Samuel Calderon v. GEICO General Insurance Co

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2096
SAMUEL CALDERON, individually and on behalf of other
similarly situated individuals; MICHAEL HEADLEY; AARON
KULSIC; KENNETH MILLER; MICHAEL CREAMER; GEORGE WOOD;
ROBERT DEMARTINO; JOHN HALLIDAY; JAMES L. HANSON; THOMAS F.
BRADY; DANA FERRIN; MAUREEN AYLING; CANDIDO CUBERO; THOMAS
FITZGERALD; WILLIAM DOLINSKY; MARVIN HOURIGAN; DAVID
MCCAMLEY; AUGUSTUS STANSBURY, JR.; JOAN BISCHOFF; RANDALL
GIBSON; VINCENT GRECO; TERESA HARTEY-ADAMETZ; THOMAS LOWE;
DAVID MCENRY; JENNIFER RICCA; ANITA SINGH; BRYAN UTTERBACK;
PATRICK WEISE; LEAH HAMILTON; DENNIS FULTON; EBERHARD
GROSSER; JOSEPH MILES, JR.; RICKY MCCRACKEN; THOMAS
STURGIS; CHRISTOPHER SULLIVAN; MICHAEL RUSSELL; RANDALL
STEWART; LAVERNE HOLMES; THOMAS DAVIDSON, JR.; SHANNON
BOYD; ANTHONY DEAN, JR.; FRANCISCO NOGALES; JOHN GHETTI;
GERALD DEXTER; CLAUDE REIHER; STEVEN MCBRIDE; PHILLIP
RONDELLO; ROBERT MERRY,
Plaintiffs - Appellees,
v.
GEICO GENERAL INSURANCE COMPANY; GOVERNMENT EMPLOYEES
INSURANCE COMPANY,
Defendants – Appellants,
and
GEICO CORPORATION; GEICO INDEMNITY COMPANY; GEICO CASUALTY
COMPANY; DOES 1-10; MICHAEL BROWN,
Defendants.
13-2149
SAMUEL CALDERON, individually and on behalf of other
similarly situated individuals; MICHAEL HEADLEY; AARON
KULSIC; KENNETH MILLER; MICHAEL CREAMER; GEORGE WOOD; ROBERT
DEMARTINO; JOHN HALLIDAY; JAMES L. HANSON; THOMAS F. BRADY;
DANA FERRIN; MAUREEN AYLING; CANDIDO CUBERO; THOMAS
FITZGERALD; WILLIAM DOLINSKY; MARVIN HOURIGAN; DAVID
MCCAMLEY; AUGUSTUS STANSBURY, JR.; JOAN BISCHOFF; RANDALL
GIBSON; VINCENT GRECO; TERESA HARTEY-ADAMETZ; THOMAS LOWE;
DAVID MCENRY; JENNIFER RICCA; ANITA SINGH; BRYAN UTTERBACK;
PATRICK WEISE; LEAH HAMILTON; DENNIS FULTON; EBERHARD
GROSSER; JOSEPH MILES, JR.; RICKY MCCRACKEN; THOMAS STURGIS;
CHRISTOPHER SULLIVAN; MICHAEL RUSSELL; RANDALL STEWART;
LAVERNE HOLMES; THOMAS DAVIDSON, JR.; SHANNON BOYD; ANTHONY
DEAN, JR.; FRANCISCO NOGALES; JOHN GHETTI; GERALD DEXTER;
CLAUDE REIHER; STEVEN MCBRIDE; PHILLIP RONDELLO; ROBERT
MERRY,
Plaintiffs - Appellants,
v.
GEICO GENERAL INSURANCE COMPANY; GOVERNMENT EMPLOYEES
INSURANCE COMPANY,
Defendants – Appellees,
and
GEICO CORPORATION; GEICO INDEMNITY COMPANY; GEICO CASUALTY
COMPANY; DOES 1-10; MICHAEL BROWN,
Defendants.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, Senior District
Judge. (8:10-cv-01958-RWT)
Argued: May 13, 2014 Decided: June 6, 2014
2
Before TRAXLER, Chief Judge, KING, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Appeals dismissed by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge King and Senior Judge Davis
concurred.
ARGUED: Eric Hemmendinger, SHAWE & ROSENTHAL, LLP, Baltimore,
Maryland, for Appellants/Cross-Appellees. Matthew Hale Morgan,
NICHOLS KASTER, PLLP, Minneapolis, Minnesota, for
Appellees/Cross-Appellants. ON BRIEF: Hyland Hunt, AKIN GUMP
STRAUSS HAUER & FELD LLP, Washington, D.C., for
Appellants/Cross-Appellees. Timothy C. Selander, NICHOLS
KASTER, PLLP, Minneapolis, Minnesota, for Appellees/Cross-
Appellants.
