Babin et al v. Plaquemines Parish
ORDER AND REASONS: For the foregoing reasons, IT IS ORDERED that 149 Motion to Certify for Interlocutory Appeal is DENIED. Signed by Judge Wendy B Vitter on 4/27/2021. (jeg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEITH BABIN, ET AL.
SECTION: D (3)
ORDER AND REASONS
Before the Court is Defendant’s Motion to Certify for Interlocutory Appeal.1
Plaintiffs oppose the Motion.2 After careful consideration of the parties’ memoranda
and the applicable law, the Motion is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND 3
This case arises out of a claim for overtime wages brought by present and
former emergency medical technicians (“EMT’s) for Plaquemines Parish (hereinafter,
“Defendant”). On August 3, 2020, Keith Babin, Kevin Burge, Joshua Dismukes and
Barbara Tate (collectively, “Plaintiffs”), filed a Complaint in this Court against
Defendant, asserting only one cause of action – failure to pay overtime wages under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., pursuant to 29 U.S.C.
§ 207.4 The Court conducted a jury trial in this matter from October 28, 2019 to
October 30, 2019, and the jury found that Plaintiffs had proved that they were
entitled to overtime pay, but that Plaintiffs had failed to prove that Defendant failed
R. Doc. 149.
R. Doc. 154.
3 The factual and procedural background of this case is set forth in great detail in the Court’s December
11, 2020 Order and Reasons and, for the sake of brevity, will not be repeated here. See, R. Doc. 145.
4 R. Doc. 1 at pp. 5-6.
to pay them overtime wages as required by law. 5 On November 5, 2019, the Court
entered a Judgment in favor of Defendant and against Plaintiffs. 6
Shortly thereafter, Plaintiffs filed a Motion to Alter or Amend the Judgment
or, in the Alternative, For a New Trial (Fed. R. Civ. P. 59), asserting that the jury’s
finding that Plaintiffs were paid overtime wages is contrary to the evidence and,
therefore, constitutes a manifest error of law or fact.7 Defendant opposed the Motion,
arguing that Plaintiffs’ motion for a new trial under Rule 59(a) should be denied
because Plaintiffs seek a new trial based upon an inconsistent jury verdict, which is
more appropriately analyzed under Fed. R. Civ. P. 49, and that Plaintiffs had waived
their objection to the inconsistent verdict by not objecting to the general verdict before
the jury was dismissed.8 On December 11, 2020, the Court issued an Order and
Reasons, granting in part as modified and denying in part as moot the Motion to Alter
or Amend the Judgment.9 The Court held that under Rule 59(a), the jury’s verdict
was against the great weight of the evidence and that a new trial was warranted on
all of the issues in this case. 10 As such, the Court set aside the jury verdict and
ordered a new trial as to all issues.
On December 21, 2020, Defendant filed the instant Motion, asking this Court
to certify its December 11, 2020 Order for an interlocutory appeal under 28 U.S.C. §
1292(b) and Federal Rule of Appellate Procedure 5(a)(3). 11 Defendant contends that
R. Docs. 124, 125, 127, 129.
R. Doc. 133.
7 R. Doc. 134.
8 R. Doc. 140 at p. 6.
9 R. Doc. 145.
10 Id. at p. 19.
11 R. Doc. 149.
the December 11, 2020 Order involves a controlling question of law as to which there
is substantial ground for a difference of opinion and that an immediate appeal from
the judgment may materially advance the ultimate termination of the litigation. 12
Defendant contends that whether this Court erred in rejecting its argument that
Plaintiffs waived their request for a new trial under Fed. R. Evid. 49 is a controlling
question of law because it is case dispositive. 13 Defendant also asserts that there is
a difference of opinion as to the law that should have been applied to Plaintiff’s motion
– Rule 49 or Rule 59 – which warrants interlocutory review. 14 Defendant further
claims that an immediate appeal would materially advance the ultimate termination
of the litigation because if Defendant prevails, the lawsuit will end. 15 Finally,
Defendant asserts that a stay pending the interlocutory appeal will further the
interests of the Court, the parties and the public. 16
Plaintiffs assert that the Motion should be denied because Defendant has
failed to meet its burden of justifying immediate appellate review under 28 U.S.C. §
1292(b).17 Plaintiffs argue that Defendant is merely re-urging the same argument
that has already failed – that the Court should unilaterally convert Plaintiffs’ prior
Rule 59 motion into a Rule 49 motion and deny the motion. Plaintiffs assert that this
request does not involve a controlling question of law because it is purely a procedural
argument, and that there is no substantial ground for difference of opinion because
R. Doc. 149-1.
Id. at p. 6.
