This provision makes clear that the amount of benefits awarded to plaintiffs was directly related the amount of time spent aboard the ship.
Second, these payments could be manipulated by defendants to injure plaintiffs. As defendants have not had the most admirable record in their treatment of plaintiffs (i.e., their admitted double-booking practices), the Court finds that vacation payments dependent on time worked onboard defendants vessels could be manipulated to injure plaintiffs. Accordingly, defendants' motion is DENIED as it relates to vacation pay.
Per diem payments are different, however. The per diem section of the collective bargaining agreement states that plaintiffs were entitled to "per diem at the rate of U.S. $ 7.00 per day for licensed crewmember and U.S. $ 3.00 for non-licensed crewmember" for time spent travelling to and from ports for work onboard defendants' ships. See Plaintiffs' Opposition to Motion for Summary Adjudication, at 9. These payments are not made in consideration of plaintiffs' service on defendants' ships; they are payments of expenses for seamen on their way to meet the ship to begin work. As such, they are not "wages" within the meaning of Section 10313, and the Court GRANTS defendants' motion for summary adjudication on this issue.
III. MOTION TO CERTIFY INTERLOCUTORY APPEAL
The third motion before the Court is one filed by plaintiffs which seeks certification of an interlocutory appeal. This proposed appeal would concern plaintiffs' claim for half wages under Section 10313(e). Defendants' motion for summary adjudication of this claim was denied by the Court in its August 13, 1991 order. However, in an order filed on November 19, 1991, the Court reconsidered its ruling and held that plaintiffs' execution of monthly pay receipts was not a demand under Section 10313 (e), granting the defendants' summary judgment motion as to all of plaintiffs' claims under Section 10313(e).
On November 26, 1991, plaintiffs filed a notice of appeal to the Ninth Circuit from the Court's November 19, 1991 order. On the same day, plaintiffs filed their motion for certification of interlocutory appeal on the Section 10313(e) claims and requested a stay of these proceedings.
A. Legal Standard for Certification of Interlocutory Appeal
The general rule is that an appellate court should not review a district court ruling until after entry of a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 474 (1978); In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982), aff'd sub nom. Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983); Fukuda v. County of Los Angeles, 630 F. Supp. 228, 229 (C.D. Cal. 1986); see 28 U.S.C. § 1291.
The Interlocutory Appeals Act of 1958 creates an exception to the general rule. The statute states that:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves 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 materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals . . . may thereupon . . . permit an appeal . . . if application is made to it within ten days. . . .
28 U.S.C. § 1292(b) [hereinafter Section 1292(b)]. This statute exists for those exceptional circumstances where considerations of judicial economy and fairness demand interlocutory review of an order. The party seeking certification of an interlocutory appeal has the burden to show the presence of those exceptional circumstances. Coopers & Lybrand, 437 U.S. at 474-75; Fukuda, 630 F. Supp. at 229.
Section 1292(b) identifies three factors that must be present in order for the Court to certify an appeal. First, the issue to be certified must involve a controlling issue of law. The Ninth Circuit has ruled that an issue is "controlling" if "resolution of the issue on appeal could materially affect the outcome of litigation in the district court." In re Cement Antitrust Litig., 673 F.2d at 1026 (citing U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)); see Shurance v. Planning Control Int'l, Inc., 839 F.2d 1347, 1347-48 (9th Cir. 1988).
Second, there must be substantial ground for difference of opinion on the issue. A party's strong disagreement with the Court's ruling is not sufficient for there to be a "substantial ground for difference"; the proponent of an appeal must make some greater showing. Kern-Tulare Water Dist. v. Bakersfield, 634 F. Supp. 656, 667 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988).
Third, an interlocutory appeal must be likely to materially speed the termination of the litigation. This factor is linked to whether an issue of law is "controlling" in that the Court should consider the effect of a reversal by the Ninth Circuit on the management of the case. In addition, in light of the legislative policy that the statute only be used in exceptional circumstances, the Court should consider whether litigation in reliance on its order permitting an interlocutory appeal would be "protracted and expensive." In re Cement Antitrust Litig., 673 F.2d at 1026; see 16 Charles Wright & Arthur Miller, Federal Practice and Procedure, § 3930, at 163-66 (1977). If an interlocutory appeal would actually delay the conclusion of the litigation, the Court should not certify the appeal. See Shurance, 839 F.2d at 1348 (refusing to hear certified appeal in part because decision of Ninth Circuit might come after scheduled trial date).
Analyzing plaintiffs' motion according to the requirements of Section 1292(b), the Court finds that plaintiffs have failed to demonstrate an exceptional need for an interlocutory appeal of their claims under Section 10313(e). The first factor to consider is whether the Court's decision to dismiss the Section 10313(e) claims involves a controlling issue of law. Plaintiffs argue that the "demand" issue is controlling because the Court's ruling deprived the plaintiffs of a substantial portion of the damages they seek to recover. Plaintiffs' Memorandum in Support of Motion for Stay and for Certification of Interlocutory Appeal, at 2 [hereinafter Plaintiffs' Appeal Memorandum]. While it is true that the potential scope of plaintiffs' damage claim has been affected, the Court's November 19, 1991 order disposes of only one claim, not the entire suit. As the resolution of the Section 10313(e) issue on appeal would have some impact on the case but would not be dispositive, the proposed appeal does not concern a controlling issue of law.
