Walsh v. Deluca et al

Filing 64

ORDER denying 62 Motion for Certificate of Appealability. So Ordered by Chief Judge William E. Smith on 6/12/2019. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
GILBERT ENTERPRISES, INC.,
)
d/b/a CLUB FANTASIES; and
)
FRANCIS DELUCA,
)
)
Defendants.
)
___________________________________)
ARIELLE WALSH, On
Behalf of Herself and All Others
Similarly Situated,

C.A. No. 15-472 WES

ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Defendants’ Motion for Issuance of a
Certificate of Appealability (ECF No. 62) regarding this Court’s
previous Order (ECF No. 61) granting the conditional certification
of the FLSA action. For the following reasons, the Court DENIES
Defendants’ Motion.
Under 28 U.S.C. § 1292(b), a district court may certify an
interlocutory appeal if the order being appealed:
a

controlling

question

of

law,”

(2)

“as

to

(1) “involves

which

there

is

substantial ground for difference of opinion,” and (3) “that an
immediate appeal may materially advance the ultimate termination
of the litigation.” 28 U.S.C. § 1292(b). “[A] legal question cannot
be termed ‘controlling’ if litigation would be conducted in much

the same manner regardless of the disposition of the question upon
appeal.” Atrion Networking Corp. v. Marble Play, LLC, 31 F. Supp.
3d 357, 359 (D.R.I. 2014) (quotations omitted).
interlocutory

appeal

is

not

likely

to

Similarly, an

“materially

advance

termination of the litigation,” 28 U.S.C. § 1292(b) “where a
substantial amount of litigation remains in th[e] case regardless
of the correctness of the Court's ruling,”

Lillehagen v. Alorica,

Inc., No. SACV 13-0092-DOC, 2014 WL 2009031, at *7 (C.D. Cal. May
15, 2014).
The primary basis for Defendants’ Motion is the Fifth Circuit
Court of Appeals’ recent decision in In re JP Morgan Chase & Co.,
which held that district courts may not exercise their discretion
to facilitate notice of a pending FLSA action to “employees who
are unable to join the action because of binding arbitration
agreements.” 916 F.3d 494, 504 (5th Cir. 2019).

According to

Defendants, this Court previously “acknowledged the existence of
the 2016 [Arbitration] Agreement but did not specifically address
the fact that the individuals bound by the agreement had agreed to
forego

class

and/or

collective

treatment

of

their

individual

claims and to submit those claims individually to arbitration,”
and, therefore, the impact of the 2016 agreements presents a
“controlling question of law.”

Defs.’ Mot. 3; see Mem. & Order

16, ECF No. 61. Defendants further contend that, because the Fifth
Circuit is the only appellate court that has addressed this
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question and because the “federal district courts around the
country

[are]

splintered

over

[this]

issue,”

there

is

“a

substantial ground for difference of opinion” as to whether a
district court may send notice to potential plaintiffs who signed
arbitration agreements.

Defs’ Mot. 8-9.

Defendants’ arguments are unpersuasive for several reasons.
First, this case is distinguishable from JP Morgan in that the
arbitration agreements at issue in JP Morgan applied to the entire
collective action period, whereas the arbitration agreements at
issue here only came into existence in February 2016 – nearly three
years after the collective action period began in October 2013.
Although the Court has not made any findings as to the validity or
enforceability of the 2016 Arbitration Agreements,

Defendants

previously admitted to the Court that “[s]ome of the individuals
within the putative class are subject to the provisions of only
the 2012 Agreement (Plaintiffs fall into this group), some are
subject to only the 2016 [Arbitration] Agreement, others are
subject to the provisions of both agreements.” Defs.’ Resp. in
Opp’n to Mot. to Certify Class 7, ECF No. 56.

Thus, the Court

cannot bar Notice to all employees who signed the 2016 Arbitration
Agreement because, according to Defendants, it is possible that
some of those employees may still be permitted to participate in
this action to vindicate rights that accrued prior to signing that
agreement. Indeed, submitting this question for appeal is likely
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to delay resolution of this dispute rather than “materially advance
the termination of litigation” because “a substantial amount of
litigation remains in th[e] case regardless of the correctness of
the Court's ruling.”

Lillehagen, 2014 WL 2009031, at *7; see also

Rieve v. Coventry Health Care, Inc., 870 F. Supp. 2d 856, 880 (C.D.
Cal.

2012)

(“[W]here

the

Court

concludes

certification

would

actually delay the resolution of the litigation, certification is
not appropriate.”) (quotations and citations omitted).
Second, none of the current opt-in plaintiffs signed the 2016
Arbitration Agreement.

See Defs.’ Resp. in Opp’n to Mot. to

Certify Class 7 (“Some of the individuals within the putative class
are

subject

to

the

provisions

of

only

the

2012

Agreement

(Plaintiffs fall into this group). . . .”) (emphasis added).
Therefore,

“[t]he

contracts

[Defendants]

urge[]

the

Court

to

enforce are between [Defendants] and third parties not before the
Court . . . . Thus, [Defendants’] argument is premature at this
stage.” Bigger v. Facebook, Inc., No. 17 C 7753, 2019 WL 1317665,
*11

(N.D.

Ill.

Mar.

22,

2019)

(citing

Weckesser

v.

Knight

Enterprises S.E., LLC, No. 2:16-CV-02053, 2018 WL 4087931, at *3
(D.S.C.

Aug.

27,

2018) (holding

that

“[t]he

potential

opt-in

plaintiffs allegedly subject to arbitration agreements have not
yet joined this action, and the Court therefore has no ability to
determine

whether

any

potential

enforceable against them”)).
4

arbitration

agreement[s]

are

Given the unique facts of this case, the Court finds that its
previous Order does not “involve[] a controlling question of law
as to which there is substantial ground for difference of opinion”
and an immediate appeal from the order is not likely to “materially
advance the ultimate termination of the litigation.” 28 U.S.C. §
1292(b); See Atrion, 31 F. Supp. 3d at 359; Rieve, 870 F. Supp. 2d
at 880.

Accordingly, the Court declines to exercise it discretion

to authorize this interlocutory appeal. See Caraballo–Seda v.
Municipality of Hormigueros, 395 F.3d 7, 9 (1st Cir.2005) (holding
that “interlocutory certification under 28 U.S.C. § 1292(b) should
be used sparingly and only in exceptional circumstances”).
For

the

foregoing

reasons,

the

Court

DENIES

Defendants’

Motion for Issuance of Certificate of Appealability (ECF No. 62).

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: June 12, 2019

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