LaCurtis v. Express Medical Transporters, Inc.

Filing 66

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion to amend and certify for interlocutory review pursuant to 28 U.S.C. § 1292(b), and for a stay of proceedings pending appeal is GRANTED. (Doc. No. 58 .) This Court's May 31, 2016 Order (Doc. No. 56 ) is amended to certify the following questions, as modified, for immediate interlocutory appeal: [SEE ORDER FOR DETAILS]. IT IS FURTHER ORDERED that this action is STAYED pending resolution of Defendants' application to the Court of Appeals for interlocutory review, and pending the review itself, if Defendants' application is granted. Signed by District Judge Audrey G. Fleissig on July 1, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL LACURTIS, et al.,
Plaintiffs,
v.
EXPRESS MEDICAL
TRANSPORTERS, INC., et al.,
Defendants.

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No. 4:15-cv-00427-AGF

MEMORANDUM AND ORDER
On May 31, 2016, the Court granted Plaintiff Michael LaCurtis’s motion for partial
summary judgment (as to liability) and denied Defendants’ motion for summary judgment.
In doing so, the Court resolved an issue of law that the parties agreed was the determinative
legal issue in this putative wage-and-hour class and collective action, and that the parties
asked the Court to decide before they expended time and resources on class certification.1
The determinative legal issue was whether LaCurtis was a “covered” employee under
§ 306 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act, Technical
Corrections Act (“TCA”),2 and thus eligible for overtime under the Fair Labor Standards Act

1

In accordance with this approach, the United States Supreme Court recently suggested
that when “the concern about the proposed class is not that it exhibits some fatal
dissimilarity but, rather, a fatal similarity—an alleged failure of proof as to an element of the
plaintiffs’ cause of action—courts should engage that question as a matter of summary
judgment, not class certification.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1047,
(2016) (citation omitted).
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Pub. L. No. 110–244, Title III, § 306, 122 Stat. 1572, 1620 (2008)

(“FLSA”), 29 U.S.C. § 201, et seq., and the Missouri Minimum Wage Law, Mo. Rev. Stat.
§ 290.500, et seq., notwithstanding that his employers, Defendants, were motor carriers.
Whether LaCurtis was a “covered” employee under the TCA turned on whether the paralift
vans he operated as a paralift van driver were “designed or used” to transport more than
eight passengers (including the driver) when the vehicles were originally designed as 12- and
15-passenger vehicles but were modified by removing seats to accommodate wheelchair
placements. The parties agreed that if the paralift vans were designed or used to transport
more than eight passengers (including the driver), LaCurtis and other employees who
operated those vans were ineligible for overtime under the Motor Carrier Act Exemption
(“MCAE”) to the FLSA, 29 U.S.C. § 213(b)(1), but that if the vans were not so designed or
used, these employees were “covered” employees under the TCA and eligible for overtime.
The Court held that the paralift vans at issue were not designed or used to transport more
than eight passengers (including the driver), and therefore, LaCurtis was a “covered”
employee under the TCA and eligible for overtime. Accordingly, the Court granted
LaCurtis’s motion for partial summary judgment on Defendants’ liability for unpaid
overtime and denied Defendants’ motion for summary judgment.
Following this ruling, the Court also granted Defendants’ unopposed motion to
consolidate a related case with this case.3 The related case is another putative class and
collective action brought by two other employees of Defendants, alleging nearly identical
overtime claims. Based on the joint proposed amended scheduling plan filed by the parties

