Marshall et al v. Amsted Industries Inc et al
Filing
195
ORDER denying 185 Defendant's Motion for Certification of Interlocutory Appeal: For the reasons thoroughly explained in the attached Order, the Court DENIES Amsted's motion to certify an interlocutory appeal of the undersigned Judge' s summary judgment ruling and stay this case awaiting the resolution of that appeal (Doc. 185). However, the Court STAYS these proceedings at this time, awaiting the disposition of the Sandifer appeal already at the Court of Appeals for the Seventh Circuit. The decision to impose this stay may be reevaluated depending on the progress/status of the Sandifer appeal. Defense counsel SHALL FILE a written status report on the Sandifer appeal on the dates listed in the attached Order. Signed by Judge Michael J. Reagan on 11/11/11. (soh )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHESTER MARSHALL and
RICHARD WHITBY, individually
and on behalf of a class of others
similarly situated,
Plaintiffs,
vs.
AMSTED RAIL COMPANY, INC.,
Defendant.
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Case No. 10-cv-0011-MJR-SCW
MEMORANDUM AND ORDER
REAGAN, District Judge:
This Fair Labor Standards Act collective action is brought by 488 hourly
workers at a Granite City, Illinois plant (Plaintiffs) who allege entitlement to unpaid
wages and overtime compensation from their employer (Amsted). Amsted pays hourly
employees based on their scheduled shift times, rather than their actual hours worked.
Plaintiffs allege that during the time period relevant to this lawsuit, Amsted required
them to work before and after their paid shifts without compensation. The pre-shift work
included donning protective gear, obtaining tools, supplies and tool repairs, testing
equipment, and organizing their work areas. The post-shift work included shutting down
machinery, storing tools, cleaning work areas for the following day or shift, shoveling
sand, blowing debris off themselves, and doffing protective gear.
Plaintiffs maintain that these tasks were integral and indispensable to the
performance of their assigned duties, meriting compensation. Plaintiffs seek to recover
compensatory damages (the unpaid wages and overtime compensation), plus liquidated
pg. 1
damages, attorney’s fees and costs under § 16(b) of the FLSA, and pre-judgment and
post-judgment interest.
Amsted moved for partially summary judgment, focusing on the claims
relating to donning and doffing personal protective equipment (PPE).
The motion
advanced two arguments: (1) Plaintiffs’ claims for compensation based on time spent
donning and doffing PPE are barred by § 203(o) of FLSA, and (2) because the time
donning and doffing PPE falls under § 203(o), it cannot constitute a “principal activity”
under the FLSA as a matter of law.
On September 20, 2011, the undersigned Judge partially granted and
partially denied Amsted’s motion. As to the part granted, the Court concluded: “Amsted
has shown a ‘custom or practice under a bona fide collective-bargaining agreement’
applicable to these employees, triggering application of § 203(o).
Thus, § 203(o)
excludes the time spent donning and doffing the PPE from the ‘hours worked’ by
Plaintiffs” (Doc. 180, pp. 22-23). As to the part of Amsted’s motion denied, the
undersigned rejected Amsted’s argument that once an activity is deemed noncompensable under § 203(o), it as a matter of law cannot constitute a principal activity
under the FLSA which starts or ends the continuous (compensable) workday.
The September 20th Order recognized that the issue on which this Court
denied summary judgment has been certified for interlocutory appeal to the United
States Court of Appeals for the Seventh Circuit. See Sandifer v. U.S. Steel Corp.,
2009 WL 3430222 (N.D. Ind. 2009), and 2010 WL 61971 (N.D. Ind. 2010). Now before
the Court is Amsted’s motion to certify an interlocutory appeal of the undersigned
Judge’s ruling and to stay this case pending resolution thereof (Doc. 185).
pg. 2
Analysis begins with the proposition that, as a general rule, appellate
courts may only hear appeals from “final decisions” of district courts. 28 U.S.C. 1291.
Several narrow exceptions to the rule exist, however, one of which is invoked by
Defendant Amsted here -- 28 U.S.C. 1292(b).
Section 1292(b) provides:
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….
In enacting § 1292(b), Congress “chose to confer on district courts first
line discretion to allow interlocutory appeals.” Swint v. Chambers County Com’n, 514
U.S. 35, 46-47 (1995). However, Congress “carefully confined the availability of such
review,” and “even if the district judge certifies the order under § 1292(b), the appellant
still ‘has the burden of persuading the court of appeals that exceptional circumstances
justify a departure from the basic policy of postponing appellate review until after the
entry of a final judgment.’” Coopers & Lybrand v. Livesay, 437 U.S. 463, 474-75
(1978).
In Ahrenholz v. Board of Trustees of University of Illinois, 219 F.3d
674, 675-76 (7th Cir. 2000), the Court neatly summarized § 1292(b)’s requirements:
There are four statutory criteria for the grant of a section
1292(b) petition …. there must be a question of law, it must
be controlling, it must be contestable, and its resolution must
promise to speed up the litigation….
pg. 3
There is also a non-statutory requirement – that the petition for
interlocutory appeal was filed in the district court within a reasonable time after entry of
the order sought to be appealed. Ahrenholz, 219 F.3d at 676, citing Richardson
Electronics, Ltd. v. Panache Broadcasting of Pennsylvania, Inc., 202 F.3d 957, 958
(7th Cir. 2000).
