Food Lion, Inc., Fair Labor Standards Act Effective Scheduling Litigation, In re
| Decision Date | 16 January 1996 |
| Docket Number | Nos. 94-2360,94-2645 and 95-1274,s. 94-2360 |
| Citation | 73 F.3d 528 |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | 131 Lab.Cas. P 33,350, 3 Wage & Hour Cas.2d (BNA) 127 In re FOOD LION, INCORPORATED, FAIR LABOR STANDARDS ACT "EFFECTIVE SCHEDULING" LITIGATION. Jeffrey L. ROYSTER; Daniel Baker; Clarence L. Alston; Charles V. Strickland, Jr.; Ron Murchison; Larry Britt; Carl Williams; Truman Surles; Tim Layden; Kim Pippa; Jeffrey Barnes; Glenn Johnson; Steve Twiddy; Larry Riley; Wayne Neil Hand, Jr.; Michael Alphin; Harvey Keith Matthews; Terry N. Conner; James E. Daniels; Billy Maddox; Russell Thomas; Jonathan Anderson; Woodrow Breeden; Aaron Norris; James Gruber; Reginald Ashford; Clinton E. Bloyer, III; Ricky Coltren; Billy Ray Collins; William Dale Fitzgerald; Robin Dale Stewart; Stephen A. Williams; Reginald Gill; Lester Britt, Appellants, and Terry W. McLawhon, on behalf of himself and all others similarly situated; Keith Lamont Perry, on behalf of himself and all others similarly situated; Ronald Grannis; Boston D. McCornell; Randy E. Jones; Timothy E. Peele; Andy Czubai; Christopher Ayden Surles; Kelly E. Quinn; James L. Royal; Francis D. Carpenter; Gregory Todd Ring; Lester Jerome Mitchell; Rodney M. Ramsey; William Richard Hamm; Billy M. Parson; Woodrow Carroll, Jr.; Bobby Glymph; Kevin Carr; Brad Clark; Billy Williams, Plaintiffs, v. FOOD LION, INCORPORATED, Defendant-Appellee. In re FOOD LION, INCORPORATED, FAIR LABOR STANDARDS ACT "EFFECTIVE SCHEDULING" LITIGATION. Donald T. LEDFORD; J. Michael Oakes; Michael Cardoza; R. Chuck Villarreal, Jr.; Roy Sarter; Larry Worley; Tommy Arrington; Billy Baker; Cheryl Born; Danny Buckner; Robert Calloway; Donna Catlin; Kim Caudill; Joseph Cockerham; Michael Coffey; Felecia Coleman; Robert Daly; James Darrow; Christopher Dunham; Rhonda Dupree; Robert Dyer; Frank Eason; Rhonda England; Paul Erb; Richard Fawlkes; Chris French; Richard P. Hensley; Roger Allen Hill; Rickey Hinson; Terry Horton; Patricia Hoyle; Christopher Jolly; Alecia Jones; William Joyce; Weldon Junge; Monty Lee; Paul Lucas; Scott Mattox; Kevin O'Briant; Gary O'Neal; |
ARGUED: Edward G. Connette, III, Lesesne & Connette, Charlotte, North Carolina; James McDaniel Johnson, Bryan, Jones, Johnson & Snow, Dunn, North Carolina, for Appellants. William Pinkney Herbert Cary, Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Greensboro, North Carolina, for Appellee. ON BRIEF: James T. Williams, Jr., M. Daniel McGinn, Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Greensboro, North Carolina, for Appellee.
Before HALL and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Remanded with instructions by published opinion. Judge HALL wrote the majority opinion, in which Judge WILKINSON joined. Senior Judge BUTZNER wrote a dissenting opinion.
A number of plaintiffs appeal from summary judgment orders entered in three actions that were consolidated with eight other actions for pretrial proceedings. Because there are numerous other plaintiffs who have not yet appealed but who were dismissed by the same district court on essentially the same grounds as one or more of the appellants, we believe that 28 U.S.C. Sec. 1407, the multidistrict litigation statute, requires that the other dismissed plaintiffs have the opportunity to join in the appeals before us.
