REINIG et al v. RBS CITIZENS, N.A.

Filing 283

MEMORANDUM OPINION & ORDER DENYING WITHOUT PREJUDICE #268 Defendant's Renewed Motion to Decertify the FLSA Collective Action. Signed by Judge Arthur J. Schwab on 6/25/19. (bfm)

FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALEX REINIG, KEN GRITZ, BOB SODA,
MARY LOU GRAMESKY, PETER WILDER
SMITH, WILLIAM KINSELLA, DANIEL
KOLENDA, VALERIA DAL PINO,
AHMAD NAJI, ROBERT PEDERSON,
TERESA FRAGALE, and DAVID
HOWARD,

15cv1541
ELECTRONICALLY FILED

Plaintiffs,
v.
RBS CITIZENS, N.A.,
Defendant.
MEMORANDUM OPINION AND ORDER RE: RULING ON
DEFENDANT’S RENEWED MOTION TO DECERTIFY THE
FLSA COLLECTIVE ACTION (DOC. NO. 268)

I.

Procedural Background

This Court previously certified Plaintiffs’ collective action pursuant to Section 216(b) of the
Fair Labor Standards Act (“FLSA”) on May 3, 2016. Doc. No. 57. Thereafter, approximately
350 Plaintiffs opted-in to the FLSA collective action between May of 2016 and August of 2017.
See Doc. No. 112 at 11 (stating 351 individuals opted in); Doc. No. 176 (stating 347 individuals
opted in).
Defendant filed a Motion to Decertify the FLSA Collective Action on April 11, 2017.
Doc. No. 111. This Court denied the Motion to Decertify on August 22, 2017. Doc. No. 216.
In its Memorandum Order Adopting the Report and Recommendation of the Special Master
(Doc. No. 180), this Court stated the following reasons for denying Defendant’s

Motion to Decertify:
Defendant only objects to the Special Master’s recommendations
concerning . . . [the] final certification of Plaintiffs’ nation-wide collective
action under Section 216(b) of the FLSA for Plaintiffs’ off-the-clock
claims. Doc. No. 202.
***
Defendant’s argument that the opt-in and Named Plaintiffs are not
similarly situated to support final certification of the FLSA collective action
under Section 216(b) is without merit. As the Special Master details, the
MLOs share the same job description with similar (if not identical) job
duties, are paid pursuant to the same compensation plan(s), are subject to
the same policies, and assert the same claims for unpaid off-the-clock
overtime wages in this lawsuit. Doc. No. 180, p. 32.
The remainder of Defendant’s arguments are procedural and regard
matters within the sound discretion of the District Court to manage litigation
before it. See Fed. R. Civ. P. 16. Trial of a single issue regarding Plaintiffs’
FLSA off-the-clock claims is scheduled to commence, and will commence,
on September 25, 2017. This is no way interferes with the state subclasses
right to receive notice of the pending state-law claims and to opt-out of the
action if they so choose.
Doc. No. 216 at 4-5.
The detailed factual and legal analysis supporting certification of the FLSA collective
action is set forth in the Special Master’s Second Report. See Doc. No. 180 at 1-36.
II.

Precedential Decision of the United States Court of Appeals for the
Third Circuit

The United States Court of Appeals for the Third Circuit, in its precedential Opinion,
ruled that it “decline[d] to exercise pendent appellate jurisdiction over the FLSA collective
action certification order in this case . . . [and thus] we will leave undisturbed the District Court
certifying a collective action under the FLSA . . . .” Reinig v. RBS Citizens, N.A, 912 F.3d 115,
133 (3d Cir. 2018).

