Karen Camesi v. UPMC Health Sys ( 2013 )


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  •                                     PRECEDENTIAL
    
         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
    
    
    
                 Nos. 12-1446 and 12-1903
    
    
          KAREN CAMESI; ERIN O'CONNELL;
            LORI SHAFFER; DINAH BAKER,
       on behalf of themselves and all other employees
                      similarly situated,
    
                            Appellants in Case No. 12-1446
    
                             v.
    
    UNIVERSITY OF PITTSBURGH MEDICAL CENTER;
    UPMC; UPMC HEALTH SYSTEM; UPMC BEDFORD
    MEMORIAL HOSPITAL; UPMC BRADDOCK; UPMC
       MCKEESPORT; UPMC NORTHWEST; UPMC
       PASSAVANT; UPMC PRESBYTERIAN; UPMC
    PRESBYTERIAN SHADYSIDE; UPMC SHADYSIDE;
       UPMC SOUTHSIDE; UPMC ST. MARGARET;
     MAGEE WOMEN’S HOSPITAL OF UPMC; MERCY
       HOSPITAL OF PITTSBURGH; MONTEFIORE
    HOSPITAL; MONTEFIORE UNIVERSITY HOSPITAL;
    WESTERN PSYCHIATRIC INSTITUTE AND CLINIC;
     CHILDREN'S HOSPITAL OF PITTSBURGH OF THE
       UPMC HEALTH SYSTEM; UPMC LEE; UPMC
      HORIZON; UPMC HOLDING COMPANY, INC.;
       UPMC HEALTH NETWORK, INC.; JEFFREY A.
        RAMOFF; GREGORY PEASLEE; UPMC 401A
        RETIREMENT SAVINGS PLAN; UPMC 403B
       RETIREMENT SAVINGS PLAN; UPMC BASIC
                 RETIREMENT PLAN
    
    
    
        ANDREW KUZNYETSOV; CHARLES BOAL;
              MARTHANN HEILMAN,
    
                        Appellants in Case No. 12-1903
    
                        v.
    
      WEST PENN ALLEGHENY HEALTH SYSTEM, INC;
       THE WESTERN PENNSYLVANIA HEALTHCARE
       SYSTEM, INC.; ALLE-KISKI MEDICAL CENTER;
            ALLEGHENY GENERAL HOSPITAL;
       ALLEGHENY GENERAL HOSPITAL-SUBURBAN
     CAMPUS; CANONSBURG GENERAL HOSPITAL; THE
          WESTERN PENNSYLVANIA HOSPITAL;
          CHRISTOPHER T. OLIVIA; JOHN LASKY;
    RETIREMENT PLAN FOR EMPLOYEES OF WEST PENN
        ALLEGHENY HEALTH SYSTEM; ALLE-KISKI
       MEDICAL ASSOCIATES; ALLE-KISKI WOMEN'S
        HEALTH; ALLEGHENY MEDICAL PRACTICE
        NETWORK; ALLEGHENY SINGER RESEARCH
      INSTITUTE; ALLEGHENY SPECIALTY PRACTICE
        NETWORK; ALLEGHENY VALLEY INTERNAL
     MEDICINE; ASSOCIATED SURGEONS OF WESTERN
       PENNSYLVANIA; ASSOCIATED SURGEONS OF
    WESTERN PENNSYLVANIA P.C.; BARRY SEGAL, MD;
    
    
    
