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Andrea Van Scoy, Lynda Azevedo v. New Albertson's Inc.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 8, 2011

ANDREA VAN SCOY, LYNDA AZEVEDO,
DIANA MURDOCK, CHRISTINA CARNES;
MINA JO GUERRERO,
MIRACLE JOHNSON,
ROSANNE LAZUKA,PATRICIA LOGAN,
TERESA LYON, THERESA ORTH AND MARA GRACE SMITH, PLAINTIFFS,
v.
NEW ALBERTSON'S INC., ALBERTSON'S, INC., SAVE-MART SUPERMARKETS, INC., LUCKY'S INC.; AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

----oo0oo----On December 13, 2010, this Court issued its Order denying Plaintiffs' Motion to Remand. Plaintiffs subsequently filed a Motion for Certification of Interlocutory Appealability under 28 U.S.C. § 1292(b).*fn1

That Motion, which is now before the Court, asks that the Court certify for immediate appeal its decision denying remand on grounds that said decision both "presents controlling questions of law as to which there is substantial ground for difference of opinion" and involves circumstances where "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).

The Ninth Circuit is clear in directing that resort to immediate appeal under Section 1292(b) should be used only in "exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982). Instead, as Ninth Circuit precedent has recognized, interlocutory appeal should be "applied sparingly". Id. In order to justify the appellate shortcut represented by interlocutory appeal, its proponent has the the burden to show that "exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).

Here, the Court does not believe that either prong of Section 1292's test justifies the procedural deviation of permitting immediate appeal, particularly given the high bar the Ninth Circuit has set for the certification of such an appeal before a case has otherwise been concluded. /// /// ///

First, in the Court's view, Plaintiffs have not established, as they must, that there is any controlling issue of law presented by the decision as to which there exists any substantial ground for difference of opinion. The preemptive force of the Labor Management Relations Act, 29 U.S.C. § 141 et seq. ("LMRA"), is strong with respect to any state claim whose outcome may hinge on consideration of the CBA. See Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987). The collective bargaining agreements ("CBAs") between Save Mart and its employee union organizations govern, among other things, work assignments, promotions, transfers and discipline. As indicated in the Court's Order denying remand, Plaintiffs' contentions herein include claims that they were unfairly denied promotions that instead went to African-American employees and further were subject to disciplinary measures disparate than those employed for their black counterparts. The viability of those contentions, as well as Raley's defenses thereto, necessarily require interpretation of the applicable CBAs. The Court is not persuaded by Plaintiffs' apparent claim that the CBAs are not squarely implicated by such claims, since the claims at issue, by their nature, will require actual interpretation of the CBAs' provisions, or their omissions with regard to the allegations being made. Particularly given the force of preemption that must be applied in cases like this one which invoke the provisions of the LMRA, the Court believes interlocutory certification is not indicated since the law as it applies to this question is well-settled.

Nor is Plaintiffs' argument that the result should change because the claims of some Plaintiffs may not require consideration of the CBAs any more persuasive. In cases involving multiple plaintiffs, the court may exercise supplemental jurisdiction over additional claims so long as it has original jurisdiction over a single plaintiff. O'Brien v. Ed Donnelly Enters., 575 F.3d 567, 580-81 (6th Cir. 2009) (citing Lindsay v. Gov't Employees Ins. Co., 448 F.3d 416, 423 (D.C. Cir. 2006).

The Court's proper exercise of supplemental jurisdiction also implicates the second Section 1292(b) factor: whether or not an immediate appeal will ultimately advance the termination of this litigation. Here, the case has been pending before this Court since May 8, 2008, a period of more than two-and-a-half years. Two motions for summary judgment have been adjudicated. There is no indication that remand of the matter to state court will do anything other than substantially delay the resolution of the case.

Because neither factor that must be demonstrated under

28 U.S.C. § 1292(b) justifies interlocutory appeal in this matter, and because both prerequisites must be established before certification of such an appeal should issue, the present Motion for Certificate of Appealability (ECF No. 94) is hereby DENIED.

IT IS SO ORDERED.


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