Case 1:13-cv-01861-JEJ Document 80 Filed 12/02/13 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WHITEWOOD, et al., Plaintiffs, v. WOLF, et al., Defendants. Civil Action No. 13-1861-JEJ

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO THE MOTION OF DEFENDANTS SECRETARY OF HEALTH MICHAEL WOLF AND SECRETARY OF REVENUE DAN MEUSER FOR CERTIFICATION AND AMENDMENT OF ORDER PURSUANT TO 28 U.S.C. § 1292(b) INTRODUCTION The Motion 1 of Defendants Michael Wolf and Dan Meuser (“Commonwealth Defendants”) fails to satisfy the demanding standard for certification of this Court’s denial of their Motion to Dismiss for immediate interlocutory appeal under 28 U.S.C. § 1292(b). For at least the following four reasons, Plaintiffs respectfully request that this Court deny the Motion.

“Motion” refers to the Motion of Defendants Secretary of Health Michael Wolf and Secretary of Revenue Dan Meuser for Certification and Amendment of Order Pursuant to 28 U.S.C. § 1292(b) (Dkt. 76, filed Nov. 25, 2013).

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First, the Motion fails to present the required “substantial ground for difference of opinion” concerning a “controlling question of law” because it rests on the rejected and incorrect view that a lower court does not have the authority to analyze intervening “doctrinal developments” when considering the precedential impact, if any, of a summary dismissal by the United States Supreme Court. Second, Commonwealth Defendants’ general disagreement with the Court’s conclusion that Baker v. Nelson, 409 U.S. 810 (1972) does not control fails to provide a basis for interlocutory appeal. There is no “substantial ground for difference of opinion” regarding this Court’s conclusion that the “doctrinal developments” in equal protection and due process jurisprudence since Baker “can only be characterized as a sea change.” (Mem. & Order (Dkt. 67) at 5.) This is not open to serious question and, indeed, Commonwealth Defendants make do not even challenge the substance of the Court’s conclusion. Accordingly, this circumstance does not present appropriate grounds for invoking the “extreme measure” of a Section 1292(b) interlocutory appeal. Craig v. Rite Aid Corp., 08CV-2317, 2010 WL 1994888, at *4 (M.D. Pa. Feb. 4, 2010) (Jones, J.). Third, even if Baker could be held to preclude some of Plaintiffs’ claims or arguments – and it cannot – such a holding would not “materially advance the ultimate termination of the litigation” because Baker did not address core questions presented in the Amended Complaint. Even if the Amended Complaint were to be

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stripped of the “precise issues presented and necessarily decided by [Baker],” Mandel v. Bradley, 432 U.S. 173, 176 (1977), trial would still be necessary in this action and the nature and scope of that trial would not be meaningfully impacted regardless of the outcome of any immediate appeal. Fourth, separate and apart from the statutory factors for certification, the Court should exercise its discretion not to certify this action for interlocutory appeal. Far from presenting any “exceptional circumstances” justifying an interlocutory appeal, Craig, 2010 WL 1994888, at *2, an appeal now would run counter to principles of judicial economy and would only serve to delay Plaintiffs’ right to their day in Court to demonstrate why they are entitled to declaratory and injunctive relief to prevent Pennsylvania from continuing to enforce its discriminatory laws prohibiting marriages and recognition of marriages for samesex couples. ARGUMENT I. SECTION 1292(b) OFFERS ONLY A NARROW EXCEPTION TO THE FINAL JUDGMENT RULE. Section 1292(b) provides a narrow exception to the general rule that the Courts of Appeals have jurisdiction only over appeals from final orders, stating: 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

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from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. 28 U.S.C. § 1292(b). Even if all of these criteria are met, the decision to grant certification remains within the trial court’s sound discretion. Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976). Allowance of an immediate interlocutory appeal is an “extreme measure,” and “a district court should exercise its discretion mindful of the strong policy against piecemeal appeals.” Craig, 2010 WL 1994888, at *4, *2 (M.D. Pa. Feb. 4, 2010) (Jones, J.) (internal quotation omitted); accord Kapossy v. McGraw-Hill, Inc., 942 F. Supp. 996, 1001 (D.N.J. 1996) (finding that interlocutory appeal “is necessarily a deviation from the ordinary policy of avoiding ‘piecemeal appellate review of trial court decisions which do not terminate the litigation’”) (quoting United States v. Hollywood Motor Car Co., 458 U.S. 263, 265 (1982)). Accordingly, district courts “should exercise th[eir] discretion and certify issues for interlocutory appeal only sparingly and in exceptional circumstances.” Knopick v. Downey, 1:09-CV-1287, 2013 WL 5719247, at *4 (M.D. Pa. Oct. 21, 2013) (quoting Sabree v. Williams, Civ. No. 06-cv-2164, 2008 WL 4534073, at *1 (D.N.J. Oct. 2, 2008)).

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II.

THE MOTION DOES NOT PRESENT THE “EXCEPTIONAL CIRCUMSTANCES” NECESSARY TO INVOKE THE “EXTREME MEASURE” OF IMMEDIATE INTERLOCUTORY REVIEW. For at least four reasons, the Commonwealth Defendants’ Motion fails to

present the kind of “exceptional circumstances” required for an interlocutory appeal. First, the Motion rests on the flawed premise that this Court supposedly overstepped its bounds in even conducting an independent analysis of the relevant doctrinal developments since Baker. Specifically, the Motion argues that whether such doctrinal developments have occurred is a “determination . . . left to the United States Supreme Court.” (Defs. Mem. at 4, n.1.) This argument, however, does not come close to identifying a controlling question of law about which there is substantial disagreement that may materially advance the resolution of this action because it is plainly contrary to clear Supreme Court and Third Circuit precedent and to common sense. The Supreme Court directs lower courts to treat summary dismissals for want of a substantial federal question as precedential only until “doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)). The Third Circuit has reinforced the Supreme Court’s mandate that lower courts must analyze whether intervening doctrinal

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developments indicate that a summary disposition should no longer be treated as precedential. See Lecates v. Justice of the Peace Court No. 4 of the State of Del., 637 F.2d 898, 904 (3d Cir. 1980) (noting that “indications that there have been doctrinal developments since the summary action will relieve a lower court from the duty to adhere to a summary disposition”); see also Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 173-74 n.33 (3d Cir. 2002) (recognizing that subsequent doctrinal developments removed the precedential effect of the Supreme Court’s dismissal of the appeal from Cooper v. Eugene School District). This is only logical. If the Supreme Court were the only court empowered to analyze what doctrinal developments have occurred since a summary dismissal, there would be no point to the standard articulated in Hicks v. Miranda as summary dismissals would be no different than opinions of the Court. In that case, they would be absolutely binding on lower courts until expressly overruled by the Court and not just until “doctrinal developments indicate otherwise.” 2 That, of course, is

The cases cited in Defendants’ Motion prove this very point. (See Defs. Mot. at 4, n.1.) Agostini v. Felton, 521 U.S. 203, 207 (1997) and Rodriguez de Quijas v. Shearson/ American Express, Inc., 490 U.S. 477, 484 (1989), stand only for the unremarkable proposition that lower courts should not rely upon doctrinal developments to disregard opinions of the Supreme Court. This is because opinions of the Supreme Court are binding on lower courts until the Supreme Court expressly overrules them, not just until “doctrinal developments indicate otherwise.” But, in the case of a summary dismissal for want of a substantial federal question, which is not an opinion, the Supreme Court has made clear that lower courts should analyze doctrinal developments and not just wait for
(continued...) 6

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not the standard, and there is no “difference of opinion” under Supreme Court or Third Circuit law that this Court properly undertook its own analysis as to whether there have been intervening doctrinal developments since 1972. Second, Commonwealth Defendants’ general disagreement with the Court’s conclusion that Baker is not preclusive in whole or in part of Plaintiffs’ claims also fails to present a substantial disagreement meriting immediate interlocutory review. See Kapossy, 942 F. Supp. at 1001 (“[M]ere disagreement with the district court’s ruling does not constitute a ‘substantial ground for difference of opinion’ within the meaning of § 1292(b).”). To satisfy the substantial ground for disagreement requirement of Section 1292(b), “genuine doubt must exist about the legal standard governing a particular case.” Brown v. Trueblue, Inc., 1:10-CV0514, 2012 WL 1268644, at *6 (M.D. Pa. Apr. 16, 2012); see also Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010) (“That settled law might be applied differently does not establish a substantial ground for difference of opinion.”). Here, there is no such “genuine doubt.” As this Court has already found:

________________________ (continued...)

an express statement of abrogation to determine what if any precedential value should be afforded a prior summary disposition.

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The jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972. The Supreme Court has decided several cases since Baker which demonstrate that it no longer views constitutional challenges based on sex or sexual identity classifications as unsubstantial. (Mem. & Order (Dkt. 67), at 5; see also id. at 5-6 (citing as examples, Frontiero v. Richardson, 411 U.S. 677, 682 (1973); Craig v. Boren, 429 U.S. 190, 218 (1976) (Rehnquist, J., dissenting); Lalli v. Lalli, 439 U.S. 259, 264-65 (1978); Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); Windsor v. United States, 699 F.3d 169, 179 (2d Cir. 2012); and United States v. Windsor, 133 S. Ct. 2675 (2013).) The fact that there has been a “sea change” in “jurisprudence of equal protection and substantive due process” since Baker is not only true, the Commonwealth Defendants’ Motion does not even challenge the proposition, instead focusing on disputing the Court’s authority to even review doctrinal developments one way or the other. The Commonwealth Defendants may ultimately dispute the merits of Plaintiffs’ claims – and Plaintiffs stand ready to address the merits of any defenses offered in support of Pennsylvania’s marriage exclusions – but what cannot be contested seriously is that, 41 years after Baker, in the year 2013, the doors to federal courts are open for individuals to bring

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constitutional challenges to classifications based on sex and sexual identity, as Plaintiffs do here.3 Third, the Motion also should be denied because, regardless of the outcome, an interlocutory appeal at this stage would not materially advance the ultimate termination of this action. The Motion’s statement that “permitting an immediate appeal would completely eliminate the need for trial, if the Third Circuit determines that Baker precludes this action,” (Motion at 6) is simply incorrect. A trial still will be necessary in this action because the Amended Complaint presents issues that were not raised in Baker. In fact, rather than satisfying Section 1292(b)’s requirement, the appeal Commonwealth Defendants seek would necessarily delay, not advance, the ultimate termination of this action. The precedential effects of summary dismissals are limited to “the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977); accord Lecates, 637 F.2d at 904 (“[T]he precedential value of a summary disposition by the Supreme Court is to be confined to the exact facts of the case and to the precise question posed in the jurisdictional statement.”).

