Petrone v. Werner Enterprises, Inc. et al

Filing 367

MEMORANDUM AND ORDER - Defendants' motion is granted in part and denied in part: 1) Defendants' motion for reconsideration under Rule 60(b) is denied. 2) Defendants' motion to certify ruling for an interlocutory appeal as to the Au gust 3, 2015, summary judgment order (Filing No. 347 in 8:11CV401; Filing No. 249 in 8:12CV307) is granted. 3) Defendants' motion to stay proceedings pending the outcome of appeal is granted. Member Cases: 8:11-cv-00401-LES-FG3, 8:12-cv-00307-LES-FG3Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA

PHILLIP PETRONE, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)
PHILLIP PETRONE, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:11CV401

8:12CV307

MEMORANDUM AND ORDER

This matter is before the Court on defendants’ motion
for relief from judgment under Federal Rule of Civil Procedure
60(b) or, in the alternative, to certify ruling for an
interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and to stay
the proceedings (Filing No. 354 in 8:11CV401; Filing No. 256 in
8:12CV307).

After reviewing the motion, briefs, and relevant law

the Court finds as follows.

Background
Defendants Werner Enterprises, Inc. and Drivers
Management, LLC (collectively “Werner”) operate an approximately
eight-week Student Driver Program as part of the training and
orientation for new drivers.

Plaintiff Philip Petrone filed this

action on September 14, 2011, asserting minimum wage violations
under the Fair Labor Standards Act (“FLSA”) and Pennsylvania
state law.

In addition, violations under the Nebraska Wage

Payment and Collection Act and the Nebraska Wage and Hour Act
were asserted.

On May 15, 2015, plaintiffs and defendants filed

cross-motions for summary judgment.

This Court held that the

defendants were liable for failing to pay minimum wages for
certain sleeper berth time and short rest breaks (Filing No. 347
in 8:11CV401; Filing No. 249 in 8:12CV307).

The Court also

concluded that hourly damages were appropriate for the state law
claims (Id.).

The defendants filed this motion to reconsider

under Rule 60(b) or in the alternative, to certify for
interlocutory appeal (Filing No. 354 in 8:11CV401; Filing No. 256
in 8:12CV307).

The plaintiffs filed a brief in opposition

(Filing No. 363 in 8:11CV401; Filing No. 265 in 8:12CV307), to
which the defendants replied (Filing No. 365 in 8:11CV401; Filing
No. 267 in 8:12CV307).

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Discussion
Title 28, U.S.C. § 1292(b) allows a district court to
certify an interlocutory appeal of an order where the court
determines 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.’”

Union Cty., Iowa v. Piper

Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008)(quoting White v.
Nix, 43 F.3d 374, 377 (8th Cir. 1994)).

Permission to allow such

appeals should only be granted “‘sparingly and with
discrimination.’”

Id. at 646 (quoting White, 43 F.3d at 376).

The legislative history of § 1292(b) “indicates that it was to be
used only in extraordinary cases where decision of an
interlocutory appeal might avoid protracted and expensive
litigation.’”

Id. (quoting U.S. Rubber Co. v. Wright, 359 F.2d

784, 785 (9th Cir. 1966)).
I. Controlling Question of Law
The Court’s summary judgment order as to liability
involves a controlling question of law.

If the Eighth Circuit

were to conclude that this Court’s decisions to find the
defendants liable as to sleeper berth claims and the application
of hourly damages for state law claims were incorrect, then the
plaintiffs’ case as to those issues would be dismissed.
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II. Substantial Ground for Difference of Opinion
The issues addressed in the summary judgment order are
issues of first impression for the Eighth Circuit.

"To determine

if a `substantial ground for difference of opinion' exists under
§ 1292(b), courts must examine to what extent the controlling law
is unclear."

Couch v. Telescope Inc., 611 F.3d 629, 633 (9th

Cir. 2010).

The law may be unclear where "`the circuits are in

dispute on the question and the court of appeals of the circuit
has not spoken on the point.'"

Id. (quoting 2 Federal Procedure,

Lawyers Edition § 3:212 (2011)).

Currently there is no Eighth

Circuit precedent on the issues addressed in the summary judgment
order.

The only case law that is similar to the issue at hand is

Nance v. May Trucking, which this Court found to be not directly
on point.

2014 WL 199136 (D.Or. Jan. 15, 2014).

As a result, a

substantial ground for difference of opinion is present.
III. Material Advancement of the Litigation
A decision by the Eighth Circuit about the applicable
law and liability could make trial unnecessary, limit the issues
for trial, or limit unnecessary expenses or judicial resources.
Therefore, the Court finds that allowing the appeal could
materially advance the litigation in this matter.

Accordingly,

IT IS ORDERED that defendants’ motion is granted in
part and denied in part:
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1)

Defendants’ motion for reconsideration under Rule

60(b) is denied.
2)

Defendants’ motion to certify ruling for an

interlocutory appeal as to the August 3, 2015, summary judgment
order (Filing No. 347 in 8:11CV401; Filing No. 249 in 8:12CV307)
is granted.
3)

Defendants’ motion to stay proceedings pending the

outcome of appeal is granted.
DATED this 25th day of August, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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