Salazar v. Driver Provider Phoenix LLC

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kelli Salazar, et al., No. CV-19-05760-PHX-SMB

10 Plaintiffs, ORDER

11 v.

12 Driver Provider Phoenix LLC, et al.,

13 Defendants. 14 15 Before the Court is Plaintiffs’ Motion for Reconsideration of Order (Doc. 410) 16 Granting Defendants’ Motion for Judgment on the Pleadings Or, Alternatively, to Certify 17 an Interlocutory Appeal Under 28 U.S.C. § 1292(b). (Doc. 415.) Defendants filed a 18 Response (Doc. 426). The Court exercises its discretion to resolve Plaintiffs’ Motion for 19 Reconsideration without oral argument. See LRCiv 7.2(f) (“The Court may decide motions 20 without oral argument.”). After reviewing the briefing and relevant law, the Court will 21 deny Plaintiffs’ Motion for the following reasons. 22 I. BACKGROUND 23 In a recent Order (Doc. 410), the Court granted Defendants’ Motion for Judgment 24 on the Pleadings (“MJP”) (Doc. 338), finding that Count II of the Fourth Amended 25 Complaint asserting state law claims for unpaid overtime under the Arizona Wage Act 26 (“AWA”) was preempted under the Fair Labor Standards Act (“FLSA”). Plaintiffs argue 27 the Court overlooked Federal Rule of Civil Procedure Rule 16 when granting Defendants’ 28 MJP because the preemption defense was not first pled in the Answer. (Doc. 415 at 3.) 1 Alternatively, Plaintiffs argue this issue should be certified for interlocutory appeal under 2 28 U.S.C. § 1292(b). (Id. at 9.) 3 II. LEGAL STANDARD 4 “Motions to reconsider are appropriate only in rare circumstances.” 333 W. Thomas 5 Med. Bldg. Enters. v. Soetantyo, 976 F. Supp. 1298, 1302 (D. Ariz. 1995). Such 6 circumstances are when the district court “(1) is presented with newly discovered evidence, 7 (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an 8 intervening change in controlling law.” Sch. Dist. No. 1J Multnomah Cnty. v. ACandS, 9 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration should not be used 10 to ask a court to rethink what the court had already thought through.” Soetantyo, 976 F. 11 Supp. at 1302 (cleaned up). Motions for reconsideration should be denied if they only 12 reiterate previous arguments. See Maraziti v. Thorpe, 52 F.3d 252, 255 (9th Cir. 1995); 13 see also Ogden v. CDI Corp., No. CV 20-01490-PHX-CDB, 2021 WL 2634503, at *3 (D. 14 Ariz. Jan. 6, 2021) (denying a motion for reconsideration when plaintiff did “nothing more 15 than disagree with this Court as to the relevant law”). 16 28 U.S.C. § 1292(b) controls certifying interlocutory appeals by providing that: When a district judge, in making in a civil action an order not otherwise 17 appealable under this section, shall be of the opinion that such order involves 18 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 19 materially advance the ultimate termination of the litigation, he shall so state 20 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 21 to be taken from such order, if application is made to it within ten days after 22 the entry of the order: Provided, however, that application for an appeal hereunder shall not stay proceedings in the district court unless the district 23 judge or the Court of Appeals or a judge thereof shall so order. 24 A district court may certify an interlocutory appeal “where it ‘involves a controlling 25 question of law as to which there is substantial ground for difference of opinion’ and where 26 ‘an immediate appeal from the order may materially advance the ultimate termination of 27 the litigation.’” Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 687–88 (9th Cir. 2011) 28 (quoting 28 U.S.C. § 1292(b)). However, “Section 1292(b) is a departure from the normal 1 rule that only final judgments are appealable, and therefore must be construed narrowly.” 2 James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002). As such, a 3 district court may deny interlocutory review when reversing the order in question would 4 only expand the trial. Valadez v. CSX Intermodal Terminals, Inc., No. 15-CV-05433-EDL, 5 2019 WL 13146777, at *2 (N.D. Cal. June 28, 2019). “The decision to certify an order for 6 interlocutory appeal is committed to the sound discretion of the district court.” U.S. v. 7 Tenet Healthcare Corp., No. CV04-857 GAF(JTLX), 2004 WL 3030121, at *1 (C.D. Cal. 8 Dec. 27, 2004) (citing Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 47 (1995)). As such, 9 “[e]ven when all three statutory criteria are satisfied, district court judges have ‘unfettered 10 discretion’ to deny certification.” Brizzee v. Fred Meyer Stores, Inc., No. CV 04-1566-ST, 11 2008 WL 426510, at *3 (D. Or. Feb. 13, 2008) (quoting Ryan, Beck & Co., LLC v. Fakih, 12 275 F. Supp. 2d 393, 396 (E.D. N.Y. 2003)). 