The out-of-circuit cases cited in the Motion as finding Baker to be controlling do not present a “substantial ground for difference of opinion” required by Section 1292(b). Each of those cases is distinguishable and, significantly, predates the Supreme Court’s recent decision in United States v. Windsor, 570 U.S. –, 133 S. Ct. 2675 (2013).

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They do not resolve “[q]uestions which merely lurk in the record.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979) (internal quotation omitted). The precise question addressed in Baker was the constitutionality of an indefinite Minnesota marriage law that had been construed to allow only oppositesex couples to marry in Minnesota. Baker did not consider the constitutionality of a law barring recognition of valid marriages of same-sex couples entered into in other jurisdictions. Even regarding the claims of same-sex couples seeking the right to marry (as opposed to having their existing marriages recognized), Baker did not consider the constitutionality of a law, like Pennsylvania’s, that specifically was enacted to preclude such marriages or whether such an enactment had the “purpose and effect to disparage and to injure” same-sex couples. 4 Windsor, 133 S. Ct. at 2696. The Minnesota Supreme Court noted that the marriage statutes at issue in Baker dated from territorial days, long before there was any public discussion about marriage for same-sex couples, and thus the exclusion of samesex couples was not its aim. Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).

Like the federal Defense of Marriage Act at issue in Windsor, the Pennsylvania statutes challenged here were enacted in 1996 in response to the Hawaii Supreme Court’s finding that strict scrutiny would apply under the Hawaii constitution to a challenge to the state’s ban on same-sex marriage. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

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Whatever the Commonwealth Defendants may say about Baker’s precedential effect, these issues from Plaintiffs’ Amended Complaint are not among the “precise question[s] presented by the jurisdictional statement” in that action, Lecates, 637 F.2d at 904, and a trial would still be needed to resolve them. Not only will Commonwealth Defendants’ appeal, even if successful, not dispose of the entire action, it will not even significantly alter the scope and nature of the trial in this case. By way of example only, many of the Plaintiff couples are already married in another state and seek recognition of their marriages in Pennsylvania. The factual proofs regarding their claims, including expert testimony, essentially are co-extensive with those regarding the claims of the unmarried Plaintiffs in the action. Since, as discussed above, these Plaintiffs’ claims for recognition of their out-of-state marriages were not addressed by Baker and will proceed to trial regardless of any interlocutory appeal, the evidence at trial will not be impacted or materially advanced by interlocutory appeal. See, e.g., McNulty v. Borden, Inc., 474 F. Supp. 1111, 1121 (E.D. Pa. 1979) (declining to certify a decision for appeal where, regardless of the result of the appeal, a trial would “involve substantially the same evidence”). Accordingly, an interlocutory appeal will likely have no effect other than delaying trial rather than advancing or meaningfully narrowing it.

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Fourth, even if this Court were to find that the Motion meets the statutory criteria of Section 1292(b) – and it should not – both principles of judicial economy and the nature of the claims at stake in this case favor the Court exercising its discretion to deny the requested certification. Bachowski, 545 F.2d at 368. “In considering whether to certify an interlocutory appeal, a district court should exercise its discretion mindful of the strong policy against piecemeal appeals” and such appeals should only be granted where the moving party demonstrates “exceptional circumstances.” Craig, 2010 WL 1994888, at *2 (internal quotations omitted). Nothing about this case presents the sort of “exceptional circumstances” that would justify an immediate appeal. Indeed, the thrust of the Commonwealth Defendants’ argument here – that had this Court decided their motion to dismiss differently, the case might be different – is a proposition that applies to all purportedly dispositive motions to dismiss in any litigation. The avoidance of multiple appeals in such cases is the precise purpose of the final judgment rule. See United States v. Nixon, 418 U.S. 683, 690 (1974) (“The finality requirement of 28 U.S.C. §1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.”). This matter is scheduled for trial in June 2014. Rather than resulting in “protracted” litigation, as argued in the Motion, it is very possible that trial in this

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case will be completed before any interlocutory appeal would be decided by the Third Circuit. Further, whatever the result at trial, the aggrieved party is almost certain to appeal. Accordingly, in less than one year, Commonwealth Defendants likely will either have prevailed at trial or will have an opportunity to present their argument that Baker controls to the Third Circuit. By way of contrast, every day that Plaintiffs and other same-sex couples in Pennsylvania are denied the ability to marry or have their marriages recognized is another day that their core Constitutional rights are being violated. Plaintiffs are entitled to be heard and to present their case in this federal court as to why the real and irreparable harms they suffer every day finally must come to an end. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court deny the Commonwealth Defendants’ Motion. Respectfully submitted, Dated: December 2, 2013 HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER By: /s/ Mark A. Aronchick Mark A. Aronchick John S. Stapleton Dylan J. Steinberg Rebecca S. Melley One Logan Square, 27th Floor Philadelphia, PA 19103 (215) 568-6200

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Helen E. Casale 401 DeKalb Street, 4th Floor Norristown, PA 19401 (610) 313-1670 ACLU FOUNDATION OF PENNSYLVANIA By: /s/ Witold J. Walczak Witold J. Walczak 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7736 Mary Catherine Roper Molly Tack-Hooper P.O. Box 40008 Philadelphia, PA 19106 (215) 592-1513 James D. Esseks Leslie Cooper AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 Seth F. Kreimer 3400 Chestnut St. Philadelphia, Pa. 19104 (215) 898-7447 Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of December, 2013, I caused the foregoing Plaintiffs’ Memorandum in Opposition to the Motion of Defendants Secretary of Health Michael Wolf and Secretary of Revenue Dan Meuser for Certification and Amendment of Order Pursuant to 28 U.S.C. § 1292(b) to be filed electronically using the Court’s electronic filing system, and that the filing is available to counsel for all parties for downloading and viewing from the electronic filing system.

/s/ Mark A. Aronchick Mark A. Aronchick

Case 1:13-cv-01861-JEJ Document 80-1 Filed 12/02/13 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WHITEWOOD, et al., Plaintiffs, v. WOLF, et al., Defendants. Civil Action No. 13-1861-JEJ

ORDER AND NOW, this ____ day of December, 2013, upon consideration of the Motion of Defendants Secretary of Health Michael Wolf and Secretary of Revenue Dan Meuser for Certification and Amendment of Order Pursuant to 28 U.S.C. § 1292(b) (Doc. No. 76) and Plaintiffs’ Opposition thereto, it is hereby ORDERED that the Motion is DENIED in its entirety. BY THE COURT:

Jones, J.

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UNPUBLISHED OPINIONS

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Page 1 Not Reported in F.Supp.2d, 2012 WL 1268644 (M.D.Pa.) (Cite as: 2012 WL 1268644 (M.D.Pa.))

Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Stephen BROWN, Jr. and Matthew Jury, Individually and on behalf of all others similarly situated, Plaintiffs v. TRUEBLUE, INC., f/k/a Labor Ready, Inc., and Labor Ready Northeast, Inc., Defendants Civil Action No. 1:10–CV–0514. April 16, 2012. Craig P. Kalinoski, Law Office of Craig P. Kalinoski, Scranton, PA, Jason T. Brown, Shelly Leonard, Steven Blau, Blau, Brown & Leonard, Llc, New York, NY, for Plaintiffs. Amelia D. Winchester, David R. Ongaro, Kyann C. Kalin, Ongaro Burtt Llp, San Francisco, CA, Justin G. Weber, Pepper Hamilton Llp, Harrisburg, PA, for Defendants. MEMORANDUM YVETTE KANE, Chief Judge. *1 Currently pending before the Court is Plaintiffs' motion for reconsideration of this Court's November 22, 2011 order, or in the alternative, to grant an interlocutory appeal. (Doc. No. 86.) For the reasons stated more fully herein, the Court will deny the motion for reconsideration and deny the motion for leave to file an interlocutory appeal. I. BACKGROUND 1. Factual Background FN1

2011 WL 5869773 (M.D.Pa. Nov. 22, 2011). Accordingly, for purposes of the motion for reconsideration, the Court has reproduced those facts in the instant memorandum. Defendants provide temporary staffing services, whereby Defendants send their employees to do work for a local business seeking short-term labor. (Doc. No. 1 ¶¶ 16, 23.) Defendants' employees report to a branch office by 7:00 a.m., where Defendants provide their employees with a work assignment. (Id. ¶ 24.) The employees are paid each day they work upon completion of the work day. ( Id. ¶ 23.) When the employees have completed their work for the day, they return to Defendants' branch office where they are given the option of being paid by check or by cash voucher. (Id. ¶ 28.) If an employee elects to use a cash voucher, the employee is given a voucher and a pin number, which the employee may redeem for cash at one of the cash dispensing machines located in the branch offices. (Id. ¶ 28.) Employees are charged a fee for using the cash dispensing machines totaling one dollar plus FN2 any change in the employee's net pay. (Id. ¶¶ 28–29.) Plaintiffs, Defendants' employees, allege that the fees applied when using the cash dispensing machines often result in Defendants' employees being paid less than the prevailing minimum wage. (Id. ¶ 32.) FN2. For example, in the cash voucher submitted by Plaintiffs in support of their motion for class certification, the voucher lists Plaintiff Brown's daily gross pay at $58.00, representing eight hours of work at $7.25 per hour. (Doc. No. 27–8.) It lists deductions totaling $6.25, including $0.03 for Pennsylvania unemployment taxes, $0.84 for Medicare, $1.78 for Pennsylvania state withholding, and $3.60 for social security. (Id.) Plaintiff Brown's net pay is listed as $51.75. (Id.) The cash dispensing machine fee is listed as $1.75,

