Equal Employment Opportunity Commission v. Global Horizons, Inc. et al
ORDER DENYING DEFENDANT'S MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(B) AND DEFENDANT'S MOTION FOR STAY OF PROCEEDINGS PENDING INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(B) re 686 ; re 687 . Signed by JUDGE LESLIE E. KOBAYASHI on 06/30/2014. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GLOBAL HORIZONS, INC., DBA
GLOBAL HORIZONS MANPOWER,
INC.; CAPTAIN COOK COFFEE
COMPANY LTD.; DEL MONTE FRESH )
PRODUCE (HAWAII), INC.; KAUAI )
COFFEE COMPANY, INC.; KELENA )
FARMS, INC.,; MAC FARMS OF
HAWAII, LLC NKA MF NUT CO.,
LLC; MAUI PINEAPPLE COMPANY, )
LTD. AKA MAUI PINEAPPLE
FARMS; ALEXANDER & BALDWIN,
INC.; MASSIMO ZANETTI
BEVERAGE USA, INC.; AND DOES )
UNITED STATES EQUAL
CIVIL 11-00257 LEK
ORDER DENYING DEFENDANT’S MOTION FOR CERTIFICATION FOR
INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(B) AND
DEFENDANT’S MOTION FOR STAY OF PROCEEDINGS PENDING
INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(B)
Before the Court are Defendant Global Horizons, Inc.
d/b/a Global Horizons Manpower Inc.’s (“Global Horizons”) Motion
for Certification for Interlocutory Appeal Pursuant to 28 U.S.C.
§ 1292(B) (“Motion”) and Motion for Stay of Proceedings Pending
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(B) (“Stay
Motion”), filed on April 3, 2014.
[Dkt. nos. 686, 687.]
Plaintiff Equal Employment Opportunity Commission (“the EEOC” or
“Plaintiff”) filed a memorandum in opposition to each motion on
May 19, 2014.
[Dkt. nos. 696, 697.]
The Court finds these
matters suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the motions, supporting and
opposing memoranda, and the relevant legal authority, Global
Horizons’s Motion is HEREBY DENIED for the reasons set forth
below, and Global Horizons’s Stay Motion is HEREBY DENIED AS
The relevant background is set forth in this Court’s
February 28, 2014 order that, inter alia, denied Global
Horizons’s November 1, 2013 Motion for Summary Judgment (“2/28/14
[Dkt. nos. 599 (motion), 682 (2/28/14 Order).1]
is scheduled for November 18, 2014.
[Amended Rule 16 Scheduling
Order, filed 1/24/14 (dkt. no. 673), at 1.]
March 19, 2014, this Court filed its order granting the EEOC’s
Motion for Partial Summary Judgment on the EEOC’s Pattern or
Practice Claim of Hostile Work Environment Against Defendant
Global Horizons, Inc., Motion for Partial Summary Judgment on the
EEOC’s Pattern or Practice Claim of Disparate Treatment Against
Global Horizons, Inc., and Motion for Partial Summary Judgment on
The 2/28/14 Order is also available at 2014 WL 800597.
the EEOC’s Pattern or Practice Claim of Retaliation Against
Global Horizons, Inc.
[Dkt. no. 685.2]
Global Horizons seeks leave to file an interlocutory
appeal from the 2/28/14 Order pursuant to 28 U.S.C. § 1292(b),
When a district judge, in making in a civil
action an order not otherwise appealable
under this section, shall be of the opinion
that such order involves a controlling
question of law as to which there is
substantial ground for difference of opinion
and that an immediate appeal from the order
may materially advance the ultimate
termination of the litigation, he shall so
state in writing in such order. The Court of
Appeals which would have jurisdiction of an
appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from
such order, if application is made to it
within ten days after the entry of the order:
Provided, however, That application for an
appeal hereunder shall not stay proceedings
in the district court unless the district
judge or the Court of Appeals or a judge
thereof shall so order.
(Emphasis in original.)
