HENSLEY et al v. FIRST STUDENT MANAGEMENT LLC et al, No. 1:2015cv03811 - Document 52 (D.N.J. 2016)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/7/2016. (tf, )
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HENSLEY et al v. FIRST STUDENT MANAGEMENT LLC et al Doc. 52 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW J ERSEY KATHY HENSLEY, et. al., Plaintiffs, v. : Hon. J oseph H. Rodriguez : Civil Action No. 15-3811 : FIRST STUDENT : MANAGEMENT, LLC, et. al.,: Defendants. Op in io n : This m atter com es before the Court on Plaintiffs’ Motion to Certify the Court’s March 31, 20 16 Order Granting Partial Dism issal For Interlocutory Appeal. The Court has considered the written subm issions of the parties, without oral argum ent, and will deny the m otion. I. Backgro u n d Plaintiffs seek to certify for appeal the Court’s dism issal of Plaintiffs’ claim s as plead in Count I, a claim for straight tim e pay under the Fair Labor Standards Act (“FLSA”), 28 U.S.C. § 216 (b). Specifically, the Court held that Plaintiffs' claim for straight tim e pay is actually a claim for what is also referred to as “gap tim e” pay; in other words, “uncom pensated hours worked that fall between the m inim um wage and the overtim e provisions of Dockets.Justia.com the FLSA.” Adair v. City of Kirkland, 185 F.3d 10 55, 10 59 (9th Cir. 1999). “Overtim e gap tim e” pay refers to “gap tim e claim s by an em ployee who exceeds the overtim e threshold, but whose em ploym ent contract does not com pensate him or her for all non-overtim e hours.” Davis v. Abington Mem 'l Hosp., 765 F.3d 236, 244 (3d Cir. 20 14). Because the claim s in Count I seek redress under the FLSA for com pensation for unpaid hours worked during the course of a 40 hour workweek where the plaintiffs allege that he/ she worked in excess of 40 hours in a workweek and was not com pensated for both overtim e work (work in excess of 40 hours) and straight tim e work (work up to 40 hours), the Court construed the claim as seeking overtim e gap tim e pay. As the Court noted in the March 31, 20 16 Opinion, the Third Circuit in Davis acknowledged the potential existence of overtim e gap tim e pay, but did not reach, the question of whether a claim for overtim e gap tim e pay is cognizable under the FLSA. See Hensley v. First Student Mgm t., LLC, No. CV 15-38 11, 20 16 WL 1259968, at *3 (D.N.J . Mar. 31, 20 16) (citing Davis, 765 F.3d at 244 (“We need not resolve the issue in this case because, as discussed above, the plaintiffs have not plausibly alleged that they worked overtim e in any given week.”). Although Plaintiffs’ claim in Count I invites review of the very consideration of the FSLA's reach contem plated by the Third Circuit in Davis, the Court finds that Plaintiffs are unable to satisfy the criteria for interlocutory review under 28 U.S.C. § 1292(b) and Plaintiffs’ m otion is denied.1 II. Stan d ard o f Re vie w Certification under § 1292(b) requires satisfaction of three criteria for the district court's exercise of discretion to issue an interlocutory appeal certificate. “The order m ust (1) involve a ‘controlling question of law,’ (2) offer ‘substantial ground for difference of opinion’ as to its correctness, and (3) if appealed im m ediately ‘m aterially advance the ultim ate term ination of the litigation.’” Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (citation om itted). Thus, certification is appropriate if the appeal “involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an im m ediate appeal from the There is a split amongst the Courts of Appeal for the Second and Fourth Circuits as to the whether the FLSA permits a claim for overtime gap time pay. This Court adopted the approach taken by the Court of Appeals for the Second Circuit in Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106 (2d Cir. 2013) and rejected the reasoning of the Court of Appeals for the Fourth Circuit in Monahan v. Cnty. of Chesterfield, Va., 95 F.3d 1263, 1272 73 (4th Cir. 1996). The presence of this split, however, does not tip the scale in favor of interlocutory review because the Court of Appeals for the Third Circuit in Davis, albeit for a different consideration, found the reasoning in Lundy persuasive on the issue of the pleading requirements for a claim under the FLSA. Davis, 765 F.3d at241 (“We agree with the middle ground approach taken by the Court of Appeals for the Second Circuit in Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106 (2d Cir. 2013)”). Given the Davis court’s imprimatur of the reasoning in Lundy, the significance of a split is diminished by the Third Circuit’s endorsement of the reasoning employed in this Court’s March 31, 2016 Opinion. 1 order m ay m aterially advance the ultim ate term ination of the litigation.” 