FN1. The parties do not dispute the Court's recitation of the factual background of this matter in its November 22, 2011 order. See Brown v. Trueblue, Inc., No. 1:10–cv–514, 2011 U.S. Dist. LEXIS 134523, at *2–6,

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representing one dollar plus the seventyfive cents in change in Plaintiff Brown's net pay. (Id.) Also included on the voucher is a statement that the cash dispensing machine charges a fee and if the employees do not wish to accept this fee, they may request a check. (Id.) The voucher further directs them to “[a]sk the branch employees where you may be able to cash Labor Ready payroll checks for no fee.” (Id.) Both Plaintiffs Brown and Jury signed employment agreements. (Doc. Nos.67–1, 67–2.) Those employment agreements included an “Employment and Dispute Resolution” section. That section included, as a condition of Plaintiffs' employment, an arbitration provision providing: 1. Arbitration, Waiver of Jury Trial. Labor Ready and I agree that any claim arising out of or relating to this Agreement, or the breach of this Agreement, or my application, employment, or termination of employment, shall be submitted to and resolved by binding arbitration under the Federal Arbitration Act. Labor Ready and I agree that all claims shall be submitted to arbitration including, but not limited to, claims based on any alleged violation of a constitution, or any federal, state, or local laws; Title VII, claims of discrimination, harassment, retaliation, wrongful termination, compensation due or violation of civil rights; or any claim based in tort, contract, or equity. Any arbitration between Labor Ready and I will be administered by the American Arbitration Association under its Employment Arbitration Rules then in effect. Labor Ready agrees to pay for the arbiter's fees where required by law. The award entered by the arbitrator will be based solely upon the law governing the claims and defenses pleaded, and will be final and binding in all respects. In any claim or jurisdiction where this agreement to resolve claims by arbitration is not enforceable, Labor Ready and I agree to submit our claims for resolution by a bench trial (trial by judge) specifically waiving a jury as the

ultimate fact finder. *2 (Id.) Plaintiffs Brown and Jury signed and dated their employment agreements on September 23, 2008, and July 16, 2009, respectively. (Id.) The “Employment and Dispute Resolution” sections further included agreements to pursue relief via arbitration individually, rather than on a class basis. Specifically, Plaintiff Brown's agreement provides: 2. Class Actions. In any such arbitration, or in a court of competent jurisdiction if arbitration is prohibited by law, neither Labor Ready nor I shall be entitled to join or consolidate claims as a representative or member of a class, representative, or collective action. (Doc. No. 67–1.) Plaintiff Jury's agreement, under the heading “2. Representative Actions” provides that: “In any arbitration, or in a court of competent jurisdiction if arbitration is prohibited by law.... I must give my written consent to be represented in a lawsuit against Labor Ready and I will not represent anyone else without their written permission.” (Doc. No. 67–2 (emphasis in original).) 2. Procedural History Plaintiffs initiated this civil action by filing a complaint on March 7, 2010, alleging violations of the Pennsylvania Minimum Wage Act, the Pennsylvania Wage Payment and Collection Law, and the Fair Labor Standards Act. (Doc. No. 1.) Following the United States Supreme Court's ruling in AT & T Mobility LLC v. Concepcion, ––– U.S. ––––, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), Defendants filed a motion to compel arbitration. (Doc. No. 63.) The Court granted the motion on November 22, 2011. Brown, No. 1:10–cv–514, 2011 U.S. Dist. LEXIS 134523, 2011 WL 5869773. II. MOTION FOR RECONSIDERATION On January 3, 2012, the National Labor Relations Board issued a ruling addressing the effect of

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Concepcion on labor contracts governed by the National Labor Relations Act. See In re D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012). The National Labor Relations Board held that “employers may not compel employees to waive their [National Labor Relations Act] right to collectively pursue litigation of employment claims in all forums, arbitral and judicial.” Id. at * 16 (emphasis in original). Prompted by this ruling, on January 17, 2012, Plaintiffs moved for reconsideration of this Court's order compelling arbitration. (Doc. No. 86.) A. Standard of Review A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995)). A motion for reconsideration is appropriate in instances where the court has “patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.” Rohrbach v. AT & T Nassau Metals Corp., 902 F.Supp. 523, 527 (M.D.Pa.1995) , vacated in part on other grounds on reconsideration, 915 F.Supp. 712 (M.D.Pa.1996) (citation omitted). It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F.Supp.2d 678, 682 (E.D.Pa.2001). “Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly.” Cont'l Cas. Co. v. Di-

versified Indus., Inc., 884 F.Supp. 937, 943 (E.D.Pa.1995) (citation omitted). B. Discussion *3 Plaintiffs do not directly challenge any holding in this Court's order compelling arbitration. Rather, in their motion for reconsideration, Plaintiffs seek to advance a new argument, namely, that the National Labor Relations Act renders the arbitration agreements at issue in the present matter void. The Court will first briefly review this Court's order compelling arbitration to consider whether any error is contained therein. The Court will then consider whether Plaintiffs present any grounds justifying reconsideration of the Court's order in their motion for reconsideration. 1. Order Compelling Arbitration In response to the motion to compel arbitration, Plaintiffs did not dispute that an agreement to arbitrate existed or that the claims at issue fell within the scope of that agreement. Rather, Plaintiffs argued that: (1) Pennsylvania's unconscionability doctrine as articulated in Thibodeau v. Comcast Corporation, 912 A.2d 874 (Pa.Super.Ct.2006), rendered the arbitration agreement unconscionable per se; and (2) Defendants' waived their right to compel arbitration due to the delay in filing a moFN3 tion to compel arbitration. FN3. The Court found that Defendants had not waived their right to arbitrate, and Plaintiffs do not challenge that conclusion in the present motion. Accordingly, the Court will not address that issue further. The Thibodeau rule stood for the proposition that “if the costs associated with arbitrating a single claim effectively deny consumer redress, prohibiting class action litigation or class action arbitration is unconscionable.” Thibodeau, 912 A.2d at 883. Relying on Concepcion, which held that state rules requiring the availability of classwide arbitration were preempted by the Federal Arbitration Act, 131 S.Ct. at 1753, the Court found that Thibodeau was no longer good law, holding that:

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[A] fair reading of Concepcion must lead the Court to conclude that Thibodeau cannot serve to invalidate an arbitration agreement. Although the Thibodeau rule appears to address “the revocation of any contract,” the rule in fact serves to invalidate agreements for the sole reason that they are agreements to arbitrate. The Thibodeau rule articulates a clear preference against arbitration and in favor of class actions, concluding “[i]t is only the class action vehicle which makes small consumer litigation possible.... Should the law require consumers to litigate or arbitrate individually, defendant corporations are effectively immunized from redress of grievances.” Thibodeau, 912 A.2d at 885. Thibodeau is, therefore, in conflict with both Concepcion and Perry v. Thomas, which held that a court may not “rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable.” Perry v. Thomas, 482 U.S. 483, 493, n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987). Brown, No. 4:10–cv–514, 2011 U.S. Dist. LEXIS 134523, at *13–14, 2011 WL 5869773. The Court went on to note that one possible distinction between Concepcion and the instant action was that this matter concerned an employment contract rather than a consumer contract, which was at issue in Concepcion. Id. at *14–15. The Court questioned the parties on the issue at oral argument; however, Plaintiffs were unable to identify a relevant distinction. Id. at *15–16 n. 2. Ultimately, because Plaintiffs' only argument on the issue of unconscionability was that Thibodeau rendered the arbitration agreement void as a matter of law, the Court held that the agreement was valid and enforceable. Id. at * 16–17. *4 Shortly after Plaintiffs filed their motion for reconsideration, and after the National Labor Relations Board issued its decision in D.R. Horton, the United States Court of Appeals for the Third Circuit considered the identical issue raised in this matter. See Quilloin v. Tenet HealthSystem Phila.,

Inc., ––– F.3d ––––, No. 11–1393, 2012 U.S.App. LEXIS 5353, 2012 WL 833742 (3d Cir.Pa. Mar. 14, 2012). In Quilloin v. Tenet HealthSystem, a nurse filed a claim in the Eastern District of Pennsylvania asserting a collective action against her employer pursuant to the Fair Labor Standards Act as well as a class action brought pursuant to the Pennsylvania Minimum Wage Act and the Pennsylvania Wage Payment and Collection Law. Quilloin v. Tenet HealthSystem Phila., Inc., 763 F.Supp.2d 707, 711 (E.D.Pa.2011). Her employer filed a motion to compel arbitration based on the existence of an agreement to arbitrate. Id. The district court denied the motion to compel arbitration, relying in part on Thibodeau. Id. at 727. On appeal, the Third Circuit reversed, concluding that Thibodeau was “clearly preempted under Concepcion.” Quilloin, 2012 U.S.App. LEXIS 5353, *25, 2012 WL 833742. In so doing, the Court explicitly agreed with this Court's order compelling arbitration in the abovecaptioned matter. Id. at *25 n. 5 (citing Brown, 2011 U.S. Dist. LEXIS 134523, 2011 WL 5869773). Accordingly, in light of the Third Circuit's holding in Quilloin, the Court cannot find that it erred in its analysis of Plaintiffs' arguments regarding the unconscionability of the arbitration agreements at issue here. 2. Whether the National Labor Relations Act Justifies Reconsideration Plaintiffs appear to concede that Quilloin precludes a finding that Concepcion does not preempt Plaintiffs' arguments regarding unconscionability. (Doc. No. 97.) Instead, in their motion for reconsideration they argue that the National Labor Relations Act prohibits employers from compelling employees to waive their right to pursue collective litigation of employment claims in both arbitral and judicial forums. Accordingly, they contend the agreement at issue in this matter is void pursuant to the National Labor Relations Act and reconsideration is warranted. The Court disagrees for both procedural and substantive reasons. First, as a procedural matter, the Court finds

