Lillehagen v. Alorica, Inc.

• Court: U.S. District Court — Central District of California
• Writing for the Court: THE HONORABLE DAVID O. CARTER, JUDGE
• Decision Date: 15 May 2014
• Docket Number: Case No. SACV 13-0092-DOC (JPRx)
• Citation: Lillehagen v. Alorica, Inc., Case No. SACV 13-0092-DOC (JPRx) (C.D. Cal. May 15, 2014)
• Parties: MELISSA LILLEHAGEN ET AL. v. ALORICA, INC.

MELISSA LILLEHAGEN ET AL. v. ALORICA, INC.

Case No. SACV 13-0092-DOC (JPRx)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Date: May 14, 2014

May 15, 2014

CIVIL MINUTES - GENERAL

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE

Julie Barrera

Courtroom Clerk

Not Present

Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF:

None Present

ATTORNEYS PRESENT FOR DEFENDANT:

None Present

PROCEEDINGS (IN CHAMBERS): ORDER DENYING MOTION TO AMEND AND CERTIFY ORDER FOR INTERLOCUTORY REVIEW PURSUANT TO 28 U.S.C. § 1292(b) [75]

Before the Court is Alorica, Inc.'s ("Defendant") Motion to Amend and Certify Order for Interlocutory Review Pursuant to 28 U.S.C. § 1292(b) ("Motion") (Dkt. 75). The Court finds this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; see also C.D. Cal. R. 7-15. Having considered the moving, opposing, and replying papers, as well as the entirety of the record, the Court DENIES Defendant's Motion.

I. BACKGROUND

The facts that Plaintiff alleges are as follows:

Defendant operates call centers throughout the United States. Compl. ¶ 52 (Dkt. 1). Melissa Lillehagen, Sharon Shaw, Janna Carlile, Shanai Whitmore, Akesha Grizzard, and Joshua Dickson (collectively, "Plaintiffs") are former customer service representatives of Defendant. See id. ¶¶ 11-40.

As a term and condition of the customer service representative position, Defendant requires each of its customer service representatives to record their time worked, by logging on and off a telephone system. Id. ¶ 54. Around the time of the lawsuit, Defendant maintained a company-wide policy and practice whereby it required its customer service representatives to log off the clock if they took a break of less than twenty minutes and had already used their scheduled paid break time. Id. ¶¶ 56-57. Even if Defendant's own equipment failed and caused the employee to be logged off the system for less than twenty minutes, Defendant treated such failures as uncompensated time. Id. ¶ 60.

On January 18, 2013, Plaintiffs filed a collective action lawsuit for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). See Compl. (Dkt. 1). On October 24, 2013, the Court granted Plaintiffs' Motion for Conditional FLSA Certification ("Order"). See Order (Dkt. 67). On November 21, 2013, Defendant filed the present Motion to Amend and Certify Order for Interlocutory Review Pursuant to 28 U.S.C. § 1292(b). See Motion (Dkt. 75).

II. LEGAL STANDARD

28 U.S.C. § 1292(b) provides a means for litigants to bring an immediate appeal of a non-dispositive order with the consent of both the district court and the court of appeals. In re Cement Antitrust Litig., 673 F.2d 1020, 1025-26 (9th Cir. 1982). A district court may certify an order for interlocutory appellate review under Section 1292(b) if the following three requirements are met: "(1) there is a controlling question of law, (2) there are substantial grounds for difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation." Id. at 1026; 28 U.S.C. § 1292(b).

"Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly." James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002). Indeed, the legislative history of Section 1292 suggests that it ought to be used "only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." In re Cement Antitrust Litig., 673 F.2d at 1026 (citing U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)); Fukuda v. Cnty. of Los Angeles, 630 F. Supp. 228, 299 (C.D. Cal. 1986) ("The party seeking certification has the burden of showing that exceptional circumstances justify a departure from the 'basic policy of postponing appellate review until after the entry of a final judgment.'") (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)).

III. DISCUSSION

Defendant presents two questions for this Court to certify for interlocutory review:

(1) Does the "two-step approach" applied by the Court still remain appropriate as a general procedure for conditional certification of a collective action under the FLSA?

(2) If so, does the "fairly lenient" standard applied by the Court still remain the appropriate burden that plaintiffs must meet for conditional certification when they are seeking to sue under 29 U.S.C. 216(b) of the FLSA on behalf of themselves and other employees similarly situated?

