DEBORAH K. CHASANOW, District Judge.
This collective action was brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., by Plaintiff Jeffry Butler ("Butler") against Defendants DirectSAT USA, LLC ("DirectSAT"), UniTek USA, LLC ("UniTek"), and UniTek Global Services, Inc. ("UGS") (collectively "Defendants"). DirectSAT is a subsidiary of UniTek and UGS, and provides satellite installation services to DirecTV customers throughout the country. Butler is a technician who previously installed, upgraded, and serviced DirecTV equipment at customer locations in Maryland, Virginia, and the District of Columbia. Butler brought this suit against Defendants for their alleged failure to pay overtime wages in violation of the FLSA and various state wage laws. As to the FLSA claim, Butler sought to represent a collective of all technicians employed by Defendants in Virginia, Maryland, and the District of Columbia. Conditional certification of the FLSA collective was granted on April 10, 2012. (ECF Nos. 65 and 66). Defendants filed a motion to decertify the collective on February 3, 2014, which was denied on September 18, 2014. (ECF Nos. 278 and 279). The collective presently consists of named Plaintiff Butler and twenty-five opt-in Plaintiffs (collectively "Plaintiffs").
On March 17, 2015, Plaintiffs filed a motion to lift the bankruptcy stay, which is currently pending before the court. (ECF No. 315). Also pending and ready for resolution in this action are several motions that were filed prior to the administrative closing of this case, namely: (1) a motion for reconsideration of the July 6, 2011 order that dismissed Plaintiffs' Maryland Wage Payment and Collection Law ("MWPCL") claim (ECF No. 275); (2) a motion filed by Defendants for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) of the undersigned's September 18, 2014 order denying decertification (ECF No. 298); (3) a motion to set a trial date filed by Plaintiffs (ECF No. 310); and (4) several renewed motions to seal various exhibits that were filed in conjunction with the parties' decertification and summary judgment motions (ECF Nos. 280, 299, 303, and 309). The issues have been briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiffs' motion to lift the bankruptcy stay and reopen this case will be granted. Plaintiffs' motion for reconsideration of Butler's MWPCL claim and their motion to set a trial date will be granted. Defendants' motion for certification will be denied. Finally, the renewed motions to seal will be granted in part and denied in part.
Defendants filed a suggestion of bankruptcy on November 13, 2014, advising that UGS and "its affiliated debtors and debtors in possession" had filed a Chapter 11 petition and that the instant case was subject to an automatic bankruptcy stay pursuant to 11 U.S.C. § 362(a). (ECF No. 311). On the same date, the court issued an order administratively closing this case without prejudice to Plaintiffs' right to reopen it upon a showing of good cause. (ECF No. 312).
On March 17, 2015, Plaintiffs filed a "motion to lift the stay," in which they indicate that the bankruptcy court handling Defendants' Chapter 11 proceeding issued a confirmation order and plan of reorganization on January 5, 2015. (ECF No. 315). Plaintiffs note that pursuant to the bankruptcy judge's order, the bankruptcy stay was lifted in this litigation as of the effective date of the reorganization plan, which was January 13, 2015, and Plaintiffs were granted permission to continue litigating their claims against Defendants. (ECF No. 315-1, at 58-61). Defendants did not respond to this motion, however, they had previously filed a notification on January 15, 2015, indicating that the Bankruptcy Court had confirmed their Chapter 11 plan of reorganization.
When a debtor files for bankruptcy protection, 11 U.S.C. § 362(a)(1) automatically stays "the commencement or continuation. . . of a judicial, administrative, or other action or proceeding against the debtor that was . . . commenced before the commencement of the case under this title." The "chief purpose" of the automatic stay provision is "to allow for a systematic, equitable liquidation proceeding by avoiding a `chaotic and uncontrolled scramble for the debtor's assets in a variety of uncoordinated proceedings in different courts.'" Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 864 (4
Here, the bankruptcy court confirmed Defendants' Chapter 11 Plan of reorganization on January 5, 2015. In his confirmation order, the bankruptcy judge specifically addressed the Plaintiffs' current suit:
(ECF No. 315-1 ¶ 72). Defendants' reorganization plan became effective January 13, 2015, which lifted the bankruptcy stay. (ECF Nos. 313, 313-1, and 315). Accordingly, Plaintiffs' motion will be granted and this case will be reopened.