This district court has described the standard
applicable to § 1292(b) as follows:
A movant seeking an interlocutory appeal has
a heavy burden to show that “exceptional
circumstances justify a departure from the basic
policy of postponing appellate review until after
the entry of a final judgment.” Coopers & Lybrand
The order filed on March 19, 2014 is also available at
2014 WL 118009.
v. Livesay, 437 U.S. 463, 475 (1978); see also
James v. Price Stern Sloan, Inc., 283 F.3d 1064,
1067 n.6 (9th Cir. 2002) (“Section 1292(b) is a
departure from the normal rule that only final
judgments are appealable, and therefore must be
construed narrowly.”); Pac. Union Conference of
Seventh–Day Adventists v. Marshall, 434 U.S. 1305,
1309 (1977) (“The policy against piecemeal
interlocutory review other than as provided for by
statutorily authorized appeals is a strong one.”
(citations omitted)). Indeed, § 1292(b) is used
“only in exceptional situations in which allowing
an interlocutory appeal would avoid protracted and
expensive litigation.” In re Cement Antitrust
Litig., 673 F.2d 1020, 1026 (9th Cir. 1982)
(citing U.S. Rubber Co. v. Wright, 359 F.2d 784,
785 (9th Cir. 1966) (per curiam)). . . .
Leite v. Crane Co., Civil No. 11–00636 JMS/RLP, 2012 WL 1982535,
at *2 (D. Hawai`i May 31, 2012).
“A court has substantial
discretion whether to grant a party’s motion for certification.”
Pitts v. Sequeira, Civil No. 11-00281 LEK/RLP, 2014 WL 346523, at
*2 (D. Hawai`i Jan. 29, 2014) (citing Adobe Sys., Inc. v. Hoops
Enter., 2012 WL 1710951, *1 (N.D. Cal. 2012)).
Controlling Question of Law
As to the requirement that a proposed interlocutory
appeal raise a controlling question of law, the district court in
As to whether an issue is “controlling,” “all
that must be shown in order . . . is that
resolution of the issue on appeal could materially
affect the outcome of litigation in the district
court.” In re Cement, 673 F.2d at 1026 (citing
U.S. Rubber Co., 359 F.2d at 785). Questions of
law appropriate for interlocutory appeal include
“the determination of who are necessary and proper
parties, whether a court to which a cause has been
transferred has jurisdiction, or whether state or
federal law should be applied.” Id.
As to whether an interlocutory appeal raises
a “question of law,” the Ninth Circuit has not
precisely defined this term, but “several other
courts have concluded a ‘question of law’ under
§ 1292(b) means a ‘pure question of law’ rather
than a mixed question of law and fact or the
application of law to a particular set of facts.”
Chehalem Physical Therapy, Inc. v. Coventry Health
Care, Inc., 2010 WL 952273, at *3 (D. Or. Mar. 10,
2010) (collecting cases); see also McFarlin v.
Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th
Cir. 2004) (stating that “§ 1292(b) appeals were
intended, and should be reserved, for situations
in which the court of appeals can rule on a pure,
controlling question of law without having to
delve beyond the surface of the record in order to
determine the facts”); Ahrenholz v. Bd. of Trs. of
Univ. of Ill., 219 F.3d 674, 677 (7th Cir. 2000)
(“The idea [behind § 1292] was that if a case
turned on a pure question of law, something the
court of appeals could decide quickly and cleanly
without having to study the record, the court
should be enabled to do so without having to wait
till the end of the case.”); Keystone Tobacco Co.
v. U.S. Tobacco Co., 217 F.R.D. 235, 239 (D.D.C.
2003) (When “the crux of an issue decided by the
court is fact-dependent, the court has not decided
a ‘controlling question of law’ justifying
2012 WL 1982535, at *5 (alterations in Leite).
Global Horizons’s proposed interlocutory appeal will
challenge this Court’s ruling that the EEOC’s claims are not
barred by laches.