    
                         2
       BELLEVUE MEDICAL ASSOCIATES; BELLEVUE
    PEDIATRIC ASSOCIATES; BURN CARE ASSOCIATES,
       LTD.; BURRELL INTERNAL MEDICINE; CABOT
      MEDICAL CENTER; CANONSBURG COMMUNITY
        HEALTHCARE CENTER; CENTER FOR FAMILY
     HEALTH CARE; CENTURY MEDICAL ASSOCIATES;
       CENTURY III MEDICAL ASSOCIATES; CITIZENS
    SCHOOL OF NURSING; CORKERY, HEISE, DAINESI &
        TRAPANOTTO; CRAFTON MEDICAL CENTER;
       CREIGHTON MEDICAL CENTER; DR. FRANCIS J.
     CAVANAUGH, MD; DR. MEHERNOSH KHAN; EAST
       END MEDICAL ASSOCIATES; EAST SUBURBAN
       FAMILY PRACTICE; EAST SUBURBAN OB/GYN;
        FAMILY NURSE MIDWIVES; FERLAN GROUP;
        FRIENDSHIP MEDICAL ASSOCIATES; FORBES
      HOSPICE; FUGE FAMILY PRACTICE; GREEN TREE
         MEDICAL CENTER ASSOCIATES; HAMPTON
     MEDICAL CENTER; HEALTH CENTER ASSOCIATES;
    HUSSAINI MEDICAL ASSOCIATES; IRWIN MEDICAL
      CENTER; IRWIN PRIMARY CARE ASSCOCIATES;
        MAMATASTRAGOOR KHAN PRIMARY CARE
         ASSOCIATES; MCDONALD PRIMARY CARE;
    MEADOWLANDS PRIMARY CARE; MEDICAL CENTER
        CLINIC, P.C.; META-HILBERG HEMATOLOGY
              ONCOLOGY ASSOCIATES, INC.;
       MONROEVILLE MEDICAL ASSOCIATES; M.H.V.
      MURTHY, MD; NATRONA HEIGHTS OB/GYN, INC.;
     NORTH VERSAILLES MEDICAL ASSOCIATES; PAUL
    REILLY, MD; PEDIATRIC & NEONATAL ASSOCIATES;
     PEDIATRIC & NEONATAL ASSOCIATES, INC.; PENN
       HILLS MEDICAL ASSOCIATES; PENNSYLVANIA
         COMPREHENSIVE CARE ASSOCIATES; PINE
     HOLLOW MEDICAL ASSOCIATES; PINE RICHLAND
    
    
    
    
                         3
       MEDICAL ASSOCIATES; PITTSBURGH CARDIO
           THORACIC ASSOCIATES; PITTSBURGH
     CARDIOTHORACIC ACCOCIATES; PLUM MEDICAL
         ASSOCIATES; PRIMARY CARE NORTHSIDE;
      PRIMAMRY CARE SOUTH; RIAD SARADAR, MD;
    ROBERT BARAFF, MD; FRANK E. SESSOMSM.D., INC;
     STERLING MEDICAL ASSOCIATES; THREE RIVERS
          IMAGING ASSOCIATES, P.C.; TRI COUNTY
      CARDIOLOGY; TRI COUNTY CARDIOLOGY, INC.;
        UNITED PHYSICIANS; VASCULAR CENTER OF
       WESTERN PENNSYLVANIA, INC.; WATERDAM
     MEDICAL ASSOCIATES; WEST PENN ALLEGHENY
      EYE ASSOCIATES, P.C.; WEST PENN ALLEGHENY
        FOUNDATION, LLC; WEST PENN ALLEGHENY
              HEALTH SYSTEM, INC. (CORP);
      WEST PENN ALLEGHENY HEALTH SYSTEM, INC.
       (NON PROFIT CORP); WEST PENN ALLEGHENY
        HEALTH SYSTEM PRIMARY CARE NETWORK;
     WEST PENN ALLEGHENY ONCOLOGY NETWORK;
     WEST PENN ALLEGHENY PHYSICIANS, LLC; WEST
       PENN ALLEGHENY SENIOR CARE; WEST PENN
         BREAST SURGERY PRACTICE; WEST PENN
    COMPREHENSIVE HEALTH CARE, P.C.; WEST PENN
           CORPORATE MEDICAL SERVICES, INC.;
        WEST PENN FAMILY PRACTICE; WEST PENN
      INTERNAL MEDICINE ASSOCIATES; WEST PENN
         PHYSICIANS' ORGANIZATION; WEST PENN
       PHYSICIAN PRACTICE NETWORK; WEST PENN
      PLASTIC & RECONSTRUCTIVE SURGERY; WEST
     PENN PLASTIC SURGERY; WEST PENN SURGICAL
      SUPPLY CO.; WEST PENN SPECIALTY MSO, INC.;
    
    
    