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Plaintiffs' arguments are not properly raised in a motion for reconsideration. Motions for reconsideration are not a vehicle for raising arguments or issues that could have been—but were not—presented to a court prior to its disposition of the matter in question. Johnson v. Diamond State Port Corp., 50 F. App'x 554, 560 (3d Cir.2002) (quoting Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D.Del.1990)). Plaintiffs' argument, that the National Labor Relations Act bars enforcement of the arbitration provision, was not presented to the Court when the Court was addressing the motion to compel arbitration. Plaintiffs contend that the argument could not have been raised because D.R. Horton, which they believe represents a change in controlling law, was decided more than a month after the Court granted the motion to compel arbitration, and thus, they were unable to raise the issue in response to the motion to compel arbitration. *5 As Plaintiffs suggested at oral argument, the implication of Plaintiffs' argument is that because the Court permitted Defendants to file a motion to compel arbitration at a very late date on the grounds that Concepcion represented a change in controlling law, Plaintiffs should therefore also be permitted to raise an otherwise untimely argument based on a newly decided case. The two circumstances are, however, readily distinguishable. First, Concepcion represented a change in controlling law. That is, prior to Concepcion the law governing Defendants' motion, namely Thibodeau, almost certainly would have required the Court to deny the motion to compel arbitration or to compel Defendants to accept classwide arbitration of Plaintiffs's claims. Concepcion rejected that precedent, however, and Defendants were thus able to advance an argument that would have necessarily failed prior to Concepcion. In contrast, D.R. Horton cannot be interpreted as affecting a change in the law. Indeed, if Plaintiffs did argue that D.R. Horton supported an interpretation of the Federal Arbitration Act that conflicts with Concepcion, the Court would be required to reject the decision as conflict-

ing with Supreme Court precedent. Ultimately, D.R. Horton must either represent a change in the law, in which case the Court would be constrained to reject it as conflicting with the precedent of the Supreme Court, or it must represent a consistent interpretation of Concepcion, in which case Plaintiffs could have presented the arguments relied on in D.R. Horton and those arguments would not be properly FN4 raised in a motion for reconsideration. Accordingly, Plaintiffs' motion for reconsideration must FN5 necessarily fail as procedurally barred. FN4. While Plaintiffs' motion would fail under either interpretation of D.R. Horton, the Court is convinced that the arguments raised by Plaintiffs which they base on D.R. Horton, could have been raised prior to that case being decided. Indeed, the Court invited the parties to make such arguments at oral argument when it asked them whether this case could be distinguished from Concepcion on the basis of this matter concerning an employment contract. Plaintiffs declined to do so in any meaningful way. The Court further observes that the arguments Plaintiffs contend are contingent on D.R. Horton were actually made in similar matters following Concepcion and prior to D.R. Horton. (See Doc. No. 90–1.) FN5. Defendants further contend that Plaintiffs' motion is untimely because it was filed more than fourteen days after the entry of this Court's order. See Pa. M.D. L.R. 7.10 (requiring motions for reconsideration to be filed within ten days of the Court's order); see also Fed.R.Civ.P. 59(e) (requiring motions to alter or amend judgment to be filed within twenty-eight days of the entry of judgment). Because Plaintiffs filed their motion within fourteen days of the National Labor Relations Board's decision in D.R. Holder, the Court declines to deny the motion for reconsider-

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ation on this basis. Even assuming there were no procedural bar to Plaintiffs' motion for reconsideration, the motion would still fail as a matter of law. First, because the arguments raised by Plaintiffs in their motion for reconsideration are based on the National Labor Relations Act, the Court finds that it is without jurisdiction to decide the issue. Plaintiffs argue that the classwide arbitration waiver contained in the arbitration agreements at issue in this matter are inconsistent with Section 7 of the National Labor Relations Act, which protects employees' right to engage in concerted action, and therefore Defendants violated Section 8(a)(1) of the Act by requiring their employees to sign the agreement. “[A]s a general matter,” however, “neither state nor federal courts possess jurisdiction over claims based on activity that is ‘arguably’ subject to [Sections] 7 or 8 of the [National Labor Relations Act].” Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 74, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989) (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)). Instead, the courts must defer to the “exclusive competence” of the National Labor Relations Board. Voilas v. Gen. Motors Corp., 170 F.3d 367, 378 (3d Cir.1999) (citing Garmon, 359 U.S. at 245). Although Plaintiffs have not raised claims pursuant to the NaFN6 tional Labor Relations Act in their complaint, D.R. Horton, the decision upon which Plaintiffs exclusively rely, is premised entirely on the theory that Section 7 of the National Labor Relations Act requires the availability of classwide arbitration and thus the agreement violates Section 8(a)(1) of the National Labor Relations Act. Therefore, pursuant to Garmon, this claim is within the exclusive jurisdiction of the National Labor Relations Board, and the Court is, therefore, without jurisdiction to address it. FN6. Plaintiffs' failure to raise claims pursuant to the National Labor Relations Act provides yet another ground for denial of

the motion for reconsideration, where the motion seeks to invalidate the arbitration agreement based solely on the National Labor Relations Act. *6 Further, even if the Court had jurisdiction over Plaintiffs' National Labor Relations Act claims, and even if Plaintiffs had actually raised such claims, D.R. Horton would not serve as a bar to arbitration in this matter. The Court finds that D.R. Horton is more narrow than Plaintiffs suggest and that it does not apply to the agreement at issue here. In D.R. Horton, the National Labor Relations Board, after considering an arbitration agreement requiring all employment disputes to be resolved via individual arbitration, held in relevant part that: [E]mployers may not compel employees to waive their NLRA right to collectively pursue litigation of employment claims in all forums, arbitral and judicial. So long as the employer leaves open a judicial forum for class and collective claims, employees' NLRA rights are preserved without requiring the availability of classwide arbitration. Employers remain free to insist that arbitral proceedings be conducted on an individual basis. 357 NLRB No. 184, at *16 (emphasis in original). The agreements at issue here do not bar all class or collective actions. Both arbitration agreements prohibit classwide arbitration; however, they leave open the door to collective actions in other forums. (Doc. Nos. 67–1 at 1; 67–2 at 1.) These agreements appear to be entirely consistent with the holding of D.R. Horton, and Plaintiffs fail to explain why the provisions in the agreements relating to class action litigation do not cure the defect identified by the National Labor Relations Board in FN7 D.R. Horton. FN7. Defendants also contend that D.R. Horton is void because only two members of the National Labor Relations Board decided the case. Thus, Defendants contend that the Board lacked a quorum. The D.R. Horton matter was assigned to three mem-

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Page 7

bers of the National Labor Relations Board: Chairman Pearce and Members Becker and Hayes. In re D.R. Horton, Inc., 357 NLRB No. 184, at * 1. Member Hayes, however, recused himself from the matter and did not participate in deciding the merits of the case. Id. at n. 1. Section 3(b) of the National Labor Relations Act provides that: The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.... A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.” 29 U.S.C. § 153(b). The Supreme Court has acknowledged that the last sentence of this provision empowers a panel of the board to act where two members of a group assigned to a case will constitute a quorum if “for example, the third member had to recuse himself from a particular matter.” New Process Steel, L.P. v. NLRB, ––– U.S. ––––, ––––, 130 S.Ct. 2635, 2639, 177 L.Ed.2d 162 (2010). In light of this holding, the Court finds that the Board did have the necessary quorum to decide the case. III. MOTION FOR INTERLOCUTORY APPEAL In the alternative, Plaintiffs seek an interlocutory appeal of the order compelling arbitration. A district court may only certify an order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) if the order: (1) concerns a controlling question of law, (2) as to which there is substantial ground for

difference of opinion, and (3) for which an immediate appeal from the order will materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). An order concerns a controlling question of law if: (1) an incorrect disposition would constitute reversible error; or (2) the question is “serious to the conduct of the litigation either practically or legally.” In re Chocolate Confectionary Antitrust Litig., 607 F.Supp.2d 701, 705 (M.D.Pa.2009) (quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.1974)). To satisfy the second prong, “genuine doubt must exist about the legal standard governing a particular case.” Id. at 705–06 (citations omitted); see also Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir.2010). Finally, an immediate appeal will only be found to materially advance the termination of the litigation where an appeal could eliminate the need for trial, simplify the case, or reduce the cost of discovery. Id. at 708 (citations omitted). Plaintiffs' claim fails on the latter two prongs. As discussed in the previous section, the Third Circuit's order in Quilloin indicates that the Court properly evaluated Defendants' motion to compel arbitration. Plaintiffs' current argument is not based on an error alleged to have been made by this Court, but rather it is based on issues Plaintiffs never previously raised. An interlocutory appeal, or any appeal for that matter, is not a vehicle for a party to explore new arguments and new theories of the case never raised before the district court. Further, even if the Third Circuit were to reverse this Court's order compelling arbitration, the result would be beginning the case anew at the class certification stage. Reversal would not eliminate the need for trial, simplify the case, or reduce the cost of discovery. On the contrary, the case would become exponentially more complex, expensive, and time consuming. *7 Plaintiffs' motion for an interlocutory appeal does not challenge the order they seek to appeal. Plaintiffs do not allege the Court erred in resolving the issues that were before it. They do not allege

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the standards employed by the Court in addressing the arguments raised by the parties were unclear or unsettled. Rather, Plaintiffs argue that if they had raised different arguments or framed their case in a different manner that questions would have arisen justifying an interlocutory appeal. Such arguments do not warrant the certification of an order for interlocutory appeal. Accordingly, the motion must be denied. IV. MOTION FOR ADDITIONAL DISCOVERY In their brief in reply to Defendants' brief in opposition, Plaintiffs for the first time raise the question of whether arbitration in this matter is prohibitively expensive, thereby depriving them of the ability to effectively vindicate their statutory rights via arbitration. The Supreme Court has recognized that agreements to arbitrate may be deemed unenforceable in such circumstances. See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). However, it is the party resisting arbitration who bears the burden of establishing that arbitration is not a proper means of resolving a claim. Id. (citing Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)). Failure to put forth evidence establishing that the high costs of arbitration will preclude a litigant from vindicating their statutory rights mandates a finding that allegations regarding costs are too speculative to justify invalidating an agreement to arbitrate. Id. at 90–91 (holding that plaintiff had failed to meet her burden of proving that the costs of arbitration would prevent her from vindicating her statutory rights pursuant to the Truth in Lending Act). In the present matter, Plaintiffs have failed to put forth any evidence supporting a finding that the costs of arbitration are prohibitively high. Accordingly, they have FN8 requested leave to conduct discovery on the issue. (Doc. No. 91 at 23.) FN8. Plaintiffs have not actually filed a motion for discovery on the issue as required by Rule 7 of the Federal Rules of