Global Horizons argues that a controlling
question of law exists because the issue of whether laches
applies to this suit by the EEOC does not require resolution of
It claims that, because the EEOC unreasonably
delayed bringing this action, Global Horizons lacks the
resources, personnel, witnesses, and documentation to defend
The EEOC responds by asserting that Global Horizons’s
proposed question of law for interlocutory appeal is fatally
flawed because this Court has already ruled that Global Horizons
was not prejudiced by the passage of time alone and that the EEOC
did not engage in unreasonable delay.
The EEOC contends that
Global Horizons’s “repeated and failed motions,” in which it
asserts a laches defense, rely on the irrelevant fact that Global
Horizons is a defunct corporation, rather than the efforts Global
Horizons took to preserve records when it received notice of the
EEOC’s Charges of Discrimination in April 2006.
[Mem. in Opp. to
Motion at 5.]
This Court concludes that Global Horizons has not
proposed a controlling question of law.
The proposed issue for
interlocutory appeal is not a pure question of law.
Specifically, Global Horizons is seeking to challenge whether the
EEOC’s claims are barred by laches due to the EEOC’s alleged
“tardiness in filing,” which, according to Global Horizons,
resulted in its lack of “resources, personnel, witnesses and
[Motion at 3.]
Both the question of whether
there was unreasonable delay and the question of whether Global
Horizons was prejudiced involve questions of fact.
In addition, the Court notes that United States
District Judge David Alan Ezra also declined to find the EEOC’s
claims barred by laches.3
In an order filed on November 8, 2012
(“11/8/12 Order”), Judge Ezra determined that, although five
years lapsed between the date the EEOC filed a charge against
Global Horizons and the date the EEOC instituted this suit,
“[t]he passage of five years does not by itself establish
904 F. Supp. 2d 1074, 1095 (D. Hawai`i
2012) (citations omitted).
Global Horizons seeks leave to file
an interlocutory appeal challenging the rejection of its laches
defense; it could have filed such an appeal after the 11/8/12
Instead, Global Horizons waited until April 3, 2014 to
file its Motion.
This Court therefore finds that Global Horizons’s
proposed interlocutory appeal does not present a controlling
question of law.
Substantial Ground for a Difference of Opinion
As to the second requirement that there be substantial
ground for a difference of opinion regarding the controlling
question of law, the Ninth Circuit has stated:
To determine if a “substantial ground for
difference of opinion” exists under § 1292(b),
courts must examine to what extent the controlling
law is unclear. Courts traditionally will find
The case was reassigned to this Court on November 15,
[Dkt. no. 418.]
that a substantial ground for difference of
opinion exists where “the circuits are in dispute
on the question and the court of appeals of the
circuit has not spoken on the point, if
complicated questions arise under foreign law, or
if novel and difficult questions of first
impression are presented.” 3 Federal Procedure,
Lawyers Edition § 3:212 (2010) (footnotes
omitted). However, “just because a court is the
first to rule on a particular question or just
because counsel contends that one precedent rather
than another is controlling does not mean there is
such a substantial difference of opinion as will
support an interlocutory appeal.” Id. (footnotes
Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010).
A substantial ground for difference of opinion
exists where reasonable jurists might disagree on
an issue’s resolution, not merely where they have
already disagreed. Stated another way, when novel
legal issues are presented, on which fair-minded
jurists might reach contradictory conclusions, a
novel issue may be certified for interlocutory
appeal without first awaiting development of
Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th
Cir. 2011) (footnote omitted).
“A party’s strong disagreement
with the Court’s ruling is not sufficient for there to be a
‘substantial ground for difference’; the proponent of an appeal
must make some greater showing.”
Kowalski v. Anova Food, LLC,
958 F. Supp. 2d 1147, 1154 (D. Hawai`i 2013) (citation omitted).
Global Horizons argues that a substantial ground for
difference of opinion exists because, even though “[t]he EEOC is
not subject to any statute of limitations restriction on its
ability ‘to file suit in a federal court,’” there have been cases
in which the Ninth Circuit has dismissed an action filed by the
EEOC due to an inexcusable or unreasonable delay.