    
                          4
      WEST VIEW FAMILY HEALTH ASSOCIATES; THE
      WESTERN PENNSYLVANIA BURN FOUNDATION;
      WESTERN PENNSYLVANIA CANCER INSTITUTE;
     THE WESTERN PENNSYLVANIA CARDIOVASCULAR
    INSTITUTE; WESTERN PENNSYLVANIA DIAGNOSTIC
      CLINIC; WESTERN PENNSYLVANIA HEART PLAN
      INC.; THE WESTERN PENNSYLVANIA HOSPITAL
       FOUNDATION;THE WESTERN PENNSYLVANIA
          HOSPITAL-FORBES REGIONAL CAMPUS;
     THE WESTERN PENNSYLVANIA HOSPITAL SCHOOL
       OF NURSING; THE WESTERN PENNSYLVANIA
          HOSPITAL SKILLED NURSING FACILITY;
      WESTERN PENNSYLVANIA OB/GYN ASSOCIATES;
         THE WESTERN PENNSYLVANIA RESEARCH
        INSTITUTE; WEXFORD MEDICAL PRACTICE;
                 WEXFORD WEIGHT LOSS
    
    
    
           Appeal from the United States District Court
              for the Western District of Pennsylvania
     (District Court Nos. 3-09-cv-00085 and 2-10-cv-00948)
     District Judges: Honorable Cathy Bisson and Honorable
                       Donetta W. Ambrose
    
    
                    Argued March 6, 2013
    
    
     Before: RENDELL, AMBRO and VANASKIE, Circuit
                        Judges
    
              (Opinion Filed: September 4, 2013)
    
    
    
    
                              5
    Jared K. Cook, Esquire
    Justin M. Cordello, Esquire
    Michael J. Lingle, Esquire
    Patrick Solomon, Esquire
    J. Nelson Thomas, Esquire (Argued)
    Thomas & Solomon
    693 East Avenue
    New York, NY 14607
    
    Counsel for appellants in case 12-1446 and case 12-1903
    
    
    
    Wendy W. Feinstein, Esquire
    Mariah L. Klinefelter, Esquire
    John J. Myers, Esquire (Argued)
    Andrew T. Quesnelle, Esquire
    Mark A. Willard, Esquire
    Eckert, Seamans, Cherin & Mellot
    600 Grant Street
    44th Floor, U. S. Steel Tower
    Pittsburgh, PA 15219
    
    Counsel for appellees in case 12-1446
    
    
    
    
                                 6
    Alexandra Bak-Boychuk, Esquire
    David S. Fryman, Esquire (Argued)
    William K. Kennedy, II, Esquire
    John B. Langel, Esquire
    Ballard Spahr
    1735 Market Street
    51st Floor
    Philadelphia, PA 19103
    
    Robert B. Cottington, Esquire
    Cohen & Grigsby
    625 Liberty Avenue
    Pittsburgh, PA 15222
    
    Counsel for appellees in case 12-1903
    
    
    
                            OPINION
    
    
    RENDELL, Circuit Judge:
    
            In this consolidated appeal we consider whether named
    plaintiffs may appeal a district court order denying final
    certification of a collective action under the Fair Labor
    Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (2007). The
    named plaintiffs voluntarily dismissed their individual claims
    with prejudice but seek to pursue an appeal on behalf of
    others who opted into the litigation before the District Court.
    We conclude that the named plaintiffs lack final orders
    appealable under 28 U.S.C. § 1291. Thus, we will dismiss
    these appeals for lack of jurisdiction.
    
    
    
    
                                    7
                                   I.
    
           “The FLSA establishes federal minimum-wage,
    maximum-hour, and overtime guarantees that cannot be
    modified by contract.” Genesis Healthcare Corp. v. Symczyk,
    
    133 S. Ct. 1523
    , 1527 (2013). Under Section 16(b) of the
    FLSA, 29 U.S.C. § 216(b), an employee may bring an action
    against his employer individually, on his own behalf, and
    collectively, on behalf of other “similarly situated”
    employees. Id. In order to become parties to a collective
    action under Section 16(b), employees must affirmatively
    opt-in by filing written consents with the court. 29 U.S.C. §
    216(b). This feature distinguishes the collective-action
    mechanism under Section 16(b) from the class-action
    mechanism under Federal Rule of Civil Procedure 23, where,
    once the class is certified, those not wishing to be included in
    the class must affirmatively opt-out.
    
