Gerhardson et al v. Gopher News Company et al

Filing 205

ORDER denying Local 638's 181 Motion for Certifying an Issue for Interlocutory Appeal; denying plaintiffs' 188 Motion for Certifying an Issue for Interlocutory Appeal (Written Opinion). Signed by Judge John R. Tunheim on July 18, 2011. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
STEVEN GERHARDSON, RON HANEK,
MIKE JOHNSON, and JIM COSTELLO,

Civil No. 08-537 (JRT/JJK)

Plaintiffs,
v.
GOPHER NEWS COMPANY;
CENTRAL STATES, SOUTHEAST AND
SOUTHWEST AREAS PENSION FUND;
and LOCAL NO. 638 OF THE
MISCELLANEOUS DRIVERS, HELPER
& WAREHOUSEMEN’S UNION
(INTERNATIONAL BROTHERHOOD
OF TEAMSTERS),

ORDER DENYING MOTIONS
TO CERTIFY
INTERLOCUTORY APPEALS

Defendants.
Johanna J. Raimond, LAW OFFICES OF JOHANNA J. RAIMOND
LTD, 321 South Plymouth Court, Suite 1515, Chicago, IL 60604; Jordan
M. Lewis and Wood R. Foster, Jr., SIEGEL BRILL GREUPNER
DUFFY & FOSTER, PA, 1300 Washington Square, 100 Washington
Avenue South, Minneapolis, MN 55401, for plaintiffs.
Anthony E. Napoli and Albert M. Madden, CENTRAL STATES SE & SW
AREAS PENSION AND HEALTH AND WELFARE FUNDS, 9377 West
Higgins Road, Suite 1000, Rosemont, IL 60018-4938; Jennifer G.
Daugherty, ROBINS KAPLAN MILLER & CIRESI LLP, 800 LaSalle
Avenue, Suite 2800, Minneapolis, MN 55402, for defendant Central States.
James D. Kremer and Christopher Amundsen, DORSEY & WHITNEY
LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402-1498, for
defendant Gopher News Co.
Roger A. Jensen and Justin D. Cummins, MILLER O’BRIEN
CUMMINS, PLLP, 120 South Sixth Street, Suite 2400, Minneapolis, MN
55402, for defendant Local No. 638.

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Steven Gerhardson, Ron Hanek, Mike Johnson, and Jim Costello (collectively,
“plaintiffs”) are delivery drivers for Gopher News Company (“Gopher News”) and
members of Local No. 638 of the Miscellaneous Drivers, Helper & Warehousemen’s Union
(“Local 638”). In early 2007, Central States, Southeast and Southwest Areas Pension

Fund (“Central States”), Gopher News’ multiemployer pension plan, expelled Gopher
News from the plan for violating the plan’s “adverse selection” rule. Plaintiffs brought
an action against Local 638, Gopher News, and Central States for breach of the duty of
fair representation, breach of the collective bargaining agreement, and breach of fiduciary
duty. (Am. Compl., Docket No. 54.) Gopher News and Local 638 brought cross-claims
against each other for fraud and indemnification. (Docket Nos. 18, 65.) On March 31,
2011, this Court issued an order granting Central States, Local 638, and Gopher News’
motions for summary judgment as to Counts 1, 2, and 3 of plaintiffs’ Amended
Complaint, effectively dismissing all of plaintiffs’ claims. (Docket No. 178.) The Court
also denied Gopher News and Local 638’s cross-motions for summary judgment on
Gopher News’ cross-claims against Local 638. (Id.)
Plaintiffs and Local 638 have filed motions asking the Court to certify separate
issues for interlocutory appeal under 28 U.S.C. § 1292(b) and to certify the ruling as a
final judgment under Federal Rule of Civil Procedure 54(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.

