United States District Court, E.D. Louisiana.

Julian BRIONES III, et al.v.

GENUINE PARTS CO. d/b/a NAPA Auto Parts

No. Civ.A. 01–1792.

Sept. 17, 2002.

Employee sued employer, alleging violation of Family and Medical Leave Act (FMLA). The District Court denied employer's motion for summary judgment. On employer's motion to amend order denying summary judgment to certify it for immediate appeal, the District Court, Zainey, J., held that interlocutory appeal was warranted.

Motion granted.

Interlocutory appeal of district court's denial of employer's motion for summary judgment in employee's action under FMLA, holding that FMLA was broad enough to encompass employee's activities in caring for his other children while his young son was hospitalized, was warranted; decision involved controlling question of law as to which there was substantial ground for difference of opinion, since there was absence of authority as to whether employee's activities were covered by FMLA, and immediate appeal may have materially advanced ultimate termination of litigation, since reversal on question of whether employee's activities were subject to FMLA protection would immediately have terminated litigation in favor of employer without need for costly trial. 28 U.S.C.A. § 1292(b); Family and Medical Leave Act of 1993, § 2 et seq., 29 U.S.C.A. § 2601 et seq.

ORDER AND REASONS

ZAINEY, J.*1 Before the Court is a Motion to Amend Order to Certify for Interlocutory Appeal (Rec.Doc. 36) filed by defendant Genuine Parts Company d/b/a NAPA Auto Parts (“GPC”). Plaintiffs oppose the motion. The motion, set for hearing on September 11, 2002, is before the Court on the briefs without oral argument.

GPC moves the Court to amend its order entered August 13, 2002, Rec. Doc. 34, to certify it for immediate appeal pursuant to 28 U.S.C. § 1292(b).FN1 In that order, the Court denied GPC's motion for summary judgment.FN2 In denying GPC's motion, the Court concluded that the Family and Medical Leave Act was broad enough to encompass Briones' activities, i.e., caring for his healthy children while his young son was hospitalized with a serious medical condition. The Court reached this conclusion while noting the absence of any controlling authority on the issue or any case for that matter squarely addressing the question of law presented in Briones' case. GPC asserts that this order meets the section 1292(b) criteria.

FN1. The statute provides in pertinent part:

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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order....

28 U.S.C. 1292(b) (emphasis added).

FN2. Plaintiffs' motion for summary judgment was likewise denied.

In opposition, Plaintiffs argue that outstanding issues of fact make certification inappropriate. In particular, Plaintiffs assert that there is an issue of fact as to whether Julian Briones spent daytime hours at the hospital with his ill son. Plaintiffs also assert that there is a dispute as to whether Briones specifically asked for FMLA leave.

The Court has considered the arguments made by both parties and concludes that certification of the August 12, 2002, is appropriate. The decision involves a controlling question of law as to which there is substantial ground for difference of opinion. As the Court noted in its decision, there is an absence of authority as to whether Briones' activities were covered by the FMLA, and the Court assumes that other jurists could very well take a different view toward Plaintiffs' cause of action. Further, an immediate appeal from the order may materially advance the ultimate termination of the litigation because a reversal on the question of whether Julian Briones' activities were subject to FMLA protection, would immediately terminate this litigation in favor of GPC without the need for a costly five day trial.

As for Plaintiffs' opposition, the Court fails to see how any dispute as to what Briones did during his daytime off-hours affects the analysis. It is undisputed that during the working hours for which he took leave, Julian Briones was not at the hospital but at home with his other children. The Court did not have to resolve the issue of Briones' daytime activities to render its prior decision and it declines to do so now although one would naturally assume that Briones had spent at least some time at the hospital visiting his son during his off hours. Thus, the Court concludes that any dispute as to Briones' daytime activities does not preclude certification.

Further, as the Court explained in its prior decision, whether or not Briones specifically asked for FMLA leave is of little legal significance. His activities were either covered by the FMLA or they weren't—regardless of how he couched the request.

*2 Finally, the parties' requests to certify specifically worded questions to the Fifth Circuit is beyond what section 1292(b) requires. Section 1292(b) allows certification for immediate appeal of an otherwise non-appealable order, and does not permit the Court to tack on issues not specifically decided in this Court. See Adkinson v. International Harvestor Co., 975 F.2d 208, 212 n. 4 (5th Cir.1992) (citing United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987)) (recognizing that appellate jurisdiction of a certified order is confined to the particular order appealed from). The Court will order, however, that any such appeal is to be limited to the FMLA claim only.

Accordingly;

IT IS ORDERED that the Motion to Amend Order to Certify for Interlocutory Appeal (Rec.Doc. 36) filed by defendant Genuine Parts Company d/b/a NAPA Auto Parts should be and is hereby GRANTED;

IT IS FURTHER ORDERED that the Court's Order entered on August 13, 2002, (Rec.Doc. 34) is AMENDED to reflect that it “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.” 28 U.S.C. § 1292(b);

IT IS FURTHER ORDERED that this matter shall be STAYED AND ADMINISTRATIVELY CLOSED pending action by the Fifth Circuit Court of Appeals on GPC's application for an appeal;

IT IS FURTHER ORDERED that GPC shall IMMEDIATELY file its application for appeal with the Fifth Circuit. The application for appeal shall be limited to Plaintiffs' FMLA claim only. Failure to provide this Court with a clocked-in copy of the application DELIVERED TO CHAMBERS by Tuesday, September 24, 2002, at 4:00 p.m. will result in this order being vacated and no continuance of the trial will be granted.E.D.La.,2002.Briones v. Genuine Parts Co.Not Reported in F.Supp.2d, 2002 WL 31086089 (E.D.La.), 83 Empl. Prac. Dec. P 41,279, 147 Lab.Cas. P 34,635, 8 Wage & Hour Cas.2d (BNA) 159