            Courts in our Circuit follow a two-step process for
    deciding whether an action may properly proceed as a
    collective action under the FLSA. Zavala v. Wal-Mart Stores
    Inc., 
    691 F.3d 527
    , 535 (3d Cir. 2012). Applying a “fairly
    lenient standard” at the first step, the court makes a
    preliminary determination as to whether the named plaintiffs
    have made a “modest factual showing” that the employees
    identified in their complaint are “similarly situated.” Id. at
    536 & n.4. If the plaintiffs have satisfied their burden, the
    court will “conditionally certify” the collective action for the
    purpose of facilitating notice to potential opt-in plaintiffs and
    conducting pre-trial discovery. Id. at 536. At the second stage,
    with the benefit of discovery, “a court following this
    approach then makes a conclusive determination as to
    whether each plaintiff who has opted in to the collective
    
    
    
    
                                   8
    action is in fact similarly situated to the named plaintiff.”
    Genesis Healthcare Corp. v. Symczyk, 
    656 F.3d 189
    , 193 (3d
    Cir. 2011), rev’d on other grounds, Symczyk, 133 S. Ct. at
    1526. This step may be triggered by the plaintiffs’ motion for
    “final certification,” by the defendants’ motion for
    “decertification,” or, commonly, by both. If the plaintiffs
    succeed in carrying their heavier burden at this stage, the case
    may proceed on the merits as a collective action. Id.
    
            It is under this framework that Appellants brought
    their actions.
    
                                  II.
    
            The first consolidated action was commenced on April
    2, 2009, by Karen Camesi, Erin O’Connell, Dinah Baker, and
    Lori Shaffer (the “Camesi Named Plaintiffs”) against UPMC
    and multiple related entities (collectively, “UPMC”) in the
    United States District Court for the Western District of
    Pennsylvania on behalf of themselves and “similarly situated”
    individuals. (Camesi J.A. at A-40). They alleged that their
    employer, UPMC, violated the FLSA by failing to ensure that
    they were paid for time worked during meal breaks. Upon
    filing their complaint, the Camesi Named Plaintiffs moved for
    expedited conditional certification. (Id.) The motion was
    granted in May 2009, notice was directed to potential
    collective-action members, and 3,115 individuals opted into
    the lawsuit. (Camesi Br. Appellee at 5). After preliminary
    discovery, UPMC filed a motion to decertify the collective
    action and the Camesi Named Plaintiffs filed a motion for
    final certification. (Camesi J.A. at A-114-16). The District
    Court granted UPMC’s motion and denied the Camesi Named
    Plaintiffs’ motion on December 20, 2011, and dismissed the
    
    
    
    
                                   9
    claims of the opt-in plaintiffs without prejudice. (Id. at A-1).
    The Camesi Named Plaintiffs did not ask the District Court to
    certify its interlocutory December 20, 2011 order for appeal,
    but, instead, moved under Federal Rule of Civil Procedure
    41(a) for “voluntary dismissal of their claims with prejudice
    in order to secure a final judgment for purposes of appeal.”
    (Id. at A-1565). The District Court granted the unopposed
    motion on January 30, 2012, stating that “Plaintiffs’
    remaining claim are hereby dismissed with prejudice in order
    to allow Plaintiffs to seek appellate review.” (Id. at A-96).
    
           In the other consolidated action, Andrew Kuznyetsov,
    Charles Boal, and Marthann Heilman (the “Kuznyetsov
    Named Plaintiffs,” or collectively with Camesi Named
    Plaintiffs, “Appellants”), filed individual and collective
    actions in the United States District Court for the Western
    District of Pennsylvania against their employer, West Penn
    Allegheny Health System, Inc. and other related defendants
    (collectively, “West Penn,” or collectively with UPMC,
    “Appellees”), on April 1, 2009. Their complaint similarly
    alleged that they were not compensated for work performed
    during meal breaks in violation of the FLSA. (Kuznyetsov Br.
    Appellants at 3; Br. West Penn at 3). The District Court
    conditionally certified the collective action and facilitated
    notice to potential collective-action members, 820 of whom
    opted into the lawsuit. (Br. West Penn at 4). On December 20,
    2011, the District Court decertified the class on West Penn’s
    motion and denied the Kuznyetsov Named Plaintiffs’ motion
    for final certification. (Kuznyetsov App. at A15). Then, on
    February 29, 2012, the District Court granted the Kuznyetsov
    Named Plaintiffs’ motion under Rule 41(a) for “voluntary
    dismissal of their claims with prejudice in order to secure a
    final judgment for purposes of appeal,” and also dismissed
    
    
    
    
                                  10
    the claims of the opt-in plaintiffs without prejudice. (Pls.’
    Mot. for Vol. Dismissal with Prejudice for Purposes of
    Appeal at 1, No. 10-0948, Doc. No. 145; Kuznyetsov App. at
    A17).
    
