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Swank v. Wal-Mart Stores, Inc.

United States District Court, W.D. Pennsylvania

July 23, 2018

ANDREW SWANK, et al, Plaintiffs,
v.
WAL-MART STORES, INC., Defendant.

          MEMORANDUM OPINION

          Mark R. Hornak, United States District Judge

         On June 5, 2018, this Court denied the Plaintiffs' Motion for Rule 23 Class Certification and 29 U.S.C. § 216(b) Conditional Certification, ECE No. 143. (Order of June 5, 2018, ECF No. 263.) A key issue in the § 216(b) portion of the Plaintiffs' Motion was whether the Court should apply the first step of the collective action certification process (known as conditional certification), as the Plaintiffs argued, or the second step (known as final certification), as Defendant Wal-Mart argued. (See Op. of June 5, 2018, ECF No. 262, at 16-17.) In light of the extensive discovery that had already been conducted, but also bearing in mind the Plaintiffs' steadfast arguments in favor of conditional certification, the Court ultimately adopted the "more searching standard" applied in Walker v. Jefferson County Board of Education, No. 13-cv-524, 2016 WL 1117643, at *4 (N.D. Ala. Mar. 22, 2016); that is, the Court approached the conditional certification question with an eye toward final certification and considered all of the evidence to determine whether the proposed collective plaintiffs were sufficiently similarly situated to justify facilitating notice and proceeding to the final certification analysis. (Op. of June 5, 2018, ECF No. 262, at 18-20.)

         Applying this standard-in essence, a step-one hybrid-the Court denied the Plaintiffs' Motion for § 216(b) Conditional Certification on the basis that:

[T]he substantial weight and scope of the evidence in the record demonstrates that the proposed collective plaintiffs have materially different circumstances of employment, particularly regarding their decision-making authority, level of supervision, and daily tasks, which require individualized liability determinations. . . .
To be sure, the Plaintiffs have shown that the proposed plaintiffs are similar in certain ways: they are all [Assistant Managers ("AMs")] employed by Wal-Mart in Pennsylvania, for instance, and the Plaintiffs' evidence with regard to Wal-Mart's employment manual, job description, and other employment policies provides some common links among the proposed collective plaintiffs. But the proposed plaintiffs' common status as AMs is not enough under the more searching standard to establish that the plaintiffs are sufficiently similarly situated to justify facilitating notice and proceeding to the final certification analysis. The AMs' individualized experiences, as contained in the record before the Court, vary significantly in precisely the ways that bear on the Court's eventual determination of liability and damages. Accordingly, facilitating notice at this stage of the case, in light of the very extensive record that the parties have already developed which strongly demonstrates that the proposed collective plaintiffs are not, in fact, similarly situated, is both unnecessary and inappropriate. The Plaintiffs' Motion for Conditional Certification under § 216(b) is denied.

(Id. at 21-22.)

         Now before the Court is the Plaintiffs' Motion for Reconsideration of the Court's Order Denying Plaintiffs' Motion for 29 U.S.C. § 216(b) Conditional Certification, ECF No. 264, in which the Plaintiffs assert that the Court erred by not applying the step-two, final certification standard-which Wal-Mart had argued for, and the Plaintiffs had vigorously argued against, since the beginning of the briefing on the Plaintiffs' original Motion for § 216(b) Conditional Certification. (Pls.' Mem. in Supp. of Pls.' Mot. for Recons., ECF No. 265, at 3.)

         For the reasons that follow, the Plaintiffs' Motion for Reconsideration, ECF No. 264, is denied.

         I. Legal Standard

         To prevail on a motion for reconsideration, a litigant must demonstrate: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

         Importantly, "[a] motion for reconsideration cannot be used to 'relitigate old matters, [or] raise argument or present evidence that could have been raised prior to the entry of judgment.'" Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quoting MichaelLinet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763 (11th Cir. 2005)). A motion to reconsider "may not raise new arguments that could have (or should have) been made in support of or in opposition to the original motion." Helfrich v. Lehigh Valley Hosp., No. 03-cv-05793, 2005 WL 1715689, at *3 (E.D. Pa. July 21, 2005); see also Farkas v. Rich Coast Corp., No. 13-cv-926, 2014 WL 550559, at *2 (W.D. Pa. Feb. 11, 2014) ("A motion for reconsideration may not be used to present a new legal theory for the first time or to raise new arguments that could have been made in support of the original motion." (citing McNeal v. Martiank Phila., Inc., No. 97-cv-0890, 1999 WL 80268, at *4 (E.D. Pa. Jan. 29, 1999))).

         II. Analysis

         The Plaintiffs ask the Court to reconsider its Order denying § 216(b) Conditional Certification, asserting that because the three-year statute of limitations for potential plaintiffs to opt-in to a collective action closed as of April 1, 2018 (based on the proposed collective period cut off of April 1, 2015), when the Court issued its Opinion on June 5, 2018, any additional AMs were time barred from joining the proposed collective action; therefore, the Plaintiffs argue, the Court should have applied "step two" of the § 216(b) certification analysis, which is to determine "whether the plaintiffs who have opted in are in fact similarly situated to the named plaintiffs." (Pls.' Mem. in Supp. of Pls.' Mot. for Recons., ECF No. 265, at 3 (quoting Zavala v. Wal-Mart Stores, Inc., 691 F.3d 527, 537 (3d Cir. 2012)).) Under this standard, the Plaintiffs argue, the Court should have considered only the evidence in the record from the 113 individuals who had actually opted in to the proposed collective action.[1] (Id.)

         Under the guise of asking the Court to correct an error of fact (that the opt-in period remained open), the Plaintiffs attempt to use their Motion for Reconsideration to relitigate their Motion for § 216(b) Conditional Certification under an entirely new legal theory and applying a significantly different legal standard (one the Plaintiffs themselves had previously urged the Court it would be unjust to apply[2]). This is a plainly inappropriate use of a motion for reconsideration. See Max's Seafood Cafe,176 F.3d 669, 677 (3d Cir. 1999). The Court did not apply the step-one hybrid standard because it mistakenly believed that the opt-in period remained open; it applied that standard because it was the best fit for the ...


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