THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 BERNARD WAITHAKA, et al., 10 Plaintiffs, CASE NO. C19-1320-JCC 11 v. ORDER 12 AMAZON, INC., et al., 13 Defendants. 14
15 This matter comes before the Court on Plaintiff’s motion to certify a question to the 16 Supreme Judicial Court of Massachusetts or, in the alternative, to certify an order for 17 interlocutory appeal (Dkt. No. 187). Having thoroughly considered the parties’ briefing and the 18 relevant record, the Court DENIES the motion for the reasons explained herein. 19 I. BACKGROUND 20 Plaintiff previously moved to certify a class of similarly situated delivery drivers on three 21 state employment claims. (See generally Dkt. No. 172.) The Court ordered and received 22 supplemental briefing on the viability of one claim for business expenses under the 23 Massachusetts Wage Act. (See Dkt. Nos. 182, 183, 184, 185.) The Court denied Plaintiff’s 24 motion for class certification and dismissed his Wage Act claim for failure to state a viable 25 claim. (Dkt. No. 186 at 8–10, 20) (explaining that the Wage Act protects against deductions from 26 wages, not agreements that require employees to pay certain business expenses). Now, after 1 receiving an adverse ruling, Plaintiff moves to certify the Wage Act issue to the Massachusetts 2 Supreme Judicial Court.1 (Dkt. No. 187 at 5–8.) In the alternative, Plaintiff requests that the 3 Court certify its order to the Ninth Circuit for interlocutory review. (Id. at 8–9.) 4 II. DISCUSSION 5 A. Motion to Certify Question 6 Federal courts may certify a question of state law to the Massachusetts Supreme Judicial 7 Court when the answer is determinative and it appears there is no controlling precedent. Mass. 8 Sup. Jud. Ct. Rule 1:03(1). Certification to a state supreme court is within the Court’s discretion. 9 Lehman Bros. v. Schein, 416 U.S. 386, 390 (1974). Factors that the Court considers on a motion 10 to certify include the novelty of the issue, comity between courts, and public policy 11 ramifications. Murray v. BEJ Mins., LLC, 924 F.3d 1070, 1072 (9th Cir. 2019). Particularly 12 relevant here “is a presumption against certifying a question to a state supreme court after the 13 federal district court has issued a decision.” Thompson v. Paul, 547 F.3d 1055, 1065 (9th Cir. 14 2008). To overcome this presumption, a party that belatedly moves for certification must show 15 “particularly compelling reasons why it should be allowed a second chance at victory.” All. for 16 Prop. Rts. and Fiscal Resp. v. City of Idaho Falls, 742 F.3d 1100, 1108 (9th Cir. 2013) (cleaned 17 up). 18 Plaintiff asserts that the Court’s dismissal of his Wage Act claim came in the absence of 19 direct precedent from the Supreme Judicial Court. (Dkt. No. 187 at 6.) But Plaintiff now 20 contradicts his motion for partial summary judgment because he did not move to certify the 21 question when it first arose. (See generally Dkt. No. 172.) Instead, he argued that the case law 22 supported his claim for business expenses under the Wage Act, (id. at 17 n.5), and said the same 23 in supplemental briefing, (Dkt. No. 183 at 2–4). The Court thoroughly considered these 24
25 1 Plaintiff asks the Court to certify the following question: “whether the Massachusetts Wage Act requires an employer to compensate employees for business expenses required in order for a 26 worker to perform their job.” (Dkt. No. 187 at 2.) 1 submissions and disagreed based on its reading of the relevant precedent. (See Dkt. No. 186 at 7– 2 11.) In other words, the law was sufficiently clear and the question was not wholly novel. This is 3 unsurprising when the Wage Act has been in place for well over a century.2 See Tze-Kit Mui v. 4 Mass. Port Auth., 89 N.E.3d 460, 462 (Mass. 2018) (Wage Act originally enacted in 1879). Nor 5 has Plaintiff identified an inconsistency that would require resolution by the Supreme Judicial 6 Court. Cf. Allen v. Dameron, 2016 WL 4772484, slip op. at 2 (W.D. Wash. 2016) (finding 7 inconsistency in Washington state law). This Court does not require a Supreme Judicial Court 8 decision that is perfectly on point to reach a question of Massachusetts law, so long as there is 9 “sufficient state law to enable this [C]ourt to make a decision on the issues.” Syngenta Seeds, 10 Inc. v. County of Kauai, 842 F.3d 669, 681 (9th Cir. 2016). In that case, “certification is 11 inappropriate.” Id. 12 Comity also cuts against certification to a state court when a federal court has already 13 ruled because federal courts are “competent to apply federal and state law.” McKesson v. Doe, 14 592 U.S. 1, 5 (2020) (emphasis added). This is especially true here due to other issues with class 15 certification, see infra Part II(B), that make an answer on the Wage Act question less than 16 determinative. (See Dkt. No. 186 at 18.) Finally, the Court notes that it already considered public 17 policy when describing the relationship between the Massachusetts Wage Act and Minimum 18 Wage Law in its prior order. (See id. at 6–7.) It explained that the two statutes are 19 complementary and that the former is not the only protection for workers. (Id. at 10.) 20 Plaintiff only brought his motion to certify the question after receiving an adverse 21 decision from the Court and has not overcome the presumption against such post hoc requests for 22 certification. The Court does not find Plaintiff’s arguments compelling. Therefore, Plaintiff’s