           Both sets of named plaintiffs now appeal. Because
    both cases raise the same issue, we have consolidated them
    before us.
    
                                  III.
    
           We begin by considering whether Appellants’
    voluntary dismissal of their claims with prejudice under Rule
    41(a) left them with a final order appealable under 28 U.S.C.
    § 1291. This question of first impression requires us to
    consider the scope of two strands of Third Circuit authority:
    Sullivan v. Pacific Indemnity Co., 
    566 F.2d 444
     (3d Cir.
    1977), in which we held that a plaintiff may not obtain
    appellate review after incurring a dismissal for failure to
    prosecute for the purpose of seeking to appeal an
    interlocutory class-certification order, and Fassett v. Delta
    Kappa Epsilon, 
    807 F.2d 1150
     (3d Cir. 1986), in which we
    permitted plaintiffs to voluntarily dismiss a portion of their
    case in order to appeal an order of the district court
    terminating the remainder of their case. In considering the
    significance of these cases, we bear in mind that, while an
    appeal from a final judgment necessarily, and permissibly,
    appeals prior orders of the district court, Appellants here seek
    review of only the orders decertifying their collective actions,
    and do not complain of the “final” orders that dismissed their
    cases.
    
    
    
    
                                  11
           We have jurisdiction under 28 U.S.C. § 1291 to review
    “final decisions” of the district courts. Giles v. Campbell, 
    698 F.3d 153
    , 157 (3d Cir. 2012). “‘A ‘final decision’ generally is
    one . . . [that] ends the litigation on the merits and leaves
    nothing for the court to do but execute the judgment.’” Harris
    v. Kellogg Brown & Root Servs., 
    618 F.3d 398
    , 400 (3d Cir.
    2010) (quoting Catlin v. United States, 
    324 U.S. 229
    , 233
    (1945)). The finality rule guards against piecemeal litigation.
    Giles, 698 F.3d at 157.
    
           Generally, a dismissal with prejudice constitutes an
    appealable final order under § 1291. See, e.g., In re Merck &
    Co. Sec., Derivative & ERISA Litig., 
    493 F.3d 393
    , 399 (3d
    Cir. 2007). Furthermore, “[u]nder the ‘merger rule,’ prior
    interlocutory orders [such as class-certification decisions]
    merge with the final judgment in a case, and the interlocutory
    orders (to the extent that they affect the final judgment) may
    be reviewed on appeal from the final order.” In re
    Westinghouse Sec. Litig., 
    90 F.3d 696
    , 706 (3d Cir. 1996).
    Even so, Appellees urge that Appellants’ voluntary dismissals
    of their claims constitute impermissible attempts to
    manufacture finality under Sullivan. We agree.
    
            In Sullivan, the plaintiffs brought a class action under
    Rule 23. 566 F.2d at 444-45. On the day Sullivan was
    scheduled for trial, the district court denied the plaintiffs’
    motion to certify a class action. Id. at 445. The plaintiffs, in
    turn, refused to present any evidence at trial and the district
    court dismissed their claims under Rule 41(b) for failure to
    prosecute. Id. The plaintiffs then sought review of the denial
    of class certification by our Court, arguing that the dismissal
    for failure to prosecute was a final order appealable pursuant
    to § 1291. Id.
    
    
    
    
                                  12
            We began our opinion by noting that a “class
    certification decision, per se, is not an appealable final order
    under 28 U.S.C. § 1291,” but rather is an interlocutory order.
    Id. We characterized the dismissal for failure to prosecute “as
    an attempt to avoid this [C]ourt’s firm position against
    interlocutory appeals of class certification determinations.”
    Id. Such a “strategy,” this Court reasoned, was impermissible
    because “‘[i]f a litigant could refuse to proceed whenever a
    trial judge ruled against him, wait for the court to enter a
    dismissal for failure to prosecute, and then obtain review of
    the judge’s interlocutory decision, the policy against
    piecemeal litigation and review would be severely
    weakened.’” Id. at 445 (quoting Marshall v. Sielaff, 
    492 F.2d 917
    , 919 (3d Cir. 1974)). Allowing such a practice would risk
    “inundati[ng] . . . appellate dockets with requests for review
    of interlocutory orders and . . . [could] undermine the ability
    of trial judges to achieve the orderly and expeditious
    disposition of cases.’” Id. at 445-46. Therefore, we dismissed
    the appeal for lack of an appealable order.1
    