2

The following is an extensive quotation from the Opinion of the Court of Appeals in this
matter:
In addition to challenging the District Court’s Rule 23 ruling,
Citizens also contests the District Court’s non-final FLSA certification
order under the doctrine of pendent appellate jurisdiction. This doctrine
“‘allows [us] in [our] discretion to exercise jurisdiction over issues that are
not independently appealable but that are intertwined with issues over
which [we] properly and independently exercise[] [our] jurisdiction.’”
Aleynikov v. Goldman Sachs Grp., Inc., 765 F.3d 350, 357 (3d Cir. 2014)
(citing E.I. DuPont, 269 F.3d at 202-3). The doctrine is a narrow one that
“should be used ‘sparingly,’ and only when there is sufficient overlap in the
facts relevant to both . . . issues to warrant plenary review.” Id. (quoting
E.I. DuPont, 269 F.3d at 203 (internal quotation omitted)); see also In re
Montgomery County, 215 F.3d 367, 375-76 (3d Cir. 2000) (citation
omitted).
***
“[T]he pendent appellate jurisdiction standard is not satisfied when we
are confronted with two similar, but independent, issues, and resolution of
the non-appealable order would require us to conduct an inquiry that is
distinct from and ‘broader’ than the inquiry required to resolve solely the
issue over which we properly have appellate jurisdiction.”
***
Here, we must determine, as a matter of first impression, whether an
order granting certification under Rule 23 is “inextricably intertwined” with
an order granting final collective action certification under the FLSA.
Citizens claims that we may do so because review of the FLSA certification
order is necessary to ensure meaningful review of the Rule 23 order.
Plaintiffs maintain that, although we have jurisdiction to review the class
certification order, our jurisdiction does not extend to the FLSA order
because “Rule 23 actions are fundamentally different from collective
actions under the FLSA” and thus cannot be considered “inextricably
intertwined” for purposes of exercising pendent appellate jurisdiction.
(Appellees’ Br. 55) (citations omitted).
We find the Second Circuit’s opinion in Myers [v. Hertz Corp., 624 F.3d
537 (2d Cir. 2010)], instructive on the issue. There, after affirming the
denial of class certification on predominance grounds, the Second Circuit
declined to exercise pendent appellate jurisdiction to review the District
Court’s decision denying certification of an FLSA collective action because
“the two rulings [were] . . . not ‘inextricably intertwined.’” Myers, 624 F.3d
at 556. Specifically, the court found that the exercise of pendent appellate
jurisdiction was unwarranted because the question of whether the potential
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plaintiffs had met the FLSA’s less burdensome “similarly situated” standard
was “quite distinct from the question whether plaintiffs ha[d] satisfied the
much higher [Rule 23 predominance] threshold. . . .” Id. at 555-56.
Although the court recognized that “the two issues . . . [were] admittedly
similar,” it nevertheless concluded that the FLSA and Rule 23 certification
orders were not inextricably intertwined because the court “[could] easily[]
determine[] that the higher predominance standard ha[d] not been met
without addressing whether the same evidence plaintiffs have put forward
in support of Rule 23 class certification could satisfy the lower [FLSA]
standard.” Id. at 556.

We join the Second Circuit and conclude that Rule 23 certification is
not “inextricably intertwined” with an FLSA collective action certification
so as to permit us to exercise pendent appellate jurisdiction over the FLSA
certification. In so holding, we are persuaded by our prior precedent and
the Second Circuit’s well-reasoned decision in Myers that Rule 23 class
certification and FLSA collective action certification are fundamentally
different creatures. Further, judicial efficiency notwithstanding, the myriad
problems that could result from exercising jurisdiction in this context
counsel against expanding the narrow doctrine of pendent appellate
jurisdiction in the way Citizens proposes.
***
On balance, we believe that class certification under Rule 23 and
collective action certification under the FLSA are not sufficiently similar or
otherwise “inextricably intertwined” to justify exercise of pendent appellate
jurisdiction. This conclusion is supported by our decisions in Zavala v. Wal
Mart Stores, Inc. 691 F.3d 527 (3d Cir. 2012), and Kershner [v.
Mazurkiewicz, 670 F.2d 440 (3d Cir. 1982)], along with the Tenth Circuit’s
analysis in Thiessen [v. Gen. Elec. Capital Corp., 267 F.3d 1095 (10th Cir.
2001)]. When tasked with elucidating the standard to be applied on final
certification under the FLSA in Zavala, we eschewed an approach derived
from Rule 23, holding instead that the standard to be applied to determine
whether FLSA final certification is appropriate is “whether the proposed
collective plaintiffs are ‘similarly situated.’” Zavala, 691 F.3d at 536
(citation omitted). This approach makes sense because “Congress clearly
chose not to have the Rule 23 standards apply to [statutory] class actions
[such as those under the FLSA]” by adopting not a “commonality” or
“predominance” requirement, but rather a finding that the collective
plaintiffs are “similarly situated.” Thiessen, 267 F.3d at 1105. Holding
otherwise would “effectively ignore Congress’ directive.” Id. Thus, we
have previously concluded that, whereas a class action ruling is grounded
in the various procedural provisions found in Rule 23, a collective action
under the FLSA hinges on “whether the plaintiffs who have opted in are in
fact ‘similarly situated’ to the named plaintiffs.” Zavala, 691 F.3d at 537
4