Plaintiffs move for reconsideration of the undersigned's July 6, 2011 memorandum opinion and order (ECF Nos. 28 and 29), which dismissed their Maryland Wage Payment and Collection Law ("MWPCL") claim (count III) based on "an intervening change in controlling law." (ECF No. 275). The July 6, 2011 opinion dismissed Plaintiffs' claim based on the understanding that "[t]he MWPCL does not specifically address payment of overtime wages or provide a cause of action directed at employer's failure to pay overtime." (ECF No. 28, at 16). The opinion specifically notes that "other judges in this district have rejected plaintiffs' attempts to state claims for violation of the MWPCL where [like here] the parties' core dispute is whether plaintiffs were entitled to overtime wages at all and not whether overtime wages were paid on a regular basis or upon termination." (Id.).
Plaintiffs assert that the dismissal of their MWPCL claim was based on the improper determination that Plaintiffs' claim for overtime wages did not fall within the scope of the MWPCL. Plaintiffs point out that after the court issued its July 6, 2011 decision, the Court of Appeals of Maryland reached a different conclusion in Peters v. Early Healthcare Giver, Inc., 439 Md. 646 (2014), finding that the MWPCL does provide a vehicle for recovering unpaid overtime wages.
In response, Defendants argue that Plaintiffs' motion for reconsideration of their MWPCL claim must be denied because it relies upon the same argument that was previously rejected at the motion to dismiss stage — that the 2010 Amendment to the MWPCL made explicit that unpaid overtime wage claims were recoverable under the MWPCL. In addition, Defendants argue that Plaintiffs' MWPCL claim was dismissed in 2011 because of pleading deficiencies that are equally present today. Defendants add that "even if [] Peters finally resolves the question of whether the 2010 amendments to the MWPCL provide a private right of action for allegedly unpaid overtime, said amendments have no bearing" on this case because they were enacted after the only remaining named Plaintiff, Jeffry Butler, was no longer employed by DirectSat. (ECF No. 277, at 2-3). Defendants argue that neither the 2010 Amendments to the MWPCL nor the Peter court's interpretation of the same were intended to apply retroactively and therefore, should not be applied to Butler whose employment with Defendants ended in 2008.
Because Plaintiffs seek reconsideration of a non-final, interlocutory order, their motion is properly analyzed under Fed.R.Civ.P. 54(b). See Fed.R.Civ.P. 54(b) ("[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action . . . and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities."). The precise standard governing a motion for reconsideration of an interlocutory order is unclear. Although the standards articulated in Rules 59(e) and 60(b) are not binding in an analysis of Rule 54(b) motions, see Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 504, 514 (4
(2) newly discovered evidence; (3) fraud or misconduct by the opposing party; (4) voidness; (5) satisfaction; or (6) any other reason that justifies relief. Fed.R.Civ.P. 60(b).
Judge Hazel recently discussed in Chavez v. Besies Corp., No. GJH-14-1338, 2014 WL 5298032, at *2-3 (D.Md. Oct. 10, 2014), the scope of the MWPCL as clarified by the Court of Appeals of Maryland in two opinions it issued in 2014:
Id. at 646, 97 A.3d at 624-25.
In light of the Court of Appeals of Maryland's clarifications in Marshall and Peters as to the scope of the MWPCL, Plaintiff Butler's MWPCL claim will be reinstated. The pleading deficiencies that were identified in 2011 were based on a misunderstanding of the scope of the law. Defendants' argument that the "change in the law" articulated in Peters does not apply to Butler because he was only employed by Defendants until July 2008 and there is a presumption against retroactive application of the MWPCL 2010 Amendment will be rejected for several reasons. As explained by the Court of Appeals of Maryland in Marshall and Peters, the scope of the MWPCL was always intended to provide employees a basis for recovering any unpaid wages they were entitled to and was not meant to be restricted to recovering wage payments when they were untimely. Marshall, 437 Md. at 556-62; Peters, 439 Md. at 653-55. The court further articulated in Peters that it had been called upon to clarify the scope of the MWPCL "in the face of federal court decisions that continued to restrict its application." 439 Md. at 654 (citing McLaughlin v. Murphy, 372 F.Supp.2d 465 (D.Md. 2004); Williams v. Maryland Office Relocators, 485 F.Supp.2d 616, 622 n.4 (D.Md. 2007).