    1
      Additionally, Appellees emphasize that the United States
    Courts of Appeals for the Sixth and Ninth Circuits have also
    concluded that plaintiffs may not appeal a dismissal for lack
    of prosecution where the plaintiffs caused that dismissal in
    order to appeal. See Huey v. Teledyne, Inc., 
    608 F.2d 1234
    ,
    1236 (9th Cir. 1979) (concluding that reviewing the denial of
    class-action certification after plaintiff’s action was dismissed
    for failure to prosecute would violate the spirit of Coopers &
    Lybrand v. Livesay, 
    437 U.S. 463
     (1978), in which the Court
    held that a decertification order was not an appealable final
    order); Hughley v. Eaton Corp., 
    572 F.2d 556
    , 557 (6th Cir.
    1978) (holding that dismissal for failure to prosecute rendered
    
    
    
    
                                   13
           We believe that Sullivan is so similar to the cases
    before us as to be controlling. In the past, we have “looked to
    Rule 23 decisions by analogy in determining appealability” of
    orders in FLSA collective actions. Lusardi v. Lechner, 
    855 F.2d 1062
    , 1068 n.8 (3d Cir. 1988). We find it appropriate to
    do so here because an order decertifying a Section 16(b)
    collective action is interlocutory, just like a certification
    decision is in the Rule 23 context. Id. at 1067-68.
    
            Like the plaintiffs in Sullivan, Appellants have
    attempted to short-circuit the procedure for appealing an
    interlocutory district court order that is separate from, and
    unrelated to, the merits of their case. Appellants could have
    obtained appellate review of the decertification order by
    proceeding to final judgment on the merits of their individual
    claims. Or, Appellants could have asked the District Courts to
    certify their interlocutory orders for appeal. But Appellants
    instead sought to convert an interlocutory order into a final
    appealable order by obtaining dismissal under Rule 41. If we
    were to allow such a procedural sleight-of-hand to bring
    about finality here, there is nothing to prevent litigants from
    employing such a tactic to obtain review of discovery orders,
    evidentiary rulings, or any of the myriad decisions a district
    court makes before it reaches the merits of an action. This
    would greatly undermine the policy against piecemeal
    litigation embodied by § 1291.
    
          Appellants counter that Sullivan is inapposite and we
    should instead follow the approach we followed in Fassett,
    807 F.2d at 1154, and Trevino-Barton v. Pittsburgh National
    
    
    moot any prior ruling of the district court). We read these
    cases as consistent with Sullivan.
    
    
    
    
                                  14
    Bank, 
    919 F.2d 874
    , 878 (3d Cir. 1990). But Fassett and
    Trevino-Barton are clearly distinguishable. In Fassett, the
    question of finality arose after the plaintiff elected to dismiss
    her claim against the sole defendant who remained following
    the district court’s entry of summary judgment in favor of all
    other original defendants. 807 F.2d at 1154-55. Although the
    dismissal of the remaining defendant was without prejudice,
    we concluded that the order was nevertheless final and
    appealable because the statute of limitations had run on the
    claims against that defendant. Id. Similarly, in Trevino-
    Barton, 919 F.2d at 878, we allowed an appeal where a
    plaintiff agreed to abandon the single count of her complaint
    that she had voluntarily dismissed without prejudice
    following the district court’s entry of summary judgment in
    favor of the defendants on all of the remaining counts of her
    complaint. Id.; see also O’Boyle v. Jiffy Lube Int’l, Inc., 
    866 F.2d 88
     (3d Cir. 1989) (holding same).2 In both of these
    
    
    2
      Appellants also invoke a slew of out-of-circuit precedent
    following a similar approach. Not only are these cases not
    binding in the Third Circuit, they are also clearly
    distinguishable. Compare Helm Fin. Corp. v. MNVA R.R.,
    
