Seiffert v. Qwest Corporation et al

Filing 82

ORDER denying #70 Motion to Certify the Court's December 14, 2018, Order for Interlocutory Review. Signed by Judge Brian Morris on 2/22/2019. (MMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

CV-18-70-GF-BMM

JORDAN SEIFFERT, ON BEHALF
OF HIMSELF AND ALL OTHERS
SIMILARLY SITUATED,

ORDER
Plaintiffs,
vs.
QWEST CORPORATION D/B/A/
CENTURYLINK QC AND
CENTURYLINK
COMMUNICATIONS, LLC,
Defendants.

Plaintiff Jordan Seiffert, on behalf of himself, and all others similarly
situated, brought a collective action against Defendant Quest Corporation d/b/a/
CenturyLink QC and Defendant CenturyLink Communications, LLC (collectively
“CenturyLink” or “Defendants”). Defendants moved to dismiss the out-of-state
Plaintiffs and putative Plaintiffs, or, in the alternative, transfer the case to the
Western District of Louisiana where CenturyLink is headquartered. (Doc. 31.)
Defendants argued that the United States Supreme Court’s ruling in BristolMyers Squibb v. Superior Ct. of Cal., 137 S.Ct. 1773 (2017), applies to FLSA

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collective actions and deprives the Court of specific personal jurisdiction. The
Court determined that Bristol-Myers did not apply to FLSA collective actions and
denied Defendants’ motion on December 14, 2018. (Doc. 65.)
Defendants argue that the issue of whether Bristol-Myers deprives a district
court of specific personal jurisdiction over the claims of out-of-state opt-in
plaintiffs in a FLSA collective action presents a controlling question. (Doc. 71 at
2.) Defendants argue, therefore, that the Court’s December 14, 2018, Order
denying Defendant’s Motion to Dismiss, or in the Alternative, Transfer Venue
(Doc. 65) should be certified for interlocutory appeal.
LEGAL STANDARDS
Appeal of a district court order generally may only occur after a final order
ends the litigation. Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010). A
court may certify a non-final order, however, if (1) the order involves a controlling
question of law, (2) as to which there is substantial ground for difference of
opinion, and (3) an immediate appeal may “materially advance the ultimate
termination of the litigation.” 28 U.S.C. § 1292(b); Couch, 611 F.3d at 633.
Interlocutory appeal should be granted sparingly and only in exceptional
circumstances. Google Inc. v. Rockstar Consortium U.S. LP, 2014 WL 4145506 at
*1 (N.D. Cal. Aug. 20, 2014) (citing James v. Price Stern Sloan, Inc., 283 F.3d
1064, 1068 n.6 (9th Cir. 2002)). The party seeking interlocutory review bears the

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burden of showing that interlocutory review is warranted. Couch, 611 F.3d at 633.
The district court possesses discretion to determine whether interlocutory review is
warranted. 28 U.S.C. § 1292(b); see also Google Inc., 2014 WL 4145506, at *1
(citing Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 47 (1995)).
DISCUSSION
Defendants argue that all three requirements for interlocutory appeal are met
with regard to the Court’s December 14, 2018, Order denying Defendant’s Motion
to Dismiss, or in the Alternative, Transfer Venue. (Doc. 65.) Defendants assert that
the question of whether Bristol-Myers applies to collective actions presents ground
for difference of opinion. (Doc. 71 at 5.) Defendants argue further that resolution
of this issue could change materially the scope of this case. Id.
Bristol-Myers involved group of plaintiffs that brought a mass tort action
against Bristol-Myers Squibb in California state court in which they alleged state
law claims. Id. at 1779. The plaintiffs included 86 people who resided in
California, and 592 people who resided in 33 other states. Id. The United States
Supreme Court determined that the California state court lacked personal
jurisdiction over the state claims brought by the out-of-state plaintiffs as no
connection existed between the forum in California and the claims. Id. at 1782-83.
Plaintiffs premised the California state-based tort claims upon alleged
injuries from a drug manufactured by Bristol-Meyers Squibb. Id. at 1281. The out-

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of-state plaintiffs were not prescribed the drug in California, did not purchase the
drug in California, did not ingest the drug in California, and did not suffer injuries
in California. Id. The mere fact that out-of-state plaintiffs suffered the same
injuries as the California resident plaintiffs did not extend the state court’s exercise
of specific personal jurisdiction to the out-of-state plaintiffs’ claims. Id. The
complaint lacked a connection between the forum and the specific claims at issue.
Id. The Supreme Court noted, however, that its decision in Bristol-Meyers did not
usurp “settled principles” of personal jurisdiction. Id. at 1283. The Supreme Court
“[left] open the question whether the Fifth Amendment imposes the same
restrictions on the exercise of personal jurisdiction by a federal court.” Id. at 1784.
I.

