Bitner, Thomas et al v. Wyndham Vacation Resorts, Inc.

Filing 271

ORDER denying 266 Motion for Leave to Appeal and Motion to Amend the 12.29.16 Order and to Stay Proceedings by Defendant Wyndham Vacation Resorts, Inc. Signed by District Judge William M. Conley on 1/24/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

THOMAS BITNER and TOSHIA PARKER,
individually and on behalf of those similarly
situated,
Plaintiffs,

OPINION AND ORDER

v.
13-cv-451-wmc
WYNDHAM VACATION RESORTS, INC.,
Defendant.

Pursuant to 28 U.S.C. § 1292(b), defendant Wyndham Vacation Resorts, Inc. moves
for the court to certify for immediate interlocutory review its decision denying defendant’s
motion to decertify plaintiffs’ Fair Labor Standards Act (“FLSA”) collective actions. (Dkt.
#266.) Defendant also moves to stay proceedings in this court pending the outcome of its
Rule 23(f) appeal to the Seventh Circuit. (Id.) The court will deny both motions.
For a question of law to meet the statutory criteria for the grant of a § 1292(b)
petition, “it must be controlling, it must be contestable, and its resolution must promise to speed
up the litigation.” Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000)
(emphasis in original). Defendant’s § 1292(b) petition arguably fails to satisfy any of these
criteria, and certainly not all of them.

As plaintiffs point out, defendant does not even

present a specific question of law for appeal, instead asserting vaguely that “[t]he questions
raised here concern the interpretation and application of Federal Rule of Civil Procedure 23,
as applied to FLSA collective actions.” (Def.’s Supp. Br. (dkt. #267) at 3.) Nevertheless, the
court will assume by implication that defendant intends to question the court’s reliance on
Espenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th Cir. 2013), to find that In House Sales

Representatives were “similarly situated” under the FLSA because they satisfied the standards
for certification of a Rule 23(b)(3) class. Still, defendant fails to demonstrate that question is
controlling. See Espenscheid, 705 F.3d at 772 (“[T]here isn’t a good reason to have different
standards for the certification of the two different types of action, and the case law has
largely merged the standards[.]”).
A controlling question of law is one whose “resolution is quite likely to affect the
further course of the litigation, even if not certain to do so.” Sokaogon Gaming Enter. Corp. v.
Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 659 (7th Cir. 1996). Defendant asserts that a
reversal of the court’s decision denying defendant’s decertification motion will “change
entirely” the scope of this case and “dramatically reduce” the scope of discovery. (Def.’s
Supp. Br. (dkt. #267) at 3-4.) This is at least doubtful in light of plaintiffs’ representations
that they would proceed with individual trials if the collective actions were decertified and
that most opt-in plaintiffs have already responded to discovery, including depositions. (Pls.’
Opp’n Br. (dkt. #269) at 4.) At most, defendant falls far short of demonstrating that an
interlocutory appeal would “materially advance the litigation.” Sokaogon, 86 F.3d at 659.
For essentially the same reasons, defendant fails to show that the resolution of its
“question” of law would speed up the litigation, nor does defendant offer any case law calling
into question the court’s application of the Espenscheid standard as contestable. Ahrenholz, 219
F.3d at 675. Accordingly, defendant’s § 1292(b) motion will be denied.
With respect to defendant’s motion to stay the proceedings pursuant to Rule 23(f),
the court must consider:
(1) whether the stay applicant has made a strong showing that
[it] is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance of

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the stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.
Espenscheid v. DirectSat USA, LLC, No. 09-cv-625-bbc, 2011 WL 2132975 (W.D. Wis. May
27, 2011) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
Despite acknowledging this standard, defendant makes a weak effort to apply it, doing
little more than asserting that the court’s order granting class certification “raises difficult
issues upon which reasonable minds can differ,” and the parties’ efforts in this court would be
wasted in the event of a Seventh Circuit reversal. (Def.’s Supp. Br. (dkt. #267) at 6-7.)
Regardless, the court agrees with plaintiffs that the factors weigh against granting a stay
under Rule 23(f), particularly given defendant’s failure to show a strong likelihood of reversal
and the length of time that this case has already been pending.

ORDER
IT IS ORDERED that defendant Wyndham Vacation Resorts, Inc.’s motion for
certification of an interlocutory appeal and motion to stay the proceedings (dkt. #266) are
DENIED.
Entered this 24th day of January, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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