3
TRAXLER, Chief Judge:
Government Employees Insurance Company and GEICO General
Insurance Company (together, “GEICO”) appeal a district court
order granting partial summary judgment against them on the
issue of liability in an action asserting denial of overtime pay
under the Fair Labor Standards Act (“FLSA”), see 29 U.S.C. § 201et seq. The plaintiffs cross-appeal an order granting partial
summary judgment against them on several issues relating to the
remedy to be awarded. Concluding that these appeals are
interlocutory and we lack jurisdiction to consider them, we
dismiss the appeals.
I.
GEICO is in the business of providing insurance. The
plaintiffs in this matter are security investigators
(“Investigators”) who currently work, or previously worked, for
GEICO. The Investigators work in GEICO’s Claims Department
primarily investigating claims that are suspected of being
fraudulent. GEICO classifies its Investigators as exempt from
the FLSA’s overtime pay protections.
In 2010, the plaintiffs filed suit on behalf of a class
seeking recovery of overtime pay they claimed GEICO wrongfully
withheld in violation of the FLSA and New York state law. The
complaint alleges that GEICO improperly classified the
Investigator position as exempt from overtime under the FLSA and
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the law of New York. See 29 U.S.C. § 213(a); N.Y. Comp. Codes
R. & Regs. tit. 12, § 142-2.2.. The complaint requests
compensatory and liquidated damages, among other forms of
relief. After the district court certified the class, the
plaintiffs moved for partial summary judgment, and GEICO moved
for summary judgment, on the issue of liability. The district
court granted the plaintiffs’ motion and denied GEICO’s,
rejecting as a matter of law GEICO’s contention that the
Investigators fell within the FLSA’s “administrative function”
exemption. See Calderon v. GEICO Gen. Ins. Co., 917 F. Supp. 2d
428 (D. Md. 2012).
The parties later filed cross-motions for summary judgment
on several disputed remedy issues. Considering these motions,
the court ruled that because GEICO acted in good faith, GEICO
did not act willfully and thus the statute of limitations for
plaintiffs’ claims extended only for two years. For similar
reasons, the court also ruled that the plaintiffs were not
entitled to liquidated damages or prejudgment interest. And
finally, the court determined that because the plaintiffs were
paid fixed salaries regardless of the varying number of hours
they worked, the method of overtime described in Overnight Motor
Transportation v. Missel, 316 U.S. 572 (1942), applied to this
case.
5
The district court then entered a “Stipulated Order
Relating to Remedy” that it described as a “final judgment.”
J.A. 109, 112. That order “contain[ed] a complete formula for
the computation of backpay” based on the rulings that the court
had made and the parties’ stipulations. J.A. 109. The order
noted that both parties reserved the right to appeal the rulings
of the district court underlying the order and that the order
would “have no effect unless a judgment of liability is entered
and sustained after all judicial review has been exhausted.”
J.A. 109. The backpay formula that the order adopted would
produce an amount of backpay to which each plaintiff was
entitled depending upon the total pay received and the total
time worked for each two-week pay period within the applicable
limitations period. The order further stated that “[t]he
backpay calculations will be performed by a mutually acceptable
entity with right of review and confirmation by Defendants’ and
Plaintiffs’ counsel.” J.A. 112. It also provided that the
district court “shall have jurisdiction to resolve or supervise
the resolution of any issue concerning the remedy that the
parties are unable to resolve.” J.A. 111. There was no
limitation on the right of either party to appeal the district
court’s decisions.
GEICO has now appealed the district court’s order granting
partial summary judgment to the plaintiffs on the issue of
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liability, and the plaintiffs have cross-appealed several of the
district court’s rulings regarding remedy issues.
II.
Before considering the merits of these appeals, we must
determine whether we possess jurisdiction to do so. See Dickens
v. Aetna Life Ins. Co., 677 F.3d 228, 229–30 (4th Cir. 2012).
Because we conclude that we lack jurisdiction, we dismiss the
appeals.
