Randolph et al v. ADT Security Services, Inc.
Filing
86
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 1/30/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SHARON RANDOLPH, et al.
:
v.
:
Civil Action No. DKC 09-1790
:
ADT SECURITY SERVICES, INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor
Standards
reconsideration
Act
and
(“FLSA”)
for
case
certification
are
of
motions
an
for
immediate
interlocutory appeal filed by Defendant ADT Security Services,
Inc. (“ADT”).
(ECF Nos. 70, 72).
The issues are fully briefed,
and the court now rules pursuant to Local Rule 105.6, no hearing
being
deemed
necessary.
For
the
reasons
that
follow,
both
motions will be denied.
I.
Background
A.
Factual Background1
Plaintiffs
ADT’s
Lanham,
1
Sharon
Randolph
Maryland,
and
office
Tami
Thompson
worked
as
residential
at
resale
The following facts are an abbreviated version of those
set forth in the court’s earlier memorandum opinion, which
granted in part and denied in part the parties’ cross-motions
for summary judgment.
See Randolph v. ADT Sec. Servs., Inc.,
No. DKC 09-1790, 2011 WL 3476898, at *1-2 (D.Md. Aug. 8, 2011).
representatives, a position in which they sold ADT products and
services
to
individuals.
Both
Plaintiffs
were
at-will
employees, had to meet weekly sales quotas, and were paid on a
commission-only basis.
they
received
an
When Randolph and Thompson joined ADT,
employee
handbook
and
a
“Guide
to
Ethical
Conduct,” both of which stressed the private and confidential
nature
of
protected
customer
information
and
the
company’s
proprietary business information.
Randolph and Thompson subsequently became dissatisfied with
their
pay
and
voiced
complaints
to
various
company
managers
about not receiving promised bonuses for exceeding sales quotas
and
facing
unexpected
cancellations.
response
from
contacted
the
When
ADT
commission
they
did
regarding
Maryland
reductions
not
receive
these
Department
due
a
to
satisfactory
complaints,
of
Labor,
customer
Plaintiffs
Licensing,
and
Regulation (“DLLR”) to discuss their compensation concerns.
A
DLLR representative sent Randolph and Thompson a blank wage form
to
complete,
and
the
form
expressly
requested
supporting
documentation for their claims, such as employment contracts,
wage
agreements,
bottom
of
the
commission
form
statements,
emphasized
the
and
invoices.
importance
documentation, stating:
If your claim pertains to company paid
benefits (ex: vacation), and/or you worked
2
of
The
this
under a written contract, please attach a
photocopy of all relevant documents.
If
documentation is not available, you must
attach a complete explanation of the policy
and/or contract.
Please attach any other
relevant documentation which could assist in
proving your claim.
(ECF No. 48, Ex. J, at ADT 220).
Randolph
submitted
and
copies
Thompson
of
each
their
completed
a
compensation
wage
plan,
form
pay
and
stubs,
commission statements, company handbooks, company sales reports,
and individual residential service contracts with clients.
The
documents reflect the products and services Plaintiffs sold, the
payments they were promised from ADT, the hours they worked, and
the payments they actually received.
also
contained
including
personal
customer
information,
and,
of
PowerPoint
about
addresses,
some
location of alarm panels.
copies
information
names,
in
Yet the service contracts
cases,
phone
alarm
ADT
numbers,
passwords
Randolph
asked
slides
for
payment
and
the
Randolph additionally sent the DLLR
detailing
an
ADT
program that ADT characterizes as proprietary.
nor
customers,
permission
from
“reactivation”
Neither Thompson
their
customers
or
supervisors before disclosing this information to the DLLR, but
they
were
entitled
to
maintain
the
records.
3
documents
for
their
own
The
DLLR
notified
ADT
about
Plaintiffs’
claims
shortly
after receiving them and sent the company copies of the wage
forms and supporting documentation that Randolph and Thompson
had submitted.
Plaintiffs,
ADT suspended and ultimately terminated both
ostensibly
for
violating
the
company’s
confidentiality policy by disclosing confidential customer and
company information in the documentation that they submitted to
DLLR.
B.
Procedural Background
Plaintiffs filed a complaint against ADT on July 21, 2009
(ECF No. 1), asserting a retaliation claim under the FLSA and a
claim for wrongful termination “under the Maryland public policy
exception to at-will employment” (id. ¶¶ 39-52).
ADT moved to
dismiss (ECF No. 6), and asked that the motion be applied to an
amended complaint subsequently filed by Randolph and Thompson
(ECF No. 9).
This motion was denied on March 24, 2010.