[Motion at 4
(citing EEOC v. Alioto Fish Co., Ltd., 623 F.2d 86, 88 (9th Cir.
1980) (dismissing an action filed 20 months after conciliation
efforts ended and 62 months after the employee first filed a
charge against the company) (citing with approval EEOC v. Liberty
Loan Corp., 584 F.2d 853, 857-58 (8th Cir. 1978) (dismissal after
52 months under the court’s equitable powers)); Boone v. Mech.
Specialties Co., 609 F.2d 956, 957, 959 (9th Cir. 1979) (finding
unreasonable delay where a Title VII action was brought 79 months
after the original charge had been filed)).]
As this Court has previously recognized, however, the
great weight of controlling legal authority does not support a
presumption of unreasonable delay or substantial prejudice based
alone on the passage of time.
See, e.g., Bratton v. Bethlehem
Steel Corp., 649 F.2d 658, 667 n.8 (9th Cir. 1980) (“Whatever may
be an appropriate use of presumptions in laches cases not
involving Title VII, we believe that prejudice should not lightly
be presumed from delay in Title VII cases.”); Liberty Loan Corp.,
584 F.2d at 857 (“We are unwilling to rule that any set length of
delay is per se unreasonable, but rather look to the facts of
each case to determine reasonableness.”); U.S. EEOC v. Lakemont
Homes Inc., 718 F. Supp. 2d 1251, 1256 (D. Nev. 2010) (“In an
EEOC enforcement action, the absence of inflexible time
limitations does not generally ‘subject [defendants] to the
surprise and prejudice that can result from the prosecution of
stale claims.’” (alteration in Lakemont Homes) (quoting
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 372, 97 S. Ct.
2447 (1977)); EEOC v. Peterson, Howell & Heather, Inc., 702 F.
Supp. 1213, 1222 (D. Md. 1989) (“This Court, consistent with
other courts, refuses to find any specific period of delay by the
EEOC unreasonable per se.” (citing Liberty Loan Corp., 584 F.2d
at 857; EEOC v. Martin Processing, Inc., 533 F. Supp. 227, 229
(W.D. Va. 1982))).
In fact, the EEOC argues and this Court
agrees, many courts have held that the EEOC did not engage in
unreasonable delay, even though it filed suit more than five
years after the filing of the charge.
See, e.g., EEOC v. Great
Atl. & Pac. Tea Co., 735 F.2d 69, 81-84 (3d Cir. 1984)
(approximately seven years); EEOC v. Jacksonville Shipyards,
Inc., 690 F. Supp. 995, 999-1000 (M.D. Fla. 1988) (nearly six
years and ten months); EEOC v. N. Cent. Airlines, 475 F. Supp.
667, 671 (D. Minn. 1979) (approximately six years).
The EEOC also points out that this Court has now held
on two separate occasions that the passage of five years from the
filing of the charge to the filing of the civil action does not
by itself establish delay as a matter of law.
It further argues
that Global Horizons’s reliance on Alioto Fish Co. and Boone for
presumptions of unreasonable delay and substantial prejudice
based alone on the passage of time is “grossly misplaced” because
the burden of proof remains on Global Horizons to establish both
elements of the laches defense: inexcusable or unreasonable delay
and prejudice caused by such delay.
[Mem. in Opp. to Motion at
This Court agrees.
In Alioto Fish Co., unlike the instant case, the EEOC
offered its backlog of cases as the reason for its delay in
filing suit, which the Ninth Circuit rejected: “[t]he agency’s
workload has been rejected as an excuse for unreasonable delay.”
623 F.2d at 88 (citing EEOC v. Liberty Loan Corp., 584 F.2d at
Moreover, in Boone, unlike here, the plaintiff, Boone,
was aware that he could receive a right-to-sue letter from the
EEOC and bring a civil action at an earlier time, but he chose
not to do so.
Boone rejected all of the EEOC’s offers of right-
When Boone finally brought his civil action,
many of the defendant’s employees who may have had information
relating to Boone’s discharge were no longer available.