The Seventh Circuit emphasized in Ahrenholz:
“Unless all these
criteria are satisfied, the district court may not and should not certify its order … under
section 1292(b).” Id. (emphasis in original).
United States Supreme Court Justice Breyer pointed out in Johnson v.
Jones, 515 U.S. 304, 309 (1995), that interlocutory appellate review can unnecessarily
delay trial proceedings while “adding costs and diminishing coherence,” but it also can
“simplify, or more appropriately direct, the future course of litigation, … thereby
reduc[ing] the burdens of future proceedings.” So, turning to the statutory and nonstatutory prerequisites for § 1292(b) certification, the undersigned Judge carefully
considers whether interlocutory appellate review is warranted in the case at bar.
Amsted’s motion was filed within a reasonable time following the
undersigned Judge’s summary judgment ruling (the source of the ruling sought to be
appealed).
The summary judgment Order was entered September 20, 2011, and
Amsted moved for interlocutory appeal certification on September 30, 2011 (Docs. 180,
185). This leaves the four statutory requirements for interlocutory review.
The first criterion is met in the case sub judice. There is an abstract or
pure question of law suitable for resolution by the court of appeals, i.e., an issue an
appeals court could decide cleanly without having to scour the district court record
hunting for material fact issues. See In re Text Messaging Antitrust Litigation, 630
pg. 4
F.3d 622, 626 (7th Cir. 2010), cert. denied, 131 S. Ct. 2165 (2011), citing Ahrenholz,
219 F.3d at 677. Nor would the appellate court have to immerse itself in the details of a
long and obscure contract. See Ahrenholzat 676-77. Specifically, the question of law
is: Under the Fair Labor Standards Act, when it has been determined that time spent
donning and doffing PPE is covered by § 203(o), can those activities still start or end the
continuous workday under § 254(a)?
Skipping ahead to the third criterion, it too has been demonstrated here.
As the September 20, 2011 Order recognized (and the parties’ summary judgment
briefs discussed in detail), this legal issue is contestable. Various federal courts (district
and appellate) have followed different paths and reached opposite conclusions as to the
interplay between § 203(o) and § 254(a).
The second criterion is a closer call, but the Court concludes that Amsted
has demonstrated that the legal question is controlling for purposes of § 1292(b)
analysis. “A question of law may be deemed ‘controlling’ if its resolution is quite likely to
affect the further course of the litigation, even if not certain to do so.”
Sokaogon
Gaming Enter. Corp. v. Tushie-Montgomery Associates, Inc., 86 F.3d 656, 659 (7th
Cir. 1996).See also Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir.
1991)(referencing decisions holding that a question is controlling“if interlocutory
reversal might save time for the district court, and time and expense for the
litigants.”).
In the case at bar, Plaintiffs endeavor to minimize the significance of the
legal question at hand, arguing that they have other claims besides these
donning/doffing claims, that they have other methods of calculating their damages that
pg. 5
do not depend on the outcome of this question, and that they might entirely abandon
their contention that donning and doffing “bookends” the compensable workday (see
Doc. 190). The Court is not persuaded by these arguments.
Resolution of the legal issue at hand quite likely will affect the course of
this litigation. If Amsted’s position prevails on appeal, then a number of Plaintiffs’ claims
will be rendered moot. Additionally, one method for computing Plaintiff’s damages will
be disallowed. Furthermore, the answer to the legal question may well affect the course
of the litigation by altering the analysis necessary for this Court to decide the motion to
decertify this collective action. Assessment of how similarly situated the plaintiffs are
depends on what viable claims they have, which in turn depends – at least in part – on
resolution of the continuous workday issue raised here. So the first three statutory
criteria are satisfied.
The impediment to § 1292(b) certification lies with the fourth criterion.
Amsted has not demonstrated that resolution of this question of law will “promise to
speed up the litigation.” This requirement has been explained as follows:
“It means
that resolution of a controlling legal question would serve to avoid a trial or otherwise
substantially shorten the litigation.” McFarlin v. Conseco Services, LLC, 381 F.3d
1251, 1259 (11th Cir. 2004), citing 16 Charles Alan Wright, et al., FEDERAL PRACTICE
& PROCEDURE § 3930 at 432 (2d ed. 1996). That simply is not true here.
As noted above, the issue of the interplay between § 203(o) and § 254(a)
already is on appeal at the Seventh Circuit (in Sandifer v. U.S. Steel Corp., 2009 WL
3430222 (Oct. 15, 2009); Appeal Numbers 10-1821 and 10-1866), with briefing to be
completed next month – December 21, 2011, according to the PACER docket sheets.
pg. 6
Movant’s counsel has not demonstrated how allowing the parties in the instant case to
certify an interlocutory appeal will materially advance the ultimate termination of this
litigation. Absent such a showing, the undersigned can only assume that additional
parties filing additional briefs in a freshly-filed appeal (or even submission of additional
briefs in a consolidated appeal, if the Seventh Circuit permitted consolidation with
Sandifer) poses a significant risk of delaying the resolution of this case.
