United States District Court, S.D. Indiana, Indianapolis Division
ELVIS NEELY, on behalf of himself and all others similarly situated, Plaintiff,
FACILITY CONCEPTS, INC., Defendant.
Jane Magnus-Stinson, Chief Judge.
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.]
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.
Motion to Amend
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.
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.]
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
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.]
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. 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.
Motion for Certification of Interlocutory Appeal
Standard of Review
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 ...