Regarding the second factor, there is substantial ground for difference of opinion as to what constitutes a demand under Section 10313(e). The Ninth Circuit has ruled that a seaman must make an "effective" demand to trigger the protection of Section 10313(e). Larkins v. Hudson Waterways Corp., 640 F.2d 997, 999-1000 (9th Cir. 1981) (considering 46 U.S.C. § 597, which was the predecessor statute to Section 10313). The Ninth Circuit has not, however, specified what makes a demand effective.
Plaintiffs argue that their position on half-wage claims is buttressed by two cases. First, they maintain that the Larkins court implied that submitting a written voucher would be an effective demand. Plaintiffs' Appeal Memorandum, at 5-6. The Court finds that interpretation of Larkins to be questionable because Larkins was not a double-booking case. In Larkins, the plaintiff failed to submit a pay voucher, thus the shipping company arguably did not pay the plaintiff because it did not know how much it owed him or that he had made a demand for wages. The plaintiffs in this case, on the other hand, signed pay receipts that both sides recognized were fraudulent. As the pay receipts were fraudulent, they were insufficient by themselves to alert defendants that an actual demand was being made. Thus, although Larkins could support plaintiffs' position, the Court finds that it does not.
Plaintiffs next rely on a case from the Western District of Washington, Raby v. M/V Pine Forest, 1990 A.M.C. 2441 (W.D. Wash.), rev'd in part, 918 F.2d 80 (9th Cir. 1990), cert. denied, 111 S. Ct. 2015 (1991). Raby is factually similar to this case in that a group of Filipino seamen were subjected to double-booking practices. The Raby court held that the seamen's execution of the shipping articles and their signing of the monthly wage receipts constituted a demand under Section 10313(e). The Raby holding is in direct conflict with the holding of this Court in its November 19, 1991 order. The only distinguishing factor is that at least one of the signings in Raby took place in U.S. waters. In Mateo, none of the signings took place in U.S. waters. However, the Raby court indicated that mere possession of the signed pay receipts in U.S. waters constituted a demand for wages. Id. (Findings of Fact Nos. 14, 15).
On October 29, 1990, the Ninth Circuit reversed Raby in part and remanded the case, finding that the trial judge abused his discretion in setting the supersedeas bond. See Raby, 918 F.2d at 81. The Court of Appeals noted that "nothing in this opinion is intended to suggest that all or any portion of the penalty wages, or back wages, should have been assessed against the defendants."
Id. at 81 n.1. Although the Court disagrees with the ruling made in Raby, because of the factual similarities between the cases, the Court finds that there is substantial ground for difference of opinion.
The third factor to consider is whether an interlocutory appeal would speed the termination of the litigation. If the Court certified the interlocutory appeal and stayed the proceedings, the trial would be delayed for months while the Court waited for a ruling. Even if the Ninth Circuit ruled in favor of the plaintiffs, this matter would still have to be tried in a substantially similar fashion. If the Court certified the interlocutory appeal and did not stay the proceedings, there is a possibility that the Ninth Circuit would not decide the appeal until after trial is set to begin, which would also delay the termination of this case. Neither of these options would be practical.
Overall, plaintiffs have failed to meet their burden of demonstrating exceptional circumstances warranting interlocutory review of the Court's November 19, 1991 order. While there is substantial ground for difference of opinion based on the contrary Raby holding, the Section 10313(e) issue is not a controlling issue, and certification of an appeal will not materially advance the termination of this litigation. Accordingly, the motion for certification of an interlocutory appeal is DENIED.
C. Motion to Stay Proceedings
Plaintiffs also request that the proceedings be stayed whether or not the interlocutory appeal is certified. Plaintiffs do not argue for a discovery stay, but only for a stay of the pleadings until the Ninth Circuit decides Raby. There is no merit to this request; if Raby is decided, it's dictates may be incorporated into this litigation. Accordingly, the motion to stay is DENIED.
For the reasons set forth above, the Court makes the following rulings:
1. The motion to quash service of process brought by defendants Universal Sea Transport, S.A., Vesta Co., Ltd., Nippon Yusen Kaisha Shipping Management Co., and Orion Shipping Co. is GRANTED.
2. Defendants' motion for summary adjudication of the vacation pay issue is DENIED.
3. Defendants' motion for summary adjudication of the per diem payments issue is GRANTED.
4. Plaintiffs' motion for certification of an interlocutory appeal from this Court's November 19, 1991 order dismissing plaintiffs' Section 10313(e) claims is DENIED.
5. Plaintiffs' motion to stay the proceedings is DENIED.
6. The hearing scheduled for February 19, 1992 on defendants' motion is vacated. Defendants' counsel stated at the January 29, 1992 hearing that he is preparing a comprehensive motion. Defendants are ordered to consolidate the February 19 motion, the comprehensive motion, and any other motions, all of which will be heard at a later date in a single hearing. Defendants must notice these motions in accordance with the local rules.
IT IS SO ORDERED.
Dated: March 9, 1992.
D. Lowell Jensen
United States District Judge