Long v. CPI Security Systems, Inc.
Filing
87
ORDER denying 79 Motion for Leave to Appeal. Signed by District Judge Robert J. Conrad, Jr on 7/15/2013. (blf)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-396-RJC-DSC
DARRYL LONG, individually and
on behalf of all other similarly situated
individuals,
Plaintiff,
v.
CPI SECURITY SYSTEMS, INC.,
Defendant.
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ORDER
THIS MATTER comes before the Court on Defendant CPI Security Systems, Inc.’s
(“Defendant” or “CPI”) Motion for Certification of Interlocutory Appeal of Order Granting
Conditional Certification. (Doc. No. 79). For the reasons set forth herein, Defendant’s Motion is
DENIED.
I.
BACKGROUND
By Order dated May 17, 2013, this Court granted Plaintiff Darryl Long’s Motion for
Conditional Class Certification and Court Authorized Notice under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 216(b). (Doc. No. 76). On May 30, 2013, Defendant filed the instant
Motion for Certification of Interlocutory Appeal of the Court’s May 17 Order. (Doc. No. 79).
Plaintiff responded on June 17, 2013, (Doc. No. 82), and Defendant replied on June 27, 2013,
(Doc. No. 84). This matter is now ripe for disposition.
II.
STANDARD OF REVIEW
Under 28 U.S.C. § 1292(b), a district court may certify an order for interlocutory appeal
if (1) the order involves a controlling question of law, (2) about which there is substantial ground
for difference of opinion, and (3) immediate appeal would materially advance the termination of
the litigation. Montgomery v. Johnson, No. 7:05CV00131, 2008 WL 5422866, at *1 (W.D. Va.
Dec. 30, 2008) (citing 28 U.S.C. § 1292(b)). “Such certifications are the exception and not the
rule, because they depart from the well-established policy limiting appeals to final judgments.”
Id.; see City of Charleston v. Hotels.Com, LP, 586 F. Supp. 2d 538, 542 (D.S.C. 2008)
(explaining that “certification of an interlocutory appeal should generally be limited to
extraordinary cases where significant effort and expense would be spared by appellate review
prior to the entry of final judgment”). The Fourth Circuit has warned that Section 1292(b)
“should be used sparingly” and that the three procedural requirements “must be strictly
construed.” Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989); see also Coopers & Lybrand v.
Livesay, 437 U.S. 463, 475 (1978) (recognizing that use of § 1292(b) is reserved for
“exceptional circumstances [that] justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment” (internal quotation marks omitted)).
III.
DISCUSSION
The three issues which Defendant asks that this Court certify for interlocutory appeal are
as follows:
(1) whether, when discovery, consisting of the depositions of the named plaintiff
and the majority of opt-in plaintiffs and depositions of Defendant’s “key material
witnesses,” have been undertaken prior to conditional certification briefing, a
court should apply an intermediate standard of review and consider not only
plaintiff(s)’ prima facie evidence that a class is similarly situated, but also the
contrary evidence put forward by the defendant;
(2) whether the Court’s recognition that CPI’s “separate and particularized
compensation plans for each [of the technician] classifications . . . may indeed
pose problems down the road” should have been considered substantively on the
question of whether conditional certification is appropriate rather than as simply
requiring a redefinition of the class as this Court held; and
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(3) whether class manageability issues—including the inclusion of technicians
who were paid on both hourly and commission bases and the necessity of
individualized week-by-week damages considerations—are appropriate factors in
the Court’s conditional certification analysis or “more appropriate at the motion to
decertify phase” as this Court held.
(Doc. No. 80 at 1-2). The Court will consider Defendant’s first issue below. The second and
third issues, however, have been fully briefed by the parties and resolved previously by this
Court, and the Court can see no reason to revisit them again.
A.
Controlling Question of Law
A controlling question of law is “a narrow question of pure law whose resolution will be
completely dispositive of the litigation, either as a legal or practical matter, whichever way it
goes.” Fannin v. CSX Transp., Inc., No. 88-8120, 1989 WL 42583, at *5 (4th Cir. April 26,
1989). Conversely, a question of law is not controlling if litigation will “necessarily continue
regardless of how that question [is] decided.” N.C. ex rel. Howes v. W.R. Peele Sr. Trust, 889 F.
Supp. 849, 853 (E.D.N.C. 1995). Cases which are appropriate for certification under § 1292(b)
involve questions of “‘pure’ law, matters the court of appeals ‘can decide quickly and cleanly
without having to study the record.’” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258
(11th Cir. 2004) (quoting Ahrenholz v. Bd. of Trustees of the Univ. of Ill., 219 F.3d 674, 677
(7th Cir. 2000)).