With certain limited exceptions, our appellate jurisdiction
extends only to the review of “final decisions of the district
courts of the United States.” 28 U.S.C. § 1291; see Cobbledick
v. United States, 309 U.S. 323, 324-25 (1940); In re Carefirst
of Md., Inc., 305 F.3d 253, 255 (4th Cir. 2002). The purpose of
this rule “is to combine in one review all stages of the
proceeding that effectively may be reviewed and corrected if and
when final judgment results.” Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546 (1949). “In the ordinary course a
‘final decision’ is one that ends the litigation on the merits
and leaves nothing for the court to do but execute the
judgment.” Ray Haluch Gravel Co. v. Central Pension Fund of
Int’l Union of Operating Eng’rs & Participating Emp’rs, 134 S.
Ct. 773, 779 (2014). Accordingly, “a judgment on liability that
does not fix damages is not a final judgment because the
assessment of damages is part of the merits of the claim that
7
must be determined.” Carolina Power & Light Co. v. Dynegy Mktg.
& Trade, 415 F.3d 354, 358 (4th Cir. 2005), abrogated on other
grounds by Ray Haluch Gravel Co., 134 S. Ct. at 779-80. On the
question of whether an order is final, “[t]he label that a
district court attaches to an order it issues does not control.”
Id.The finality issue before us is akin to that presented in
United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227(1958). In that case, the plaintiff sued the government seeking
to recover for $7,189.59 in federal stamp taxes the plaintiff
claimed were illegally collected from it and for interest on the
taxes from the date they were paid. See id. at 228. The
plaintiff later moved for summary judgment, and, after hearing
the motion, the district court filed an opinion on April 14,
1955, finding that the plaintiff had paid $ 7,012.50 in stamp
taxes and $177.07 in interest but making no finding concerning
on what date or dates those amounts were paid. See id. at 228-
29. The district court concluded by stating that the
plaintiff’s summary judgment motion was granted. See id. at
229. The court Clerk noted the granting of the motion on the
docket on the same day. See id. Eventually, on May 24, 1955,
the district court issued a formal document entitled “Judgment”
that ordered that the plaintiff could recover from the United
States $7,189.57 plus interest and costs, for a total of
8
$7,769.37, and the Clerk entered this judgment on the docket the
same day. See id.On July 21, 1955, the government filed an appeal from the
May 24, 1955, order. See id. at 230. 1 The plaintiff filed a
motion in the court of appeals to dismiss the appeal,
maintaining that it had been taken outside the 60-day period
that Federal Rule of Civil Procedure 73(a) allowed for the
government to appeal an adverse judgment. See id. The
plaintiff argued that the final judgment was entered on April
14, not on May 24, and thus came too late. See id. The court
of appeals agreed and dismissed the appeal. See id. The
Supreme Court reversed, however. See id. at 236. As is
relevant here, the Court noted that in an action seeking
monetary damages, a judgment may be embodied in the opinion of
the court but only if it “embodies the essential elements of a
judgment for money and clearly evidences the judge’s intention
that it shall be his final act in the case.” Id. at 232. The
Court held that the April 14 opinion did not meet these
requirements because it did not determine on what dates the
plaintiff paid the taxes. See id. at 234. Without that
1
Although the Supreme Court reported that the government’s
notice of appeal identified the date of the entry of the order
appealed from as May 25, 1955, rather than May 24, 1955, see
United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 230
(1958), that discrepancy is immaterial to the issues before us.
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determination, it could not be ascertained from the opinion the
amount of interest to be added to the amounts the plaintiff had
paid. See id. Accordingly, the Court concluded that the final
judgment was entered on May 24, when the total amount to be
recovered was determined. See id. at 234-36.
The order before us here is not final for similar reasons.
It is true that the district court has completed its work on
many of the issues that will eventually be used to determine the
amount of damages to which each plaintiff is entitled. However,
the order does not embody the essential elements of a money
judgment because the court has not found all of the facts
necessary to compute the amount of damages due; nor has it
determined how the backpay formulas would apply to particular
facts. See Buchanan v. United States, 82 F.3d 706, 707 (7th
Cir. 1996) (per curiam) (holding that judgment was not final
when “it failed to specify either the amount of money due the
plaintiff or a formula by which the amount of money could be
computed in mechanical fashion”); see also Associated Stores,
Inc. v. Industrial Loan & Inv. Co., 313 F.2d 134, 137 (4th Cir.
1963) (holding that there was no final judgment when the amount
of damages depended upon the amount of money collected by one of
the parties after a particular date on particular contracts but
the district court did not specifically determine that amount).
And while the district court’s order provides that initial
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calculations will be performed by an entity acceptable to both
the plaintiffs and GEICO, the parties have both retained the
right to “review and confirm[]” those determinations and the
district court has retained “jurisdiction to resolve or
supervise the resolution of any issue concerning the remedy that
the parties are unable to resolve.” J.A. 111, 112. Thus, it
cannot be said of the order before us that it left nothing more
for the district court to do than enforce a judgment.
