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Lillehagen v. Alorica, Inc.

United States District Court, C.D. California

May 15, 2014

MELISSA LILLEHAGEN ET AL
v.
ALORICA, INC

CIVIL MINUTES - GENERAL

DAVID O. CARTER, District Judge.

PROCEEDINGS (IN CHAMBERS): ORDER DENYING MOTION TO AMEND AND CERTIFY ORDER FOR INTERLOCUTORY REVIEW PURSUANT TO 28 U.S.C. § 1292(b) [75]

Before the Court is Alorica, Inc.'s ("Defendant") Motion to Amend and Certify Order for Interlocutory Review Pursuant to 28 U.S.C. § 1292(b) ("Motion") (Dkt. 75). The Court finds this matter appropriate for decision without oral argument. See Fed.R.Civ.P. 78; see also C.D. Cal. R. 7-15. Having considered the moving, opposing, and replying papers, as well as the entirety of the record, the Court DENIES Defendant's Motion.

I. BACKGROUND

The facts that Plaintiff alleges are as follows:

Defendant operates call centers throughout the United States. Compl. ¶ 52 (Dkt. 1). Melissa Lillehagen, Sharon Shaw, Janna Carlile, Shanai Whitmore, Akesha Grizzard, and Joshua Dickson (collectively, "Plaintiffs") are former customer service representatives of Defendant. See id. ¶¶ 11-40.

As a term and condition of the customer service representative position, Defendant requires each of its customer service representatives to record their time worked, by logging on and off a telephone system. Id. ¶ 54. Around the time of the lawsuit, Defendant maintained a company-wide policy and practice whereby it required its customer service representatives to log off the clock if they took a break of less than twenty minutes and had already used their scheduled paid break time. Id. ¶¶ 56-57. Even if Defendant's own equipment failed and caused the employee to be logged off the system for less than twenty minutes, Defendant treated such failures as uncompensated time. Id. ¶ 60.

On January 18, 2013, Plaintiffs filed a collective action lawsuit for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). See Compl. (Dkt. 1). On October 24, 2013, the Court granted Plaintiffs' Motion for Conditional FLSA Certification ("Order"). See Order (Dkt. 67). On November 21, 2013, Defendant filed the present Motion to Amend and Certify Order for Interlocutory Review Pursuant to 28 U.S.C. § 1292(b). See Motion (Dkt. 75).

II. LEGAL STANDARD

28 U.S.C. § 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. In re Cement Antitrust Litig. , 673 F.2d 1020, 1025-26 (9th Cir. 1982). A 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. at 1026; 28 U.S.C. § 1292(b).

"Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly." James v. Price Stern Sloan, Inc. , 283 F.3d 1064, 1067 n.6 (9th Cir. 2002). Indeed, the legislative history of Section 1292 suggests that it ought 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.2d at 1026 (citing U.S. Rubber Co. v. Wright , 359 F.2d 784, 785 (9th Cir. 1966)); Fukuda v. Cnty. 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)).

III. DISCUSSION

Defendant presents two questions for this Court to certify for interlocutory review:

(1) Does the "two-step approach" applied by the Court still remain appropriate as a general procedure for conditional certification of ...

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