28 U.S.C. § 1292(b). To succeed, the petitioner bears the burden of dem onstrating all three criteria. Katz, 496 F.2d at 754-755; Levine v. United Healthcare Corp., 285 F.Supp.2d 552, 556 (D.N.J . 20 0 3). However, satisfaction of these criteria alone does not guarantee certification as the district court m ay exercise its discretion and deny certification. Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976) (citing Katz, 496 F.2d at 754). Moreover, a district court should exercise this discretion and certify issues for interlocutory appeal only “sparingly” and in “exceptional circum stances[.]” Cardona v. General Motors Corp., 939 F. Supp. 351, 353 (D.N.J . 1996) (citation om itted); Hulm es v. Honda Motor Co., 936 F. Supp. 195, 20 8 (D.N.J . 1995); see also Sabree v. William s, No. CIV.A. 0 6-2164, 20 0 8 WL 45340 73, at *1 (D.N.J . Oct. 2, 20 0 8). III. An alys is The Court finds that Plaintiffs cannot establish the second and third criteria necessary for interlocutory review.2 First, Plaintiff cannot establish With respect to whether the motion satisfies the first criteria of 28 U.S.C. § 1292(b), the Court notes, as will be discussed infra. with respect to material advancement of termination, that Plaintiffs’ inability to pursue a claim of overtime gap time pay under the FLSA impacts the damages determination; the liability issue is preserved under the New Jersey Minimum Fair Wage Act (“NJMFWA”), N.J.S.A. 34:11 56a25. It is the scope of available damages which constitutes the controlling issue of law. See Garcia v. Freedom Mortg. Corp., 274 F.R.D. 513, 517 (D.N.J. 2 that there is a substantial difference of opinion to justify interlocutory review. In this regard, Plaintiffs’ reliance on Federm an v. Bank of Am ., N.A., No 14-0 441, 20 14 U.S. Dist. LEXIS 175565 (D.N.J . Dec. 16, 20 14) and J ones v. S.C.O., Silver Care Operations LLC, No. 13-7910 , 20 14 WL 5410 627 (D.N.J . Oct. 23, 20 14) to establish a split within this district and a ground for difference of opinion m isses the m ark because neither case addresses the viability of overtim e gap tim e claim s under the FLSA. In Federm an, plaintiff sought redress “not [for] his regulary hourly rate for “gap tim e,” but for the hours he actually worked over the overtim e lim it.” Federm an, No 14-0 441, 20 14 U.S. Dist. LEXIS 175565, at *26 (D.N.J . Dec. 16, 20 14). While J ones explained the different approaches taken by the Fourth and Second Circuits in evaluating the scope of sufficient FLSA pleadings, the issue of whether overtim e gap tim e pay falls within the am bit of the FLSA was not reached. J ones v. SCO, Silver Care Operations LLC, No. CIV. 13-7910 NLH/ AMD, 20 14 WL 5410 627, at *4 (D.N.J . Oct. 23, 20 14). Instead, J ones addresses the pleading standard for straight overtim e pay, and not gap tim e. Id. (Holding that allegations which “dem onstrate that 2011) (“The FLSA also allows for liquidated damages, whereas the NJWHL does not so provide.”) (citing 29 U.S.C. §§ 216(b), 260; N.J.S.A. § 34:11–56a25). plaintiffs worked forty hours of work “in a given workweek as well as som e uncom pensated tim e in excess” of the forty hours, plaintiffs state plausible FSLA overtim e claim s.”). The Court finds that there is not a substantial ground for difference of opinion sufficient to justify interlocutory review and denies the m otion on this basis. In addition, the Court finds that Plaintiffs’ m otion would not “m aterially advance the ultim ate term ination of the litigation[,]” as there are several counts plead that rem ain in the case. 28 U.S.C. § 1292(b). Plaintiffs’ argum ent centers on the efficiency of the litigation, but fails to account for the fact that the claim s plead in the dismissed Count I are identical to the claim s in Count II. Count II seeks redress under the auspices of the New J ersey Minim um Fair Wage Act (“NJ MFWA”), N.J .S.A. 34:11-56a25. The NJ WFWA perm its a claim for straight tim e/ overtim e gap tim e pay and the factual issues inherent in resolution of the allegation of overtim e gap tim e pay will be given review. As a result, the advancem ent of the term ination of the litigation is not significantly furthered and Plaintiffs’ m otion is denied on this basis. IV. Co n clu s io n For the reasons stated herein, there are no “exceptional circum stances” that justify the narrow application of interlocutory certification. Cardona, 939 F. Supp. at 353. As a result, the Court will not exercise its discretion to grant interlocutory review and Plaintiffs’ Motion to Certify the Court’s March 31, 20 16 Order Granting Partial Dism issal For Interlocutory Appeal is denied. An appropriate Order shall issue. Dated: Decem ber 7, 20 16 s/ J oseph H. Rodriguez HON. J OSEPH H. RODRIGUEZ, United States District J udge