Following the close of discovery, Defendants filed a motion to decertify Plaintiffs' conditionally certified collective on the grounds that the Plaintiffs were not similarly situated and should not be permitted to proceed as a collective. (ECF No. 202). On September 18, 2014, Defendants' motion for decertification was denied. (ECF Nos. 278 and 279). As explained in the September 18, 2014 opinion, in the second and final stage of the certification process:
(ECF No. 278, at 6-7) (first and second alterations in original). After reviewing the evidence presented by the parties, the undersigned found that although "[t]here [were] certainly differences among the technicians, [] they [were] not so great to defeat the collective mechanism." (Id. at 20). In addition, the undersigned acknowledged that the differences among technicians related more to their individual damages assessments than to establishing liability, and that representative proof could be used to show whether Defendants in fact had policies in place requiring Plaintiffs to perform compensable tasks outside of their compensable hours. The opinion notes that:
phase two: damages. (Id. at 27-28). As for the damages phase, the undersigned foresaw that in all likelihood each "Plaintiff will need to submit a damages calculation, subject to challenge by Defendants. While this phase could lead to in essence twentysix mini-trials on the question of damages, it would still be more efficient than having twenty-six mini-trials on damages and liability." (Id. at 28).
On September 26, 2014, Defendants moved to amend and certify the September 18, 2014 opinion and order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (ECF No. 298). The motion is fully briefed. (ECF Nos. 300 and 308). Defendants request that the court certify the following questions for immediate interlocutory review:
(ECF No. 298).
"[Section] 1292(b) provides a mechanism by which litigants can bring an immediate appeal of a non-final order upon the consent of both the district court and the court of appeals." In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9
Thus, a defendant seeking an interlocutory appeal pursuant to section 1292(b) must "show (1) that a controlling question of law exists (2) about which there is a substantial basis for difference of opinion and (3) that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Riley v. Dow Corning Corp., 876 F.Supp. 728, 731 (M.D.N.C. 1992). The decision to certify an interlocutory appeal is firmly in the district court's discretion. Id. Unless all of the statutory criteria are satisfied, however, "the district court may not and should not certify its order . . . for an immediate appeal under section 1292(b)." Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 676 (7
The term "question of law" for purposes of section 1292(b), refers to "a question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine," Lynn v. Monarch Recovery Mgmt., Inc., 953 F.Supp.2d 612, 623 (D.Md. 2013), as opposed to "questions of law heavily freighted with the necessity for factual assessment." Fannin v. CSX Transp., Inc., 873 F.2d 1438, at *5 (4
Defendants argue that this motion for certification of an interlocutory appeal presents multiple controlling questions of law because the court's certification decision turned on:
(ECF No. 298-1, at 8). Defendants contend that it is improper to permit Plaintiffs to proceed as a collective when "minitrials" on damages loom for each Plaintiff. Defendants assert that the decision to bifurcate the trial is also a "controlling question of law" because the liability and damages determinations are interwoven and cannot be separated without compromising Defendants' rights to a fair trial. Defendants assert that the court's intended method of bifurcation "suggests a liability-only proceeding that depends upon the adoption of an overall `average technician' representing every other technician in the collective." (ECF No. 298-1, at 10). Defendants contend that this representative method of establishing liability would prejudice them because it would preclude them from pursuing individualized defenses as to "absent members of the collective[.]" (Id. at 11).
Defendants have not met their burden of showing exceptional circumstances to justify certification of an interlocutory appeal because the issues raised by them are not "controlling question of law." The questions Defendants hope to certify — whether Plaintiffs may try their FLSA collective claims using individualized rather than representative proof, and whether the court may bifurcate the trial into a liability and damages phases — are procedural challenges to the methods the court selected for the parties to try this case. Despite how they may be articulated, Defendants' procedural challenges in actuality are also substantive challenges to the court's certification decision, as evidenced by the fact that Defendants' seek reversal of the certification decision itself, rather than a ruling from the Fourth Circuit requiring Plaintiffs to use representative testimony in a non-bifurcated trial.
As they are currently framed, the questions Defendants hope to raise on interlocutory appeal relate to the undersigned's determinations on the procedural methods Plaintiffs may use to present their case, in particular, the use of 26 "mini-trials" on damages rather than representative testimony, and the bifurcation of the trial into separate liability and damages phases. These determinations are not "questions of law," however, they are procedural, trial management decisions that are within the court's discretion. See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) ("Permitting piecemeal, prejudgment appeals, we have recognized, undermines `efficient judicial administration' and encroaches upon the prerogatives of district court judges, who play a `special role' in managing ongoing litigation. (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)); see also Thompson v. Bruister & Assocs., Inc., 967 F.Supp.2d 1204, 1222 (M.D.Tenn. 2013) ("[A] district court has wide discretion to manage collective actions, [] and many fairness and due process concerns can be addressed through trial management, such as the bifurcation of liability and damages, and/or dividing the action into various subclasses.") (internal citations and quotation marks omitted); see also Gionfriddo, 769 F.Supp.2d at 886 ("[D]istrict courts have broad discretion to determine whether a collective action is an appropriate means for prosecuting an FLSA cause of action."). Moreover, they are not "controlling" because "litigation will `necessarily continue regardless of how [these procedural] questions [are] decided.'" LaFleur v. Dollar Tree Stores, Inc., No. 2:12-CI-00363, 2014 WL 2121721, at *2 (E.D.Va. May 20, 2014) (quoting North Carolina v. ex rel. Howes v. W.R. Peele, Sr. Trust, 889 F.Supp. 849, 853 (E.D.N.C. 1995)). In addition, as recognized by the Supreme Court of the United States in Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989), trial courts have considerable authority and relatively broad discretion in managing FLSA collective actions:
Id. at 170-73 (internal citations omitted).