The Ninth Circuit held that, in the absence of any
factual issues, “the district court correctly found that Boone’s
delay in bringing suit was unreasonable.”
Id. at 959.
held that the district court did not err in finding prejudice
because the administrative charge Boone filed “had been lying
dormant for several years,” and the defendant was under no “type
of affirmative duty to avoid or mitigate the prejudice which
occurred with the passage of time.”
Id. at 959-60.
In the instant case, as the party raising the laches
defense, Global Horizons bears the burden of proving both
elements, and this Court has already found that Global Horizons
has “failed to establish either of the required elements of the
2/28/14 Order, 2014 WL 800597, at *7.
This Court therefore finds that there is no substantial
ground for a difference of opinion regarding the question of law
that Global Horizons seeks to raise in the interlocutory appeal.
Materially Advance the Termination of the Litigation
As to the third requirement that a proposed
interlocutory appeal will materially advance the ultimate
termination of the litigation, the district court in Leite
The requirement that an interlocutory appeal
materially advance the ultimate termination of the
litigation is directed to the very purpose of
§ 1292(b) — to “facilitate disposition of the
action by getting a final decision on a
controlling legal issue sooner, rather than later
[in order to] save the courts and the litigants
unnecessary trouble and expense.” United States
v. Adam Bros. Farming, Inc., 369 F. Supp. 2d 1180,
1182 (C.D. Cal. 2004); see also In re Cement
Antitrust Litig., 673 F.2d at 1026 (stating that
§ 1292(b) is used “only in exceptional situations
in which allowing an interlocutory appeal would
avoid protracted and expensive litigation”).
And most critical here, an interlocutory
appeal is appropriate where resolution of the
issue would materially advance the termination of
not only the present case, but also other cases
pending before the court. See Klinghoffer v.
S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir.
1990) (“[T]he impact that an appeal will have on
other cases is a factor that we may take into
account in deciding whether to accept an appeal
that has been properly certified by the district
2012 WL 1982535, at *6-7 (alterations in Leite) (some citations
Global Horizons argues that certification of an
interlocutory appeal would materially advance the ultimate
termination of the litigation because an appeal would clarify the
proper legal standard for the proposed question, avoid
expenditure of judicial resources and parties’ expenses, and aid
in achieving procedural economy.
This Court disagrees.
It is beyond dispute that Global Horizons’s proposed
interlocutory appeal will not facilitate the timely disposition
of this action.
As the EEOC points out in its Opposition, trial
is set for November 18, 2014, and Global Horizons is still an
essential party-defendant, particularly with respect to the
EEOC’s remaining claims for monetary damages and injunctive and
If the Court were to grant Global Horizons’s
Motion at this juncture of the litigation, it would delay, rather
than materially advance, the ultimate termination of this action.
Having found that Global Horizons has not established
any of the requirements for an interlocutory appeal, this Court
FINDS that Global Horizons should not be allowed to file the
proposed interlocutory appeal in the instant case.
Because the Court DENIES Global Horizons’s Motion, the
Court further DENIES Global Horizons’s Stay Motion as moot.
On the basis of the foregoing, Global Horizons’s Motion
for Certification for Interlocutory Appeal Pursuant to 28 U.S.C.
§ 1292(B), filed April 3, 2014, is HEREBY DENIED, and Global
Horizons’s Motion for Stay of Proceedings Pending Interlocutory
Appeal Pursuant to 28 U.S.C. § 1292(B), also filed April 3, 2014,
is HEREBY DENIED AS MOOT.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 30, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
EEOC VS. GLOBAL HORIZONS, INC., ET AL; CIVIL 11-00257 LEK-RLP;
ORDER DENYING DEFENDANT’S MOTION FOR CERTIFICATION FOR
INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(B) AND
DEFENDANT’S MOTION FOR STAY OF PROCEEDINGS PENDING INTERLOCUTORY
APPEAL PURSUANT TO 28 U.S.C. § 1292(B)
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