Beginning in 1991, several small groups of employees and former employees of Food Lion, Inc., filed civil actions in federal courts in a number of southern states in which Food Lion owns and operates grocery stores. In each of these actions, the plaintiffs asserted claims for unpaid overtime and penalties under the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et seq. Hourly employees alleged that they were forced to work "off the clock" in order to finish the tasks for which they were responsible under Food Lion's company-wide scheduling system, and several assistant managers claimed that they were not exempt from FLSA's overtime provisions because the tasks they performed did not qualify as "managerial."
On June 13, 1992, the Judicial Panel on Multidistrict Litigation (JPML or Panel) issued an order transferring two of these actions, one from the District of South Carolina (Scott ) and the other from the Western District of North Carolina (Ledford ), to the Eastern District of North Carolina for "coordinated or consolidated pretrial proceedings" 1 with another action then pending there (McLawhon ); all of the cases were assigned to Judge Fox. The Panel thereafter transferred six tag-along cases 2 over the next five months. Judge Fox eventually had eleven separate actions before him. 3
In October 1992, court-approved notices were sent to some 60,000 current and former Food Lion employees who had worked in stores in North Carolina, South Carolina, Florida, Georgia, Virginia, or Tennessee after October 16, 1989. 4 Almost one thousand of these employees (including the named plaintiffs in the eleven separate actions) opted into the litigation by returning "consent forms," and each employee returning a consent form was assigned a "court number." A master file was created in a consolidated case denominated In re: Food Lion, Inc., Fair Labor Standards Act "Effective Scheduling" Litigation, and each "opt-in" plaintiff was assigned to one of the individual cases.
In a series of pretrial orders, Judge Fox dismissed the claims of about half of the plaintiffs on summary judgment. On March 22, 1994, a "suggestion of remand" 5 was filed by the district court and forwarded to the Panel. On June 2, 1994, the Panel remanded eight of the actions to their respective transferor courts. 6
After remand, one of the two cases remaining in the Eastern District of North Carolina was completed, and an appeal was taken by a number of the plaintiffs whose claims had been dismissed by summary judgment during the consolidated pretrial proceedings (the Royster appeal). At about the same time, some of the plaintiffs who had met a similar fate in Judge Fox's court, but who were part of cases from one of the two other districts in North Carolina, asked for and received Fed.R.Civ.P. 54(b) certifications for immediate appeal from the respective transferor district courts. These two appeals were consolidated with the Royster appeal, and we heard oral argument on October 30, 1995. For the reasons outlined below, we decline to reach the merits of these appeals at this time.
One of the charter Panel members wrote the following with regard to whether transferor judges should modify orders of transferee judges:
[I]t would be improper to permit a transferor judge to overturn orders of a transferee judge even though error in the latter might result in reversal of the final judgment of the transferor court. If transferor judges were permitted to upset rulings of transferee judges, the result would be an undermining of the purposes and usefulness of transfer under Section 1407 for coordinated or consolidated pretrial proceedings because those proceedings would then lack the finality (at the trial court level) requisite to the convenience of witnesses and parties and the efficient conduct of actions.
Weigle, S.A., The Judicial Panel on Multidistrict Litigation, Transferor Courts and Transferee Courts, 78 F.R.D. 575, 577 (1977). The Food Lion cases present us with the opportunity to foster the transfer statute's goals.
The multidistrict litigation statute, 28 U.S.C. Sec. 1407, was enacted as a means of conserving judicial resources in situations where multiple cases involving common questions of fact were filed in different districts. The statute permits the transfer of the various cases or parts thereof to a single judge for consolidated pretrial proceedings. In practice, however, the vast majority of transferred cases are disposed of completely in the transferee court, either through pretrial dispositions such as summary judgment, or by trial. 7 See In Re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1178 (D.C.Cir.1987) (D.H. Ginsburg, J., concurring). Although Congress has not yet seen fit to allow the Panel or the transferee court to consolidate cases for trial, this is possibly a next step. 8
Because all of the remanded Food Lion cases had claims that had not been dismissed, the dismissed parties were foreclosed by the "final order rule" from...
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