At oral argument, it was argued that Ram v. Paramount Film
Distributing Corporation, 278 F.2d 191 (4th Cir. 1960) (per
curiam), supports a conclusion that the order here is a final
one. We disagree. The issue in that appeal, as in F. & M.
Schaefer Brewing Co., concerned the timeliness of an appeal and
depended on whether a particular order was final. In that case,
motion picture distributors brought suit to recover certain
moneys they claimed to be owed them by certain exhibitors of
films. See id. at 192. The cases were referred to a Special
Master so that he could take testimony and make factual findings
and legal conclusions. See id. The Special Master eventually
recommended that the plaintiffs were entitled to certain
amounts, including interest at 3 percent per year from October
1, 1958, until the date of the judgment. See id. After the
district court overruled objections, the court on September 9,
1959, ordered judgment in favor of the plaintiffs as per the
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Special Master’s recommendation. See id. And on September 10,
1959, the Clerk of Court entered an order confirming the Special
Master’s report. See id. Twenty days later, on September 30,
1959, the plaintiffs submitted to the Clerk in each of the cases
a document entitled “Final Judgment,” which set forth the
damages each defendant or group of defendants owed each
plaintiff with interest from the date of the judgment. See id.However, the calculations were incorrect insofar as the amounts
included interest from October 1, 1958, to September 30, 1959,
on the amounts the Special Master had found owing; this was
erroneous because the Special Master’s calculations had already
included interest up to October 1, 1958, so that the document
submitted to the Clerk on September 30, 1959, “included interest
on interest.” Id. The Clerk signed these documents and entered
them on his docket on October 3, 1959. See id. They were not
signed by the judge. See id.We held that the judgment signed by the district judge on
September 9, 1959, and entered by the Clerk on his docket the
next day was the final judgment because, while it did not set
out the total amount to be paid, that amount was determinable
from the statement that a specific sum was due by each defendant
with interest at 3 per cent from October 1, 1958. See id. at
193-94. In so doing, we cited F. & M. Schaefer Brewing Co. for
the rule that “a money judgment may not be deemed final unless
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it determines or specifies the means of determining the specific
amount of recovery.” Id. at 193.
Ram is distinguishable from the present case, however. The
critical fact in Ram was that the district court in its
September 9, 1959, order had already found all the facts and
resolved all questions of law necessary to determine the amount
of recovery. All that remained was the ministerial act of
performing the necessary calculations. See Republic Nat. Gas
Co. v. Oklahoma, 334 U.S. 62, 68 (1948) (“[I]f nothing more than
a ministerial act remains to be done . . ., the decree is
regarded as concluding the case and is immediately
reviewable.”). That simply is not true of the case before us,
where any number of factual or legal issues might arise that
will affect the amount of damages, as was reflected by the
district court’s retention of jurisdiction to resolve any of the
parties’ disputes regarding the damages determination. See id.
at 70 (noting that while simple application of a formula is
ministerial, determinations “requir[ing] the exercise of
judgment” are not). The district court’s work was not completed
and the judgment thus was not final.
With no final decision to review, we have no choice but to
dismiss the appeals before us. “In a civil damage suit such as
this, a judgment for the plaintiff that determines liability
for, but does not fix the amount of, damages is appealable
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solely under 28 U.S.C. § 1292(b), which requires not only
appropriate certification by the district court but also
application within ten days to the Court of Appeals and that
court’s grant, in its discretion, of permission to appeal.” 2
Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789, 791
(5th Cir. 1993). In this case, the district court did not
attempt to certify under § 1292(b), and even had it done so, we
would lack jurisdiction because there has been no timely
application for leave to appeal. See id. Accordingly, we
dismiss the appeals.
2
28 U.S.C. § 1292(b) provides:
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: Provided, however, That application for an
appeal hereunder shall not stay proceedings in the
district court unless the district judge or the Court
of Appeals or a judge thereof shall so order.
At oral argument the possibility was also discussed of
certifying the relevant issues under Rule 54(b). See Fed. R.
Civ. P. 54(b). However, that rule is inapplicable here, as it
pertains only to judgments that entirely dispose of one or more
claims. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-
44 (1976).
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III.
Concluding that we lack jurisdiction to consider the
appeals before us, we dismiss. 3
DISMISSED
3
We note that should the parties eventually appeal from a
final judgment, we would entertain a motion to adopt the briefs
and joint appendix from this appeal.
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