BOYINGTON v. PERCHERON FIELD SERVICES, LLC

Filing 141

MEMORANDUM OPINION AND ORDER - upon consideration of Defendant's Motion for Reconsideration or, in the alternative, for Permission to File an Interlocutory Appeal (ECF No. #111 ), and for the reasons set forth in the accompanying memorandum, it is hereby Ordered that Defendant's motion is DENIED, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 3/24/2016. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIC BOYINGTON, on behalf of himself
and all others similarly situated,
Plaintiff,
v.
PERCHERON FIELD SERVICES, LLC,
Defendant.

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CIVIL ACTION NO. 3:14-cv-90
JUDGE KIM R. GIBSON

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MEMORANDUM OPINION AND ORDER
I.

Introduction
This case arises from Plaintiff’s employment by Defendant as a Right of Way Agent and

allegedly improper classification as an exempt employee within the meaning of the Fair Labor
Standards Act of 1938, as amended (FLSA) (29 U.S.C. § 201 et seq.), and the Pennsylvania
Minimum Wage Act (PMWA) (43 P.S. § 333.101 et seq.). Presently before this Court is a motion
for Reconsideration or, in the Alternative, for Permission to File an Interlocutory Appeal (ECF
No. 111) by Defendant Percheron Field Services, LLC. For the reasons that follow, the Court will
DENY Defendant’s motion.
II.

Jurisdiction and Venue
The Court exercises jurisdiction over Plaintiff’s federal-law claim pursuant to 28 U.S.C. §

1331. The Court exercises supplemental jurisdiction over Plaintiff’s state-law claim pursuant to
28 U.S.C. § 1367(a). Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b).

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III.

Background 1
Plaintiff commenced this action by filing a complaint in this Court on May 7, 2014,

alleging violations of the FLSA, as amended (29 U.S.C. § 201 et seq.), and the PMWA (43 P.S. §
333.101 et seq.), and seeking damages for non-payment of overtime wages for himself and for all
others similarly situated. (ECF No. 1 ¶ 1.) On October 22, 2014, Plaintiff filed a motion to certify
the class conditionally. (ECF No. 45.)
At issue here is a phone call that took place on October 31, 2014. Plaintiff and Defendant
agree that on this date, a representative of Defendant placed an unsolicited phone call directly
to Plaintiff, and that during this call, the parties discussed a potential settlement of Plaintiff’s
claims. (ECF No. 65 at 1-2; ECF No. 68 at 4.) The parties dispute the contents of this phone call,
however. Defendant asserts that during this call, Plaintiff and Defendant reached a binding
settlement agreement. (ECF No. 65 at 1.) Plaintiff, on the other hand, maintains that no
settlement was reached and that Plaintiff instead merely expressed interest in settling his claims
for the amount offered. (ECF No. 68 at 4.)
Defendant filed a motion to enforce the purported settlement agreement on November
12, 2014. (ECF No. 64.) Plaintiff opposed the motion and the issues were fully briefed. (ECF Nos.
65, 68, 89.) On June 15, 2015, this Court issued a Memorandum Opinion and Order, denying
Defendant’s motion to enforce settlement (the Opinion and Order). (ECF No. 96.) The Court
reasoned that Defendant had failed to prove that there were no disputed issues of material fact
as to the validity of the purported settlement agreement. (Id. at 3-5.) The Court also found that

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The Court detailed the factual background of this case in its Memorandum Opinion and Order dated
June 15, 2015. (ECF No. 96.) Because familiarity with that Memorandum Opinion and Order is presumed,
this section is limited to the facts relevant to the disposition of the instant motion.

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Defendant had impermissibly attempted to settle the case by making an unsolicited phone call
to Plaintiff before giving the Court the opportunity to rule on the motion to certify the class
conditionally. (Id. at 7.)
Defendant now asks the Court to reconsider its order denying the motion to enforce
settlement, or, in the alternative, to certify this issue for interlocutory appeal. (ECF No.111.) The
parties have fully briefed the Court on the pending motion, and the matter is now ripe for
adjudication. For the reasons that follow, the Court will deny Defendant’s requests for
reconsideration and for leave to file an interlocutory appeal.
IV.

