Davenport v. Charter Communications, LLC

Filing 295

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs' motion to certify a question of law to the Kentucky Supreme Court is DENIED. (Doc. No. 230.) Signed by District Judge Audrey G. Fleissig on 10/6/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PENNY DAVENPORT, et al., individually )
and on behalf of others similarly situated, )
)
Plaintiffs,
)
)
vs.
)
)
CHARTER COMMUNICATIONS, LLC, )
)
Defendant.
)

Case No. 4:12CV00007 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ motion (Doc. No. 230) to certify a
question of law to the Kentucky Supreme Court. For the reasons set forth below,
Plaintiffs’ motion shall be DENIED.
BACKGROUND
On August 4, 2014, this Court granted Defendant’s motion for judgment on the
pleadings, holding in part that Ky. Rev. Stat. § 337.385 does not permit class or collective
actions. (Doc. No. 218.) Plaintiffs now ask the Court to certify to the Kentucky Supreme
Court the exact same question—whether Ky. Rev. Stat. § 337.385 permits class and/or
collective actions. Plaintiffs assert that certification is appropriate under Ky. R. Civ. P.
76.37, which provides:
If there are involved in any proceeding before . . . any District Court of the
United States . . . questions of law of this state which may be determinative
of the cause then pending before the originating court and as to which it
appears to the party or the originating court that there is no controlling
precedent in the decisions of the Supreme Court and the Court of Appeals of

this state, the Kentucky Supreme Court may answer those questions of law
when certified to it by the originating court, or after judgment in the District
Court upon petition of any party to the proceeding.
Ky. R. Civ. P. 76.37(1). Plaintiffs state that this Court recognized in its August 4, 2014
Order that the Kentucky Supreme Court had not decided the specific question of whether
Ky. Rev. Stat. § 337.385 permits class or collective actions, and this question warrants
certification because it touches on important state interests regarding the rights of workers.
Defendant opposes certification on the grounds that Plaintiffs’ motion is untimely,
having been brought only after the Court already decided the question at issue, and that
Plaintiffs’ motion does not meet the requirements of Ky. R. Civ. P. 76.37 because the
question Plaintiffs seek to certify is not “determinative” of Plaintiffs’ cause of action.
Defendant also notes that, although the Kentucky Supreme Court has not decided the exact
question of whether Ky. Rev. Stat. § 337.385 permits class or collective actions, this Court
made its determination by relying on principles of statutory interpretation from the
Kentucky Supreme Court, as well as precedent from the Kentucky Court of Appeals.
DISCUSSION
“[F]ederal courts have a duty to address matters of state law, even when that law is
unsettled[.]” Jung v. Gen. Cas. Co., 651 F.3d 796, 800 (8th Cir. 2011). Thus, “federal
courts generally will not trouble our sister state courts every time an arguably unsettled
question of state law comes across our desks. When we see a reasonably clear and
principled course, we will seek to follow it ourselves.” Pennington v. State Farm Mut.
Auto Ins. Co., 553 F.3d 447, 449 (6th. Cir. 2009)) (citation omitted).

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Although federal courts have discretion to certify unsettled questions of state law,
certification is discouraged, and generally refused, where the parties have already
presented the issue for decision to the district court. See, e.g., Perkins v. Clark Equip. Co.,
Melrose Div., 823 F.2d 207, 209 (8th Cir. 1987) (“The practice of requesting certification
after an adverse judgment has been entered should be discouraged. Otherwise, the initial
federal court decision will be nothing but a gamble with certification sought only after an
adverse decision.”); City of Columbus v. Hotels.Com, L.P., 693 F.3d 642, 654 (6th Cir.
2012) (“The appropriate time to seek certification of a state-law issue is before a District
Court resolves the issue, not after receiving an unfavorable ruling,” and this view is
“shared by many of our sister circuits.”) (citing cases); Thompson v. Paul, 547 F.3d 1055,
1065 (9th Cir. 2008) (“There is a presumption against certifying a question to a state
supreme court after a federal district court has issued a decision.”); Cantwell v. Univ. of
Mass., 551 F.2d 879, 880 (1st Cir. 1977) (“[T]he bar should take notice that one who
chooses the federal courts . . . is in a peculiarly poor position to seek certification. We do
not look favorably, either on trying to take two bites at the cherry by applying to the state
court after failing to persuade the federal court, or on duplicating judicial effort.”).
Here, Plaintiffs did not seek to have the question at issue certified to the Kentucky
Supreme Court until after this Court considered and decided the question in favor of
Defendant. And the state of the law in Kentucky was well known to Plaintiffs when the
matter was submitted to this Court. Further, although the Court recognized that the
Kentucky Supreme Court had not addressed the specific question, the Court relied on

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well-established principles of Kentucky law regarding statutory interpretation and a
decision of the Kentucky Court of Appeals to resolve the matter. Under these
circumstances, the Court is not inclined to trouble the Kentucky Supreme Court with
certification.
Moreover, Plaintiffs have not shown that the requirements for certification under
Kentucky law are satisfied. Kentucky Rule of Civil Procedure 76.37 limits certification to
questions of state law “which may be determinative of the cause then pending before the
originating court.” Ky. R. Civ. P. 76.37(1). The question of whether Ky. Rev. Stat. §
337.385 permits class or collective actions is not determinative of Plaintiffs’ cause of
action, or of their Kentucky claims. As Defendant correctly notes, the Court’s holding
that Plaintiffs’ Kentucky claims may not proceed as a class or collective action did not
dispose of those claims. Even under Plaintiffs’ interpretation of “determinative,” which
they assert as a matter of “common sense” means “an issue that determines whether a claim
may succeed” (Doc. No. 264 at 3), the issue of whether Plaintiffs’ Kentucky claims may
proceed as a class or collective action is not determinative of Plaintiffs’ cause. Regardless
of whether they may be pursued collectively, Plaintiffs’ individual claims under Kentucky
law still exist, may still be adjudicated, and, if meritorious, may succeed. Thus,
certification under Ky. R. Civ. P. 76.37 is not appropriate.
CONCLUSION
For the foregoing reasons,

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IT IS HEREBY ORDERED that Plaintiffs’ motion to certify a question of law to
the Kentucky Supreme Court is DENIED. (Doc. No. 230.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 6th day of October, 2014.

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