(ECF
Nos. 23, 24).
After
summary
discovery
judgment
on
was
largely
October
8,
completed,
2010.
(ECF
ADT
No.
moved
for
48).
In
response, Plaintiffs cross-moved for partial summary judgment on
the issue of liability, while reserving the issue of damages.
4
(ECF No. 52).2
By a memorandum opinion and order issued on
August 8, 2011, both motions for summary judgment were granted
in part and denied in part.
(ECF Nos. 68, 69).
Specifically,
the court granted summary judgment in favor of Plaintiffs on the
FLSA retaliation claim, and granted summary judgment in favor of
ADT on the wrongful termination claim.
ADT filed a motion for
reconsideration on August 14, 2011 (ECF No. 70), and a motion
for certification of an interlocutory appeal on September 1,
2011 (ECF No. 72).
II.
Plaintiffs opposed both motions.
Motion for Reconsideration
ADT moves for reconsideration under Federal Rule of Civil
Procedure
59(e)
contending
that
support”
for
Plaintiffs
as
to
newly
Plaintiffs’
discovered
its
position
submitted
to
that
the
FLSA
claim,
“provides
strong
evidence
the
DLLR
retaliation
confidential
does
not
fall
information
within
the
definition of “complaint” for purposes of 29 U.S.C. § 215(a)(3).
As an initial matter, Rule 59(e) does not govern the resolution
of
this
motion
because
the
order
granting
partial
summary
judgment in Plaintiffs’ favor is an interlocutory order.
See
Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th
2
In connection with the briefing on the summary judgment
motions, both parties submitted motions to seal certain exhibits
submitted with their memoranda.
(ECF Nos. 50, 54, 59).
These
motions were all granted. (ECF Nos. 68, 69).
5
Cir. 2003) (classifying a grant of partial summary judgment as
an interlocutory order); Dilly v. S.S. Kresge, 606 F.2d 62, 6263 (4th Cir. 1979) (explaining that the district court’s grant of
summary judgment only on the issue of liability, while reserving
judgment on the issue of damages, constituted an interlocutory
order).
It is well-established that the appropriate Rule under
which to file motions for reconsideration of an interlocutory
order is Rule 54(b).
See Fayetteville Investors v. Commercial
Builders, Inc., 936 F.2d 1462, 1469-70 (4th Cir. 1991).
Rule
54(b)
provides
that
“any
order
or
other
decision,
however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties . .
. may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and
liabilities.”
of
Appeals
Fed.R.Civ.P. 54(b).
for
the
Fourth
In the United States Court
Circuit,
the
precise
standard
governing a motion for reconsideration of an interlocutory order
is unclear.
the
standards
Fayetteville Investors, 936 F.2d at 1472.
articulated
in
Rules
59(e)
and
60(b)
While
are
not
binding in an analysis of Rule 54(b) motions, Am. Canoe Ass’n,
326 F.3d at 514, courts frequently look to these standards for
guidance in considering such motions.
Akeva, LLC v. Adidas Am.,
Inc., 385 F.Supp.2d 559, 565-66 (M.D.N.C. 2005).
6
Public policy favors an end to litigation
and recognizes that efficient operation
requires
the
avoidance
of
re-arguing
questions that have already been decided.
Most courts have adhered to a fairly narrow
set of grounds on which to reconsider their
interlocutory orders and opinions.
Courts
will reconsider an interlocutory order in
the following situations:
(1) there has
been an intervening change in controlling
law; (2) there is additional evidence that
was not previously available; or (3) the
prior decision was based on clear error or
would work manifest injustice.
Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft
Foods., Inc., No. PJM-08-409, 2010 WL 3059344, at *1-2 (D.Md.
Aug. 4, 2010) (applying this three-part test when evaluating a
motion for reconsideration under Rule 54(b)).
reconsideration
under
Rule
54(b)
may
not
be
A motion for
used
merely
reiterate arguments previously rejected by the court.
to
Beyond
Sys., Inc., 2010 WL 3059344, at *2.
ADT relies on one piece of “newly discovered evidence” as
the basis for its motion for reconsideration.3
This evidence, of
which ADT’s counsel purportedly was “not aware” until after the
issuance of the court’s August 8, 2011, order, is a definition
3
In its reply memorandum, ADT asserts – for the first time
– that failure to consider this evidence would result in
manifest injustice.
This argument need not be evaluated
directly because, as will be explained below, the outcome of
Plaintiffs’ retaliation claim would not change even if the court
considered this evidence.
7
of
the
word
“complaint”
contained
in
Chapter
51
of
Department of Labor’s Field Operations Handbook (“FOH”).