23 2 A different district court exercised its discretion to certify a similar question (and others) more 24 than a decade ago. Schwann v. FedEx Ground Package Sys., Inc., 2014 WL 496882, slip op. at 4 (D. Mass. 2014). But here, the Court had the benefit of subsequent precedent, and the posture of 25 that case was distinguishable because the district court had not yet made a ruling on the question. Id. at 1. Additionally, the district court there sought guidance on a broader range of questions 26 that covered both business expenses and deductions. Id. at 3–4. 1 motion to certify a question to the Massachusetts Supreme Judicial Court is DENIED. 2 B. Motion for Interlocutory Review 3 A district court also has discretion to certify an order for interlocutory appeal if (1) it 4 involves a controlling question of law (2) as to which there is substantial ground for difference of 5 opinion and (3) an immediate appeal from the order may materially advance the ultimate 6 termination of the litigation. 28 U.S.C. § 1292(b); see also Swint v. Chambers Cnty. Comm’n, 7 514 U.S. 35, 47 (1995) (“Congress thus chose to confer on district courts first line discretion to 8 allow interlocutory appeals”). Interlocutory appeals are rare because they are “a departure from 9 the normal rule that only final judgments are appealable.” James v. Price Stern Sloan, Inc., 283 10 F.3d 1064, 1067 n.6 (9th Cir. 2002). As the party moving for review, Plaintiff has the burden of 11 showing that all three elements are met.
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 BERNARD WAITHAKA, et al., 10 Plaintiffs, CASE NO. C19-1320-JCC 11 v. ORDER 12 AMAZON, INC., et al., 13 Defendants. 14
15 This matter comes before the Court on Plaintiff’s motion to certify a question to the 16 Supreme Judicial Court of Massachusetts or, in the alternative, to certify an order for 17 interlocutory appeal (Dkt. No. 187). Having thoroughly considered the parties’ briefing and the 18 relevant record, the Court DENIES the motion for the reasons explained herein. 19 I. BACKGROUND 20 Plaintiff previously moved to certify a class of similarly situated delivery drivers on three 21 state employment claims. (See generally Dkt. No. 172.) The Court ordered and received 22 supplemental briefing on the viability of one claim for business expenses under the 23 Massachusetts Wage Act. (See Dkt. Nos. 182, 183, 184, 185.) The Court denied Plaintiff’s 24 motion for class certification and dismissed his Wage Act claim for failure to state a viable 25 claim. (Dkt. No. 186 at 8–10, 20) (explaining that the Wage Act protects against deductions from 26 wages, not agreements that require employees to pay certain business expenses). Now, after 1 receiving an adverse ruling, Plaintiff moves to certify the Wage Act issue to the Massachusetts 2 Supreme Judicial Court.1 (Dkt. No. 187 at 5–8.) In the alternative, Plaintiff requests that the 3 Court certify its order to the Ninth Circuit for interlocutory review. (Id. at 8–9.) 4 II. DISCUSSION 5 A. Motion to Certify Question 6 Federal courts may certify a question of state law to the Massachusetts Supreme Judicial 7 Court when the answer is determinative and it appears there is no controlling precedent. Mass. 8 Sup. Jud. Ct. Rule 1:03(1). Certification to a state supreme court is within the Court’s discretion. 9 Lehman Bros. v. Schein, 416 U.S. 386, 390 (1974). Factors that the Court considers on a motion 10 to certify include the novelty of the issue, comity between courts, and public policy 11 ramifications. Murray v. BEJ Mins., LLC, 924 F.3d 1070, 1072 (9th Cir. 2019). Particularly 12 relevant here “is a presumption against certifying a question to a state supreme court after the 13 federal district court has issued a decision.” Thompson v. Paul, 547 F.3d 1055, 1065 (9th Cir. 14 2008). To overcome this presumption, a party that belatedly moves for certification must show 15 “particularly compelling reasons why it should be allowed a second chance at victory.” All. for 16 Prop. Rts. and Fiscal Resp. v. City of Idaho Falls, 742 F.3d 1100, 1108 (9th Cir. 2013) (cleaned 17 up). 18 Plaintiff asserts that the Court’s dismissal of his Wage Act claim came in the absence of 19 direct precedent from the Supreme Judicial Court. (Dkt. No. 187 at 6.) But Plaintiff now 20 contradicts his motion for partial summary judgment because he did not move to certify the 21 question when it first arose. (See generally Dkt. No. 172.) Instead, he argued that the case law 22 supported his claim for business expenses under the Wage Act, (id. at 17 n.5), and said the same 23 in supplemental briefing, (Dkt. No. 183 at 2–4). The Court thoroughly considered these 24