15 Id. at pp. 7-8.
16 Id. at p. 8.
17 R. Doc. 154.
Defendant’s request is patently meritless. Plaintiffs further assert that granting an
immediate appeal would not materially advance the ultimate termination of this case
because an appeal would inevitably lead to a remand. 18
LAW AND ANALYSIS
The Court may certify an interlocutory order for immediate appeal if it finds
that: (1) the order involves a controlling question of law; (2) as to which there is
substantial ground for difference of opinion; and (3) “an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” 19 The Fifth
Circuit strictly construes the requirements of § 1292(b), and all three criteria must
be met before the Court may certify an interlocutory appeal.20 “The basic rule of
appellate jurisdiction restricts review to final judgments, avoiding the delay and
extra effort of piecemeal appeals. Section 1292(b) appeals are “exceptional.” 21 The
Fifth Circuit has made clear that, “An interlocutory appeal assuredly does not lie
simply to determine the correctness of a judgment of liability.” 22
Here, the Court finds that Defendant has failed to make the required showing
under § 1292(b) to warrant an interlocutory appeal of the Court’s December 11, 2020
Order. Defendant has failed to show that the December 11, 2020 Order involves a
controlling question of law to which there is a substantial ground for difference of
Instead, Defendant offers only conclusory assertions that the Court’s
R. Doc. 154 at pp. 1-2.
28 U.S.C. § 1292(b).
20 Weams v. FCA US L.L.C., Civ. A. No. 17-4-RLB, 2019 WL 3812222, at *1 (M.D. La. July 9, 2019)
(citing Ala. Labor Council v. Alabama, 453 F.2d 922, 924 (5th Cir. 1972)).
21 Clark-Dietz and Associates-Engineers, Inc. v. Basic Const. Co., 702 F.2d 67, 69 (5th Cir. 1983).
22 Id. at 68.
rejection of Defendant’s argument regarding the applicability of Fed. R. Civ. P. 49 to
Plaintiffs’ Motion to Alter or Amend the Judgment is a controlling issue of law. The
Court’s December 11, 2020 Order, however, did not involve a controlling issue of law,
as it involved an analysis of the facts based on the testimony and evidence submitted
during the trial of this matter.23
The Court further finds that Defendant has failed to show a substantial ground
for difference of opinion as to a controlling issue of law. As Plaintiffs correctly point
out, Defendant merely disagrees with the Court’s December 11, 2020 Order, which is
insufficient to establish that there is a substantial ground for a difference of o pinion.24
As previously explained by this Court, “A substantial ground for difference of opinion
exists if the circuits are in dispute on the question and the Court of Appeals of the
circuit [encompassing the district court] has not spoken on the point . . . or if novel
and difficult questions of first impression are presented.” 25 Defendant has failed to
point the Court to any dispute between the circuits regarding a question of law,
asserting only that counsel in this case disagree as to the law applicable to Plaintiff’s
Motion to Alter or Amend the Judgment. 26 Defendant’s argument is, therefore,
misplaced and indicates a misunderstanding of the § 1292(b) criteria.
Because the Court has determined that Defendant has failed to show two of
the three criteria that must be met before the Court may certify an interlocutory
See, R. Doc. 145 at pp. 15-19.
Clark-Dietz and Associates-Engineers, Inc., 702 F.2d at 69.
25 Fairfield Royalty Co. v. Island Operating Co., Inc., Civ. A. No. 10-3446, 2011 WL 6140665, at *2
(E.D. La. Dec. 9, 2011) (quoting In re Chinese-Manufactured Drywall Prods. Liab. Litig., MDL No.
2047, 2011 WL 2443693 (E.D. La. 2011)) (internal quotation marks omitted).
26 R. Doc. 149-1 at p. 6.
appeal under § 1292, Defendant’s Motion must be denied. The Court need not address
the third requirement that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.
For the foregoing reasons, IT IS ORDERED that Defendant’s Motion to
Certify for Interlocutory Appeal 27 is DENIED.
New Orleans, Louisiana, April 27, 2021.
WENDY B. VITTER
United States District Judge
R. Doc. 149.
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