Reynolds et al v. Wyndham Vacation Resorts Inc

Filing 161

ORDER denying 143 Motion for Interlocutory Appeal; denying 158 Motion to Stay. Signed by Honorable Patrick Michael Duffy on May 4, 2016.(jmcg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Richard Reynolds, Sharon Linick,
Linda Neely, Joseph Schubert,
Doreen Mastandrea, Jonathan Anderson,
Steven Bradley, Gerry Conklin,
Jennifer Crawford, Daniel Delpriora,
John Maynard, April Mclean,
Mike Smith, William Suitt,
Donna Weinberg, Larry Marshall,
Michelle Johnson, and Edmundo Velasco,
individually and on behalf of other
employees similarly situated,
Plaintiffs,
v.
Wyndham Vacation Resorts, Inc., and
Wyndham Vacation Ownership, Inc.,
Defendants.

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C.A. No.: 4:14-cv-2261-PMD

ORDER

This matter is before the Court on Defendants’ Petition for Certification of an
Interlocutory Appeal (ECF No. 143) and Motion to Stay (ECF No. 158). For the reasons set
forth herein, both motions are denied.
BACKGROUND
On June 10, 2014, Plaintiffs commenced this action on behalf of themselves and others
similarly situated, seeking unpaid minimum wages and unpaid overtime wages pursuant to the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. The named Plaintiffs, as well as
those who have subsequently given notice of their consent to join this action, are current or
former sales representatives of Wyndham Vacation Resorts, Inc. Plaintiffs seek recovery from
Wyndham Vacation Resorts, Inc. and Wyndham Vacation Ownership, Inc. (collectively,

“Defendants”).

Defendants previously moved for summary judgment on the ground that

Plaintiffs were subject to the retail or service establishment exemption found in 29 U.S.C.
§ 207(i). The Court denied Defendants’ motion in its January 29, 2016 Order, holding that the §
207(i) exemption did not apply to Plaintiffs.
PROCEDURAL HISTORY
Defendants filed their Petition for Certification of an Interlocutory Appeal on February
24, 2016. Plaintiffs filed their Response in Opposition on March 14, and Defendants filed a
Reply on March 24. Defendants also filed a Motion to Stay on April 8, and Plaintiffs filed a
Response in Opposition on April 25. Accordingly, these matters are now ripe for consideration.
LEGAL STANDARD
28 U.S.C. § 1292(b) provides that:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such 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, he shall so state in writing in such order.
DISCUSSION
Defendants have requested that the Court amend its January 29 order to include the
following language:
CERTIFICATION FOR INTERLOCUTORY APPEAL
The Court is of the opinion that the question of whether Plaintiffs are exempt
from the overtime and minimum wage provisions of the FLSA pursuant to 29
U.S.C. § 207(i) involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal may
materially advance the ultimate termination of the litigation.
(Defs.’ Pet. Certification Interlocutory Appeal, ECF No. 143, at 8.)

In order to certify

Defendants’ proposed question to the Fourth Circuit, that question must present a controlling

question of law. “In FLSA exemption cases, . . . the ultimate question of whether the exemption
applies is a question of law.” Calderon v. GEICO Gen. Ins. Co., 809 F.3d 111, 120 (4th Cir.
2015). However, “[a] question of law is usually considered to be controlling within the meaning
of § 1292(b) if the case would have ended had the district court ruled in the opposite way.”
Anselmo v. W. Paces Hotel Grp., LLC, No. 9:09-cv-2466-MBS, 2011 WL 1049195, at *21
(D.S.C. Mar. 18, 2011) (citing City of Charleston v. Hotels.com, 586 F. Supp. 2d 538, 542
(D.S.C. 2008)); see also Fannin v. CSX Transp., Inc., 873 F.2d 1438, 1989 WL 42583, at *5 (4th
Cir. 1989) (table) (“[C]ertainly the kind of question best adapted to discretionary interlocutory
review is a narrow question of pure law whose resolution will be completely dispositive of the
litigation . . . .”).
Although the Court agrees that the § 207(i) exemption is a question of law, it is not
dispositive. This case would not have ended if the Court had ruled in Defendants’ favor on the
question of the § 207(i) exemption. In fact, a number of issues would still need to be addressed.
For example, as Defendants admit, the Court would have to determine which weeks various
employees were exempt pursuant to § 207(i). One or both of the parties would likely move for
summary judgment on that point, effectively moving the case backward. Such a move would not
materially advance the termination of this litigation. Because the § 207(i) exemption is not
dispositive, and because certifying an interlocutory appeal would not materially advance the
termination of this litigation, the Court denies Defendants’ petition. As a result, there is no
reason for the Court to grant Defendants’ corresponding Motion to Stay.

CONCLUSION
For the foregoing reasons, it is ORDERED that Defendants’ Petition for Certification of
an Interlocutory Appeal is DENIED.
It is further ORDERED that Defendants’ Motion to Stay is DENIED.
AND IT IS SO ORDERED.

May 4, 2016
Charleston, South Carolina