No. 70-1 at 3 n.1).4
the
(ECF
Paragraph 51a01 of that chapter provides as
follows:
The first priority of the WH enforcement is
the
prompt
servicing
of
all
accepted
complaints.
(See FOH 52a00.)
A complaint
is defined as information from a source
outside WH that indicates a reasonable
probability of a violation of one or more of
the laws administered by WH in an identified
establishment.
If these criteria are not
present, a case should not be scheduled as a
complaint.
(ECF
No.
70-2,
demonstrates
submitted
that
to
confidential
at
DLLR
3).5
According
the
confidential
was
not
information,
when
a
to
ADT,
information
“complaint”
analyzed
this
on
an
definition
Plaintiffs
because
“item
by
that
item
basis” does not indicate a reasonable probability of a wage law
violation.
(ECF No. 77, at 5).6
As a result, ADT contends that
4
In their opposition to ADT’s motion for reconsideration,
Plaintiffs assert that the FOH has existed for at least sixteen
years.
(ECF No. 73, at 4).
ADT does not contest this
assertion.
5
“WH” appears to refer to the Department of Labor’s Wage
and Hour Division.
6
Nowhere does ADT argue that the supporting documentation,
as a whole, fails to indicate a reasonable probability of a wage
law violation.
8
Plaintiffs did not engage in protected activity under the FLSA
when submitting this information to DLLR.
ADT’s
reliance
on
this
misplaced for two reasons.
“newly
discovered
evidence”
is
First, ADT has not sufficiently
demonstrated that the evidence submitted is “newly discovered.”
A party moving for reconsideration may not rely on new evidence
unless it has asserted a valid reason for not presenting the
evidence earlier in the litigation.
Beyond Sys., Inc., 2010 WL
3059344, at *2 (explaining that the moving party must establish
“a
legitimate
justification
for
not
presenting
the
evidence
during the earlier proceeding” (quoting Small v. Hunt, 98 F.3d
789, 798 (4th Cir. 1996) (internal quotation marks omitted))).
Here, ADT fails to make this showing.
Initially stating that it
was “not aware” of chapter 51 until after the issuance of the
court’s order (ECF No. 70-1, at 3 n.1), ADT later asserts that
its failure to submit this evidence was “due in part” to the
fact that Chapter 51 is not discussed in case law or available
online (ECF No. 77, at 3).7
This explanation does not constitute
7
Another statement in ADT’s motion for reconsideration,
however, suggests that ADT may not have even undertaken research
of non-case-based sources until after the court’s August 8,
2011, memorandum opinion and order.
(See id. (describing the
court’s review of “various external sources” – such as statutes
and dictionaries – as “sua sponte” research)).
9
a “legitimate justification” for the delay in submission of this
evidence because the evidence was attainable before issuance of
the court’s August 8, 2011, order:
prior
to
that
time.
Cf.
ADT simply did not locate it
Semiconductor
Energy
Lab.,
Co.
v.
Samsung Elecs. Co., 24 F.Supp.2d 537, 539 n.3 (E.D.Va. 1998)
(denying a motion for reconsideration under Rule 59(e) where the
new evidence “was either in [the moving party’s] possession . .
. or was attainable by [that party] prior to trial”), aff’d, 204
F.3d 1368 (Fed. Cir. 2000); Valmont Indus., Inc. v. Yuma Mfg.
Co., 50 F.R.D. 408, 411-12 (D.Colo. 1970) (denying a party’s
Rule 60(b) motion for reconsideration in a patent infringement
suit where the party sought to introduce evidence of a “newly
discovered” German patent – in existence since 1920 – that the
party’s prior patent searches simply had not revealed), aff’d,
446 F.2d 1193-94 (10th Cir. 1971).8
Assuming, arguendo, that the FOH definition of “complaint”
did
constitute
“newly
discovered
evidence”
and
persuasive
authority in the present case, it would not require the court to
reconsider its prior opinion.
8
ADT asserts that this definition
ADT also acknowledges that numerous cases have discussed
other portions of the FOH and that the Department of Labor has
posted select chapters from the FOH on its website.
This
concession further undermines the company’s contention that the
chapter of the FOH it submits here constitutes “newly discovered
evidence.”
10
mandates
a
decision
in
its
favor
because
the
confidential
information submitted by Plaintiffs to DLLR did not establish a
reasonable
probability
of
a
violation
of
a
wage
law.
This
argument, as explained by ADT, first requires the assumption
that supporting documentation be evaluated “on a line by line,
item by item basis” (ECF No. 77, at 5), rather than on the
whole.9
Such an assumption is supported by neither the language of
paragraph
51a01
nor
the
court’s
August
8,
2011,
memorandum
opinion.