13 III. DISCUSSION 14 A. Motion for Reconsideration 15 Plaintiffs raise the same Rule 16 arguments the Court considered before granting 16 Defendants’ MJP. The Court will not repeat the same analysis here, as Plaintiffs merely 17 dispute the relevant law. See Maraziti, 52 F.3d at 255; Ogden, 2021 WL 2634503, at *3. 18 However, the Court will reiterate that under Ninth Circuit precedent, Defendants’ 19 preemption defense may be raised for the first time in a motion for judgment on the 20 pleadings if Plaintiffs are not prejudiced. See Owens v. Kaiser Found. Health Plan, Inc., 21 244 F.3d 708, 713 (9th Cir. 2001) (also noting that the Ninth Circuit has “liberalized the 22 requirement that defendants must raise affirmative defenses in their initial pleadings”). 23 Additionally, Defendants’ Response notes that Rule 12(h)(2)(B) states a “legal defense to 24 a claim may be raised . . . by a motion under Rule 12(c).” Fed. R. Civ. P. 12(h)(2)(B). 25 For these reasons, the Court will deny Plaintiffs’ Motion for Reconsideration. Maraziti, 26 52 F.3d at 255. 27 B. Motion to Certify Interlocutory Appeal 28 The Court next considers if the justifying factors for certifying an interlocutory 1 appeal are satisfied. 2 1. Controlling Question of Law 3 An issue of law is controlling if “resolution of the issue on appeal could materially 4 affect the outcome of litigation in the district court.” In re Cement Antitrust Litig., 673 5 F.2d 1020, 1026 (9th Cir. 1981). Movants do not need to prove litigation would be 6 terminated if reversed, only that reversal would “appreciably shorten the time, effort, or 7 expense of conducting a lawsuit.” Id. Here, Plaintiffs cite to cases where questions of 8 preemption were certified on interlocutory appeal. See Hawaii ex rel. Louie v. HSBC Bank 9 Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014); Knipe v. SmithKline Beecham, 583 F. 10 Supp. 2d 553, 599 (E.D. Pa. 2008). 11 The Court does not find that this case presents a controlling issue of law that 12 necessitates an interlocutory appeal. The Court relied on this District’s precedent when 13 finding that Plaintiffs are precluded from alleging unpaid overtime and treble damages 14 under the AWA based solely on FLSA violations. See Wood v. TriVita, Inc., No. CV-08- 15 0765-PHX-SRB, 2008 WL 6566637, at *4 (D. Ariz. Sept. 18, 2008); Finton v. Cleveland 16 Indians Baseball Co. LLC, No. CV-19-02319-PHX-MTL, 2021 WL 1610199, at *2 (D. 17 Ariz. Apr. 26, 2021). Furthermore, the Court granted Plaintiffs leave to amend their 18 complaint to assert unpaid straight time claims under the AWA, which Plaintiffs have done. 19 The Court has thus not precluded Plaintiffs from bringing an AWA claim entirely, only 20 AWA claims that this District has found to be precluded. For these reasons, the Court does 21 not find this to be a controlling issue of law that if reversed would “appreciably shorten the 22 time, effort, or expense” of this lawsuit, but would rather expand a case that has been 23 ongoing since December 2019. In re Cement Antitrust Litig., 673 F.2d at 1026; see also 24 Valadez, 2019 WL 13146777, at *2 (“Interlocutory review may be denied where reversal 25 of the court’s order would only expand the trial, not terminate or limit it.”). 26 2. Substantial Ground for Difference of Opinion 27 “A substantial ground for difference of opinion exists where reasonable jurists might 28 disagree on an issue’s resolution, not merely where they have already disagreed.” Reese, 1 643 F.3d at 688. This factor is usually found where “the circuits are in dispute on the 2 question and the court of appeals of the circuit has not spoken on the point, if complicated 3 questions arise under foreign law, or if novel and difficult questions of first impression are 4 presented.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010) (quoting 3 Federal 5 Procedure, Lawyers Edition § 3:212 (2010)). “Conflicting and contradictory opinions can 6 provide substantial grounds for a difference of opinion.” Knipe, 583 F. Supp. 2d at 600. 