Paguirigan v. Prompt Nursing Employment Agency LLC et al

Filing 116

OPINION & ORDER denying 102 Motion for Certificate of Appealability. Ordered by Judge Nina Gershon on 1/9/2020. (Marziliano, August)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

ROSE ANN PAGUIRIGAN,individually and on
behalf of all others similarly situated,
Plaintiff,

MEMORANDUM & ORDER

- against -

17-cv-1302(NG)
(JO)

PROMPT NURSING EMPLOYMENT AGENCY

LLC d/b/a/ SENTOSA SERVICES,
SENTOSACARE LLC,SENTOSA NURSING

RECRUITMENT AGENCY,BENJAMIN LANDA,
BENT PHILIPSON,BERISH RUBENSTEIN a/k/a
BARRY RUBENSTEIN,FRANCIS LUYUN,
GOLDEN GATE REHABILITATION & HEALTH

CARE CENTER LLC,and SPRING CREEK

REHABILITATION AND NURSING CENTER,
Defendants.
X

GERSHON,United States District Judge:

Defendants Prompt Nursing Employment Agency LLC, Sentosacare LLC, Sentosa

Nursing Recruitment Agency, Benjamin Landa, Bent Philipson, Berish Rubenstein, Francis

Luyun, Golden Gate Rehabilitation and Health Care Center LLC,and Spring Creek Rehabilitation

and Nursing Center move pursuant to 28 U.S.C. § 1292(b) for certification of an interlocutory
appeal of this court's opinion and order entered September 24, 2019, inter alia, granting partial
summary judgment for plaintiffs. Paguirigan v. Prompt Nursing Employment Agency LLC,2019
WL 4647648, at *1 (L.D.N.Y. Sept. 24, 2019).

A request for an interlocutory appeal can be granted only if the order in question involves
"a controlling question of law about which there is substantial ground for difference of opinion

and an immediate appeal may materially advance the ultimate termination of the litigation."
Koehler v. Bank ofBermuda Ltd., 101 F.3d 863, 864(2d Cir. 1996). Here, defendants have failed

to persuade me that granting their request would materially advanee the ultimate termination of
the litigation.

Regarding this factor, defendants assert that, because they have a right to appeal that part
of my order granting injunctive relief, the ease would be materially advanced if I granted their
request because it would allow the "entire ease [to] be heard by the Court of Appeals at once" and
would prevent piecemeal appeals. Defs.' Reply Br. at 10. But to accept defendants' argument
would allow 28 U.S.C. § 1292(a)(1), one offew exceptions to the final judgment rule, to swallow
the rule itself. See In re Facebook, Inc., IPO Sec. & Derivative Litig., 986 F. Supp. 2d 428, 478
(S.D.N.Y. 2013)(stating the same with respect to the qualified immunity exception). Furthermore,

defendants' contention is particularly unconvincing because the vast majority of issues in the ease
were resolved on summary judgment, and therefore, there is no reason to conclude that an

"immediate appeal may avoid protracted litigation." See Koehler, 101 F.3d at 865-66.
The motion for certification is denied.'

'On October 23, 2019, defendants filed a notice of appeal as to my entire decision. As a general
rule, when a notice of appeal is filed, "the district court is divested of'control over those aspects
of the ease involved in the appeal.'" Hoffenberg v. United States, 2004 WL 2338144, at *2
(S.D.N.Y. Oct. 18, 2004). Here, while there is a basis for defendants to have appealed the part of
my decision granting injunctive relief, 28 U.S.C. § 1292(a)(1), it appears that defendants' notice

is premature as to other issues in the decision, and therefore does not divest me ofjurisdiction as
to those aspects of the case. United States v. Rodgers, 101 F.3d 247, 252(2d Cir. 1996).

In any event, I need not assess, issue by issue, my jurisdiction over this motion because Rule
62.1(a)(2) provides me with express authority to deny it. See Fed. R. Civ. P. 62.1.

so ORDERED.

NINA GERSHON
NINA GERSHON

United States District Judge

January ^,2020
Brooklyn, New York