Civil Procedure. Fed.R.Civ.P. 7(b)(1) (“A request for a court order must be made by motion.”). This failure alone would justify denial of Plaintiffs' request. The Court will, however, address the issue on the merits. The Court finds that even if it granted Plaintiffs leave to discover additional information, Plaintiffs would not be able to meet their burden of establishing that individual arbitration deprives Plaintiffs of the ability to vindicate their statutory rights. Plaintiffs have raised claims pursuant to the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act, the Wage Payment and Collection Law, and the Check Casher Licensing Act. (Doc. No. 1.) These statutes provide for sufficient statutory remedies as to ensure that individual arbitration is not prohibitively expensive. Pursuant to the Fair Labor Standards Act, Plaintiffs are entitled to damages “in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Moreover, the statute mandates that a reasonable attorney's fee in addition to the cost of the action be paid by the defendant in such actions where the plaintiff preFN9 vails. Id. Significantly, the Fair Labor Standards Act's damages provisions and provisions for attorney's fees and costs apply even in arbitration. See Adkins v. Labor Ready, Inc., 303 F.3d 496, 502 (4th Cir.2002) (citing Gilmer, 500 U.S. at 27–28) (explaining that because litigants retain all substantive statutory rights in an arbitral forum, plaintiffs prevailing under the Fair Labor Standards Act would be awarded attorney's fees and costs even if the case were sent to arbitration and holding that plaintiff had failed to establish that the costs of arbitration rendered the arbitration agreement void). As a result of the statutory damages provisions as well as the cost- and fee-shifting provisions in the Fair Labor Standards Act, the Court finds no basis for concluding that arbitration would be prohibitively expensive.

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FN9. In addition to the damages and fees provisions in the Fair Labor Standards Act, the remaining claims raised by Plaintiffs also raise the possibility of significant, albeit largely redundant, means of recovery. Under the Check Casher Licensing Act, a plaintiff may recover statutory damages of $250 or damages in the amount of three times actual damages, whichever is greater, as well as attorney's fees and costs. 63 Pa. Stat. § 2329. Violations of the Wage Payment and Collection Laws permit recovery of liquidated damages in the amount of $500 or twenty five percent of wages owed, whichever is greater. 43 Pa. Stat. § 260.10. Plaintiffs are also permitted to recover attorney's fees and costs under the Wage Payment and Collection Laws. 43 P.S. § 260.9a(f). Likewise, violations of Pennsylvania's Minimum Wage Act entitle a plaintiff to damages plus a reasonable attorney's fee in addition to costs. 43. Pa. Stat § 333.113. *8 Plaintiffs, citing Blair v. Scott Specialty Gases, note that the Third Circuit has ordered discovery on the issue of whether the cost of arbitration is prohibitively high in other cases and that the Court should do so in this case. 283 F.3d 595 (3d Cir.2002). The decision in Blair, however, is distinguishable from the present matter. In Blair the Court of Appeals found that remand for further discovery was warranted “in light of [the plaintiff's] affidavit of her limited financial capacity, the evidence that the AAA would preside over the arbitration, and the AAA rules requiring the parties to bear equally the costs of the arbitrator's fees.” Id. at 610. Moreover, the arbitration agreement at issue in Blair included a fee-splitting provision in which the plaintiff would be required to pay half the costs of the arbitration. Id. at 605. In the present matter, Plaintiffs have failed to put forth an affidavit of their financial inability to FN10 pay the arbitration fees as was done in Blair.

Nor have Plaintiffs indicated what filing fees or arbitrator's fees, if any, Plaintiffs will bear the burden of paying. Accordingly, Plaintiffs seek discovery based on nothing more than sheer speculation, which is made all the more troubling by the fact that the information Plaintiffs seek to discover is likely entirely within their possession. See Adkins, 303 F.3d at 503 (affirming a district court's decision to compel arbitration and noting that plaintiff's complaint that “the district court cut off discovery” on the issue of cost because it was within plaintiff's power, absent discovery, to determine the amount of money at stake and the cost of arbitration, noting that plaintiff “cannot seriously claim to be in court because the arbitration fee is too high at the same time that he pleads ignorance about what the actual amount of the arbitration fee might be”). FN10. The affidavit in Blair “set[ ] forth the amounts of [plaintiff's] assets (her car and house), monthly income, debt, and monthly bills. The affidavit indicate[d] that her monthly bills exceed her monthly income by $182 per month and that her debt exceed[ed] her assets by $57,000.” Id. at 608 (citations to the record omitted). In addition to Plaintiffs' alleged costs being entirely speculative, a second critical distinction between this matter and Blair, is that Blair involved an arbitration agreement where the parties agreed to share the costs. In the present matter no such agreement has been alleged. To the contrary, Defendants have represented that they have paid one hundred percent of the filing fees. (Doc. No. 94 at 6.) Further, the arbitration agreements submitted previously indicate that Defendants agree to “pay for the arbiter's fees where required by law” and that the arbitration would be “administered by the American Arbitration Association under its Employment Arbitration Rules then in effect.” (Doc. Nos. 67–1 at 1; 67–2 at 1.) The parties do not address the issue; however, it appears that the American Arbitration Association's Employment Arbitration Rules provide that the employer “shall pay the arbitrator's

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compensation.” Because Defendants will apparently pay all the fees associated with arbitration, discovery would serve absolutely no purpose in this FN11 matter. See Livingston v. Assocs. Fin., Inc., 339 F.3d 553, 557 (7th Cir.2003) (reversing a district court and concluding that a plaintiff could not argue that costs associated with arbitration were prohibitively high were the defendant had agreed to pay the costs); Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 56 (1st Cir.2002) (concluding that a plaintiff could not show the costs of arbitration were prohibitively high where the defendant had agreed to pay the costs). Accordingly, the request for additional discovery must be denied. FN11. Even if this were not the case, the Court is satisfied that the cost- and feeshifting provisions in the Fair Labor Standards Act adequately ensure that the costs of individualized arbitration are not prohibitively high. V. CONCLUSION *9 Plaintiffs' motion raises policy concerns that touch on important issues of access to legal remedies. The Court must emphasize, however, that the motion currently pending before the Court is a motion for reconsideration. Such motions are to be used sparingly and in limited circumstances. The main thrust of Plaintiffs' argument is that an intervening change in the controlling law, namely the decision by the National Labor Relations Board in D.R. Horton, justifies reconsideration of this Court's order compelling arbitration. Plaintiffs fail, however, to establish that D.R. Horton does in fact represent a change in controlling law. They raise no arguments in the present motion that could not have been raised in response to the motion to compel arbitration. To the extent Plaintiffs contend that D.R. Horton represents a departure from the Supreme Court's decision in Concepcion, the Court would be constrained to reject such an interpretation as inconsistent with binding Supreme Court precedent. Further, Plaintiffs raise arguments based on the National Labor Relations Act; however, they do not

present any claims based on the Act, and the Court questions whether it would have jurisdiction to consider them if they did. Finally, even if the Court were not presented with significant procedural and jurisdictional bars to the consideration of Plaintiffs' arguments, the Court cannot find that D.R. Horton would actually compel a different result. Accordingly, for the reasons stated in the foregoing memorandum, the Court must deny Plaintiffs' motion for reconsideration. The action will remain stayed pending the resolution of Plaintiffs' claims in the arbitral forum. ORDER AND NOW, on this 16th day of April 2012, IT IS HEREBY ORDERED THAT Plaintiffs' motion for reconsideration (Doc. No. 86) is DENIED and this matter shall remain stayed pursuant to 9 U.S.C. § 3, pending arbitration. The parties are directed to file a joint status report no later than June 29, 2012, and every sixty days thereafter, apprising the Court of the status of this case. M.D.Pa.,2012. Brown v. Trueblue, Inc. Not Reported in F.Supp.2d, 2012 WL 1268644 (M.D.Pa.) END OF DOCUMENT

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Page 1 Not Reported in F.Supp.2d, 2010 WL 1994888 (M.D.Pa.) (Cite as: 2010 WL 1994888 (M.D.Pa.))

Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Shirley CRAIG, et al., Plaintiffs, v. RITE AID CORPORATION, et al., Defendants. No. 08–cv–2317. Feb. 4, 2010. West KeySummaryFederal Courts 170B 581

Hampton & Leeborn, LLP, Houston, TX, Peter D. Winebrake, R. Andrew Santillo, The Winebrake Law Firm, LLC, Dresher, PA, Katherine A. Stone, Robert E. Derose, Barkan Neff Handelman Meizlish, LLP, Columbus, OH, Brian McCafferty, Provost Umphrey, L.L.P., Philadelphia, PA, for Plaintiffs. Beth A. Moeller, Daniel E. Turner, Justin M. Scott, Kalin M. Light, Ashe Rafuse & Hill LLP, Tracey Barbaree, Atlanta, GA, Brian P. Downey, Pepper Hamilton LLP, Harrisburg, PA, for Defendants. MEMORANDUM AND ORDER JOHN E. JONES III, District Judge. *1 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: Presently before the Court are Defendants Rite Aid Corporation and Eckerd Corporation's (collectively “Defendants”) Motion to Certify a Permissive Interlocutory Appeal (“Motion to Certify”) (Doc. 83) and Defendants' Motion to Stay Pending Resolution of Defendants' Motion to Certify (“Motion to Stay”) (Doc. 85). For the reasons articulated below, we will deny Defendants' Motion to Certify and thus deny Defendants' Motion to Stay as moot. I. PROCEDURAL AND FACTUAL BACKGROUND Plaintiffs Shirley Craig and others (collectively “Plaintiffs”) initiated this action for overtime compensation under the Fair Labor Standards Act (“FLSA”) with the filing of a Collective Action Complaint on December 29, 2009. (Doc. 1). Defendants filed the present Motion to Certify (Doc. 83) in response to the Court's Order of December 9, 2009 that conditionally certified a collective class of potential opt-in plaintiffs pursuant to 29 U.S.C. § FN1 219(b). (Doc. 72). Defendants concurrently filed their Motion to Stay (Doc. 85) as well as briefs in support of each Motion (Docs.84, 86) on

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(C) Decisions Reviewable 170BVIII(C)2 Finality of Determination 170Bk576 Particular Actions, Interlocutory Orders Appealable 170Bk581 k. Labor Relations Cases. Most Cited Cases The issue of the appropriate legal standard to be applied when determining whether members of a putative class were ‘similarly situated’ for purposes of conditional certification under the FLSA was not a controlling question of law that warranted an interlocutory appeal. A contrary decision to the district court's determination regarding preliminary, conditional class certification could not result in a reversal of a judgment after final hearing, and therefore an employer was not entitled to a stay of employees' FLSA proceedings pending the outcome of an interlocutory appeal. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; 28 U.S.C.A. § 1292(b). Bradley Berger, Berger & Associates, New York, NY, Eric L. Young, Kenney Lennon & Egan, Plymouth Meeting, PA, Fran L. Rudich, Jeffrey A. Klafter, Seth R. Lesser, Klafter Olsen & Lesser LLP, Rye Brook, NY, Gary E. Mason, The Mason Law Firm, Nicholas A. Migliaccio, Mason LLP, Washington, DC, Michael A. Josephson, Fibich,

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Case 1:13-cv-01861-JEJ Document 80-2 Filed 12/02/13 Page 13 of 22 Page 2
Not Reported in F.Supp.2d, 2010 WL 1994888 (M.D.Pa.) (Cite as: 2010 WL 1994888 (M.D.Pa.))