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A party seeking an interlocutory appeal must therefore establish that (1) there is a
controlling question of law, (2) there is a substantial ground for difference of opinion as
to that controlling question of law, and (3) an immediate appeal may materially advance
the ultimate termination of litigation. Fenton v. Farmers Ins. Exch., No. 07-4864, 2010
WL 1006523, at *1 (D. Minn. Mar. 16, 2010). A motion for certification of interlocutory
appeal “must be granted sparingly, and the movant bears the heavy burden of
demonstrating that the case is an exceptional one in which immediate appeal is
warranted.” White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994); see also Union County v.
Piper Jaffray & Co., Inc., 525 F.3d 643, 646 (8th Cir. 2008) (interlocutory review is
appropriate only in extraordinary cases).

Rule 54(b) provides that when an action

includes more than one claim for relief, the court may direct entry of a final judgment as
to one or more, but fewer than all, claims if the court “expressly determines that there is
no just reason for delay.” Such certification should “be granted only if there exists some
danger of hardship or injustice through delay which would be alleviated by immediate
appeal.” Huggins v. FedEx Ground Package Sys., Inc., 566 F.3d 771, 774 (8th Cir. 2009).
Plaintiffs state their question for appeal under §1292(b) as follows: “Should the
statute of limitations be tolled during the pendency of the trial court’s consideration of an
intervenor’s motion for leave to file a complaint-in-intervention where leave is denied?”
(Docket No. 190.) Plaintiffs argue that an analogue for purposes of analysis of the tolling
issue is the class action rule that filing a class action complaint tolls the statute of
limitations for all purported members of the class who make timely motions to intervene
after the court has found the case inappropriate for class action status, and that “there is
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no . . . sensible[] reason why this rule applies to class action proceedings but not to
motions to intervene.” (Id.); Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974).
This motion is the first time plaintiffs have raised the theory of applying tolling as it is
used in class action cases, however, despite having every opportunity to do so at the
summary judgment stage. “It is old and well-settled law that issues not raised in the trial
court cannot be considered by th[e appellate] court as a basis for reversal.” Campbell v.
Davol, Inc., 620 F.3d 887, 891 (8th Cir. 2010) (internal quotation marks omitted).
Accordingly, the Eighth Circuit will likely consider this argument waived, and the
Court’s granting an interlocutory appeal will therefore not advance the ultimate
termination of this litigation. In addition, plaintiffs have offered no explanation as to how
certification of their question would materially advance the ultimate termination of this
litigation.
Moreover, though the tolling issue is a controlling question of law, the Court finds
that there is no substantial ground for difference of opinion as to this matter.
Specifically, in its March 31, 2011 Order, the Court found that
[g]iven Eighth Circuit precedent regarding the effect of the granting of a
motion to dismiss without prejudice (which does not toll the statute of
limitations), the Court cannot construe [Plaintiffs’] failed motion to
intervene to have a tolling effect on the present litigation.
(Order at 11.) Circuit precedent law clearly dictated the Court’s determination that the
statute of limitations was not tolled, and plaintiffs’ new argument that the statute should
be tolled based on principles applicable to class actions cannot now be raised. Because
plaintiffs have failed to sustain their burden of establishing that their interlocutory appeal
provides substantial ground for difference of opinion and will advance the ultimate
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termination of this litigation, the Court denies plaintiffs’ request to certify an issue for
interlocutory appeal. Further, because the Court finds no injustice will occur due to a
delay in in plaintiffs’ ability to appeal, the Court denies plaintiffs’ request to certify the
ruling as a final judgment under Rule 54(b).
Local 638’s motion relates to whether Garmon preemption applies.

See San

Diego Bldg. Trades Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236, 245
(1959). This issue was the subject of a letter requesting leave to file a motion for
reconsideration, which this Court granted on July 1, 2011. (Docket No. 199.) Because
Local 638 will now have an opportunity to address in this Court the specific issue it seeks
to certify to the Court of Appeals, the Court denies its motion as moot. (Docket No.
181.)

ORDER
Based upon all the files, records and proceedings herein, IT IS HEREBY
ORDERED that:
1.

Plaintiffs’ Motion for Certifying an Issue for Interlocutory Appeal [Docket

No. 188] is DENIED.
2.

Local 638’s Motion for Certifying an Issue for Interlocutory Appeal

[Docket No. 181] is DENIED.

DATED: July 18, 2011
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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