Paragraph 51a01 provides no explicit support for the
exceedingly narrow definition of “complaint” proposed by ADT.
Indeed,
the
paragraph
actually
appears
to
support
a
broad
construction of the term “complaint,” as paragraph 51a01 states
that “a case should not be scheduled as a ‘complaint’” unless it
satisfies the criteria articulated by that paragraph.
70-2,
at
5)
(emphasis
added).
Additionally,
the
(ECF No.
court’s
memorandum opinion implicitly rejected the narrow “line by line,
item by item” approach that ADT seeks to employ in its motion
for
reconsideration.
9
(See,
e.g.,
ECF
No.
68,
at
22
(“The
ADT previously presented this argument in reply to
Plaintiffs’ opposition to its motion for summary judgment and in
opposition to Plaintiffs’ cross-motion for partial summary
judgment.
(See ECF No. 57, at 7) (“[T]his attempt by the
Plaintiffs to excuse their conduct fails when one reviews the
highly confidential documents and information in question on a
page-specific basis.”)).
11
Supreme Court has indicated that the enforcement needs of the
FLSA argue for an interpretation of the word ‘complaint’ that
would
provide
employee.”
broad
(internal
rather
than
quotation
narrow
marks
protection
omitted));
to
id.
at
the
26
(“While some of the documents submitted by Plaintiffs contained
information
characterized
by
ADT
as
confidential,
those
same
documents also provided support for Plaintiffs’ wage claims.”)).
At bottom, ADT’s purported reliance on paragraph 51a01 appears
merely to be a disguised effort to revisit arguments previously
evaluated – and rejected - by the court.
This effort must
fail.
Cnty.,
See
Gray-Hopkins
v.
Prince
George’s
Md.,
201
F.Supp.2d 523, 524 (D.Md. 2002) (“A motion to reconsider is not
a
license
to
reargue
the
merits.”
(brackets
omitted)).
Accordingly, ADT’s motion for reconsideration will be denied.
III. Motion for Certification of an Interlocutory Appeal
ADT has also submitted a motion for certification for an
immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
“[Section] 1292(b) provides a mechanism by which litigants can
bring an immediate appeal of a non-final order upon the consent
of both the district court and the court of appeals.”
In re
Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982).
Section 1292(b) states in pertinent part:
When a district judge, in making in a civil
action an order not otherwise appealable
12
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 decision to certify an interlocutory appeal is firmly
in the district court’s discretion.
876
F.Supp.
728,
731
(M.D.N.C.
Riley v. Dow Corning Corp.,
1992),
reconsidered
on
other
grounds, 876 F.Supp. 732 (M.D.N.C. 1992), aff’d, 986 F.2d 1414
(4th Cir. 1993) (unpublished opinion).
Indeed, it is axiomatic
that the district court should grant this “extraordinary remedy”
only in “exceptional circumstances” where early appellate review
would
avoid
a
“protracted
and
expensive
litigation”
process.
Fannin v. CSX Transp., Inc., 873 F.2d 1438, at *2 (4th Cir. 1989)
(unpublished opinion); City of Charleston, S.C. v. Hotels.com,
LP, 586 F.Supp.2d 538, 542, 548 (D.S.C. 2008).
Certification
under § 1292(b) is improper simply “to provide early review of
difficult rulings in hard cases.”
Hotels.com, LP, 586 F.Supp.2d
at 548.
ADT
seeks
certification
interlocutory appeal:
applies
to
confidential
the
two
questions
for
an
(1) whether a reasonableness requirement
FLSA’s
documents
of
“complaint
constitute
clause,”
a
protected activity - under the FLSA.
13
and
“complaint”
(2)
–
whether
and
thus
The Fourth Circuit has
long defined the phrase “controlling question of law” strictly,
explaining that this term applies only to a “narrow question of
pure law whose resolution would be completely dispositive of the
litigation, either as a legal or practical matter.”
F.2d 1438, at *5 (emphasis added).
Fannin, 873
Even where the question
presented is a legal one, if resolution of that issue is rooted
in the facts of a particular case, the question is not proper
for
interlocutory
review.
Id.
(expressing
reluctance
to
evaluate legal questions “heavily freighted with the necessity
for factual assessment” on interlocutory appeal).
ADT’s first question simply fails to satisfy this strict
standard.
ADT
initially
contends
that
the
reasonableness
requirement question would encompass a determination of whether
Plaintiffs had acted reasonably in submitting the confidential
documents to DLLR.