Motion for Reconsideration
Defendant asks the Court to reconsider its order denying Defendant’s motion to enforce

settlement. For the reasons that follow, the Court will deny the motion for reconsideration.
a. Applicable Law
A motion for reconsideration is properly made “to correct manifest errors of law or fact
or to present newly discovered evidence.” Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999). District courts have the inherent power to reconsider an interlocutory decision, but
only pursuant to the three grounds upon which a motion for reconsideration filed pursuant to
Federal Rule of Civil Procedure 59(e) could be granted. See Deeters v. Phelan Hallinan & Schmieg,
LLP, 2013 WL 6524625, at *1 (W.D. Pa. Dec. 12, 2013) (citing cases). Accordingly, a motion for
reconsideration of an interlocutory order must “rely on one of three grounds: (1) an intervening
change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear
error of law or prevent manifest injustice.” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)
(citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
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“A motion for reconsideration addresses only factual and legal matters that the court
may have overlooked. . . . Because federal courts have a strong interest in the finality of
judgments, motions for reconsideration should be granted sparingly.” North Am. Communs.,
Inc., 817 F.Supp. 2d at 640 (internal quotations omitted). This Court has recognized that a
motion for reconsideration will not be granted “when the motion simply restyles or rehashes
issues previously presented.” N. Am. Communs., Inc. v. InfoPrint Solutions Co., LLC, 817 F.Supp.
2d 623, 640 (W.D. Pa. 2011). See also Lazaridis, 591 F.3d at 669 (upholding a district court’s denial
of a motion for reconsideration because advancing “the same arguments that were in [the
movant’s] complaint and motions [was] not a proper basis for reconsideration”). It is similarly
improper for a motion for reconsideration “to raise new arguments or to present evidence that
could have been raised prior to the entry” of the interlocutory order. Deeters, 2013 WL 6524625,
at *2 (citing Hill v. Tammac Corp., 2006 WL 529044, at *2 (M.D. Pa. Mar. 3, 2006). See also
McDowell Oil Service, Inc. v. Interstate Fire and Cas. Co., 817 F.Supp. 538, 541 (M.D. Pa. 1993) (“a
Rule 59(e) motion is not to be used . . . to put forward additional arguments which [the movant]
could have made but neglected to make before judgment”) (internal quotations omitted).
b. Discussion
Defendant argues that this Court should reconsider its denial of Defendant’s motion to
enforce settlement. In support of this argument, Defendant asserts that in the Opinion and
Order, the Court relied on inadmissible evidence to find that no settlement agreement had been
reached between the parties during the October 31, 2014, phone call. (ECF No. 112 at 3-4.)
Specifically, Defendant argues that the Court impermissibly relied on the hearsay testimony of
Tammy McGill-Hoyt to find that no binding settlement agreement was reached between the
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parties. (Id.) Defendant also argues that the Court failed to consider Plaintiff’s admissions that
he voluntarily entered into a settlement agreement on October 31, 2014. (Id. at 5-7.)
The Court finds Defendant’s arguments to be without merit and will therefore deny the
motion for reconsideration. Despite Defendant’s insistence to the contrary, the Declaration of
Tammy McGill-Hoyt was not integral to the Court’s determination that no settlement
agreement had been reached between the parties. Further, the Court finds that Defendant has
misconstrued both Plaintiff’s declaration and the Court’s analysis.
Defendant correctly notes that the Court took Ms. McGill-Hoyt’s affidavit into account
in the Opinion and Order. (See ECF No. 96 at 5.) Even assuming that consideration of this
affidavit was in error, a proposition that the Court need not decide for the purposes of this
motion, 2 the Court did not rest its decision on Ms. McGill-Hoyt’s affidavit when it determined
that Defendant failed to prove that the parties had entered a binding settlement agreement.
As the Court noted in the Opinion and Order, the burden was on Defendant to prove
that there were no disputed issues of material fact as to the validity of the settlement agreement,
and that the terms of such agreement were sufficiently definite to be specifically enforced. (See
