Brown v. Citicorp Credit Services, Inc. (USA)

Filing 52

MEMORANDUM DECISION AND ORDER granting in part and reserving in part 48 Motion for Reconsideration. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LISA BROWN,

Case No. 1:12-cv-00062-BLW
Plaintiff,

v.

MEMORANDUM DECISION AND
ORDER

CITICORP CREDIT SERVICES, INC.,
Defendant.

INTRODUCTION
The Court has before it a motion for reconsideration or for an indicative ruling
pursuant to Rule 62.1. The motion is fully briefed and at issue. For the reasons
explained below, the Court will grant the motion in part.
ANALYSIS
Plaintiff Brown claims that she was forced to work off-the-clock in violation of
the Fair Labor Standards Act. In an earlier decision – filed February 21, 2013 – this
Court denied defendant Citicorp’s motion to compel individual arbitration of Brown’s
claims. See Memorandum Decision (Dkt. No. 27). In that decision, the Court relied
heavily on the NLRB’s decision in D.R. Horton, 2012 WL 36274 (Jan. 3, 2012).
Citicorp appealed this Court’s decision to the Ninth Circuit. While the appeal was
being briefed, the Circuit issued a decision that appears to cast doubt on the Court’s
opinion. Under Rule 62.1, an appellant may file a motion to reconsider with the District
Memorandum Decision & Order – page 1

Court, and although the District Court has no jurisdiction to grant the motion, it has the
option to notify the Circuit that “the motion raises a substantial issue.” Under Federal
Rule of Appellate Procedure 12.1(b), the Circuit may remand a case if “the district court
states that the motion [to reconsider] raises a substantial issue . . . .”
Pursuant to those Rules, Citicorp filed a motion to reconsider in this Court.
Citicorp urges the Court to at least indicate that the motion raises a substantial issue given
the ruling in Richards v. Ernst & Young, 744 F.3d 1072 (9th Cir. 2013), casting doubt on
the D.R. Horton case relied on by this Court.
Richards was issued some months after the Court filed its opinion. In Richards,
the Circuit expressly declined to evaluate D.R. Horton because the appellant had failed to
properly raise the issue on appeal. Id. at 1075. But in dicta, contained in a footnote, the
Circuit signaled that the Court’s opinion was wrongly decided. The Circuit began by
noting that “the two courts of appeals, and the overwhelming majority of the district
courts to have considered the issue have determined that they should not defer to the
NLRB’s decision in D.R. Horton on the ground that it conflicts with the explicit
pronouncements of the Supreme Court concerning the policies undergirding the Federal
Arbitration Act (“FAA”).” Id. at n. 3. The Circuit went on to cite this Court’s opinion
and to comment that it “fail[ed] to consider countervailing policies or deference with
respect to the FAA [Federal Arbitration Act].” Id.
In addition, the Fifth Circuit has recently reversed D.R. Horton and rejected its
analysis. See D.R. Horton v. N.L.R.B., 737 F.3d 344 (5th Cir. 2013). Given these
circumstances, the Court is compelled to find that Citicorp’s motion at least raises a
Memorandum Decision & Order – page 2

substantial issue that would warrant further proceedings before this Court. Accordingly,
the Court will grant that part of the motion that seeks an indicative ruling under Rule 62.1
and Fed.R.App.P. 12.1(b).
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to reconsider or
for indicative ruling (docket no. 48) is GRANTED IN PART AND RESERVED IN
PART. It is granted to the extent that it seeks an indicative ruling under Rule 62.1 and
Fed.R.App.P. 12.1(b) that Citicorp’s motion to reconsider raises a substantial issue that
would warrant further proceedings in this Court. It is reserved in all other respects.

DATED: May 6, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 3