25 1 Plaintiff asks the Court to certify the following question: “whether the Massachusetts Wage Act requires an employer to compensate employees for business expenses required in order for a 26 worker to perform their job.” (Dkt. No. 187 at 2.) 1 submissions and disagreed based on its reading of the relevant precedent. (See Dkt. No. 186 at 7– 2 11.) In other words, the law was sufficiently clear and the question was not wholly novel. This is 3 unsurprising when the Wage Act has been in place for well over a century.2 See Tze-Kit Mui v. 4 Mass. Port Auth., 89 N.E.3d 460, 462 (Mass. 2018) (Wage Act originally enacted in 1879). Nor 5 has Plaintiff identified an inconsistency that would require resolution by the Supreme Judicial 6 Court. Cf. Allen v. Dameron, 2016 WL 4772484, slip op. at 2 (W.D. Wash. 2016) (finding 7 inconsistency in Washington state law). This Court does not require a Supreme Judicial Court 8 decision that is perfectly on point to reach a question of Massachusetts law, so long as there is 9 “sufficient state law to enable this [C]ourt to make a decision on the issues.” Syngenta Seeds, 10 Inc. v. County of Kauai, 842 F.3d 669, 681 (9th Cir. 2016). In that case, “certification is 11 inappropriate.” Id. 12 Comity also cuts against certification to a state court when a federal court has already 13 ruled because federal courts are “competent to apply federal and state law.” McKesson v. Doe, 14 592 U.S. 1, 5 (2020) (emphasis added). This is especially true here due to other issues with class 15 certification, see infra Part II(B), that make an answer on the Wage Act question less than 16 determinative. (See Dkt. No. 186 at 18.) Finally, the Court notes that it already considered public 17 policy when describing the relationship between the Massachusetts Wage Act and Minimum 18 Wage Law in its prior order. (See id. at 6–7.) It explained that the two statutes are 19 complementary and that the former is not the only protection for workers. (Id. at 10.) 20 Plaintiff only brought his motion to certify the question after receiving an adverse 21 decision from the Court and has not overcome the presumption against such post hoc requests for 22 certification. The Court does not find Plaintiff’s arguments compelling. Therefore, Plaintiff’s
23 2 A different district court exercised its discretion to certify a similar question (and others) more 24 than a decade ago. Schwann v. FedEx Ground Package Sys., Inc., 2014 WL 496882, slip op. at 4 (D. Mass. 2014). But here, the Court had the benefit of subsequent precedent, and the posture of 25 that case was distinguishable because the district court had not yet made a ruling on the question. Id. at 1. Additionally, the district court there sought guidance on a broader range of questions 26 that covered both business expenses and deductions. Id. at 3–4. 1 motion to certify a question to the Massachusetts Supreme Judicial Court is DENIED. 2 B. Motion for Interlocutory Review 3 A district court also has discretion to certify an order for interlocutory appeal if (1) it 4 involves a controlling question of law (2) as to which there is substantial ground for difference of 5 opinion and (3) an immediate appeal from the order may materially advance the ultimate 6 termination of the litigation. 28 U.S.C. § 1292(b); see also Swint v. Chambers Cnty. Comm’n, 7 514 U.S. 35, 47 (1995) (“Congress thus chose to confer on district courts first line discretion to 8 allow interlocutory appeals”). Interlocutory appeals are rare because they are “a departure from 9 the normal rule that only final judgments are appealable.” James v. Price Stern Sloan, Inc., 283 10 F.3d 1064, 1067 n.6 (9th Cir. 2002). As the party moving for review, Plaintiff has the burden of 11 showing that all three elements are met. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 12 (1978) (overruled on other grounds). He has failed to do so for at least the third element. 13 In its order denying class certification, the Court found that the Wage Act claim suffered 14 from predominance issues under Rule 23(b)(3). (Dkt. No. 187 at 18) (explaining the difficulty of 15 establishing liability and damages across thousands of class members’ phones and vehicles). 16 Even assuming this claim should not have been dismissed, the result for Plaintiff’s original 17 motion would be the same. Plaintiff sought classwide resolution of his claims, including under 18 the Wage Act, and did not prevail, in part, because individual issues predominated over common 19 questions.3 (See Dkt. No. 186 at 19.) The Court does not find an appeal of its order would 20 advance this litigation. Therefore, because he fails to satisfy at least one statutory factor, 21 Plaintiff’s motion for interlocutory review is DENIED. 22 III. CONCLUSION 23 For the foregoing reasons, Plaintiff’s motion to either certify a question to the Supreme 24 Judicial Court of Massachusetts or an order for interlocutory appeal (Dkt. No. 187) is DENIED. 25 //
26 3 The Ninth Circuit also recently denied Plaintiff’s Rule 23(f) petition. (See Dkt. No. 196 at 1.) 1 DATED this 6th day of March 2025. A 2 3 4 John C. Coughenour 5 UNITED STATES DISTRICT JUDGE
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