id. at 3 (citing Tiernan v. Devoe, 923 F.2d 1024, 1032 (3d Cir. 1991); Am. Eagle Outfitters v. Lyle &
Scott Ltd., 584 F.3d 575, 582 (3d Cir. 2009)). The Court properly concluded that Defendant had
not met this burden. Specifically, the Court noted that the only evidence Defendant had
Despite the fact that the Declaration of Tammy McGill-Hoyt was filed along with Plaintiff’s Response to
Defendant’s Motion to Enforce Settlement Agreement (ECF Nos. 68, 70) on November 18, 2014,
Defendant never raised an objection to the consideration of this affidavit in the extensive briefing that the
Court considered before issuing the Opinion and Order. (See ECF Nos. 65, 89.) The Court therefore need
not consider this argument on the instant motion for reconsideration. See Deeters, 2013 WL 6524625, at *2
(citing Hill, 2006 WL 529044, at *2. See also McDowell Oil Service, Inc., 817 F.Supp. at 541 (“a Rule 59(e)
motion is not to be used . . . to put forward additional arguments which [the movant] could have made
but neglected to make before judgment”) (internal quotations omitted).
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provided in support of the existence of the settlement agreement was the Declaration of Asa
Bowers. (Id. at 4 (citing ECF No. 65-1.)) The Court explained that the Bowers Declaration was
contradicted by Plaintiff’s declaration, and the Court found that the terms of the purported
agreement presented to the Court were obscure and insufficiently definite to be specifically
enforced. (Id. at 4-5.) The Court’s supplemental commentary that “Defendant’s representations
to Ms. McGill-Hoyt . . . further undermine Defendant’s assertion that a settlement had been
reached” does not change the fact that Defendant presented insufficient evidence for this Court
to conclude that a specifically enforceable settlement agreement had been reached between the
parties. (See id. at 5 (citing ECF No. 68 at 8) (emphasis added).)
In addition to the argument that the Court improperly relied on the McGill-Hoyt
Declaration, Defendant also argues that the Court failed to consider Plaintiff’s “admissions that
he had voluntarily entered” a settlement agreement. (ECF No. 112 at 5.) Defendant urges that “a
careful review” of Plaintiff’s declaration, coupled with the Bowers Declaration, demonstrates
that Plaintiff “did in fact voluntarily agree to settle and dismiss this action.” (Id.) The Court
disagrees.
The Court did in fact conduct a careful review of both the Bowers Declaration and
Plaintiff’s declaration, and took note of each declaration in the Opinion and Order. (See ECF
No.96 at 4-5.) This careful review did not and does not lend support to the assertion that
Plaintiff entered a binding settlement agreement as Defendant continues to insist that it does.
As the Court noted in the Opinion and Order, Mr. Bowers’ declaration does indeed assert that
Plaintiff agreed to enter into a settlement, and that Plaintiff’s attorney had been unwilling to
execute the necessary documents. (Id. at 4 (citing ECF No. 65-1 ¶ 8.)) The Court also noted,
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however, that this fact was disputed by Plaintiff’s declaration, in which Plaintiff stated only that
he was “amenable to settling [his] claims for the amount . . . offered.” (ECF No. 69 ¶ 7.)
Moreover, Plaintiff’s declaration flatly contradicted Mr. Bowers’ assertion that Plaintiff’s
attorney had been uncooperative or unwilling to execute the necessary documents. (Id. ¶¶ 8-9.)
These contradictory statements support the Court’s finding that while Plaintiff did
express an interest in settling the case, Defendant presented insufficient evidence for the Court
to determine that a binding settlement had in fact been reached. (ECF No. 96 at 5.) In short,
contrary to the assertions in Defendant’s motion and brief, the Court properly conducted a
“careful review” of both the Bowers Declaration and the Plaintiff’s declaration and noted that
the two declarations contained contradictory accounts of whether a settlement had been
reached. Based on this review and analysis, the Court concluded that Defendant had failed to
meet its burden of establishing that there were no disputed issues of material fact as to the
validity of the settlement agreement or that the terms of the purported agreement were
sufficiently definite to be specifically enforced. See Tiernan v. Devoe, 923 F.2d 1024, 1032 (3d Cir.
1991); Am. Eagle Outfitters, 534 F.3d 575, 582 (3d Cir. 1986).
For these reasons, Defendant’s motion for reconsideration is denied.
V.

