Rodriguez v. Hermes Landscaping, Inc.

Filing 84

MEMORANDUM AND ORDER granting 79 Motion to Stay Case. Signed by Magistrate Judge Kenneth G. Gale on 10/29/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTONIO CHAVEZ RODRIGUEZ,
et al.,

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Plaintiffs,
vs.
HERMES LANDSCAPING, INC.,
Defendant.

Case No. 17-2142-CM-KGG

MEMORANDUM & ORDER ON
MOTION TO STAY PROCEEDINGS
Now before the Court is Defendant’s “Motion to Stay Proceedings” pending
resolution of Defendant’s Petition to the Tenth Circuit requesting interlocutory
appeal. (Doc. 79.) Having considered the parties’ arguments, the Court GRANTS
Defendant’s motion.
FACTUAL BACKGROUND
This case was brought pursuant to the Fair Labor Standards Act, the Kansas
Wage Payment Act, and the Missouri Minimum Wage Law by three Mexican
nationals who came to the United States under temporary foreign worker visa
programs to work for Defendant. The background of this case was summarized in
the District Court’s September 6, 2018, Order (Doc. 76) granting Plaintiff’s
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Motion to Certify Class (Doc. 54), which was opposed by Defendant. That
summary is incorporated herein by reference.
Defendant subsequently filed a Petition for Permission to Appeal with the
Tenth Circuit Court of appeals under Fed.R.Civ.P. 23(f). (Doc. 81.) According to
Defendant, “[t]he outcome of [the] Petition for Review will inarguably and
significantly impact whether, and how, Plaintiffs’ class and collective action
claims proceed.” (Doc. 80, at 2.)
ANALYSIS
Pursuant to Fed.R.Civ.P. 23(f), a “court of appeals may permit an appeal
from an order granting or denying class-action certification . . . .” The filing of
such an appeal “does not stay proceedings in the district court unless the district
judge or the court of appeals so orders.” Id.
Rule 23(f), however, does not set forth any factors or
considerations to guide the district court’s stay decision.
Nor has the Supreme Court or the Tenth Circuit
articulated a specific standard a district court should use
in deciding whether to stay a case pending a Rule 23(f)
appeal of a class-certification order. Courts that have
addressed motions to stay pending a rule 23(f) appeal are
nearly universal in looking to the four-factor test used in
deciding a motion for preliminary injunction or motion to
stay a case pending appeal. In the District of Kansas, at
least one case has employed an analysis similar to that
used in motions for preliminary injunctions or stays
pending appeals of final judgments in determining
whether a Rule 23(f) stay was warranted. The factors

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that regulate the issuance of a stay of a judgment or an
order pending appeal are:
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties
interested in the proceeding; and (4) where the
public interest lies.
These same factors are required in applications for stay
pending appeal filed with the Tenth Circuit Court of
Appeals. These factors require individualized
consideration and assessment in each case. In
considering these factors, the Court is cognizant that a
stay is not a matter of right, even if irreparable injury
might otherwise result, but is instead ‘an exercise of
judicial discretion,’ and the propriety of its issuance is
dependent upon the circumstances of the particular case.’
The party requesting the stay bears the burden of
showing that the circumstances justify an exercise of that
discretion.
Nieberding v. Barrette Outdoor Living, Inc., No. 12-2353-DDC-TJJ, 2014 WL
5817323, at *1-2 (D. Kan. Nov. 10, 2014).
As for the first of the four factors enumerated above, Defendant argues it is
likely that the Tenth Circuit will hear his appeal because the underlying Order from
the District Court is “replete with manifest errors . . . .” (Doc. 80, at 1-2.)
Plaintiffs disagree, arguing that granting of a petition for interlocutory review is
“‘the exception rather than the rule.’” (Doc. 82, at 3 (citing Vallario v. Vandehey,
554 F.3d 1259, 1262 (10th Cir. 2009) (internal citation and quotation marks
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omitted).) Defendant counters, however, that “the Tenth Circuit has adopted a
more lenient standard for meeting this requirement when the other three
preliminary injunction factors are met.” (Id., at 2 (citing Nieberding, 2014 WL
5817343, at *2-3).) As such, the Court will address the other factors.
The next factor is whether the applicant will be irreparably injured absent a
stay. Defendant contends that “[i]f the September 6th Order is modified or
reversed following Tenth Circuit review, substantial time and money will have
been wasted notifying and confusing putative class members, whom Plaintiffs have
already argued do not understand the United States’ legal system.” (Doc. 80, at 4
(citing Doc. 76, at 11).) Defendant continues that “[f]orcing [the parties] to engage
in costly, class-wide discovery that may ultimately be unnecessary will waste the
Court’s, and the parties’, time, and may potentially create unwarranted pressure on
[Defendant] to settle otherwise unmeritorious claims.” (Id.)
Plaintiffs respond that the harm is not irreparable and does not outweigh the
harm to them. (Doc. 82, at 4-5.) For instance, “[d]iscovery and trial preparation
undertaken an anticipation of a class trial could still be used by Defendant if the
10th Circuit were to agree to (1) hear Defendant’s appear and (2) overturn this
Court’s class decision in full.” (Id., at 5.)
Defendant argues, however, that even if Plaintiffs were to suffer some injury
from the stay, such harm “is ‘outweighed by the greater harm to Defendants in
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requiring them to proceed with a scheduling conference, discovery on the identities
of potential class members, and preparing for a class trial during the interlocutory
appeal of the order granting class certification.’” (Doc. 80, at 5 (citing Nieberding,
2014 WL 5817323, at *4).) The Court finds that Defendant has established
irreparable harm absent a stay.
Defendant next argues the final factor – that a stay is in the public interest.
(Doc. 80, at 5.) Defendant argues that the public is served by a “just, speedy, and
inexpensive resolution to the issues in this case” and that the stay is in the interests
of judicial economy. (Id.) In response, Plaintiffs merely contend that “allowing
the case to proceed serves the public interest in prompt case resolution.” (Doc. 82,
at 6.)
While both arguments have their merits, the Court finds that, on balance,
Defendant has established the fourth factor. “[T]he public interest is best served
by not requiring Defendants to incur significant costs that may in the end be
unnecessary and duplicative.” Nieberding, 2014 WL 5817323, at *5. As such, the
Court finds that the above-enumerated and discussed factors weigh in favor of
Defendant’s request for a stay pending the Rule 23(f) Petition for Appeal and
subsequent appeal (if petition granted).

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IT IS THEREFORE ORDERED that Defendant’s Motion to Stay
Proceedings (Doc. 79) is GRANTED. All proceedings in this case are hereby
stayed pending resolution of Defendants’ appeal to the Tenth Circuit Court of
Appeals of the District Court’s class-action certification order.
IT IS FURTHER ORDERED THAT the parties shall promptly notify this
Court of action taken by the Tenth Circuit in relation to the Rule 23(f) petition.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 29th day of October, 2018.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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