December 22, 2009. Plaintiffs filed a brief in opposition to the Motion to Certify on December 30, 2009 (Doc. 87) and a brief in opposition to the Motion to Stay on January 11, 2010 (Doc. 89). Defendants filed a reply to the Motion to Certify on January 15, 2010 (Doc. 90) and elected to not file a reply to the Motion to Stay. Therefore, these matters are ripe for disposition. FN1. We conditionally certified the following collective class for purposes of providing notice of the action and an opportunity to opt-in: “All individuals classified as exempt from the FLSA's overtime pay provisions and employed as salaried Assistant Store Managers during any workweek within the previous three years in any of the 4,901 stores identified in Rite Aid Corporation's April 17, 2009 Annual Report as being operated by Rite Aid Corporation.” Defendants assert that permissive appeal of the Court's order to the United States Court of Appeals for the Third Circuit (“Third Circuit”) is appropriate because the Third Circuit “should have an opportunity to provide guidance to district courts regarding the appropriate legal standard to be applied when determining whether members of a putative class are ‘similarly situated’ for purposes of conditional certification” under the FLSA. (Doc. 83). Defendants further maintain that it is important to seek guidance from the Third Circuit regarding what evidence a district court must use in evaluating the propriety of conditional certification and, thus, whether this Court's decision was supported by sufficient evidence. (Doc. 83). II. DISCUSSION As a general rule, a matter may not be appealed to the Third Circuit unless it is a final judgment. Nonetheless, in some instances an interlocutory appeal may be proper. The interlocutory appeal that Defendants request is governed by 28 U.S.C. § 1292(b), which provides 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, [the Court] shall so state in writing such order. *2 28 U.S.C. § 1292(b). A moving party must therefore satisfy all of the following three requirements for a district court to grant certification of a permissive appeal of an interlocutory order: “The order must (1) involve a ‘controlling question of law,’ (2) offer ‘substantial ground for a difference of opinion’ as to its correctness, and (3) if appealed immediately ‘materially advance the ultimate termination of the litigation.’ “ Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.1974). In considering whether to certify an interlocutory appeal, a district court “should exercise its discretion mindful of the strong policy against piecemeal appeals.” Vicky M. v. Northeastern Educ. Intermediate Unit, 2009 U.S. Dist. LEXIS 108666, *13 (M.D.Pa. November 20, 2009) (Caputo, J.) (citing Link v. Mercedes–Benz of N. Am., 550 F.2d 860, 863 (3d Cir.1997)); see also Pontius v. Delta Fin. Corp ., 2007 U.S. Dist. LEXIS 90268, *5 (W.D.Pa. December 7, 2007) (“The moving party bears the burden of demonstrating that ‘exceptional circumstances justify a departure from the basic policy against piecemeal litigation and of postponing appellate review until after the entry of final judgment.’ ” (quoting Rottmund v. Cont'l Assurance Co., 813 F.Supp. 1104, 1112 (E.D.Pa.1992)). For the purposes of economy, we will only briefly summarize the parties' arguments supporting or opposing the Motion to Certify, but assure the parties that we have considered each argument in arriving at our decision. Defendants aver that clarification from the Third Circuit is necessary to determine the appropriate quantum and type of evidence to consider in evaluating the propriety of con-

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ditional certification and the extent to which a district court should consider the manageability of the proposed collective action. (Doc. 84 p. 4). Defendants note that these considerations are “controlling questions of law” for which there are substantial grounds for a difference of opinion. Defendants also contend that an interlocutory appeal will immediately advance the ultimate termination of the litigation because, as a result of our conditional certification, “the parties now must engage in lengthy and costly discovery.” (Doc. 84 p. 20). Plaintiffs counter that the law regarding conditional certification is, contrary to Defendants' assertions, not “unsettled.” (See Doc. 87). Further, Plaintiffs maintain that “[a] controlling question of law is one which would result in reversal of a judgment after final hearing” (Doc. 87 p. 10 (citing Facenta v. N.F.L. Films, Inc., 2007 U.S. Dist. LEXIS 38314, *4 (E.D.Pa. May 24, 2007)), and because a different resolution of the conditional certification would not obviate the need for a trial, this issue does not represent a controlling question of law. (Doc. 87 p. 10). Further, Plaintiffs dispute that immediate appeal of the Court's Order will “materially advance the ultimate termination of the litigation.” Plaintiffs highlight that Defendants have failed to support their assertion that “[m]illions of dollars in costs are implicated” if the Court does not consider the manageability of the collective action we conditionally certified. (Doc. 87 p. 14 (citing Doc. 84 p. 19). Plaintiffs assert that an immediate appeal will not significantly impact the litigation. *3 While the Court is aware that there have been different standards applied regarding conditional certification in the district courts, Defendants have failed to demonstrate “exceptional circumstances” that would warrant “departure from the basic policy against piecemeal litigation and of postponing appellate review until after the entry of final judgment.” See Pontius, 2007 U.S. Dist. LEXIS 90268, *5. We therefore disagree with Defendants that an immediate appeal of our Order is warranted. We additionally hold that a “controlling ques-

tion of law” is not at issue in this instance, as a contrary decision regarding preliminary, conditional certification could not “result in a reversal of a judgment after final hearing.” See Facenta, 2007 U.S. Dist. LEXIS 38315 (E.D.Pa. May 24, 2007) (citing Katz, 496 F.2d at 755 (“A controlling question of law must encompass at the very least every order which, if erroneous, would be reversible error on final appeal.”). It is our considered view that, for all practical purposes, Third Circuit guidance on the relevant standards of conditional certification would not have changed the outcome of our decision to conditionally certify the class at issue. We assure the Defendants that, although the Third Circuit has neither opined on the showing required to support conditional certification nor mandated what evidence a district court may consider, we did in fact consider all of the evidence presented by both parties with respect to the motion for conditional certification. Contrary to what Defendants maintain, the Court did not render its decision based “upon nothing but specious, boilerplate allegations from a handful of individuals.” (Doc. 84 p. We considered the facts on the record, Plaintiffs' allegations, as well as Defendants' arguments against conditional certification, and the various affidavits that Defendants submitted. After consideration of all of the relevant evidence, we granted conditional certification of a class of all assistant managers employed by Rite Aid in the past three (3) years who were classified as exempt from the FLSA's overFN2 time compensation provisions after finding that Plaintiffs demonstrated that this class was appropriate under either lenient standard employed by the district courts of this Circuit. (See Doc. 72). FN2. We note that the resulting class is still not a class of all assistant store managers as Plaintiffs requested (see Doc. 22) or as Defendants assert it is (Doc. 84 p. 1). We reiterate that delaying the action to allow an interlocutory appeal of a decision that will be reconsidered by this Court at the final certification stage will not, in fact, “materially advance the ulti-

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mate termination of the litigation,” because we are confident that our legal approach and factual application were both sound and warranted by the law in the Third Circuit. We remind Defendants that their concerns about the propriety of this proposed class can be addressed at the final certification stage, after the potential Plaintiffs have been given an opportunity to opt-in to the action and after disFN3 covery has been completed. We recognize that discovery may be somewhat costly, although we do not accept Defendants' unsupported and rather hyperbolic estimate of those costs, nor does that factor trump our legal analysis in any event. FN3. We remind Defendants that the proceedings in this matter were not stayed, and that their Proposed Notice to the potential opt-in class members must be filed by February 8, 2010. (See Doc. 72). *4 Not only is the extreme measure of allowing an intermediate interlocutory appeal inappropriate at this stage, but reconsideration is also unwarranted. As such, we will deny the Motion to Certify (Doc. 83) and deny the Motion to Stay (Doc. 85) as moot. NOW, THEREFORE, ORDERED: IT IS HEREBY

1. Defendants' Motion to Certify a Permissive Interlocutory Appeal (Doc. 83) is DENIED; 2. Defendants' Motion to Stay Pending Resolution of Defendants' Motion to Certify (Doc. 85) is DENIED as moot. M.D.Pa.,2010. Craig v. Rite Aid Corp. Not Reported in F.Supp.2d, 2010 WL 1994888 (M.D.Pa.) END OF DOCUMENT

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Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Nicholas KNOPICK, Plaintiff v. Philip A. DOWNEY, Defendant. Civil No. 1:09–CV–1287. Oct. 21, 2013. Joshua M. Autry, Clymer, Musser & Conrad, P.C., Lancaster, PA, for Plaintiff. Robert W. Sink, Law Offices of Robert W. Sink, Philadelphia, PA, Daniel P. Hunt, South Pasadena, CA, for Defendant. MEMORANDUM SYLVIA H. RAMBO, District Judge. *1 In this legal malpractice action, Plaintiff has sued two sets of his former attorneys, alleging that the first group of attorneys committed legal malpractice related to their representation of Plaintiff in connection with a property settlement agreement, and that Defendant Downey, whom he engaged to prosecute a legal malpractice action against the first group of attorneys, committed legal malpractice in his failure to properly advance that claim. Presently before the court is a motion for leave to file an interlocutory appeal pursuant to 28 U.S.C. 1292(b), which was filed by Defendant Downey and not opposed by Plaintiff. (Doc. 112.) The motion requests this court to certify its August 5, 2013 order denying Defendant Downey's motion for judgment on the pleadings as an appealable interlocutory order. (Doc. 109.) For the following reasons, Defendant Downey's motion will be denied. I. Background This case has been the matter of four separate memoranda addressing dispositive motions filed by the parties in this case. (See generally Doc. 29