Does the Court’s December 14, 2018, Order turn on a Controlling
Question of Law?
Defendants first argue that if Bristol-Myers applied to FLSA collective

actions, Plaintiffs’ claims would have been dismissed for lack of specific
jurisdiction. (Doc. 71.) Defendants assert that the Court’s December 14, 2018,
Order turns on a determination of whether it possessed specific personal
jurisdiction over the claims of out-of-state opt-in Plaintiffs. Id.
In its December 14, 2018, Order, the Court analyzed whether personal
jurisdiction existed over CenturyLink with regard to the claims of the non-Montana
Opt-in Plaintiffs. The Court first determined that Plaintiff Seiffert met all of the
elements required for exercise of specific personal jurisdiction over CenturyLink.
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The Court next analyzed whether Bristol-Myers would divest the Court of specific
personal jurisdiction over the opt-in Plaintiffs. The Court determined that BristolMyers did not apply to FLSA collective actions. Defendants argue that a contrary
result would be compelled if Bristol-Myers applied to FLSA collective actions and
the out-of-state opt-in Plaintiffs’ claims would be dismissed for lack of specific
jurisdiction. (Doc. 71 at 8.) Defendants correctly argue that an opposite conclusion
as to Bristol-Myers would compel a different analysis as to the out-of-state opt-in
Plaintiffs. The question remains, however, whether a dispute over the Court’s
jurisdiction presents a “controlling” question of law.
A controlling question of law exists if resolution of the question would
“materially affect the outcome of the litigation in district court.” In re Cement
Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981). An order that determines who
the parties to an action are may materially affect the outcome of the litigation.
Falco v. Nissan North America Inc., 108 F. Supp. 3d 889, 892 (C.D. Cal. 2015).
Falco involved a similar motion certify the district court’s order for interlocutory
appeal. Id. at 891. The district court’s order determined that the district court could
exercised specific personal jurisdiction over a foreign corporation. Id. The district
court evaluated the three-part test for determining whether interlocutory appeal of
the order was appropriate. Id. at 892. The district court determined that the

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question of specific personal jurisdiction over the defendant presented a
“controlling issue of law.” Id.
A determination of whether the Court has specific jurisdiction over the outof-state opt-in Plaintiffs presents a similar controlling question of law. The Court’s
analysis of the out-of-state opt-in plaintiffs proves material because if this court’s
decision is correct, the court may exercise jurisdiction over hundreds of unnamed
out-of-state opt-in plaintiffs. A contrary conclusion would result in a substantially
smaller collective group of Plaintiffs. A smaller group of Plaintiffs would have the
potential to materially change the outcome of the litigation. The size of the
collective group dictates the demands on the litigation as a whole. This factor
weighs in favor of CenturyLink.
II.

Is there Substantial Ground for Difference of Opinion Concerning a
Controlling Question of Law?
Defendants next argue that Bristol-Myers presents a substantial ground for

difference of opinion with regard to whether specific jurisdiction exists over outof-state opt-in plaintiffs. (Doc. 71 at 8.) District courts are tasked with determining
the extent to which controlling law is unclear under this element. Couch, 611 F.3d
at 633. Difference of opinion exists where “the circuits are in dispute on the
question and the court of appeals of the circuit has not spoken on the point[.]” Id.
Ground for difference of opinion may also exist if “novel and difficult questions of