    212 F.3d 1076
    , 1079 (8th Cir. 2000) (allowing appeal
    following voluntary dismissal of claims where the district
    court’s earlier order denying plaintiff summary judgment on
    those claims effectively terminated the claims), and St. Paul
    Fire & Marine Ins. Co. v. United States, 
    959 F.2d 960
    , 961
    (Fed. Cir. 1992) (permitting an appeal where plaintiff
    dismissed her complaint following the district court’s denial
    of leave to amend by adding additional claims), with John’s
    Insulation, Inc. v. L. Addison & Assocs., Inc., 
    156 F.3d 101
    ,
    108 (1st Cir. 1998) (refusing to permit an appeal of
    
    
    
    
                                   15
    cases, all of the claims had effectively been barred either by
    the court or as a matter of law, and, importantly, it was the
    court’s grant of summary judgment against the plaintiff as to
    the merits of most of the claims that was the subject of the
    appeal. Here, the subject of the appeal is not the dismissal,
    but rather, the decertification order.
    
           Appellants read Fassett and Trevino-Barton as
    establishing a rule that “a voluntary dismissal under Rule
    41(a), sought to obtain appellate review, is a final appealable
    order.” (Appellants’ Resp. to Appellees’ Mot. to Dismiss the
    Appeal at 5). But neither case holds so broadly. Instead, we
    understand Fassett and Trevino-Barton to stand for the
    proposition that when a plaintiff has suffered an adverse
    judgment on the merits as to claims or defendants A, B, and
    C, which would otherwise be final and appealable were it not
    for remaining claim or defendant D, he or she may elect to
    forgo D in order to obtain review of the order respecting A,
    B, and C. Neither case permits a plaintiff who has suffered an
    adverse decision collateral to the merits of A, B, C, and D to
    throw out his or her entire action to obtain review of that
    interlocutory ruling. That, of course, is exactly what happened
    here, where there was clearly no judgment on the merits. But
    even Fassett cautioned against this, stating that this Court
    “will not permit an indirect review of interlocutory rulings
    that may not be subject to direct review.” 807 F.2d at 1155.
    Thus, Appellants’ reliance on Fassett and Trevino-Barton is
    misplaced.
    
    
    
    
    interlocutory orders following dismissal for failure to
    prosecute).
    
    
    
    
                                  16
            In sum, the District Courts’ orders decertifying the
    collective actions were interlocutory. Appellants were not
    entitled to appeal these orders directly under § 1291. Nor can
    Appellants avoid the strong presumption against interlocutory
    review of such orders by voluntarily dismissing all of their
    claims under Rule 41. Thus, these appeals must be dismissed
    for lack of appellate jurisdiction.
    
                                  IV.
    
            Appellees urge an alternative bar to our exercise of
    jurisdiction over the review sought by Appellants, namely
    that, even if we were to find finality, Appellants’ voluntary
    relinquishment of their individual claims has rendered the
    cases moot.
    
           Article III requires “that ‘an actual controversy must
    be extant at all stages of review, not merely at the time the
    complaint is filed.’” Symczyk, 133 S. Ct. at 1528 (quoting
    Arizonans for Official English v. Arizona, 
    520 U.S. 43
    , 67
    (1997)). An action is rendered moot when “an intervening
    circumstance deprives the plaintiff of a ‘personal stake in the
    outcome of the lawsuit,’ at any point during the litigation.” Id.
    (quoting Lewis v. Cont’l Bank Corp., 
    494 U.S. 472
    , 477-78
    (1990)).
    
            We understand Appellants’ argument to be that they
    continue to maintain a personal stake in the outcome of the
    litigation because, as a result of (and notwithstanding) their
    dismissal of their claims with prejudice, “their individual
    claims are now tied to the outcome of this appeal.”
    (Kuznyetsov Resp. to West Penn Mot. 12-14). Appellants
    apparently believe that reversal of the District Courts’
    
    
    
    
                                   17
    decertification orders on appeal would resurrect their
    individual claims once again at the district court level.
    However, this reflects a fundamental misunderstanding of the
    nature of a dismissal with prejudice. The claims that
    Appellants dismissed with prejudice are gone forever—they
    are not reviewable by this Court and may not be recaptured at
    the district court level. See Fairley v. Andrews, 
    578 F.3d 518
    ,
    522 (7th Cir. 2009) (holding that where a litigant voluntarily
    dismisses a portion of their claims in order to secure an
    appeal, those dismissed claims are extinguished forever), see
    also Dannenberg v. Software Toolworks, 
    16 F.3d 1073
    , 1077
    (9th Cir. 1994) (concluding that a party may not revive claims
    dismissed for the purposes of establishing a final appealable
    order). As such, Appellants’ individual claims are moot.
    
