Selz v. Investools et al
Filing
99
MEMORANDUM DECISION AND ORDER denying 85 Motion for Leave to Appeal. It is Ordered that Plaintiffs' Motion for Certification of an Interlocutory Appeal to the Tenth Circuit Court of Appeals is Denied. The hearing set for Thursday, June 9, 2011 is Stricken. Signed by Judge Ted Stewart on 6/1/2011. (las)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
BRANDON PACK AND JENNIFER DAVIS
Individually and on Behalf of Other Similarly
Situated,
Plaintiffs,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
MOTION FOR CERTIFICATION OF
AN INTERLOCUTORY APPEAL
vs.
INVESTOOLS, INC., a corporation,
Case No. 2:09-cv-1042- TS
Defendant.
This matter is before the Court on Plaintiffs’ Brandon Pack and Jennifer Davis’s
(“Plaintiffs”) Motion to Certify Interlocutory Appeal to the Tenth Circuit Court of Appeals.1
Plaintiffs seek immediate appeal under 28 U.S.C. § 1292(b) of this Court’s January 27, 2011
Order Denying Defendant’s Second Motion for Summary Judgment.2 For the reasons discussed
below, the Court will deny the Motion.
1
Docket No. 85.
2
Docket No. 84.
1
I. LEGAL STANDARD
28 U.S.C. § 1292(b) states in part:
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. The Court of
Appeals which would have jurisdiction of an appeal of such action may thereupon,
in its discretion, permit an appeal to be taken from such order...
Therefore, “[u]nder [§] 1292(b), appellate review is proper where there is ‘(1) a controlling
question of law (2) as to which there is substantial ground for difference of opinion and [where]
(3) an immediate appeal from the order may materially advance the ultimate termination of the
litigation.’”3
This Court previously noted that § 1292(b) is meant to be used sparingly and
interlocutory appeals under this section are rare.4 Also, the Tenth Circuit has held that the
requirement of district court certification is imperative “as a procedural screen to avoid a flood of
fruitless petitions invoked contrary to the purpose of § 1292(b).”5 For this reason, some courts
have held that district courts possess “unlimited authority to decide whether to certify an order
for interlocutory appeal even where the three statutory requirements are met.”6
3
In re Paige, 2008 WL 1994905, at *1 (D. Utah May 8, 2008) (quoting Columbia Cas.
Co. v. Markus, 2006 WL 2591091, at *3 (D. Utah Sep. 7, 2006)).
4
United States v. $85,688.00, 2010 WL 4791440, at *1 (D. Utah Nov. 18, 2010) (citing
Comacho v. P.R. Ports Auth., 369 F.3d 570, 573 (1st Cir. 2004)).
5
State of Utah, By and Through the Utah State Dept. of Health v. Kennecott Corp., 14
F.3d 1489, 1495 (10th Cir. 1994).
6
Nat’l Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F. Supp. 2d 139, 164 (E.D.
N.Y. 1999) (citing Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990)).
2
Lastly, “[e]ven when all of [the above] factors are present, the court of appeals has
discretion to turn down a § 1292(b) appeal.”7 Indeed, the Eleventh Circuit has persuasively held
that “[b]ecause permitting piecemeal appeals is bad policy, permitting liberal use of § 1292(b)
interlocutory appeals is bad policy.”8
II. DISCUSSION
For Plaintiffs’ Motion for Certification of an Interlocutory Appeal to be granted, this
Court would be required to revisit its previous Order Denying Defendant’s Second Motion for
Summary Judgment. The Court must determine, as required by § 1292(b): (1) whether the order
from which the appeal is to be taken involves a controlling question of law; (2) whether, as to
that question there is substantial ground for difference of opinion; and (3) whether an immediate
appeal from the order may materially advance the ultimate termination of the litigation.
A.
QUESTION OF LAW
Plaintiffs assert that the determination of whether Defendant is a retail or service
establishment under the FLSA is a controlling question of law for purposes of § 1292(b).
“Under § 1292(b), a ‘controlling issue of law is one that would require reversal if decided
incorrectly or that could materially affect the course of litigation with resulting savings of the
court’s or the parties’ resources.’”9 However, “[t]he term ‘question of law’ does not mean the
application of settled law to fact.”10 As other courts have indicated, “[t]he antithesis of a proper
7
McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004).
8
Id.
9
APCC Servs., Inc. v. Sprint Commc’ns. Co., L.P., 297 F. Supp. 2d 90, 95-96 (D. D.C.
2003) (citing Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 233 F. Supp. 2d 16, 19 (D.
D.C. 2002)).