Plaintiff argues that conditional certification does not present a controlling question of
law because it is a temporary and discretionary decision that is later revisited on a motion to
decertify the conditionally certified collective. (Doc. No. 82 at 6). Plaintiff offers persuasive
case law supporting his argument. See LaFleur v. Dollar Tree Stores, Inc., No. 2:12-cv-00363,
2013 WL 150722, at *4 (E.D. Va. Jan. 11, 2013); Pereira v. Foot Locker, Inc., No. 07-cv-2157,
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2010 WL 300027, at *4 (E.D. Pa. Jan. 25, 2010). In LaFleur, Dollar Tree, like Defendant here,
sought interlocutory review of the court’s order granting FLSA conditional certification. 2013
WL 150722. Dollar Tree requested certification to seek guidance from the Fourth Circuit
regarding “[w]hether the Court is permitted to examine the Defendant’s evidence in detail at the
conditional certification stage when some discovery has been taken already.” Id. at *2. The
district court denied the motion outright, stating that “there is no controlling question of law yet
at issue given the temporary nature of [the court’s] conditional order to certify a collective of
[employees].” Id. at *4.
Similarly, in Pereira v. Foot Locker, Inc., Foot Locker moved for leave to seek
interlocutory review of the following two questions: (1) whether, and to what degree, the court
should consider a defendant’s evidence weighing against a finding that plaintiff and others are
“similarly situated” at the first, or conditional, stage of review; and (2) the appropriate standard
to be applied in determining whether a plaintiff and others are “similarly situated,” where there
has been an opportunity for discovery and development of proof on both sides. 2010 WL
300027, at *3. In denying Foot Locker’s motion, the court stated:
Where a court’s decision is conditional, and may be altered or amended before
decision on the merits, the decision is not a controlling question of law to be
reviewed under § 1292(b) . . . . The Court finds that neither issue raised by
Defendant is a controlling question of law. The Court's decision to certify the
class was conditional. Therefore, the Court in this case will have the opportunity
to conduct a review of its decision granting conditional collective certification at
the decertification stage. As such, we do not feel that it is appropriate to certify
either issue raised by Defendant as one which justifies immediate certification for
appeal under Section 1292(b).
Id. at *4. Numerous other cases, as noted by Plaintiff, hold that an order conditionally certifying
an FLSA collective is inappropriate for interlocutory review. See, e.g., Comer v. Wal–Mart
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Stores, Inc., 454 F.3d 544, 549 (6th Cir. 2006) (“We adopt the approach of the Fifth Circuit. We
hold that a conditional order approving notice to prospective co-plaintiffs in a suit under § 216(b)
is not appealable.”); Craig v. Rite Aid Corp., No. 08-cv-2317, 2010 WL 1994888, at *3 (M.D.
Pa. Feb. 4, 2010) (holding that an order granting FLSA conditional certification did not involve a
question of law, and denying motion for interlocutory appeal); Ellerd v. Cnty. of L.A., No.
CV08-4289, 2009 WL 3462179, at *6 (C.D. Cal. Oct. 22, 2009) (“The Court finds that the
requirements for certification of an interlocutory appeal pursuant to 29 U.S.C. 1292(b) are not
met here, because the Court applied a clear, “lenient” standard to provisionally certify the
collective action, and defendant may move for decertification upon the completion of
discovery.”); O’Donnell v. Robert Half Int’l, 534 F. Supp. 2d 173, 181 (D. Mass. Jan. 9, 2008)
(denying appeal of a denial for conditional certification because it “will not materially advance
the resolution of the litigation” and because the order denying conditional certification does not
“involve a controlling question of law”).
In the absence of controlling Fourth Circuit precedent, this Court is influenced by these
persuasive opinions of other courts which have held that conditional certification is not a
controlling question of law. Defendant fails to cite any cases, Fourth Circuit or otherwise, in
which courts have held that the issue of conditional certification is a controlling question of law.
Finally, Defendant argues that “a more exacting standard of review would likely result in
the denial of collective action status and would end this litigation as a practical matter.” (Doc.
No. 84 at 3). Contrary to this assertion, application of an intermediate standard does not
guarantee success for the defendant. Plaintiff may still make out its case for conditional
certification. In that event, the underlying resolution is but delayed.
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B.
Substantial Ground for Difference of Opinion
The Court recognizes that there are considerable differences of opinion between various
district and circuit courts regarding the questions at issue. However, it is not persuaded to grant
Defendant’s motion for a certification of appealability at this time because there is no controlling
question of law yet at issue given the temporary nature of its conditional order to certify a
collective of hourly technicians. Defendant will have ample opportunity at the end of discovery
to seek decertification of the conditionally certified collective. See LaFleur, 2013 WL 150722,
at *4.
C.
Materially Advance Ultimate Termination of Litigation
Finally, the Court is not persuaded that an immediate appeal is likely to promote judicial
efficiency. Interlocutory appeal creates the potential for a Rorschach-like inkblot of a case
history with appellate review of the conditional question occurring at the same time, or after, the
inferior court addresses the ultimate question of certification. Such a scenario creates a potential
for confusion and waste of judicial resources. Defendant’s representation at oral argument that it
would seek a stay of the underlying proceeding while it pursues appeal only exacerbates the
delay inherent in interlocutory appeal on these facts.
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IV.
CONCLUSION
IT IS, THEREFORE, ORDERED that Defendant CPI Security Systems, Inc.’s Motion
for Certification of Interlocutory Appeal of Order Granting Conditional Certification, (Doc. No.
79), is DENIED.
Signed: July 15, 2013
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