Request for Permission to File Interlocutory Appeal
Having denied Defendant’s motion for reconsideration, the Court turns now to

Defendant’s alternative request for the Court to modify its order to grant Defendant leave to file
an immediate interlocutory appeal to the United States Court of Appeals for the Third Circuit,
and to stay proceedings in this Court pending the resolution of such appeal. For the reasons
that follow, the Court will deny these requests.
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a. Applicable law
A district court may certify an order for interlocutory appeal if it determines that the
order “involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Section 1292(b) therefore sets out
three factors that district courts consider before granting leave to file an immediate
interlocutory appeal: (1) whether the order involves a controlling question of law; (2) whether
there is a substantial ground for difference of opinion as to that question of law; and (3) whether
immediate appeal from the order would materially advance the ultimate termination of the
litigation. See Koerner v. Hankins, 2012 WL 464871, at *1-2 (W.D. Pa. Feb. 13, 2012). The party
seeking interlocutory appeal bears the burden of proving that all three of the certification
factors have been met, though even if all statutory criteria are met, the decision to grant
certification remains wholly within the discretion of the district court. Id. at *2 (citing Bachowski
v. Usery, 545 F.2d 363, 368 (3d Cir. 1976)).
“A question is controlling if its incorrect disposition would require reversal of the final
judgment.” McMahon v. Medical Protective Co., 2015 WL 4633698, at *3 (W.D. Pa. Aug. 3, 2015)
(citing Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974)) (internal quotations omitted).
In determining whether there is a substantial ground for difference of opinion, the
district court should consider whether there is conflicting precedent, the absence of controlling
law, or a complex statutory interpretation at issue. See Koerner, 2012 WL 464871, at *1. “A party’s
strong disagreement with the Court’s ruling does not constitute a ‘substantial ground for

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difference of opinion’ . . . Nor does a dispute over the application of settled law to a particular
set of facts.” Id.
Lastly, an interlocutory certification materially advances the ultimate termination of the
litigation where the appeal would eliminate “(1) the need for trial; (2) complex issues that
would complicate the trial; or (3) issues that would make discovery more costly or
burdensome.” Koerner, 2012 WL 464871, at *2 (internal quotations omitted).
“When deciding whether to certify an order for interlocutory appeal, the court must
make a practical application of the policies favoring interlocutory appeal, including the
avoidance of harm to a party pendent lite from a possibly erroneous interlocutory order and the
avoidance of possibly wasted trial time and litigation expense.” Id. “The burden is on the party
seeking certification to demonstrate that exceptional circumstances justify a departure from the
basic policy against piecemeal litigation and of postponing appellate review until after the entry
of a final judgment.” Id. (citing L.R. v. Manheim Twp. Sch. Dist., 540 F.Supp.2d 603, 608 (E.D. Pa.
2008)) (internal quotations omitted).
b. Discussion
Defendant asks this Court to certify the issue of whether the parties entered an
enforceable settlement agreement for immediate interlocutory appeal to the United States Court
of Appeals for the Third Circuit. (ECF No. 112 at 7.) In support of this request, Defendant
argues that all three of the statutory factors outlined above are satisfied in this case, such that
the Court should exercise its discretion to certify this issue for immediate interlocutory appeal.
(Id. at 7-10.)

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The Court finds that Defendant’s arguments in support of interlocutory appeal rest on
the contradicted assertion that Plaintiff accepted Defendant’s offer of settlement. This is an
assertion that Plaintiff has disputed and that the Court has rejected as insufficiently supported
by the record. The Court therefore finds that the statutory factors are not met under 28 U.S.C. §
1292(b), and denies Defendant’s request for leave to file an immediate interlocutory appeal on
the issue of whether the parties entered an enforceable settlement agreement.
The first factor under 28 U.S.C. § 1292(b) directs that the district court assess whether the
order at issue involves a controlling issue of law. Defendant urges the Court to conclude that
this factor is satisfied because “the existence of the litigation itself turns on whether an
enforceable settlement agreement was entered into by the [p]arties on October 31.” (ECF No.
112 at 8.) The question of whether a binding settlement agreement did in fact come into
existence is not appropriate for interlocutory appeal, as it is a factual question. See In re Flat
Glass Antitrust Litig., 2013 WL 136472, at *3 (W.D. Pa. Jan. 10, 2013) (denying request for
interlocutory appeal where the motion arose from “the law applied to the facts at hand”). The
Court does not, however, interpret this factual issue to be the precise issue for which Defendant
makes its request for interlocutory appeal. The precise issue for which Defendant requests
interlocutory appeal is whether the purported agreement was enforceable. (ECF No. 112 at 710.) As Plaintiff points out in his brief in opposition to the instant motion, however, the Court
determined that there was insufficient evidence to conclude that the parties had entered a
settlement agreement at all. (ECF No. 96 at 4-5.) Therefore, the question of whether any such
pre-certification agreement would be enforceable is irrelevant and therefore does not constitute
a “controlling issue of law” in this case. See Koerner, 2012 WL 464871, at *2.
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The second statutory factor is also not satisfied in this case. As the Court has explained,
the Court found that the evidence presented was insufficient to establish that a settlement
agreement had been reached between the parties during the October 31, 2014, phone call.
Defendant continues to argue that “Mr. Boyington accepted Defendant’s offer to settle the
action on an individual basis, thus assenting to settlement ending his suit.” (ECF No. 112 at 9.)
Defendant’s arguments as to factor two derive from this factual question, already addressed by
the Court, of whether Plaintiff accepted the settlement offer on October 31, 2014, and Defendant
urges the Court to analyze case law that would apply had Plaintiff accepted the settlement offer.
(See id. at 8-10 (“The Order demonstrates [that] there is ‘substantial grounds for difference of
opinion’ as to whether a pre-certification settlement—which has been accepted by the plaintiff—is
enforceable.”) (emphasis added).) The Court, however, has concluded that there is insufficient
evidence to determine that Plaintiff accepted Defendant’s offer. Therefore, the case law that
Defendant cites as to conflicting standards when a pre-certification settlement offer has been
accepted is immaterial. The Court applied the appropriate law to the facts with which it was
presented, where a precertification offer of settlement was made but was not accepted by
Plaintiff. 3 Defendant’s disagreement with the Court’s review and assessment of the relevant

