Wang v. General Motors, LLC et al
Filing
48
OPINION and ORDER Granting Defendant General Motor LLC's 38 Motion for Certification to File an Interlocutory Appeal Under 28 U.S.C. § 1292(b). Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHAWN WANG,
Plaintiff,
Civil Case No. 18-10347
Honorable Linda V. Parker
v.
GENERAL MOTORS, LLC and
GM (CHINA) INVESTMENT CO., LTD.,
Defendants.
___________________________________/
OPINION AND ORDER GRANTING DEFENDANT GENERAL MOTOR
LLC’S MOTION FOR CERTIFICATION TO FILE AN INTERLOCUTORY
APPEAL UNDER 28 U.S.C. § 1292(b)
On January 30, 2018, Plaintiff filed this lawsuit against Defendants asserting
the following claims: (I) age discrimination in violation of the federal Age
Discrimination and Employment Act (“ADEA”); (II) age discrimination in
violation of Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”); (III) race and
ethnic discrimination in violation of 42 U.S.C. § 1981; (IV) race and national
origin discrimination in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”); and (V) race and national origin discrimination under the ELCRA.
Defendants are General Motors, LLC (“GM”) and GM (China) Investment Co.,
Ltd. (“GMCIC”). On March 30, 2018, GM filed a motion to dismiss arguing, in
part, that Title VII and the ADEA are in conflict with the law of the People’s
Republic of China (“PRC”) in that PRC law provides that male employees shall be
retired at sixty years of age. GM therefore argued that Plaintiff’s claims under
Title VII and the ADEA were subject to dismissal under those statutes’ “foreign
law” provisions, 29 U.S.C. § 623(f)(1); 42 U.S.C. § 2000e-1(b).
After full briefing on GM’s motion to dismiss, the Court requested
supplemental briefing with respect to PRC law. On March 5, 2019, after additional
materials were filed and reviewed, this Court issued a decision granting in part and
denying in part GM’s motion to dismiss. (ECF No. 34.) With respect to GM’s
foreign law argument, the Court could not conclude based on the parties’
submissions that GM and/or GMCIC would have violated PRC law if Plaintiff’s
employment had been continued in China after he turned sixty. (Id. at Pg ID 88788.)
GM now seeks to immediately appeal this ruling to the Sixth Circuit Court
of Appeals. (ECF No. 38.) GM also asks the Court to stay the proceedings during
the pendency of any interlocutory appeal. Plaintiff opposes GM’s motion. (ECF
No. 45.)
I.
Applicable Standard
A district court has the discretion to grant permission to a party to appeal a
non-final order if: (1) the challenged directive “involves a controlling question of
law”; (2) a “substantial ground for difference of opinion” exists regarding the
2
correctness of the decision; and, (3) an immediate appeal “may materially advance
the ultimate termination of the litigation[.]” 28 U.S.C. § 1292(b). “[D]istrict court
judges have broad discretion to deny certification even where the statutory criteria
are met.” Century Pac., Inc. v. Hilton Hotels Corp., 574 F. Supp. 2d 369, 370
(S.D.N.Y. 2008) (citation omitted). When exercising this discretion, this Court
must heed the Sixth Circuit Court of Appeals’ warning that interlocutory review
should be “granted sparingly and only in exceptional cases.” In re City of
Memphis, 293 F.3d 345, 350 (6th Cir. 2002).
A decision “involves a controlling question of law” if “resolution of the
issue on appeal could materially affect the outcome of litigation in the district
court.” In re Baker & Getty Fin. Services, Inc., 954 F.2d 1169, 1172 n. 8 (6th Cir.
1992). Sixth Circuit law establishes that “‘substantial grounds for difference of
opinion’ exist only when there is conflicting authority on an issue.” Serrano v.
Cintas Corp., Nos. 04-40132, 06-12311, 2010 WL 940164, at *3 (E.D. Mich. Mar.
10, 2010) (citing In re City of Memphis, 293 F.3d at 350-51). District courts in this
Circuit have held that this occurs where: (1) an issue is difficult and of first
impression; (2) a difference of opinion exists within the controlling circuit
concerning the issue; or, (3) the circuits are split on the issue. Id. (citing Gaylord
Entm’t. Co. v. Gilmore Entm’t. Grp., 187 F. Supp. 2d 926, 956 (M.D. Tenn.
2001)). The moving party satisfies the third requirement where the resolution of a
3
controlling legal question would avoid trial, as well as when it would “otherwise
substantially shorten the litigation.” The Clark Constr. Group, Inc. v. Allglass Sys.,
Inc., No. Civ. A. DKC 2002-1590, 2005 WL 736606, at *4 (D. Md. Mar. 30, 2005)
(citing 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3930, at 432 (2nd ed.1996)). In other words, “[a]n
interlocutory appeal materially advances litigation when it ‘saves judicial resources
and litigant expense.’” Newsome v. Young Supply Co., 873 F. Supp. 2d 872, 878
(E.D. Mich. 2012) (quoting West Tennessee Chapter of Associated Builders and
Contractors, Inc. v. City of Memphis, 138 F. Supp. 2d 1015, 1026 (W.D. Tenn.
2000)).
II.
Analysis
GM’s proposed interlocutory appeal involves a controlling issue of law,
albeit an issue of PRC law. If the Sixth Circuit concludes that PRC law conflicts
with Title VII and the ADEA, the decision would resolve those claims except to
the extent Plaintiff alleges discrimination based on GM’s failure to transfer him to
a position in the United States. Such a ruling would significantly narrow the scope
of this litigation. Thus, this Court finds the first factor met for certifying the matter
for interlocutory appeal
The Court finds the issue regarding PRC law to be difficult and novel and
one for which there is little precedent. There is limited case law addressing Title
4
VII’s or the ADEA’s foreign law provisions, generally. The parties did not
identify any decisions within the United States interpreting PRC’s purported
mandatory retirement provisions. While this Court concluded that GM’s foreign
law argument set forth an affirmative defense for which Defendants had the burden
of proof, there is little precedent addressing this issue as well. For these reasons,
the Court also finds the second factor met for allowing an interlocutory appeal.
Finally, the immediate appeal of the foreign law issue would expedite the
resolution of this case. If the Sixth Circuit disagrees with this Court’s ruling on the
issue, Plaintiff’s Title VII and ADEA claims arising from his termination from
GMIC would be subject to dismissal. The scope of this litigation would be
substantially narrowed for purposes of discovery and, if necessary, trial. If GM
prevails on appeal, discovery in China and the depositions of PRC residents likely
will be unnecessary, saving significant costs to the parties. Thus, the third factor is
satisfied.
For the reasons above, the Court concludes that the foreign law issue raised
in GM’s motion to dismiss deserves interlocutory review pursuant to 28 U.S.C.
§ 1292(b).
Accordingly,
5
IT IS ORDERED that GM’s Motion for Certification to File an
Interlocutory Appeal under 28 U.S.C. § 1292(b) is GRANTED and the
proceedings are STAYED pending the appeal.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 2, 2019
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, May 2, 2019, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?