Here, Defendants do not identify a rule addressing the use of individualized proof and bifurcation in FLSA collectives; rather, they point to the Seventh Circuit's decision in Espenscheid, 705 F.3d 770 (7
To the extent Defendants are challenging the underlying determination that Plaintiffs' are "similarly situated" and may proceed as a collective, this is also not a pure "question of law" under section 1292(b) but is more appropriately characterized as the application of a legal standard to a set of facts. See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1262 (11th Cir. 2008) ("[U]ltimately, whether a collective action is appropriate depends largely on the factual question of whether the plaintiff employees are similarly situated to one another.") (emphasis added); see LaFleur, 2014 WL 2121721, at *1-2 (denying movant's request for an interlocutory appeal of the trial court's certification decision because movant's "proposed questions are not pure questions of law; rather, they would require the Fourth Circuit to study the record extensively"). Moreover, the court's determination regarding the propriety of letting this case proceeds as a collective is particularly not a candidate for interlocutory review as it is a discretionary determination that was made after the court applied the three factor test for determining whether Plaintiffs are similarly situated to the evidence presented by the parties. Although Defendants object to the undersigned's determination that Plaintiffs are similarly situated and permitted to proceed as a collective, this is does not render it a "question of law" as contemplated by section 1292(b). Indeed, a review of the underlying certification decision by the Fourth Circuit could not be decided quickly and cleanly; instead, it would require the court to dig through the factual record in this case to determine whether this court abused its discretion by finding that the collective is similarly situated. See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11
Even if the issues raised by Defendants could be considered "controlling questions of law," Defendants have not shown that a "substantial basis for difference of opinion" exists on a controlling legal issue within the meaning of Section 1292(b). An issue presents a substantial ground for difference of opinion if courts, as opposed to parties, disagree on a controlling legal issue. McDaniel v. Mehfoud, 708 F.Supp. 754, 756 (E.D.Va. (unpublished opinion); see also Couch v. Telescope, Inc., 611 F.3d 629, 633 (9
Espenscheid does not evidence a substantial disagreement over a controlling question of law; rather, it involves variant outcome based on the application of settled law to a different factual scenario. See Stevens v. HMSHost Corp., No. 10-CV-3571 ILG VVP, 2015 WL 926007, at *4 (E.D.N.Y. Mar. 4, 2015) ("Given the overwhelming agreement between district and circuit courts as to the propriety of the factors this Court considered in reaching [its] conclusion [that the conditionally certified collective was not similarly situated], it cannot be said that there are grounds for substantial differences in opinion on a controlling question of law."). In addition, Espenscheid does not support that there is a substantial ground for difference in opinion on whether plaintiffs in collective actions: (1) must use representative rather than individualized testimony; or (2) may bifurcate the liability and damages phases of trial. Indeed, most collective actions settle, but:
7B Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1807 (3d ed. 2005) (citing Rodolico v. Unisys Corp., 199 F.R.D. 468 (E.D.N.Y. 2001)). Accordingly, the undersigned's decision to certify this collective and the procedures that have were provisionally approved for trying this case are within the court's discretion and accord with those used by other trial courts.
Because the three criteria for an immediate appeal under Section 1292(b) must all be satisfied in order to warrant certification and Defendants have not met the first two criteria, there is no need to go further and discuss whether resolution of their questions will "materially advance this litigation." Defendants' motion for certification will be denied.
