IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
July 20, 2012
RUDOLPH A. KARLO, MARK K. MCLURE, WILLIAM S. CUNNINGHAM, JEFFREY MARIETTI, DAVID MEIXELSBERGER, BENJAMIN D. THOMPSON, AND RICHARD CSUKAS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
PITTSBURGH GLASS WORKS, LLC, DEFENDANT.
The opinion of the court was delivered by: Judge Nora Barry Fischer
Pending before the Court is the Defendant's "Motion to Certify for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)." (Docket No. 186). The motion has been fully briefed by both parties, (see Docket Nos. 187, 195, 198, 201), and is therefore ripe for disposition. Upon consideration of the Defendant's Motion (Docket No. 186), the motion  is DENIED, without prejudice to the Defendants renewing their arguments after the Court has ruled upon decertification.
The pending motion arises in the wake of the Court's opinion and order granting conditional certification of the Plaintiffs' collective action for putative age discrimination class comprised of members of 50 years of age and older. (Docket Nos. 179, 180). As the parties are aware of the facts, the Court declines to restate them here. The Court's opinion raised three issues for which the Defendant seeks leave to appeal under § 1292(b):
(1) whether sub-grouping is permitted in disparate impact claims under the Age Discrimination in Employment Act ("ADEA");
(2) whether courts should apply Dukes v. Wal-Mart Stores, Inc. to each stage of the collective action certification process and require at the condition[al] certification stage a modest factual showing that Plaintiffs and the proposed class are similarly situated without reliance on the alleged "corporate culture" at the defendant corporation; and
(3) whether the "modest factual showing" required for conditional certification includes a modest showing that the proposed class members can present a claim for disparate impact.
(Docket No. 187 at 1). The Plaintiffs oppose the motion.
28 U.S.C. § 1292(b) allows for certification of a question for interlocutory appeal if the order at issue "(1) involve[s] a 'controlling question of law,' (2) offer[s] 'substantial ground for difference of opinion' as to its correctness, and (3) if appealed immediately 'materially advance[s] the ultimate termination of the litigation.'" Katz v. Carte Blanch Corp., 496 F.2d 747, 754 (3d Cir. 1973) (quoting 28 U.S.C. § 1292(b)). Even if the moving party satisfies the statutory criteria, the district court "possesses discretion to deny certification of an appeal." In re Chocolate Confectionary Antitrust Litig., 607 F. Supp. 2d 701, 708 (M.D. Pa. 2009). However, such discretion should not be exercised when "certification will materially advance the instant matter and bring clarity to a still-developing area of law." Id.
In determining whether an order presents a controlling question of law, the Court must look to whether (1) an incorrect disposition would constitute reversible error if presented on final appeal or (2) if the question is "serious to the conduct of the litigation either practically or legally." Katz, 496 F.2d at 755. The clearest evidence of "substantial grounds for difference of opinion" is where "there are conflicting interpretations from numerous courts." Beazer E., Inc. v. The Mead Corp., No. 91-408, 2006 WL 2927627, at *2 (W.D. Pa. Oct. 12, 2006) (Diamond, J.). And, in terms of determining whether appeal would materially advance the ultimate termination of litigation, courts look to "(1) whether the need for trial would be eliminated; (2) whether the trial would be simplified by the elimination of complex issues; and (3) whether discovery could be conducted more expeditiously and at less expense to the parties." Patrick v. Dell Fin. Servs., 366 B.R. 378, 387 (M.D. Pa. 2007).
Because of the procedural posture of this case, the Court concludes that the requirements for interlocutory appeal are not met at this time. The Court finds that not all of the necessary elements are present and, even if they were, the Court would exercise its discretion not to certify until after a final determination on certification.
The Court notes preliminarily that, with respect to all questions raised by the Defendant, the Court's opinion is merely conditional. The Court has ruled only that Plaintiffs are entitled to provide notice and take discovery as to the putative class. It has not made a final ruling on certification, and will not do so until discovery is complete with respect to the putative class. While the Court understands that discovery may result in some expense, the Court is also not persuaded to grant interlocutory appeal merely because discovery may be expensive. To this end, the Court finds instructive the decision in Craig v. Rite Aid Corporation, Civ. No. 08-2317, 2010 WL 1994888 (M.D. Pa. Feb. 4, 2010), and would refer Defendants to that opinion. The defendants' arguments in that case were similar to those put forth here, and the procedural posture was virtually identical. For example, the Court there had granted conditional certification, id. at *1, just as this Court has done.
The defendants in Craig likewise argued that the Third Circuit needed to "determine the appropriate quantum and type of evidence to consider in evaluating the propriety of conditional certification and the extent to which a district court should consider the manageability of the proposed collective action." Id. at *2. This argument mirrors the instant Defendant's arguments here that dispute the Court's analysis of Dukes*fn2 and its modest factual showing determination.*fn3 If both of these disputes remain after final certification, the Court will reconsider interlocutory appeal at that time, but finds such a motion premature at this stage. The Craig defendants also raised the specter of discovery costs, Craig, 2010 WL 1994888 at *2, just as Defendant does here. (See Docket No. 187 at 14).
The only novel issue in this case when compared to Craig is the sub-group holding. The Court notes that this holding may have no bearing at the next stage of certification. Depending upon what evidence is uncovered during discovery, the sub-group claim may expand to encompass all members of the over-40 class, or it may be that the class dissolves completely. With such uncertainty remaining, even the Court's sub-group holding cannot be qualified as a "controlling question of law" at the conditional certification stage.
With the foregoing in mind, the Court closes with a particularly relevant passage from Craig:
We remind Defendants that their concerns about the propriety of this proposed class can be addressed at the final certification stage, after the potential Plaintiffs have been given an opportunity to opt-in to the action and after discovery has been completed. We recognize that discovery may be somewhat costly. [but that factor does not] trump our legal analysis in any event."
Craig, 2010 WL 1994888 at *3.
With the foregoing in mind, IT IS HEREBY ORDERED that the Defendant's motion  is DENIED, without prejudice to renewal after the Court's final determination on collective action certification.
Nora Barry Fischer United States District Judge
cc/ecf: All counsel of record.