Kloppel v. Sears Holdings Corporation et al
Filing
62
DECISION AND ORDER: For the reasons stated, Sears's motion for leave to file a sur-reply, ECF No. 44 , is GRANTED, Plaintiffs' motion for reconsideration, ECF No. 37 , is DENIED, and HDL's motions to certify order for interlocutory appeal under 28 U.S.C. § 1292(b) and to stay proceedings pending the appeal, ECF No. 34 , are DENIED. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/15/19. (JO)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MIKE KLOPPEL and ADAM WILSON, 1 on behalf
of themselves and all other similarly-situated persons,
Plaintiffs,
Case # 17-CV-6296-FPG
v.
DECISION AND ORDER
SEARS HOLDINGS CORPORATION,
SEARS, ROEBUCK & COMPANY, and
HOMEDELIVERYLINK, INC.,
Defendants.
INTRODUCTION
Plaintiffs Mike Kloppel and Adam Wilson filed this putative class action on May 9, 2017,
alleging that Defendants Sears Holding Corporation and Sears, Roebuck & Company (together,
“Sears”) and Defendant HomeDeliveryLink (“HDL”) violated New York law by, among other
things, misclassifying them as independent contractors and taking illegal deductions from their
wages. See ECF Nos. 1, 9-10.
On February 28, 2018, the Court issued a decision and order granting Sears’s motion to
dismiss and granting in part and denying in part HDL’s motion to dismiss. See ECF Nos. 12, 20,
31.
1
The docket in the Court’s electronic filing system currently lists the second Plaintiff in this action as “Wilson Adam.”
This appears to be a mistake. The amended complaint names the second Plaintiff as “Adam Wilson.” ECF Nos. 910. The Clerk of Court is therefore directed to amend the caption to name the second Plaintiff Adam Wilson. See
Hernandez-Avila v. Averill, 725 F.2d 25, 27 n. 4 (2d Cir. 1984) (“A caption may of course be amended with the
permission of the court.”).
Before the Court is Sears’s motion for leave to file a sur-reply, which the Court has
considered, 2 Plaintiffs’ motion for reconsideration regarding Sears’s motion to dismiss, and HDL’s
motions to certify order for interlocutory appeal under 28 U.S.C. § 1292(b) and to stay proceedings
pending the appeal.
ECF Nos. 34, 37, 44.
For the following reasons, Sears’s motion is
GRANTED, Plaintiffs’ motion is DENIED, and HDL’s motions are DENIED.
DISCUSSION
I.
Motion for Reconsideration
The standard used to decide a motion for reconsideration is “strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that the court
overlooked . . . .” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citing
Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990)) (emphasis added). Movants may
not use such a motion as “a vehicle for relitigating old issues, presenting the case under new
theories, . . . or otherwise taking a ‘second bite at the apple’ . . . .” Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d
136, 144 (2d Cir. 1998)).
Here, the Court uses its discretion to deny Plaintiffs’ motion. See id. (citing Empresa
Cubana del Tabaco v. Culbro Corp., 541 F.3d 476, 478 (2d Cir. 2008) (per curiam)). They cite
no controlling decisions or data that the Court overlooked that would alter its conclusion as to
Sears. Instead, they reference previously-cited cases in support of an alternate theory allegedly
mandating an outcome favorable to them. Compare ECF No. 23 at 7-12, 19-20, 22, with ECF No.
37-1 at 2-3, 6-7, 9-10 (citing Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61 (2d Cir. 2003),
Ansoumana v. Gristede’s Operating Corp., 255 F. Supp. 2d 184 (S.D.N.Y. 2003), & Barfield v.
2
“[C]ourts have broad discretion to consider arguments in a sur-reply.” Newton v. City of New York, 738 F. Supp. 2d
397, 417 n. 11 (S.D.N.Y. 2010).
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New York City Health & Hosps. Corp., 537 F.3d 132 (2d Cir. 2008), among others). The Court
already considered these cases and their attendant conclusions when deciding Sears’s motion to
dismiss. While Plaintiffs may have decided the issue differently, that does not constitute sufficient
grounds to grant their motion and reconsider the Court’s conclusion. Consequently, their motion
is DENIED.
II.
Motions to Certify Order for Interlocutory Appeal and to Stay Proceedings
Generally, “appellate review must await final judgment”—interlocutory appeals such as
those permitted by 28 U.S.C. § 1292(b) are an exception. Nutraceutical Corp. v. Lambert, 139 S.
Ct. 710, 716 (2019). Under § 1292(b), a district court may certify an appeal to the Second Circuit
if it concludes that a non-final order “involves a [(1)] controlling question of law [(2)] as to which
there is substantial ground for difference of opinion and [(3)] that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” The district court or
Second Circuit may stay the case pending the appeal, but it is not mandatory. 28 U.S.C. § 1292(b);
Mills v. Everest Reinsurance Co., 771 F. Supp. 2d 270, 273 (S.D.N.Y. 2009). Finally, deciding
whether to grant an interlocutory appeal “lies within the district court’s discretion.” Id. (citing
Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 47 (1995)).
Section 1292(b) carries a high standard and for good reason: interlocutory appeals “derail
the orderly conduct of lawsuits and result in piecemeal and duplicative litigation.” Prout v.
Vladeck, 319 F. Supp. 3d 741, 746-47 (S.D.N.Y. 2018) (citing SEC v. Citigroup Global Markets
Inc., 827 F. Supp. 2d 336, 337 (S.D.N.Y. 2011)) (citations and quotation marks omitted).