In adjudicating the parties' substantive motions for decertification and summary judgment, the court also decided the motions to seal that were filed in conjunction with these motions. Defendants' motions to seal were granted in part and denied in part, and Plaintiffs' motions to seal were denied. For all sealing requests that were denied, the parties were directed to file renewed motions to seal with adequate justifications as to why certain exhibits were required to be sealed in their entirety or to provide redacted versions of these exhibits. (ECF Nos. 278, 279, 301, and 302). For the sake of brevity, the standard for reviewing motions to seal will not be repeated below, as it was provided in the September 18, 2014 memorandum opinion.
On September 26, 2014, Defendants filed a renewed motion to seal certain exhibits to its decertification motion. (ECF No. 280). In this renewed motion, Defendants withdraw their confidentiality designations for their payroll compliance and explanation form (Exhibit 11; ECF No. 207), and their paycheck verification procedure forms (Exhibit 50; ECF No. 212). These documents will be unsealed. Defendants also submitted redacted versions of employee pay stubs (Exhibits 47-49, 71, and 85; ECF Nos. 281-83, 288, and 297), and timesheets (Exhibits 56-57, 63, 70, and 77-84; ECF Nos. 284-87 and 289-96), that include reasonable redactions to employees' personal information. Defendants' renewed motion to seal fully complies with the court's foregoing memorandum opinion order (ECF No. 278 and 279) as well as Local Rule 105.11, and therefore, will be granted.
Defendants indicate that following the court's September 18, 2014 order, which directed Plaintiffs to refile a renewed motion to seal the exhibits to its opposition to Defendants' decertification motion, Plaintiffs informed Defendants that they did not intend to maintain the confidentiality designations of any of their exhibits that were originally filed under seal. (ECF No. 299-1). Because Plaintiffs refused to maintain the confidentiality of these materials, which were originally deemed confidential pursuant to the court-approved Confidentiality Stipulation during discovery (ECF Nos. 37 and 38), Defendants assert that they have been forced to do so themselves by filing the instant motion to seal. (ECF No. 299). Defendants withdraw their confidentiality designations for: a paycheck verification form signed by opt-in Plaintiff Lionel Murray (Exhibit D; ECF No. 252); a corrective action form prepared for opt-in Plaintiff Lionel Murray (Exhibit U; ECF No. 252-3); a timesheet for opt-in Plaintiff Christopher Adams (Exhibit EE; ECF No. 252-8); and a pay stub for opt-in Plaintiff Christopher Adams (ECF No. FF; ECF No. 252-9). Defendants assert that Plaintiffs appear to be waiving confidentiality with respect to the information in these documents. Although these exhibits do contain some personal information of Plaintiffs, they will be unsealed because Plaintiffs have waived any assertion of confidentiality and none of the information contained therein, such as employee identification numbers, requires redaction under Federal Rule of Civil Procedure 5.2.
On October 22, 2014, Defendants filed a renewed motion to seal certain exhibits to its motion for summary judgment. (ECF No. 303). Defendants filed redacted versions of Butler's: pay stub (Exhibit 6; ECF 306); timesheets (Exhibit 5; ECF No. 305); and personnel documents (Exhibits 4 and 18; ECF Nos. 304 and 307), which only redacted confidential personal information such as social security numbers. Because Defendants' renewed motion to seal fully complies with the court foregoing memorandum opinion and order (ECF No. 301 and 302) as well as Local Rule 105.11, it will be granted.
Following the issuance of the summary judgment opinion, after being directed to file a renewed motion to seal, Plaintiffs took a familiar stance on the confidentiality of their exhibits. They informed Defendants on October 29, 2014, that they were not going to maintain the confidentiality of the exhibits that were filed in conjunction with their motion opposing summary judgment (ECF No. 309-1), and thereafter, Defendants filed a motion to seal these exhibits. (ECF No. 309). There is substantial overlap between the exhibits Plaintiffs used to support their opposition to Defendants' motion for decertification and to support their opposition to summary judgment; accordingly, most of the exhibits at issue in this motion to seal were discussed above. Defendants provide the exact same justifications in this motion as they did in the prior motion for why they are withdrawing their confidentiality designations or why they seek to retain an exhibit under seal. Accordingly, the exhibits will receive the same treatment. Defendants withdraw their confidentiality designations for: Plaintiff Butler's earning statements (Exhibit H);
For the foregoing reasons, Plaintiffs' motions to lift the bankruptcy stay and reopen this case and for reconsideration of their MWPCL claim will be granted. The parties are directed to file a jointly proposed revised scheduling order regarding how they plan to proceed on the MWPCL claim. Defendants' motion for certification of an interlocutory appeal will be denied. The renewed motions to seal filed by Defendants will be granted in part and denied in part. A separate order will follow.
Id. at 654 n.7.