(ECF No. 72-1, at 3).
This issue, however,
would require the Fourth Circuit to resolve not only the legal
question
regarding
requirement,
but
the
also
applicability
the
factually
whether Plaintiffs did act reasonably.
of
a
reasonableness
intensive
question
of
Such factual questions
are precisely the type that appellate courts are “unaccustomed
and illsuited” to resolve on interlocutory appeal.
F.2d 1438, at *5.
Fannin, 873
Perhaps recognizing this weakness in its
argument, ADT suggests in a footnote to its reply memorandum
14
that the Fourth Circuit “could examine the purely legal question
of whether the reasonableness test applies” and then remand to
the district court for a determination of whether the conduct is
reasonable.
(ECF No. 78, at 2 n.1).
Even reframing the first
question in this way fails to raise a controlling question of
law because resolution of that issue would not dispose of the
litigation.
Indeed,
even
if
the
Fourth
Circuit
found
a
reasonableness requirement applicable to the present case, this
court would still need to determine whether Plaintiffs acted
reasonably – an issue hotly disputed by both parties.
For this
reason, the first question presented by ADT fails to qualify as
a controlling question of law and thus will not be certified for
interlocutory appeal.
F.Supp.2d
question
under
907,
909
regarding
ERISA
See DiFelice v. U.S. Airways, Inc., 404
(E.D.Va.
the
because,
2005)
(declining
applicability
even
if
the
of
a
Fourth
to
certify
statutory
Circuit
a
defense
found
the
defense applicable, the district court would then have to reach
the merits of the defense before the litigation could end).
ADT’s second question – whether the confidential documents
submitted by Plaintiffs constitute a complaint – would likely
constitute a controlling question of law because the question is
legal
in
completely
nature
and
dispositive
a
resolution
of
the
in
ADT’s
present
15
favor
would
litigation.
be
This
question,
however,
is
nonetheless
improper
for
certification
because there is not a substantial ground for difference of
opinion.
An issue presents a substantial ground for difference of
opinion
if
courts,
as
opposed
controlling legal issue.
to
parties,
disagree
on
a
McDaniel v. Mehfoud, 708 F.Supp. 754,
756 (E.D.Va. 1989), appeal dismissed, 927 F.2d 596 (4th Cir.
1991) (unpublished opinion).
“[T]he mere presence of a disputed
issue that is a question of first impression, standing alone, is
insufficient to demonstrate a substantial ground for difference
of opinion.”
Flor v. BOT Fin. Corp. (In re Flor), 79 F.3d 281,
284 (2d Cir. 1996).
motion
addressing
question.
single
ADT spends little time in its certification
this
issue
as
it
relates
to
the
second
In fact, its entire argument rests on repetition of a
phrase
from
the
court’s
August
8,
2011,
memorandum
opinion, which noted “[t]he parties have not identified, and the
court is not aware of, any case law explaining whether documents
attached to a formal agency document fall within the scope of an
FLSA ‘complaint.’”
18-19)).
This
(ECF No. 72-1, at 4 (quoting ECF No. 68, at
statement
-
along
with
a
handful
of
cases
previously cited by ADT but distinguished by the court - are
simply not enough to demonstrate that a substantial ground for
difference of opinion exists as to the second question.
16
See
David v. Alphin, No. 3:07-cv-11-RJC-DLH, 2009 WL 3633889, at *4
(W.D.N.C. Oct. 30, 2009) (finding that no substantial ground for
difference of opinion existed where a party had cited only one
dissenting opinion and two amicus briefs – but no controlling
precedent - to support its position). Accordingly, § 1292(b)
certification of ADT’s second question is improper.10
IV.
Conclusion
For the foregoing reasons, the motions for reconsideration
and for certification of an interlocutory appeal filed by ADT
will be denied.
A separate Order will follow.
/s/
_______
DEBORAH K. CHASANOW
United States District Judge
10
Additionally, ADT has not shown that certification would
materially advance the litigation in this case.
Certification
of
an
interlocutory
appeal
is
only
appropriate
“where
significant effort and expense would be spared by appellate
review prior to the entry of final judgment.”
Hotels.com, LP,
586 F.Supp.2d at 542 (citing Abortion Rights Mobilization, Inc.
v. Regan, 552 F.Supp. 364, 366 (S.D.N.Y. 1982)).
The only
remaining issue in this case, however, is the determination of
damages for Plaintiffs’ FLSA claim, an issue unlikely to
generate
the
“protracted
and
expensive
litigation”
that
interlocutory appeal seeks to avoid. Regan, 552 F.Supp. at 366.
17
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