            The question then becomes whether, in the absence of
    any individual claim, Appellants nonetheless retain a personal
    stake in the outcome of the litigation sufficient to prevent the
    entire action from being rendered moot because they claim an
    interest in representing others who have opted into the
    collective action.
    
            We note that the issue of a named plaintiff’s ability to
    maintain actions in a representative capacity in collective
    actions brought under the FLSA, as compared to Rule 23
    class actions, is in a state of flux. The Supreme Court has
    recently reinforced its view that these procedural mechanisms
    are essentially different. See Symczyk, 133 S. Ct. at 1529.
    What remains unclear, however, is whether the fact that
    individuals have already opted into Appellants’ actions by
    filing written consents with the District Courts following
    conditional certification would permit Appellants to retain a
    justiciable interest in the litigation based on their
    
    
    
    
                                  18
    representative capacities. We need not decide whether it may,
    however, because we believe that the unique fact pattern
    here—namely, Appellants’ voluntary dismissal of their claims
    with prejudice—has not only extinguished Appellants’
    individual claims, but also any residual representational
    interest that they may have once had. Ruppert v. Principal
    Life Ins. Co., 
    705 F.3d 839
    , 844 (8th Cir. 2013) (holding that
    a Rule 23 named plaintiff’s acceptance of a settlement offer
    as to his individual claims mooted his interest in the denial of
    class certification); Rhodes v. E.I. du Pont de Nemours & Co.,
    
    636 F.3d 88
    , 100 (4th Cir. 2011) (“[W]hen a putative class
    plaintiff voluntarily dismisses the individual claims
    underlying a request for class certification, . . . there is no
    longer a self-interested party . . . necessary to satisfy Article
    III standing.”); cf. Pettrey v. Enter. Title Agency, Inc., 
    584 F.3d 701
    , 706 (6th Cir. 2009) (“Since the plaintiffs no longer
    have an interest in shifting . . . costs to the putative class
    members [following settlement of their claims], the court
    cannot avoid the conclusion that this case is moot.”). This is
    so because it would be anomalous to conclude that Appellants
    are “similarly situated” to opt-in plaintiffs who, unlike
    Appellants, have actually retained their individual claims.
    Without any personal stake in the matter, Appellants should
    not be permitted to represent opt-in plaintiffs. See White v.
    Baptist Mem’l Health Care Corp., 
    699 F.3d 869
    , 878 (6th Cir.
    2012) (“[A] lead plaintiff cannot be similarly situated and
    represent opt-in plaintiffs without a viable claim.”); Grace v.
    Family Dollar Stores, Inc., 
    637 F.3d 508
    , 519 (4th Cir. 2011)
    (holding same).
    
           Therefore, we will leave for another day the difficult
    question of whether an interest in representing opt-in
    
    
    
    
                                   19
    collective-action plaintiffs alone may satisfy the personal-
    stake requirement of Article III.
    
                                V.
    
          For the reasons discussed above, we will dismiss both
    appeals for lack of jurisdiction.
    
    
    
    
                                20
    

Document Info

DocketNumber: 12-1446

Filed Date: 9/4/2013

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (24)

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Rhodes v. EI Du Pont De Nemours and Co. , 636 F.3d 88 ( 2011 )

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Sylvia Trevino-Barton v. Pittsburgh National Bank D/B/A Pnc ... , 919 F.2d 874 ( 1990 )

St. Paul Fire & Marine Insurance Co. v. The United States , 959 F.2d 960 ( 1992 )

Symczyk v. Genesis HealthCare Corp. , 656 F.3d 189 ( 2011 )

richard-b-dannenberg-mindy-blitz-kenneth-homer-fleisher-steven-g , 16 F.3d 1073 ( 1994 )

in-re-westinghouse-securities-litigation-margaret-alessi-gloria , 90 F.3d 696 ( 1996 )

Helm Financial Corporation, a California Corporation v. ... , 212 F.3d 1076 ( 2000 )

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