(citing Myers, 624 F.3d at 555); see also Grayson v. K Mart Corp., 79 F. 3d
1086, 1096 n.12 (11th Cir. 1996) (“[I]t is clear that the requirements for
pursuing [an FLSA] class action are independent of, and unrelated to, the
requirements for a class action under Rule 23[.]”).
In practice, determining whether plaintiffs are “similarly situated” under
the FLSA involves considering all relevant factors, such as, “whether the
plaintiffs are employed in the same corporate department, division, and
location; whether they advance similar claims; whether they seek
substantially the same form of relief; and . . . [whether they have]
individualized defenses.” Zavala, 691 F.3d at 536-37. Although we
acknowledge that some of the factors and evidence necessary to satisfy the
prerequisites of Rule 23 and § 216(b) may overlap and, as a consequence,
our rulings with respect to them may overlap as well, “a mere nexus
between the two orders is not sufficient to justify a decision to assume
jurisdiction.” Kershner, 670 F.2d at 449-50.
***
Therefore, we hold that Rule 23 class certification and FLSA final
collective action certification are not “inextricably intertwined.”
Accordingly, we decline to exercise pendent appellate jurisdiction over the
FLSA collective action certification order in this case.
Reinig, 912 F.3d at 130-133 (emphasis added).
Thus, the Court of Appeals held that there was not “sufficient overlap in the facts relevant
to both . . . issues to warrant plenary review.” Id. at 130 (quoting Aleynikov, 765 F.3d at 357).
III.

Defendant’s Renewed Motion to Decertify the FLSA Collective
Action (Doc. No. 268)

Despite the language of the precedential Opinion of the Court of Appeals that (1) the
legal standard for a FLSA collective action is meaningfully different than the legal standard for
a Rule 23 class action, and (2) there was insufficient overlap in the facts relevant to the FLSA
and Rule 23 issues (id. at 130-133), Defendant in effect now argues to the contrary, and thus
seeks this Court to reconsider its previous decision not to decertify the FLSA collective action.

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IV.

Legal Standard for Evaluation of a Motion for Reconsideration

“The purpose of a Motion for Reconsideration . . . is to correct manifest errors of law or
fact or to present newly discovered evidence.” Howard Hess Dental Laboratories Inc. v.
Dentsply Intern., Inc., 602 F.3d 237, 251 (3d Cir. 2010) (citing Harsco Corp. v. Zlotnicki, 779
F.2d 906, 909 (3d Cir. 1985)). Generally, a Motion for Reconsideration will only be granted on
one of the following three grounds: (1) if there has been an intervening change in controlling
law; (2) if new evidence, which was not previously available, has become available; or, (3) if it is
necessary to correct a clear error of law or to prevent manifest injustice. See Howard Hess
Dental, 602 F.3d at 251 (citing Max’s Seafood Café ex rel. Lou Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999)). However, because Defendant’s Motion relates to an interlocutory
order, the reconsideration standard applies more flexibly than it would to a judgment. Qazizadeh
v. Pinnacle Health Sys., 214 F.Supp.3d 292, 295 (M.D. Pa. 2016).
A court may not grant a Motion for Reconsideration when the motion simply restyles or
rehashes issues previously presented. Pahler v. City of Wilkes Barre, 207 F.Supp.2d 341, 355
(M.D. Pa. 2001); see also Carroll v. Manning, 414 F. App’x. 396, 398 (3d Cir. 2011) (affirming
denial of “motion for reconsideration and ‘petition’ in support thereof that appears to merely
reiterate the allegations made in the . . . petition and does not set forth any basis justifying
reconsideration”); Grigorian v. Attorney General of U.S., 282 F. App’x. 180, 182 (3d Cir. 2008)
(affirming denial of motion to reconsider because it “does nothing more than reiterate the
arguments underlying the motion to reinstate the appeal”). “[A] motion for reconsideration
addresses only factual and legal matters that the Court may have overlooked . . . . It is improper
on a motion for reconsideration to ask the Court to rethink what [it] had already thought through

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-- rightly or wrongly.” Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122
(E.D. Pa. 1993) (citations and internal quotation marks omitted).
V.