10
McFarlin, 381 F.3d at 1258 (citing Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d
674, 676 (7th Cir. 2000)).
3
1292(b) appeal is one that turns on . . . whether the district court properly applied settled law to
the facts or evidence of a particular case.”11
In the present case, the retail establishment finding does have a material effect on this
litigation. As Plaintiffs properly assert, “[t]his issue clearly has a material effect on this litigation
since it abrogates Plaintiffs’ claims for unpaid wages for the majority of workweeks involved in
this litigation.”12 However, Defendant is also correct that “this Court ruled that [Defendant’s]
Call Center was a retail establishment based on its application of the law to the undisputed
material facts in the record.”13 Thus, while the issue in question is controlling, it is not an issue
of law.
The Court finds that the order from which the appeal is to be taken does not involve a
controlling question of law because Plaintiffs do not dispute whether the correct rule of law was
applied, rather they dispute the conclusion drawn by this Court on applying the law to the facts of
the case. For this reason, the Court will deny the petition.14
B.
DIFFERENCE OF OPINION
Plaintiffs assert that there is a difference of opinion among courts as to the determination
of whether a department similar to Defendant’s Call Center is a separate retail establishment.
11
Id. at 1259.
12
Docket No. 86, at 3.
13
Docket No. 91, at 4.
14
See McFarlin, 381 F.3d at 1258 (citing Amos v. Glynn County Board of Tax Assessors,
347 F.3d 1249, 1254 (11th Cir. 2003) (Appeals court denied county’s § 1292(b) petition to
appeal from district court’s denial of a motion to dismiss a constitutional challenge because the
determination of whether the legal process of the state was “plain, speedy, and efficient,” which
could determine the district court’s jurisdiction and dispose of the case, was too fact-intensive an
inquiry for interlocutory review.)).
4
As stated above, “appellate review is appropriate where there is ‘(1) a controlling issue of
law (2) as to which there is substantial ground for difference of opinion.’”15
The success of this element is dependent upon the Court finding that there is a controlling
issue of law. The cases cited by Plaintiffs demonstrate instead that different courts have reached
different results by applying the same rule of law to different factual scenarios.16 Highlighting
other courts’ application of the same law to different facts does not create a substantial ground
for difference of opinion.
The different results cited by Plaintiffs resulted from the application of different facts to
the same or similar rule of law and thus do not demonstrate a substantial difference of opinion as
to an issue of law as required under § 1292(b).
C.
MATERIALLY ADVANCE LITIGATION
For the Court to grant an interlocutory appeal it must believe that an immediate appeal
from the order may materially advance the ultimate termination of the litigation. “A primary
purpose of §1292(b) is to provide an opportunity to review an order when an immediate appeal
would materially advance the ultimate termination of the litigation.”17
Plaintiffs argue that whether the Call Center is a separate establishment “clearly has a
material effect on this litigation since it abrogates Plaintiffs’ claims for unpaid wages for the
majority of workweeks involved in this litigation.”18 Moreover, Plaintiffs persuasively argue that
if the Court’s finding is later reversed, a second trial may be necessary and the work of creating a
week-by-week analysis and proof would be rendered moot.
15
In re Paige, 2008 WL 1994905, at *1 (citing Columbia Cas. Co. v. Markus, 2006 WL
2591091, at *3).
16
See Docket No. 86, at 3-5
17
State of Utah, By and Through the Utah State Dept. of Health, 14 F.3d at 1495.
18
Docket No. 86, at 3.
5
An appeal of this issue may materially advance the ultimate termination of the litigation
in that it could prevent a second trial on the merits should the court of appeals reverse this
Court’s finding. Yet, “[t]he requirement of district court certification is equally imperative [] as
a procedural screen to avoid a flood of fruitless petitions invoked contrary to the purpose of §
1292(b).”19 Thus, even if an interlocutory appeal would materially advance the termination of
the litigation, the Court may deny certification if it is contrary to the purpose of § 1292(b).
In the present case, Plaintiffs have failed to demonstrate that this appeal involves a
controlling issue of law on which there is a substantial difference of opinion. An interlocutory
appeal of this issue, though it may materially advance the termination of the litigation, would be
contrary to the purposes of § 1292(b). This Court will not set a precedent that subjects all
motions for summary judgment to an interlocutory appeal irregardless of whether such are
contrary to the purpose of § 1292(b).
III. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Motion for Certification of an Interlocutory Appeal to the
Tenth Circuit Court of Appeals (Docket No. 85) is DENIED. The hearing set for Thursday, June
9, 2011 is STRICKEN.
DATED June 1, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
19
Id.
6
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