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first impression are presented.” Id.; see also Reese v. BP Exploration (Alaska) Inc.,
643 F.3d 681, 688 (9th Cir. 2011).
Defendants argue that district courts are not in agreement with regard to
Bristol-Myers’s application to FLSA collective actions. (Doc. 71 at 4.) Defendants
argue that Roy v. FedEx Ground Package System, Inc., 2018 WL 6179504 (D.
Mass. Nov. 27, 2018), presents a difference of opinion. (Doc. 71 at 10.) Roy
involved a group of FedEx employees who argued they were not paid overtime
wages and brought an action against FedEx. Roy, 2018 WL 6179504, at *1. FedEx
argued that Bristol-Myers prevented plaintiffs who lived and worked outside of
Massachusetts from joining in the collective action. Id. The district court
determined that Bristol-Myers applied to FLSA collective actions and dismissed
the opt-in plaintiffs who did not live or work in Massachusetts. Id.
Defendants next argue that Maclin v. Reliable Reports of Texas, Inc., 314 F.
Supp. 3d 845 (N.D. Ohio Mar. 26, 2018), presents a similar difference of opinion.
(Doc. 71 at 11.) Maclin involved a FLSA collective action brought against Reliable
Reports of Texas (“Reliable”). Maclin, 314 F. Supp. 3d at 847. The plaintiffs
alleged that Reliable failed to pay them for overtime worked. Id. Reliable moved to
dismiss the FLSA claims of the non-Ohio plaintiffs. Id. at 848. Reliable argued that
Bristol-Myers applied to FLSA collective actions and divested the district court of
specific personal jurisdiction. Id. The plaintiffs argued that Swamy v. Title Source,

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Inc., 2017 WL 5196780 (N.D. Cal. Nov. 10, 2017), demonstrated that BristolMyers did not extend to FLSA collective actions. The district court in Maclin
determined that “district courts in the Ninth Circuit have no precedential effect on
[the Sixth Circuit.]” Maclin, 314 F. Supp. 3d at 850. The district court accordingly
agreed with Reliable that Bristol-Myers applied and the FLSA claims of non-Ohio
plaintiffs should be dismissed. Id.
The Court agrees with the district court’s conclusion in Maclin that district
courts in other circuits do not impact this Court’s reasoning. The court is,
therefore, more persuaded by district courts in the Ninth Circuit than those in
Massachusetts or Ohio. Unlike the district court in Maclin that declined to follow
the reasoning in Swamy because it occurred in the Ninth Circuit, this Court is
persuaded by the reasoning of Swamy for the very reason that it occurred there.
In the Court’s December 14, 2018, Order, the Court examined the district
court’s analysis in Swamy. The named plaintiff in Swamy sought conditional
certification of his FLSA collective action on behalf of all “staff appraisers” that he
alleged similarly had been misclassified as exempt from overtime pay. Swamy,
2017 WL 5196780, at *1. The claim defined the class as “all staff appraisers that
worked for defendant at any time from three years prior to the date the Court
authorizes notice to the present.” Id. the defendants opposed conditional
certification of the class on the basis that the district court lacked jurisdiction over

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non-California residents. Id. Defendants asked the district court to extend the
reasoning of Bristol-Myers to the FLSA collective action. Id.
The district court recognized that “Bristol-Myers does not apply to divest
courts of personal jurisdiction in FLSA collective actions.” Swamy, 2017 WL
5196780, at *2. The district court determined that FLSA collective actions
constitute “federal claims created by Congress specifically to address employment
practices nationwide.” Id. The district court further noted that “Congress created a
mechanism for employees to bring their claims on behalf of other employees who
are ‘similarly situated”’ Id.
Though there may be disagreement within other circuits with regard to
whether Bristol-Myers applies to FLSA collective actions, district courts within the
Ninth Circuit have consistently agreed that such application does not exist. See
Thomas v. Kellogg Co., 2017 WL 5256634, at *1 (W.D. Wash. Oct. 17, 2017)
(determining that Bristol-Myers concerns only the “due process limits on the
exercise of specific jurisdiction by a State.”) Id. The fact that district courts outside
of the Ninth Circuit have interpreted Bristol-Myers differently does not present a
material difference of opinion warranting an interlocutory review.
Bristol-Myers does not establish a novel question. Bristol-Myers did not
change the law. Bristol-Myers expressly determined that “settled principles
regarding specific jurisdiction” remained in place. Bristol-Myers, 137 S.Ct. at