Application of Standard

Based on the above-cited case law, Defendant’s Motion for Reconsideration is denied.1
Defendant does not cite to any “intervening change in controlling law” from the Court of
Appeals for the Third Circuit. The only “new” case cited by Defendant is an opinion of the
United States Court of Appeals for the Ninth Circuit (Campbell v. City of Los Angeles, 903 F.3d
1090 (9th Cir. 2018)), which is inconsistent with the governing precedential Opinion in this case,
and factually inapt, see Doc. No. 270 at 8-12 (wherein Plaintiffs distinguish Campbell from case
sub judice). Indeed, the only possible intervening change in controlling law is the Court of
Appeal’s Opinion in this case, which stated explicitly that its Rule 23 analysis did not apply to
the issue of FLSA certification because the two standards are “fundamentally different.” Reinig,
912 F.3d at 131.
Further, Defendant fails to cite any “new evidence” and fails to cite any “clear error of
law or . . . manifest injustice,” other than Defendant’s continued disagreement with the Special
Master’s Second Report, and this Court’s prior rulings on the FLSA collective action issue.
See Doc. No. 180 at 1-36, Doc. No. 216. The factual record sufficiently establishes that the
opted-in Plaintiffs are “similarly situated.”
Therefore, Defendant’s Renewed Motion to Decertify the FLSA Collective Action (Doc.
268) is DENIED WITHOUT PREJUDICE,2 and a new Pretrial/Trial Order will be promptly

1

Even if the Renewed Motion was reviewed under a de novo standard, instead of a Motion for
Reconsideration standard, the Court concludes the result would be the same.
2
As Defendant notes, an order finally certifying a collective “may be revisited and changed at any time
prior to entry of a judgment adjudicating all of the claims of all of the parties,” including “after trial.” Doc.
No. 266 at 1-2. Accordingly, denial of Defendant’s Renewed Motion is without prejudice to it being
renewed after the single-issue jury trial.

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entered on the following narrow, single-issue jury question applicable to the collective FLSA
claims (scheduling the jury trial to commence on September 23, 2019):3 “Did Plaintiffs prove by
a preponderance of the evidence that Citizens Bank had a policy or practice that caused mortgage
loan officers to not report all of the hours they worked (i.e., to work ‘off the clock’)?”4 Doc. No.
235. See Fed. R. Civ. P. 1 and 16(c)(2)(M).

SO ORDERED, this 25th day of June, 2019.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Court Judge

cc: All ECF Counsel of Record

3

Pursuant to the Second Amended Case Management Order, entered by this Court on May 31, 2016 (Doc.
No. 66), the parties have already filed Pretrial Statements (Doc. No. 155 and Doc. No. 158), Joint
Stipulations (Doc. No. 191), Unified Proposed Jury Instructions (Doc. No. 221), Proposed Voir Dire (Doc.
No. 194 and Doc. No. 196), Proposed Verdict Forms (Doc. No. 193-1 and Doc. No. 198), a Joint Exhibit
List (Doc. No. 250), and Objections to Proposed Final Jury Instructions (Doc. No. 251 and Doc. No. 252).
Further, the Court has filed its Final Verdict Form (Doc. No. 235), Final Preliminary Jury Questions (Doc.
No. 237), Draft Final Jury Instructions (Doc. No. 238), and Final Voir Dire Questions (Doc. No. 244).
Accordingly, only an abbreviated Pretrial Order need be, and will be, promptly issued. To the extent that
any remaining pretrial issues remain, the Court encourages the parties to work together to resolve said
issues without Court involvement.
4
Bifurcation will expediate resolution of outstanding issues, advance the interests of “convenience” and
judicial economy, and avoid “prejudice to the parties.” Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19,
22 (3d Cir. 1984); see also Oldershaw v. Davita Healthcare Partners, Inc., 255 F.Supp.3d 1110, 1118 (D.
Co. 2017) (bifurcating FLSA claims from state law claims). Additionally, the evidence introduced and
testimony elicited at the single-issue jury trial will assist the Court in conducting both (1) the “rigorous”
review of Plaintiffs’ Renewed Motion for Class Certification (Doc. No. 281), as directed by the Court of
Appeals, Reinig, 912 F.3d at 130, while preserving Defendant’s defenses as to propriety of class
certification, and (2) the consideration of any future renewed motion for decertification of the FLSA
collective after said trial.

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