(granting Connelly Defendants' motion to dismiss); Doc. 32 (granting Defendant Downey's motion for summary judgment); Doc. 88 (denying Defendant Downey's second motion for summary judgment following remand); Doc. 107 (denying Defendant Downey's motion for judgment on the pleadings and Plaintiff's motion for reconsideration).) Because the court writes primarily for the parties, it will not set forth the entirety of the factual and procedural history. The court will, however, highlight key facts relevant to its consideration of the instant motion. Plaintiff initiated this action on July 6, 2009, by filing a complaint invoking this court's diversity jurisdiction. The complaint, which as highlighted in the court's most recent memorandum, identified the nature of the suit as one sounding in tort. Nevertheless, the complaint contained three counts, namely a breach of contract claim against the Connelly Defendants in connection with their state court representation of Plaintiff in the property settlement agreement (“PSA”) proceedings (Count I), and a legal malpractice (Count II) and breach of contract claim (Count III) against Defendant Downey in connection with his failure to adequately prosecute Plaintiff's legal malpractice claim against the Connelly Defendants. (See Doc 1.) Plaintiff set forth the following in support of his breach of contract claim against the Connelly Defendants: 57. When an attorney enters into a contract to provide legal services, there automatically arises a contractual duty on the part of the attorney to render those services in a manner that comports with the profession at large. *** 59. [By retaining the Connelly Defendants], the [Connelly Defendants], by implication, agreed to provide [Plaintiff] with professional services consistent with those expected of the profession at large.

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*** 61. [The Connelly Defendants] had a duty to conduct themselves as a reasonable attorney would act. *2 62. [The Connelly Defendants] owed [Plaintiff] a duty to possess and employ the skill and knowledge that ordinarily is employed by a professional. *** 64. An attorney exercising the ordinary skill and knowledge of a legal professional would have investigated and called [the witnesses suggested by Plaintiff at the hearing]. 65. [The Connelly Defendants] acted in deviation from the standard of care of a reasonable attorney and breached their duties they owed to [Plaintiff]. 66. [The Connelly Defendants]'s actions were the proximate cause of [Plaintiff]'s harms, were a substantial factor in bringing about his harms, and significantly increased the risk his harms would occur. 67. This failure was a direct cause of the July 5, 2005 Order that set aside the [PSA] and the unfavorable settlement that resulted from that Order. 68. Plaintiff would have prevailed in the state court dispute over the [PSA] in the absence of professional negligence by [the Connelly Defendants]. (Doc. 1, ¶¶ 57, 59, 61, 62, 64–68 (emphasis added).) On July 22, 2009, the Connelly Defendants filed a motion to dismiss (Doc. 4), which the court granted on December 29, 2009, on the basis that the FN1 applicable two-year statute of limitations had expired prior to the complaint's July 22, 2009 filing date. (Doc. 29.) In arriving at its decision, the court found that, despite Plaintiff labeling Count I as breach of contract against the Connelly Defendants,

the allegations contained therein were more properly asserted as an action sounding in tort rather than contract. Specifically, the court reasoned: FN1. The court found that the two-year statute of limitations for legal malpractice claims applied to Plaintiff's claim against the Connelly Defendants, finding that Plaintiff's claim against the Connelly Defendants sounded in trespass rather than assumpsit. (See Doc. 29, pp. 9–10 of 12.) These allegations, plainly read, employ tort-like language and obligations rather than contract-like obligations, thus, leading the court to conclude that the gist of the action is one of tort [rather than contract]. (Id. at p. 9 of 12.) Thus, although the court recognized that a plaintiff may bring a malpractice claim under both contract and tort theories of liability, it held that Plaintiff's claim arose in tort, and applied Pennsylvania's two-year statute of limitations applicable to malpractice tort claims, 42 Pa. Cons.Stat. Ann. § 5524, rather than the four-year statute of limitations applicable to contract claims, 42 Pa. Cons.Stat. Ann § 5525. (See id.) Plaintiff neither sought to file an amended complaint properly stating a viable cause of action for breach of contract nor appealed the court's ruling. On October 21, 2009, Defendant Downey filed a motion for summary judgment on the two claims asserted against him, namely the legal malpractice claim at Count II and breach of contract claim at Count III. (Doc. 15.) Defendant Downey argued that he was entitled to judgment in his favor because he and the Connelly Defendants did not cause Plaintiff to suffer economic damages, reasoning that the PSA at issue in the state court proceedings was the product of Plaintiff's own fraud. (Doc. 17, pp. 5, 11 of 15.) On January 25, 2010, the court granted Defendant Downey's motion for summary judgment on the basis that the two-year statute of limitations applicable to a legal malpractice claim sounding in negligence had expired. (Doc. 32.)

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Similar to its reasoning for dismissing the Connelly Defendants, the court found that, despite Plaintiff labeling Count III as breach of contract against Defendant Downey, the allegations contained therein were more properly asserted as an action arising in tort rather than contract. (Id. at pp. 12–13 of 14.) Specifically, the court reasoned: *3 Count Three of the complaint clearly sound[s] in tort, not contract. Plaintiff discusses the standard of care owed by an attorney, not a breach of specific terms of the contingent fee agreement..... Merely reciting the language “specific terms of the contract” without citing which terms the parties breached, is insufficient.... [I]t is not the court's role to parse through the document to ascertain which provision Defendant potentially breached. (Doc. 32, pp. 11–13 of 14 (emphasis in original) (footnote omitted).) The court then applied the occurrence rule and found that the statute of limitations for Plaintiff to bring the legal malpractice claim asserted against the Connelly Defendants expired on August 2, 2006, two years after the occurrence of the alleged malpractice, which was nearly six months prior to Plaintiff's retention of Defendant Downey in March 2007. (See Doc. 32, pp. 3, 9 of 13.) The court reasoned that, because the statute of limitations had run on Plaintiff's claim against the Connelly Defendants prior to Plaintiff's retention of Defendant Downey, Defendant Downey could not be held liable for failing to commence a time-barred action against the Connelly Defendants. (See id.) Plaintiff appealed that ruling. (See Doc. 34.) Applying the discovery rule instead of the occurrence rule, the United States Court of Appeals for the Third Circuit reversed and remanded, finding that reasonable minds could differ as to whether Plaintiff reasonably knew or should have known of his injury before the Perry County Court of Common Pleas entered its order on the underlying property settlement agreement. (Doc. 37.) Thus, the Third Circuit held it was not clear from the record

whether the statute of limitations had expired on Plaintiff's tort claim against the Connelly Defendants prior to Plaintiff's retention of Defendant FN2 Downey. (Id.) FN2. The Third Circuit did not consider whether Plaintiff adequately asserted a breach of contract claim, because, as the Court noted, “[Plaintiff] acknowledged at oral argument that he ... abandoned his contract claim.” (Doc. 37, p. 9 n. 8 of 28.) On remand, Defendant Downey filed a second motion for summary judgment on June 18, 2012 (Doc. 49), in which he argued that the underlying PSA was invalid on its face, and that the Connelly Defendants could not have changed such a conclusion by the county court, regardless of their actions at the August 2, 2004 hearing. (See Doc. 51, p. 29 of 30.) The court denied Defendant Downey's motion on May 6, 2013, finding that a genuine issue of material fact existed as to whether the Connelly Defendants committed malpractice by failing to call a certain witness who would have provided a basis for the county court to find that Plaintiff's wife was adequately aware of the couple's finances. (Doc. 88.) On June 17, 2013, Defendant Downey filed a motion for judgment on the pleadings. (Doc. 94.) Defendant Downey's motion requested judgment in his favor on the basis that Coleman v. Duane Morris, LLP, 58 A.3d 833 (Pa.Super.Ct.2012), perm. app. granted, 68 A.3d 328 (Pa.2013), a December 20, 2012 Pennsylvania Superior Court decision, made clear that Plaintiff had a viable claim against the Connelly Defendants for all of his alleged harm at the time Plaintiff filed suit against Defendant Downey. (Id. at p. 2 of 12.) Therefore, Defendant Downey reasoned, he could not be the proximate cause of Plaintiff's harm. (Id.) On June 19, 2013, Plaintiff filed a response in opposition to Defendant Downey's motion (Doc. 98), as well as a motion for reconsideration related to the court's December 29, 2009 dismissal of the Connelly Defendants (Doc. 96). In his motion, Plaintiff argued Coleman “held

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that a plaintiff may assert a breach of contract action sounding in legal malpractice using the four year statute of limitations for breach of contract actions.” (Doc. 98, p. 8 of 23.) Plaintiff reasoned that the Coleman decision was an “intervening change in controlling law, reveal[ed] the need to correct a legal error, and create[d] a need to prevent manifest injustice.” (Id. at p. 9 of 23.) *4 On August 5, 2013, the court denied both motions. (Docs. 108 & 109.) In the memorandum entered in support of the orders, the court explained that Coleman did not constitute a change in controlling law applicable to the action, but rather acknowledged a 2002 Pennsylvania Superior Court case, Gorski v. Smith, 812 A.2d 683 (Pa.Super.Ct.2002), which was “decided by the Superior Court several years prior to this court's December 29, 2009 order.” (Doc. 107, p. 17 of 24.) Finding that Coleman did not constitute a change in controlling law and finding that the court did not commit clear legal error in dismissing Plaintiff's legal malpractice claim against the Connelly Defendants in December 2009, the court denied Plaintiff's motion for reconsideration. (Id. at p. 18 of 24.) Furthermore, upon consideration of the facts taken in the light most favorable to Plaintiff, the court found, for purposes of addressing the motions, the record established that: (1) the Connelly Defendants were professionally negligent in failing to call witnesses at the August 2, 2004 hearing; (2) Plaintiff did not discover his injury until Judge Morrow's July 7, 2005 order invalidating the PSA; (3) Plaintiff contacted Defendant Downey on July 31, 2006; (4) Plaintiff retained Defendant Downey to “institute, prosecute, negotiate and compromise claims to recover damages from [the Connelly Defendants]” on March 30, 2007; (5) the statute of limitations on Plaintiff's professional negligence action against the Connelly Defendants expired on July 9, 2007; and (6) Defendant Downey did not file the claim contemplated by the March 30, 2007 agreement. (Doc. 107, p. 23 of 24.) Therefore, the court concluded Plaintiff may have had a viable professional negligence claim against the Connelly

