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Neely v. Facility Concepts, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

June 1, 2017

ELVIS NEELY, on behalf of himself and all others similarly situated, Plaintiff,
v.
FACILITY CONCEPTS, INC., Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge.

         Elvis Neely was an employee at Facility Concepts, Inc. (“Facility Concepts”) from July 2013 until he was involuntarily terminated in August 2016. [Filing No. 1-2 at 3.] Mr. Neely claims that Facility Concepts had an unfair and unlawful systematic policy of rounding its employees' pay in a manner detrimental to its employees. [Filing No. 1-2 at 3-4.] Mr. Neely initiated this litigation on behalf of himself and others similarly situated, alleging that Facility Concepts violated the Fair Labor Standards Act (“FLSA”), the Indiana Wage Payment Statute (“IWPS”), and the Indiana Wage Claims Act (“IWCA”), and asserting a claim under the common law theory of quantum meruit. [Filing No. 1-2 at 7-11.] On April 4, 2017, the Court granted in part and denied in part Facility Concepts' Motion to Dismiss, finding that Mr. Neely failed to state individual and class claims under the IWPS and the common law theory of quantum meruit. The Court found that he can proceed with individual and class claims under the IWCA. [Filing No. 31 at 12-13.] Mr. Neely's FLSA claim also remains as it was not challenged in the motion to dismiss. [Filing No. 31 at 12-13.]

         Presently pending before the Court is Mr. Neely's Motion to Amend Order [No. 31] to Include Certification for Interlocutory Appeal & to Stay Proceedings Pending Resolution. [Filing No. 36.] For the reasons detailed below, the Court GRANTS in part Mr. Neely's motion, to the extent that it amends its April 4, 2017 Order, and DENIES it in part, to the extent that it will not certify Mr. Neely's interlocutory appeal.

         I.

         Discussion

         A. Motion to Amend

         Before addressing Mr. Neely's arguments regarding his request for an interlocutory appeal, the Court will first amend its April 4, 2017 Order, [Filing No. 31]. Clarifying this issue will help the Court's analysis of Mr. Neely's motion for an interlocutory appeal.

         Mr. Neely claims that the issue that he seeks to certify in his interlocutory appeal is “whether a putative class representative, who is permitted to bring a claim under the [IWCA], may represent a class composed both of persons seeking relief under the IWCA and the [IWPS], where the putative class representative cannot bring a claim under the IWPS for himself.” [Filing No. 36 at 2.]

         In response, Facility Concepts argues that the relevant question here is “whether Mr. Neely, a fired employee, has standing to bring a claim under the [IWPS], a statute that by design does not cover fired employees.” [Filing No. 37 at 2.] It argues that numerous courts have answered that question with “no, ” and that “the law is well-settled that a named plaintiff cannot piggyback on the standing of putative class members if he himself does not have standing in the first place.” [Filing No. 37 at 3.]

         In reply, Mr. Neely argues that the Court's Order correctly recognized that “the issue here is one of adequacy, ” not standing, and that what he contends is that the class representative is not required to have standing under every cause of action asserted by the class. [Filing No. 38 at 2-3.]

         The Court acknowledges that it stated in its April 4, 2017 Order that “[b]ecause Mr. Neely does not fall under the category of claimants who can pursue a claim under the IWPS, he cannot adequately represent the interests of those potential class members.” [Filing No. 31 at 7.] Although it used that terminology, the Court's reference to Mr. Neely's adequacy was not the actual basis of the Court's ruling, but rather a conclusion that resulted from it. The Court now clarifies that the basis of its holding is that Mr. Neely lacks standing to pursue a claim under the IWPS because he was involuntarily terminated. Since he fails as a plaintiff on standing grounds, he therefore cannot assert claims on behalf of claimants who seek compensation pursuant to the IWPS.[1] As the Court noted in its April 4, 2017 Order, “[t]o have standing to sue as a class representative it is essential that a plaintiff must be a part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents.” Keele v. Wexler, 149 F.3d 589, 592-93 (7th Cir. 1998) (emphasis added) (quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216 (1974) (citations omitted)); see Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (“a class representative must be part of the class and possess the same interest and suffer the same injury as the class members”); see also Payton v. County of Kane, 308 F.3d 673, 682 (7th Cir. 2002) (“[A] named plaintiff cannot acquire standing to sue by bringing his action on behalf of others who suffered injury which would have afforded them standing had they been named plaintiffs; it bears repeating that a person cannot predicate standing on injury which he does not share. Standing cannot be acquired through the back door of a class action.”). Because he falls under a different category of claimants, Mr. Neely does not have standing to pursue a claim under the IWPS, and therefore he cannot represent a class that may have a claim pursuant to the IWPS.

         B. Motion for Certification of Interlocutory Appeal

         1. Standard of Review

         28 U.S.C. § 1292(b) allows for an interlocutory appeal when that order “involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of litigation.” Richardson Elecs, Ltd. v. Panache Broad. of Pennsylvania, Inc., 202 F.3d 957, 958 (7th Cir. 2000). Thus, “[t]here are four statutory criteria for the grant of a section 1292(b) petition to guide the district court: there must be a question of law, it must be controlling, it must be contestable, and its ...


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