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1783. The United States Supreme Court “[left] open the question whether the Fifth
Amendment imposes the same restrictions on the exercise of personal jurisdiction
by a federal court.” Id. at 1784. It is well settled that the original plaintiff in a
collective action under the FLSA dictates a district court’s analysis of specific
jurisdiction. AM Tr. v. UBS AG, 78 F. Supp. 3d 977, 968 (N.D. Cal. 2015), aff’d,
681 Fed. App’x 587 (9th Cir. 2017); see also Senne v. Kansas City Royals Baseball
Corp., 105 F. Supp. 3d 981, 1022 (N.D. Cal. 2015). Bristol-Myers involved
personal jurisdiction in the context of state law claims. Bristol-Myers, 1327 S.Ct. at
1779. The United States Supreme Court’s decision did not narrow the FLSA’s
principles that allow employees to bring claims on behalf of themselves and other
employees “similarly situated.” 29 U.S.C. § 216(b). A novel issue has not been
presented as to the extent of the FLSA’s application. This factor weighs in favor of
Plaintiffs.
III.

Would Resolution of Whether Bristol-Myers Applies to Collective
Actions Materially Advance the Litigation?
Defendants next argue that certification for interlocutory appeal is

appropriate because it will materially advance the litigation. (Doc. 71 at 13.)
Certification of an interlocutory appeal is appropriate when granting certification
“would avoid protracted and expensive litigation.” In Re Cement, 637 F.2d at
1026. Defendants assert that if their position prevailed on appeal, the number of
plaintiffs would be substantially reduced. (Doc. 71 at 14.) Defendants argue,
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therefore, that the Court and parties would be spared unnecessary cost of engaging
in burdensome litigation. Id.
Defendants argue that Molock v. Whole Foods, 317 F. Supp. 3d 1 (D.D.C.
2018), proves similar to this case. Molock involved a Rule 23 class action brought
by Whole Foods employees regarding the payment of bonuses. Id. at *3. The
district court addressed a similar argument regarding whether Bristol-Myers
applied to Rule 23 class actions. The district court rejected the defendant’s
argument that Bristol-Myers applied to out-of-state plaintiff’s in Rule 23 class
actions. Id. The district court, however, granted defendant’s motion to certify the
order for interlocutory review. Id. The Court determined that all three elements
were met to allow for interlocutory review. Id. As to the third element, the court
evaluated “whether reversal would hasten or at least simplify the litigation in some
material way, such as significantly narrowing the issues, conserving judicial
resources, or saving the parties from needless expense.” Id. at *5. The court
determined that the potential for avoiding burdensome discovery costs and
conserving judicial resources in the event of a reversal could “materially advance
the ultimate termination of the litigation.” Id. (citing 28 U.S.C. § 1292(b)).
The same result is not compelled here. The outcome of an appeal of this case
would not materially narrow the issues as Defendants argue. Plaintiffs have
demonstrated that the putative opt-in Plaintiffs in this case will continue to seek

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recovery as a collective group even if the case were moved to another district
court. The dispute will, therefore, not be narrowed, discovery will remain the same,
and the same issues will require resolution. The burden of litigation costs will
instead be increased by forcing the parties to argue this issue on appeal – an issue
that this Court has already determined to be immaterial within the Ninth Circuit.
Judicial resources will not be conserved because a district court will continue to be
required to resolve all of the issues presented currently in this Court, regardless of
the outcome of an appeal. Interlocutory review does not advance any material
benefit in this case. This factor weighs in favor of Plaintiffs.
CONCLUSION
Having considered Defendants’ Motion to Certify the Court’s December 14,
2018, Order for interlocutory review (Doc. 70), the Court determines that
exceptional circumstances do not exist to warrant such review. Defendants have
demonstrated that the issue of whether Bristol-Myers applies to out-of-state opt-in
Plaintiffs is a controlling issue of law in this case. Defendants have failed to show,
however, that there is substantial ground for a difference of opinion on this
controlling issue. Defendants have further failed to show that resolution of whether
Bristol-Myers applies to out-of-state opt-in plaintiffs would materially advance this
litigation. The 28 U.S.C. § 1292(b) three-factor test weighs in favor of Plaintiffs.

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ACCORDINGLY, IT IS HEREBY ORDERED that Defendants’ Motion
to Certify the Court’s December 14, 2018, Order for Interlocutory Review (Doc.
70) is DENIED.

DATED this 22nd day of February, 2019.

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