7 Plaintiffs allege that this District is split on the preemption issue. Compare TriVita, 8 2008 WL 6566637, at *4; Finton, 2021 WL 1610199, at *2, with Wang v. Chinese Daily 9 News, Inc., 623 F.3d 743, 760 (9th Cir. 2010), vacated on other grounds, 565 U.S. 801 10 (2011), and Weeks v. Matrix Absence Mgmt. Inc., No. CV-20-00884-PHX-SPL, 2022 WL 11 523323, at *3 (D. Ariz. Feb. 22, 2022) (relying on Wang), and Blazek v. Heavens Urgent 12 Care LLC, No. CV-21-01425-PHX-DGC, 2022 WL 17361771, at 4–5 (D. Ariz. Dec. 1, 13 2022) (relying on Weeks), and Rose v. Wildflower Bread Co., No. CV09-1348-PHX-JAT, 14 2011 WL 196842, at *4 (D. Ariz. Feb. 22, 2022) (relying on Wang before it was vacated). 15 However, the Court’s previous Order explains that Weeks is distinguishable because unlike 16 the Oregon statute the case relied on, the AWA does not provide Plaintiffs with a private 17 right of action. (See Doc. 410.) Furthermore, Plaintiffs’ cited cases are either 18 distinguishable, reliant upon vacated Ninth Circuit precedent, or both. 19 Lastly, Plaintiffs argue that the Second, Third, and Seventh Circuits have rejected 20 claims that the FLSA preempts state law claims derived on the FLSA, but the Fourth 21 Circuit reached a different conclusion. (Doc. 415 at 12.) Defendants did not address this 22 argument in the Response. The Court agrees that there is a difference in opinion amongst 23 the Circuits, and that the Ninth Circuit has yet to speak on the issue since Wang was 24 vacated. While the Court may consider Wang persuasive authority, it is still more 25 persuaded by existing precedent from within our District. As such, the Court does not find 26 that this factor alone would justify certifying an interlocutory appeal and further extending 27 this litigation. See Tenet Healthcare Corp., 2004 WL 3030121, at *1; Brizzee, 2008 WL 28 426510, at *3. 1 3. Immediate Appeal May Materially Advance the Termination of 2 Litigation 3 “By 28 U.S.C. § 1292(b), Congress provided a means by which, in appropriate 4 circumstances and to further economy of litigation, full appellate review of important 5 questions can be had prior to final judgment.” Arthur Young & Co. v. U.S. Dist. Ct., 549 6 F.2d 686, 697 (9th Cir. 1977). Nevertheless, “where a substantial amount of litigation 7 remains in the case regardless of the correctness of the Court’s ruling . . . arguments that 8 interlocutory appeal would advance the resolution of the litigation are unpersuasive.” 9 Villarreal v. Caremark LLC, 85 F. Supp. 3d 1063, 1072 (D. Ariz. 2015) (cleaned up). 10 Plaintiff argues that an immediate appeal will advance the termination of litigation 11 because a trial on the AWA claims and damages is likely, this decision impacts Defendants’ 12 liability and Plaintiffs’ recovery, settlements will be impaired if “appellate proceedings are 13 delayed to the conclusion of the case,” and “[a] definitive and binding Ninth Circuit 14 decision on this issue now would help the parties avoid the necessity of an additional round 15 of damages determinations if the Ninth Circuit disagrees with this Court.” (Doc. 415 at 16 16.) Defendants counter that: (1) Plaintiffs’ AWA claims are largely duplicative of their 17 FLSA claims; (2) regardless of an interlocutory appeal significant litigations remains; and 18 (3) “Plaintiffs do not contend that reversal by the Ninth Circuit following trial would 19 require a second trial,” but that it would require “an additional round of damages 20 determinations.” (Doc. 426 at 7.) The Court agrees with Defendants that Plaintiffs do not 21 articulate how an interlocutory appeal would advance the termination of litigation, 22 especially when Plaintiffs do not anticipate needing a second trial. Rather, as Defendants 23 argue, interlocutory appeal could delay this litigation by twelve to eighteen months. (Id.) 24 Considering the lengthy delay an interlocutory appeal could add upon a case that has been 25 ongoing since December 2019, the Court finds that certification would impair the 26 termination of this litigation—especially considering the pending motions regarding 27 Plaintiffs’ certified FLSA and Arizona Minimum Wage Act classes, and Plaintiffs’ Fifth 28 Amended Complaint asserting AWA straight time violations. See Villarreal, 85 F. Supp. 3d at 1072. The Court will, in its discretion, deny the request to certify an interlocutory 2|| appeal. 3 IV. CONCLUSION 4 Accordingly, 5 IT IS ORDERED denying Plaintiffs’ Motion for Reconsideration Or, 6|| Alternatively, to Certify an Interlocutory Appeal. (Doc. 415.) 7 Dated this Ist day of March, 2023. 8 9 Se . ~P 10 SO

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