-barred is likely relevant to the viability of Plaintiffs’
class action.
Relevance, however, does equal a “stake” in the
resolution of the issue sufficient to confer standing. Indeed,
the Eleventh Circuit recently rejected a pre-certification attempt
by the named plaintiffs to adjudicate – for their own benefit –
the rights of future plaintiffs. Checking Account, 780 F.3d at
1038.
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preclude a stay in this case. 9
Sumitomo, 262 F.3d at 140.
Rule
23(f) is not meant to be used “as a vehicle to delay proceedings
in the district court.”
Id.
Yet that seems to be precisely what
Plaintiffs are attempting to do here.
This case has been pending
since September 4, 2014, yet almost no discovery has taken place.
Plaintiffs have presented no persuasive reason for this Court to
sanction further delay.
Accordingly, it is hereby
ORDERED:
Plaintiffs' Motion to Stay (Doc. #86) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 5th day of May,
2016.
Copies:
Counsel of Record
9
The Court notes that this wage case does not implicate the public
interest beyond the general interest in a speedy and cost-effective
resolution of legal disputes. Accordingly, the fourth stay factor
does not weigh in favor of or against granting a stay. Compare
Rosen v. J.M. Auto Inc., No. 07-61234-CIV, 2009 WL 7113827, at *2
(S.D. Fla. May 20, 2009) (refusing to stay issuance of class notice
pending appeal of certification where “the safety issues raised by
th[e] case,” which involved an alleged airbag defect, “ma[d]e
granting a stay of the class notice against the public interest”).
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