The Court notes that after briefing was completed on this motion, the Supreme Court abrogated Weiss v.
Regal Collections, 385 F.3d 337 (3d Cir. 2004), holding that under basic contract law principles, once a precertification settlement offer was rejected by the plaintiff, it had no further efficacy and therefore did not
render moot the consumer’s class action complaint. See Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 669-70
(2016). The Supreme Court’s holding does not affect the Court’s analysis on this motion and in fact
provides further support for its conclusion that because Plaintiff did not accept Defendant’s offer of
settlement, Plaintiff’s claim is still an active controversy and should be permitted to proceed.
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declarations, and insistence that the Court apply the law as it would be if the facts were as
Defendant prefers, is ineffective and does not provide proper grounds for interlocutory appeal. 4
Lastly, as to the third and final factor under 28 U.S.C. § 1292(b), the Court is not satisfied
that an interlocutory appeal here would materially advance the ultimate termination of the
litigation. Indeed, as Plaintiff points out in his brief in opposition to the instant motion,
Plaintiff’s individual claims are not the only claims at issue in this litigation. While it is true that
a finding of an enforceable settlement agreement would have allowed the Court to dismiss
Plaintiff’s individual claims, it is not clear that such dismissal would eliminate the need for
adjudication of the remaining claims of the opt-in plaintiffs, nor would it eliminate issues to
simplify trial or discovery.
For the reasons described above, the Court finds that an interlocutory appeal would be
inappropriate pursuant to the factors outlined in 28 U.S.C. § 1292(b). The Court therefore
declines to exercise its discretion to certify the issue at hand for immediate interlocutory appeal,
and need not address Defendant’s request that the Court stay the proceedings.
VI.

Conclusion
For the reasons stated above, the Court denies Defendant’s Motion for Reconsideration

or, in the Alternative, for Leave to File an Interlocutory Appeal. (ECF No. 111.)
An appropriate order follows.

Defendant’s argument that the Court “ignored guidance offered by the Supreme Court in Deposit
Guaranty National Bank of Jackson, Mississippi v. Roper, 445 U.S. 326 (1980), is similarly unavailing. The
Defendant is correct that the “distinguishing feature” in Roper was that the settlement offer had been
unaccepted. See id. at 341. This fact, however, does not support Defendant’s argument, because this
“distinguishing feature” is also present here. According to Roper, therefore, under the facts of this case,
Defendant’s settlement offer likewise had no effect on the vitality of Plaintiff’s claims because the offer
here was also unaccepted.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIC BOYINGTON, on behalf of himself
and all others similarly situated,
Plaintiff,

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)
)
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v.

CIVIL ACTION NO. 3:14-cv-90
JUDGE KIM R. GIBSON

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)

PERCHERON FIELD SERVICES, LLC,

)
)

Defendant.

+h
AND NOW, this

2Y

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ORDER

day of March, 2016, upon consideration of Defendant's Motion

for Reconsideration or, in the Alternative, for Permission to File an Interlocutory Appeal (ECF
No. 111), and for the reasons set forth in the accompanying memorandum, IT IS HEREBY
ORDERED that Defendant's motion is DENIED.

BY THE COURT:

'

KIM R. GIBSON
UNITED ST ATES DISTRICT JUDGE