3 Kris Daniels and Gerald Young, on behalf of themselves and all others similarly situated,
v. Express Medical Transporters, Inc., 4:16CV00101AGF.
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following consolidation, the Court understands the parties to be in agreement that liability
issues in both cases have been resolved by the Court’s May 31, 2016 Memorandum and
Order, and that the consolidated cases should proceed as a single putative class and
collective action.
Defendants now move to certify the Court’s May 31, 2016 Memorandum and Order
for interlocutory appeal and to stay this action under 28 U.S.C. § 1292(b). Specifically,
Defendants seek to certify the following questions for interlocutory appeal:
1. Whether the Court properly afforded deference to the Deputy Administrator of
the Wage and Hour Division’s Field Assistance Bulletin No. 2010-2 in
determining the number of passenger seats a wheelchair placement represents
when the applicable statutes and well-established U.S. Supreme Court
precedent clearly establish the exclusive jurisdiction of the Secretary of
Transportation to “prescribe requirements for . . . qualifications and maximum
hours of service of employees of, and safety of operation and equipment of, a
motor carrier,” and the Secretary of Transportation has in fact issued its
regulation found at 49 C.F.R. § 571.3 to determine the number of seats a
wheelchair placement represent in motor vehicles operating on the highways in
interstate commerce.
2. Whether vehicles which were originally designed and manufactured to
transport 12-15 passengers and were later modified to accommodate secured
wheelchair placements are “designed or used to transport more than 8
passengers (including the driver) for compensation” under the [TCA] small
vehicle exception.
(Doc. No. 58 at 1-2.) Defendants assert that these issues apply equally to the consolidated
cases. (Doc. No. 59 at 9.) Defendants further assert that certifying these issues for
interlocutory appeal may save the parties the time and expense of litigating the remaining
issues in this case, which Defendants list as: class certification, calculation of overtime pay,
whether liquidated damages are appropriate, and the applicable statute of limitations. (Doc.
No. 59 at 8.) LaCurtis opposes the motion.
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LaCurtis argues that there is no substantial ground for a difference of opinion with
respect to the Court’s May 31, 2016 Memorandum and Order, which is one of three
requirements for certification for interlocutory appeal. LaCurtis acknowledges that the two
other requirements for certification—whether the Memorandum and Order involves a
controlling issue of law and whether certification will materially advance the ultimate
termination of the litigation—are satisfied. The two Plaintiffs in the consolidated case have
not filed an opposition.
Under 28 U.S.C. § 1292(b),
[w]hen 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.
28 U.S.C. § 1292(b).
As discussed above, there are three requirements that must be met before a district
court’s order may be certified for interlocutory appeal. “[T]he district court must be of the
opinion that (1) the order involves a controlling question of law; (2) there is substantial
ground for difference of opinion; and (3) certification will materially advance the ultimate
termination of the litigation.” White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994) (citation and
internal quotations omitted). These three statutory requirements are jurisdictional, and all
must be present before an order is certified. Id. at 376. “A motion for certification 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.” Id. (citation omitted).

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“All that must be shown in order for a question to be ‘controlling’ is that resolution of
the issue on appeal could materially affect the outcome of the litigation in the district court.”
United States v. Missouri, No. 4:11 CV 77 RWS, 2016 WL 783067, at *2 (E.D. Mo. Feb. 29,
2016) (citation omitted). “The question for appeal must be a question of law as opposed to a
question of fact or matter for the court’s discretion.” Id. (citing White, 43 F.3d at 377). The
Court’s interpretation of the TCA in this case is a legal issue that could materially affect the
outcome of the litigation, as it is the determinative legal issue for purposes of establishing
Defendants’ liability. Therefore, the Court finds that its May 31, 2016 Memorandum and
Order involves a controlling question of law.
“Substantial grounds for a difference of opinion exists when: (1) the question is
difficult, novel and either a question on which there is little precedent or one whose correct
resolution is not substantially guided by previous decisions; (2) the question is one of first
impression; (3) a difference of opinion exists within the controlling circuit; or (4) the circuits
are split on the question.” Emerson Elec. Co. v. Yeo, No. 4:12CV1578 JAR, 2013 WL
440578, at *2 (E.D. Mo. Feb. 5, 2013) (citation and internal quotations omitted). “A court
faced with a motion for certification must analyze the strength of the arguments in
opposition to the challenged ruling to decide whether the issue is truly one on which there is
a substantial ground for dispute.” Id. (citation omitted).
Defendants argue that the Court’s interpretation of the TCA was erroneous in two
regards: (1) the Court did not defer to a Department of Transportation (“DOT”) regulation
issued under the authority of the National Traffic and Motor Vehicle Safety Act of 1966,
providing that “[f]or the sole purpose of determining the classification of any vehicle sold or
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introduced into interstate commerce for purposes that include carrying students to and from
school or related events, any location in such vehicle intended for securement of an occupied
wheelchair during vehicle operation shall be regarded as four designated seating positions,”
49 C.F.R. § 571.3(b)(1); and (2) the Court did not rely on the original design of the paralift
vans at issue which were, before being modified to accommodate wheelchairs, 12- and 15passenger vehicles. In support of the first argument, Defendants contend that the DOT, not
the Department of Labor (“DOL”), has the authority to define and interpret the MCAE. See
Levinson v. Spector Motor Serv., 330 U.S. 649, 677 (1947).
The Court finds that there is substantial ground for a difference of opinion with
respect to these issues, not just because of the lack of precedent but also because of the
difficulty of the questions. However, the Court will modify the language of Defendants’
proposed certified question slightly, to reflect the Court’s actual holding and the issues for
which the Court finds there is substantial ground for a difference of opinion.
With respect to the first proposed certified question, the Court notes that it did not
accord complete deference to the DOL Wage and Hour Division’s Field Assistance Bulletin
No. 2010-2 in interpreting the TCA; nor did it hold that DOT regulations should be ignored
in interpreting the MCAE. Rather, the Court’s May 31, 2016 Memorandum and Order
accorded only “some” deference to the DOL’s Field Assistance Bulletin, primarily because
the Court found that it comported with the plain language of the TCA. (Doc. No. 56 at 1213.)
The Court also agreed with Defendants that if the DOT regulation were issued under
the authority of the Motor Carrier Act, it may be accorded deference in interpreting the
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MCAE. But the Court found that the regulation relied upon by Defendants, 49 C.F.R.
§ 571.3(b)(1), did not interpret the Motor Carrier Act, and as such, it was not persuasive in
interpreting the MCAE or the TCA. Id. at 14-15. There is a lack of precedent for the
Court’s latter finding, and it is a particularly difficult question. Therefore, the Court believes
that the proper question for certification is: Whether the DOT regulation 49 C.F.R.
§ 571.3(b)(1), should be accorded controlling deference in determining the number of
passenger seats a wheelchair placement represents for purposes of determining whether a
vehicle is “designed or used to transport more than eight passengers (including the driver)”
under § 306 of the TCA.
With respect to the second proposed certified question, in order to accurately reflect
the Court’s holding, the question should make clear that the modification to the paralift vans
at issue was to remove seats to accommodate two wheelchair placements and up to six
ordinary seats (including the driver’s seat). Therefore, the Court believes the proper
question for certification is: Whether vehicles which were originally designed and
manufactured to transport 12 to 15 passengers and were later modified by removing seats to
accommodate two secured wheelchair placements and up to six ordinary seats (including the
driver’s seat) are “designed or used to transport more than eight passengers (including the
driver)” under § 306 of the TCA.”4
The third requirement for certification—whether certification will materially advance
the ultimate termination of the litigation—“necessitates a showing that the case is an
4