Mot. at 1. For the reasons discussed below, the Court finds that Defendant has not met its burden of showing that exceptional circumstances warrant this Court to grant Defendant's Motion.

A. Controlling Question of Law

A question of law is "controlling" under Section 1292(b) if "resolution of the issue on appeal could materially affect the outcome of litigation in the district court;" however, resolution of the issue need not dispose of the case entirely. In re Cement Antitrust Litig., 673 F.2d at 1026. Examples of controlling questions of law include fundamental issues such as "the determination of who are necessary and proper parties, whether a court to which a case has been transferred has jurisdiction, or whether state or federal law should be applied." Id. at 1026-27 (quoting United States v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959)).

Defendant asserts that the Court's Order granting conditional certification concerns a controlling question of law for the purposes of a Section 1292(b) interlocutory appeal. Mot. at 16-17. However, at least one Ninth Circuit case suggests otherwise. See Blackie v. Barrack, 524 F.2d 891, 898 n.13 (9th Cir. 1975) ("Generally an order granting class action status does not involve a controlling question of law when entered because it has no significant effect on the litigation until issues not pertaining to the personal claims of the class representative have been decided.") (citing Interlocutory Appeals in the Federal Courts Under 28 U.S.C.§ 1292(b), 88 Harv. L. Rev. 607, 630-31 n.97 (1975)). Although Blackie is in the context of class actions, a similar reasoning is applicable for collective actions.

To the extent that neither the Supreme Court nor courts within the Ninth Circuit have directly addressed whether an order granting FLSA conditional certification presents a controlling question of law, this Court finds persuasive other circuit courts' guidance on the matter and denies Defendant's request for interlocutory review. See, e.g., Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 549 (6th Cir. 2006) ("We hold that a conditional order approving notice to prospective co-plaintiffs in a suit under [the FLSA] is not appealable."); Baldridge v. SBC Commc'ns., Inc., 404 F.3d 930, 931 (5th Cir. 2005) (denying defendants' request for interlocutory appeal of order granting FLSA conditional certification "because the question of class certification has not yet been conclusively determined. . . ."); Lusardi v. Xerox Corp., 747 F.2d 174, 175, 177-78 (3d Cir. 1984) (age discrimination in employment case following FLSA collective action procedure where trial court rejected Section 1292(b) request for interlocutory appeal and appellate court rejected Section 1291 interlocutory appeal because the collective action certification was "conditional" and there was "a plain prospect that the trial court may itself alter the challenged ruling," resulting in "little justification for immediate appellate intrusion"); Long v. CPI Sec. Sys., Inc., No. 3:12-cv-396-RJC-DSC, 2013 WL 3761078, at *2 (W.D.N.C. Jul. 16, 2013) ("Where a court's decision is conditional and may be altered or amended before decision on the merits, the decision is not a controlling question of law to be reviewed under § 1292(b)."); Pereira v. Foot Locker, Inc., No. 07-CV-2157, 2010 WL 300027, at *10-11 (E.D. Pa. Jan. 25, 2010) (same); LaFleur v. Dollar Tree Stores, Inc., No. 2:12-cv-00363, 2013 WL 150722, at *11 (E.D. Va. Jan. 11, 2013) (conditional grant of FLSA collective action certification does not present a controlling question of law under § 1292(b) because it is "temporary in nature" as defendant "will have ample opportunity at the end of Phase I discovery to seek decertification").

Accordingly, Defendant has not presented a controlling question of law that would merit the Court to certify Defendant's request for interlocutory review.

B. Substantial Grounds for Difference of Opinion

Even if the Court is to presume that Defendant has presented controlling questions of law, "substantial ground for difference of opinion" does not exist. Courts determine whether there is a "substantial ground for difference of opinion" by examining "to what extent the controlling law is unclear." Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). "Courts traditionally will find that a substantial ground for difference of opinion exists where the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented." Id. at 633; Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011).

1. Whether the "Two-Step Inquiry" is the Appropriate Test

Defendant first asserts that the "two-step inquiry" may not be the appropriate test for collective action certification under Section 216(b),¹ as neither the Supreme Court nor the Ninth Circuit has endorsed such a test. Mot. at 10-13. Although the Supreme Court and Ninth Circuit have yet to articulate the proper test for certification of an FLSA action, district courts in this Circuit apply a two-step inquiry. See, e.g., Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466-67 (N.D. Cal. 2004); Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 536 (N.D. Cal. 2007). Under the first step, the court makes an initial "notice-stage" determination of whether potential opt-in plainti...