Consequently, they are “rare,” “strongly disfavored,” and “reserved for exceptional
circumstances.” Id. (citing Citigroup Global Markets Inc., 827 F. Supp. 2d at 337) (citation and
quotation marks omitted).
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Plaintiffs do not argue that HDL cannot establish the first prong of § 1292(b), so the Court
addresses only the second and third prongs.
A movant establishes the second prong by “showing that (1) there is conflicting authority
on an issue or (2) the case is particularly difficult and of first impression within this Circuit.” Mills,
771 F. Supp. 2d at 273 (quoting Consub Del. LLC v. Schahin Engenharia Limitada, 476 F. Supp.
2d 305, 308-09 (S.D.N.Y. 2007)). It is not met by arguing that the Court’s ruling was incorrect or
that a legal issue is particularly difficult. Id. (citing Wausau Bus. Ins. Co. v. Turner Constr. Co.,
151 F. Supp. 2d 488, 491 (S.D.N.Y. 2001) & In re South African Apartheid Litig., 624 F. Supp.
2d 336, 339 (S.D.N.Y. 2009))
“Finally, the third prong is met where an intermediate appeal would” shorten the time to
termination of the case or trial or shorten trial. Id. (citing Transport Workers Union of Am., Local
100, AFL-CIO v. New York City Transit Auth., 358 F. Supp. 2d 347, 350 (S.D.N.Y. 2005)).
A.
Whether There Is Conflicting Authority
There is no conflicting authority as to the relevant issue in this case: the scope of the Federal
Aviation Administration Authorization Act’s (FAAAA) preemption. 3 HDL argues that this Court
and other courts have analyzed the scope of the FAAAA’s preemption incorrectly. ECF No. 35 at
10, 12 (claiming that the Court incorrectly concluded that the First and Seventh Circuits “used the
same analysis” and this Court and the Seventh Circuit “misconstrued” a Supreme Court decision);
ECF No. 43 at 9-10 (arguing that Plaintiffs repeat a mistake made by the Seventh Circuit and that
the Seventh Circuit failed to properly analyze the scope of the FAAAA’s preemption). As
mentioned, HDL cannot establish the second prong by showing that this Court or other courts
analyzed the issue incorrectly. Mills, 771 F. Supp. 2d at 273.
3
HDL argued that the case is one of first impression within the Second Circuit, but it did not argue that it is particularly
difficult. Consequently, the Court considers only whether there is conflicting authority on the issue.
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HDL also contends that decisions issued by the First and Seventh Circuits conflict. ECF
No. 35 at 10-11 (citing Costello v. BeavEx, Inc., 810 F.3d 1045 (7th Cir. 2016) & Schwann v.
FedEx Ground Packaging Sys., Inc., 813 F.3d 429 (1st Cir. 2016)). But this Court and Schwann
held they do not conflict. Kloppel v. Sears Holding Corp., No. 17-CV-6296-FPG, 2018 WL
1089682, at *4 n. 3 (W.D.N.Y. Feb. 28, 2018) (“The Schwann court acknowledged that its decision
did not contradict the BeavEx decision.” (emphasis added)); see also id. (“Although [BeavEx] used
the same analysis [as] Schwann, the facts of the case and the narrower scope of the state labor law
mandated a different result.”(footnotes omitted)).
HDL further argues that there is a Circuit split as to the FAAAA’s preemption of claims
impacting service. ECF No. 43 at 7 (citing Centuori v. UPS, Inc., No. C16-0654JLR, 2017 WL
1194497, at *5 n. 7 (W.D. Wash. Mar. 30, 2017)). But while Centuori explains that there is a
Circuit split, it also explains that most of the Circuits that considered the issue favor a broad
definition 4 of “service.” Centuori, 2017 WL 1194497, at *5 n. 7 (citing Nat’l Fed’n of the Blind
v. United Airlines Inc., 813 F.3d 718, 726 (9th Cir. 2012)). One of those Circuits is the Second
Circuit. Id.; see also Nat’l Fed’n of the Blind, 813 F.3d at 726 (citing Air Transp. Ass’n of Am.,
Inc. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008)). So, a majority of Circuits have settled the issue,
the Second Circuit has considered it, and it is not an issue of first impression. HDL has thus failed
to establish the second prong of § 1292(b). See Trotter v. Perdue Farms, Inc., 168 F. Supp. 2d
277, 287-88 (D. Del. 2001) (“Defendants have not shown authority directly to the contrary and
therefore the court finds that the question is not one on which there is a substantial ground for
difference of opinion.”); see also id. (denying a motion under § 1292(b) where defendants wanted
4
Centuori analyzes the preemption clause of the Airline Deregulation Act of 1978 (ADA). Courts apply analysis of
ADA preemption to FAAAA preemption since the FAAAA borrows language from the ADA’s preemption clause.
Kloppel, 2018 WL 1089682, at *3. The Supreme Court has endorsed this approach. See id.
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to appeal the court’s determination of whether the Employee Retirement Income Security Act
preempted plaintiffs’ state wage and hour law claims). The Court therefore DENIES HDL’s
motion.
CONCLUSION
For the foregoing reasons, Sears’s motion for leave to file a sur-reply, ECF No. 44, is
GRANTED, Plaintiffs’ motion for reconsideration, ECF No. 37, is DENIED, and HDL’s motions
to certify order for interlocutory appeal under 28 U.S.C. § 1292(b) and to stay proceedings pending
the appeal, ECF No. 34, are DENIED.
IT IS SO ORDERED.
Dated: March 15, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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