The Court has deleted the “for compensation” language from the proposed certified
question because the parties in this case do not dispute that the paralift vans at issue were
designed or used to transport passengers for compensation.
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extraordinary case where the decision of an interlocutory appeal might avoid protracted and
expensive litigation.” Emerson Elec. Co., 2013 WL 440578, at *4 (citation and internal
quotation omitted). The Court finds the decision of an interlocutory appeal might well avoid
a protracted and expensive class certification process here, and as such, this case is one of
the exceptional cases in which immediate appeal is warranted.
In sum, the three requirements for an interlocutory appeal under 28 U.S.C. § 1292(b)
have been met in this case.
Defendants have also requested that the Court stay proceedings pending resolution of
any interlocutory appeal. LaCurtis does not state that he opposes a stay, and neither he nor
the other Plaintiffs have identified any prejudice or hardship resulting from a stay. Upon
consideration of the stage of the litigation and the absence of identified prejudice, the Court
will grant Defendants’ request for a stay pending resolution of any interlocutory appeal.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion to amend and certify for
interlocutory review pursuant to 28 U.S.C. § 1292(b), and for a stay of proceedings pending
appeal is GRANTED. (Doc. No. 58.) This Court’s May 31, 2016 Order (Doc. No. 56) is
amended to certify the following questions, as modified, for immediate interlocutory appeal:
1.
Whether the Department of Transportation regulation 49 C.F.R. § 571.3(b)(1),
should be accorded controlling deference in determining the number of passenger seats a
wheelchair placement represents for purposes of determining whether a vehicle is “designed
or used to transport more than eight passengers (including the driver)” under § 306 of the
Safe, Accountable, Flexible, Efficient Transportation Equity Act, Technical Corrections Act
(“TCA”), Pub. L. No. 110–244, Title III, § 306, 122 Stat. 1572, 1620 (2008).
2.
Whether vehicles which were originally designed and manufactured to
transport 12 to 15 passengers and were later modified by removing seats to accommodate
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two secured wheelchair placements and up to six ordinary seats (including the driver’s seat)
are “designed or used to transport more than eight passengers (including the driver)” under
§ 306 of the TCA.
IT IS FURTHER ORDERED that this action is STAYED pending resolution of
Defendants’ application to the Court of Appeals for interlocutory review, and pending the
review itself, if Defendants’ application is granted.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 1st day of July, 2016.

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