Defendants that Defendant Downey never filed despite being retained to do so. The court accordingly denied Defendant Downey's motion for judgment on the pleadings. (Docs. 107 & 108.) On August 20, 2013, Defendant Downey filed the instant motion, requesting the court certify its August 5, 2013 order for an interlocutory appeal. (Doc. 112.) In his brief in support, Defendant Downey acknowledges the import of Gorski, and argues that it presents a controlling question of law. FN3 (Doc. 113, p. 4 of 6.) Plaintiff concurs with Defendant Downey's motion. (Doc. 115.) The issue has been adequately briefed and is now ripe for consideration. FN3. Despite Defendant Downey requesting the court certify for an interlocutory appeal its order denying his motion for judgment on the pleadings on the basis that the record did not entitle him to judgment as a matter of law, it appears he is truly requesting appellate review of this court's answer to whether Pennsylvania law permits a plaintiff to plead a legal malpractice action sounding in assumpsit on the basis that the defendant breached the standard of care an attorney generally owes to a client. This was the issue addressed in the court's December 29, 2009 memorandum and underlay the court's dismissal of the Connelly Defendants. II. Discussion Under Section 1292(b), the court can certify a non-final order for interlocutory appeal if the order “involves (1) a controlling question of law (2) as to which there is substantial ground for difference of opinion and (3) that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b) (numbering added). Even if the moving party satisfies the statutory criteria, the district court “possesses discretion to deny certification of an [interlocutory] appeal.” In re Chocolate Confectionary Antitrust Litig., 607 F.Supp.2d 701, 708

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(M.D.Pa.2009) (citing Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir.1976)). An interlocutory appeal should be reserved for “exceptional cases.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (quotation marks and citation omitted); Sabree v. Williams, Civ. No. 06–cv–2164, 2008 WL 4534073, *1 (D.N.J. Oct.2, 2008) (“[A] district court should exercise this discretion and certify issues for interlocutory appeal only sparingly and in exceptional circumstances.”). *5 In determining whether an order presents a controlling question of law, the court must look to whether (1) an incorrect disposition would constitute reversible error if presented on final appeal; or (2) if the question is so “serious to the conduct of the litigation either practically or legally.” Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.1974) (“A controlling question of law must encompass at the very least every order which, if erroneous, would be reversible error on final appeal.”). “[S]ubstantial ground for difference of opinion” exists when the matter involves “one or more difficult and pivotal questions of law not settled by controlling authority.” Knipe v. SmithKline Beecham, 583 F.Supp.2d 553, 599 (E.D.Pa.2008) (citing McGillicuddy v. Clements, 746 F.2d 76, 76 n. 1 (1st Cir.1984)); see also Cuttic v. Crozer–Chester Med. Ctr., 806 F.Supp.2d 796, 804–05 (E.D.Pa.2011) (“[S]ubstantial grounds for difference of opinion exist where there is general doubt or conflicting precedent as to the correct legal standard.”). The clearest evidence of “substantial grounds for difference of opinion” is where “there are conflicting interpretations from numerous courts.” Beazer E., Inc. v. The Mead Corp., Civ. No. 91–0408, 2006 WL 2927627, *2 (W.D.Pa. Oct. 12, 2006). In terms of determining whether an appeal would materially advance the ultimate termination of litigation, courts look to “(1) whether the need for trial would be eliminated; (2) whether the trial would be simplified by the elimination of complex issues; and (3) whether discovery could be conducted more expeditiously and at less expense to the parties.” Patrick v. Dell Fin. Servs., 366 B.R. 378, 387

(M.D.Pa.2007); See Cuttic, 806 F.Supp.2d at 805. On the other hand, where discovery has been ongoing and the case is nearly ready for trial, “an interlocutory appeal can hardly advance the ultimate termination of the litigation.” Bradburn Parent Teacher Store v. Minn. Mining & Mfg. Co., Civ. No. 02–7676, 2005 WL 1819969, *4 (E.D.Pa. Aug.2, 2005). Assuming, without deciding, that the first two FN4 requirements of Section 1292(b) are satisfied, the certification request fails on the third criterion. Defendant Downey argues that a “favorable ruling on appeal would terminate the litigation against [Defendant] Downey.” (Doc. 113, p. 5 of 6.) Even if true, this factor asks the court to assess whether the immediate appeal may materially advance the “ultimate termination of the litigation.” 28 U.S.C. § 1292(b) (emphasis supplied). The litigation will not terminate if the Third Circuit determines that, under Pennsylvania law, a plaintiff can assert a legal malpractice cause of action sounding in assumpsit by alleging the defendant-attorney breached the general standard of care owed by attorneys to their clients. Regardless of the appellate decision, Defendant Downey will still remain in the case, and will continue defending the professional negligence FN5 claim. Thus, contrary to Defendant Downey's argument, a favorable ruling will not materially advance the ultimate termination of this litigation. In the court's view, a favorable ruling may, in fact, have an opposite effect. FN4. There is serious question as to whether either of these requirements are satisfied. As to the first requirement, the court notes that its December 29, 2009 decision dismissing the Connelly Defendants may have presented an issue of controlling law, but the August 5, 2013 decision did not; rather, the August 5, 2013 decision simply denied Plaintiff's motion for reconsideration and Defendant Downey's motion for judgment on the pleadings. Neither issue addressed in that memorandum “would be

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reversible error on final appeal.” See 28 U.S.C. 1292(b). As to the second requirement, federal courts have consistently held that a plaintiff may not repackage a legal negligence claim into one sounding in breach of contract simply by skillful pleading. Moreover, in Steiner v. Markel, 600 Pa. 515, 968 A.2d 1253 (Pa.2009), a legal malpractice case involving property erroneously described in a deed, the Pennsylvania Supreme Court was faced with a statute of limitations issue. The court's decision focused upon other issues, but in his dissent, Justice Saylor asserted that the court should have taken the opportunity to clarify the “disordered area of the law” in which legal malpractice claims may be stated under either contract or tort theories. In his dissent, Justice Saylor recognized that federal courts have “effectively predicted” that the Pennsylvania Supreme Court would require the plaintiff allege a breach of a particular contractual provision, and stated as follows: [A] substantial, underlying conceptual problem in this case is that this Court has not detailed the elements of a contract-based cause of action for legal malpractice in a fashion which would meaningfully distinguish them from those necessary to support a tort-based cause. Indeed, the discussion of a contract-based cause in Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993), suggests the elements of tort- and contract-based causes of action in this setting overlap substantially, if not completely. See id. at 251–52, 621 A.2d at 115[; s ]ee generally 3 West's PA. PRAC., TORTS: LAW AND ADVOCACY § 6:29 (2008) (suggesting that, if Bailey is adhered to on its terms, “any distinction between contract and tort claims is practically

meaningless” and plaintiffs, by mere skillful pleading” may avail themselves of the longer limitations period). A counter-position has developed in the federal courts, which have effectively predicted this Court would require averment of a breach of some particular provision of the agreement of representation, or a failure to follow specific client instructions, to support a contract-based claim. See, e.g., Stacey v. City of Hermitage, 2008 WL 941642, *4 (W.D.Pa. Apr.7, 2008); see also Edwards v. Thorpe, 876 F.Supp. 693, 694 (E.D.Pa.1995). In light of such enhanced requirement for contract-based pleading, these courts have admonished, “a plaintiff may not repackage a negligence-based malpractice claim under an assumpsit theory to avoid the statute of limitations.” Stacey, 2008 WL 941642, at *5. Steiner, 968 A.2d at 1262 (Saylor, J., dissenting). FN5. Plaintiff has abandoned his contract claim against Defendant Downey. (See supra n. 2 (citing Doc. 37, p. 9 n. 8 of 28).) *6 Lastly, the court would be remiss not to note the impropriety of certifying the dismissal of the Connelly Defendants for an interlocutory appeal. FN6 The December 29, 2009 order extinguished Plaintiff's claim against the Connelly Defendants. Plaintiff neither sought leave to file an amended complaint nor appealed the court's decision. Clearly, the issue for which the parties now desire appellate review is the issue upon which the court's December 29, 2009 decision turned. This request comes over three years after the entry of the order of which the parties complain. The request is not only untimely, but made with the significant consequence of delaying final adjudication of the matter on the merits.

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FN6. Again, although Defendant Downey asks the court to certify its August 5, 2013 order regarding his motion for judgment on the pleadings for an interlocutory appeal, it is clear that the true issue for which both Defendant Downey and Plaintiff desire an appellate opinion concerns the court's 2009 dismissal of the Connelly Defendants, finding that the cause of action pleaded by Plaintiff in the complaint sounded in trespass rather than assumpsit. III. Conclusion Even assuming, arguendo, that the issue for which the parties request the court certify for an interlocutory appeal presents a controlling question of law as to which there is substantial ground for difference of opinion, the court cannot find that an immediate appeal would materially advance the ultimate termination of the litigation. Accordingly, the court declines to certify its August 5, 2013 order for an interlocutory appeal, and will deny Defendant Downey's motion. An appropriate order will issue. ORDER In accordance with the accompanying memorandum of law, IT IS HEREBY ORDERED that Defendant Downey's motion requesting this court certify its August 5, 2013 order denying Defendant Downey's motion for judgment on the pleadings for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (Doc. 112) is DENIED. The deadlines set forth in the most recent case management order (Doc. 93) remain in effect. M.D.Pa.,2013. Knopick v. Downey Slip Copy, 2013 WL 5719247 (M.D.Pa.) END OF DOCUMENT

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