The movant for interlocutory review must persuade the court that truly
exceptional circumstances justify departing from the fundamental policy of appellate
review only after the entry of a final judgment. Coopers & Lybrand, 437 U.S. at 475.
Stressing this point, federal district courts have denied § 1292(b) motions where the
same controlling issue of law already is on appeal to the Circuit Court. See, e.g.,
Aspen Ford, Inc. v. Ford Motor Co., 2008 WL 163695, * 3 (E.D. N.Y. 2008)(“Since
the legal issue in dispute in this case is currently pending on appeal before the
Second Circuit, I do not find that [movants] have demonstrated exceptional
circumstances to warrant an interlocutory appeal.”); In re Regions Morgan
Keegan ERISA Litigation, 741 F. Supp. 2d 844, 854 (W.D. Tenn.)(interlocutory
appeal would not materially advance termination of district court litigation where
same issue was already certified for interlocutory appeal in another case,
defendant had opportunity to move for reconsideration of district court’s order
depending on outcome of the already-pending appeal, and other claims remained
in the case which were not dependent on the outcome of the issue to be
certified).
pg. 7
Judge Miller has certified nearly the identical legal issue for interlocutory
appeal in Sandifer, and that appeal has been pending at the Seventh Circuit since
March 2010 with briefing likely to be completed in the next six weeks. Amsted has
presented compelling arguments for interlocutory appeal of this Court’s summary
judgment denial but has not shown exceptional circumstances justifying piece-meal
appeals or that resolution of the legal issue involved here via this interlocutory appeal
will “promise to speed up the litigation.” Ahrenholz, 219 F.3d at 675.
The Seventh Circuit has remarked that § 1292(b) “was not intended to
make denials of summary judgment routinely appealable,” and indeed a “denial of
summary judgment is a paradigmatic example of an interlocutory order that normally is
not appealable.”
Ahrenholz at 676.
Bearing in mind that motions to certify
interlocutory appeals must be granted sparingly, id., see also Asher v. Baxter
International, Inc., 505 F.3d 736, 741 (7th Cir. 2007), Union County, Iowa v. Piper
Jaffray & Co., Inc., 525 F.3d 643, 646 (8th Cir. 2008), and In re City of Memphis, 293
F.3d 345, 350 (6th Cir. 2002), the undersigned Judge concludes that the record before
him does not establish that an interlocutory appeal of this issue will expedite, rather than
prolong, final disposition of this case. However, the undersigned Judge believes that a
stay of the instant case is warranted at this time, due to the Sandifer appeal.
The exact issue certified for appeal in Sandifer is: “Under the FLSA,
where it has been determined that the activities of donning, doffing, and washing are not
to be included in hours of employment by operation of 29 U.S.C. § 203(o), can such
activities, under any circumstances, start or end the continuous work day under 29
U.S.C. § 254(a)?” Sandifer v. U.S. Steel Corp., 2010 WL 61971, *5 (Jan. 5. 2010).
pg. 8
For the reasons mentioned in the analysis of the second criterion above, a ruling by the
Court of Appeals on this question has the potential to guide and shape the direction of
the instant case, through resolution of any decertification motion as well as trial
preparation and presentation. And, the stringent “exceptional circumstances” standard
that governs interlocutory appeals under § 1292(b) does not similarly constrain the
Court’s ruling on motions to stay -- which Amsted has sought herein, in addition to
(albeit not as an alternative to) certification.
To summarize, although Amsted falls short of demonstrating the requisite
exceptional circumstances needed for § 1292(b) certification, the Court sees merit in
permitting a stay without certifying a separate interlocutory appealpending the outcome
of Sandifer at the Seventh Circuit.
For all these reasons, the Court DENIES Amsted’s “Motion for
Certification of Interlocutory Appeal And Motion to Stay Underlying Litigation” (Doc.
185), which sought to certify an interlocutory appeal and stay this case until the appeal
of this Court’s summary judgment ruling was decided. But the Court STAYS these
proceedings at this time, awaiting what hopefully is a prompt resolution of the Sandifer
appeal. The decision to stay may be reevaluated as time progresses.
The Court DIRECTS Amsted’s counsel to file a status report regarding the
Sandifer appeal byMarch 30, 2012 and another report by May 14, 2012. (Any counsel
may file a status report sooner, if developments warrant updating this Court on the
status of the appeal). The Court will set a status conference in several months to
discuss scheduling issues herein. For now, the undersigned Judge leaves the July 9,
pg. 9
2012 trial date in place, pending receipt of the March and May 2012 status reports from
defense counsel.
IT IS SO ORDERED.
DATED November 11, 2011.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge
pg. 10
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