United States District Court, C.D. California
CIVIL MINUTES - GENERAL
CHRISTINA A. SNYDER, District Judge.
Proceedings: (In Chambers:) DEFENDANT WAL-MART'S MOTION TO CERTIFY PURSUANT TO 28 U.S.C. § 1292(b) (Dkt. #525, filed Feb. 20, 2014)
The Court finds this motion appropriate for decision without oral argument. Fed.R.Civ.P. 78; Local Rule 7-15. Accordingly, the hearing date of March 24, 2014, is vacated, and the matter is hereby taken under submission.
I. INTRODUCTION AND BACKGROUND
The facts of this case are known to the parties and are set forth in this Court's prior orders on defendant Wal-Mart Stores East LLP's ("Walmart") motion for summary judgment, dkt. #512, and Walmart's motion to dismiss, dkt. #414. The facts and procedural history most relevant to the present motion are as follows. On August 30, 2013, Walmart moved for partial summary judgment. Dkt. #422. In that motion, Walmart sought a determination that it was not plaintiffs' joint employer under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., or under California law. Id . The Court denied Walmart's motion by order dated January 14, 2014, finding that summary judgment was inappropriate because genuine disputes of material fact existed as to the particulars of Walmart's employment relationship with plaintiffs. Dkt. #512.
On February 20, 2014, Walmart filed a motion pursuant to 28 U.S.C. § 1292(b), seeking to certify for interlocutory appeal the Court's order denying summary judgment to Walmart. Dkt. #525. Plaintiffs filed an opposition on March 3, 2014, dkt. #552, and Walmart replied on March 10, 2014, dkt. #556. After considering the parties' arguments, the Court finds and concludes as follows.
II. LEGAL STANDARD
Section 1292(b) provides a means for litigants to bring an immediate appeal of a non-dispositive order with the consent of both the district court and the court of appeals. 28 U.S.C. § 1292(b); In re Cement Antitrust Litig. , 673 F.3d 1020, 1026 (9th Cir. 1982). The district court may certify an order for interlocutory appellate review under Section 1292(b) if the following three requirements are met: "(1) there is a controlling question of law, (2) there are substantial grounds for difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation." Id .; 28 U.S.C. § 1292(b). An issue is "controlling" if "resolution of the issue on appeal could materially affect the outcome of litigation in the district court." Id . "[T]he legislative history of 1292(b) indicates that this section was to be used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." In re Cement Antitrust Litig. , 673 F.3d at 1026 (citing United States Rubber Co. v. Wright , 359 F.2d 784, 785 (9th Cir. 1966)); Fukuda v. County of Los Angeles , 630 F.Supp. 228, 299 (C.D. Cal. 1986) ("The party seeking certification has the burden of showing that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'") (citing Coopers & Lybrand v. Livesay , 437 U.S. 463, 475 (1978)).
In denying Walmart's motion for summary judgment, the Court concluded that there are genuine issues of material fact underlying the question of whether Walmart is a joint employer pursuant to the FLSA or California labor laws. In reaching this conclusion as to the FLSA, the Court applied settled Ninth Circuit law, which provides that the determination of whether an employer-employee relationship exists depends on the "economic reality" of the situation. Torres-Lopez v. May , 111 F.3d 633, 639 (9th Cir. 1997) (quoting Bonnette v. Cal. Health & Welf. Agency , 704 F.2d 1465, 1470 (9th Cir. 1983)). The Court applied the factors set forth in Bonnette , 704 F.2d at 1470, and Torres-Lopez , 111 F.3d at 640, to guide its analysis.
The Bonnette factors assess whether the entity asserted to be a joint employer "(1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." 704 F.2d at 1470; see also In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litig. , 683 F.3d 462, 469 (3d Cir. 2012) (applying a four-factor test similar to the Bonnette factors).
The Torres-Lopez factors assess the following:
(1) whether the work was a specialty job on the production line, (2) whether responsibility under the contracts between a labor contractor and an employer pass from one labor contractor to another without material changes, (3) whether the premises and equipment of the employer are used for the work, (4) whether the employees had a business organization that could or did shift as a unit from one [worksite] to another, (5) whether the work was piecework and not work that required initiative, judgment or foresight, (6) whether the employee had an opportunity for profit or loss depending upon [the alleged employee's] managerial skill, (7) whether there was "permanence [in] the working relationship, and (8) whether the service rendered is an integral part of the alleged employer's business.
111 F.3d at 640 (internal quotations and citations omitted). The Court concluded that Walmart's motion for summary judgment should be denied because genuine factual disputes existed with regard to the first three Bonnette factors, and the ...