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Scheffer v. Civil Service Employees Association

December 21, 2006

DAVID H. SCHEFFER, MARY C. BERGEVIN, JOSEPH L. STEPHANY, LAURA J. SWARTZENBERG AND ROSARIO ZOCCO, PLAINTIFFS,
v.
THE CIVIL SERVICE EMPLOYEES ASSOCIATION, AND ORDER LOCAL 828, THE CIVIL SERVICE EMPLOYEES ASSOCIATION, AFSCME, LOCAL 1000, AFL-CIO AND AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, DEFENDANTS.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION

INTRODUCTION

Plaintiffs David Scheffer, Mary Bergevin, Joseph Stephany, Laura Swartzenberg and Rosario Zocco bring the instant motion requesting a stay and leave to appeal this Court's October 24, 2006 Decision and Order ("October 24 Decision"), which denied plaintiffs' counsel's application for appointment as class counsel and held in abeyance plaintiffs' motion for class certification until the putative class is represented by substitute counsel. In the alternative, plaintiffs request reconsideration of this Court's October 24 Decision. In addition, defendants Civil Service Employees Association, Local 828; Civil Service Employees Association, AFSCME, Local 1000, AFL-CIO; and the American Federation of State, County and Municipal Employees, AFL-CIO bring a motion seeking to clarify this Court's ruling in its October 24 Decision regarding the adequacy of class counsel. For the reasons stated below, plaintiffs' motion for a stay and leave to appeal or, in the alternative, for reconsideration is denied. Defendants' motion to clarify this Court's ruling is granted.

BACKGROUND

Plaintiffs are Probation Officers employed by the County of Monroe, New York, who allege that defendants seized union fees from their wages in the absence of notice and procedural safeguards required by the First Amendment, and further that defendants used fees collected from plaintiffs' wages for non-bargaining activities such as organizing.

On April 5, 2006, plaintiffs filed a motion for class certification and also requested that their counsel be appointed class counsel pursuant to Rule 23 of the Federal Rules of Civil Procedure. On August 3, 2006, defendants opposed the motion pointing out, among other things, that plaintiffs should abandon their restitution and punitive damages claims because those claims create a conflict of interest, which disqualifies the plaintiffs' attorneys as potential class counsel. Notably, on September 27, 2006, after defendants filed their opposition papers and nearly six months after the motion for class certification was filed, plaintiffs filed a motion to amend their complaint in which they abandoned any claim for either punitive damages or full restitution.

In my October 24, 2006 Decision and Order, I denied counsel's application for appointment as class counsel under Rule 23(g) of the Federal Rules of Civil Procedure, and held in abeyance plaintiffs' motion for class certification until the putative class was represented by substitute counsel. Contrary to the plaintiffs' contention, this Court did not alternatively require and/or order that the class be represented by attorney Michael Harren. See October 24 Decision at 16-17. Rather, the plaintiffs were granted the option of entering into an "attorney-client relationship" with him.*fn1 See id. Plaintiffs now seek a stay and leave to appeal the October 24 Decision, or, in the alternative, seek reconsideration of that Order. Defendants also move to clarify this Court's ruling concerning the adequacy of class counsel.

DISCUSSION

I. Interlocutory Appeal Under Section 1292(b)

Pursuant to 28 U.S.C. § 1292(b), a district court may certify a question for interlocutory appeal where the issue involves "a controlling question of law as to which there is substantial ground for difference of opinion," and where "an immediate appeal from the order may materially advance the ultimate termination of the litigation." However, a District Court's power to "grant an interlocutory appeal is strictly limited and only exceptional circumstances will justify certification." See Genentech, Inc. v. Novo Nordisk A/S, 907 F. Supp. 97, 99 (S.D.N.Y. 1995) (citing Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir.1990); See also In re Flor, 79 F.3d 281, 284 (2d Cir. 1996) (use of certification procedure is strictly limited and only "exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.")

A. Controlling Question of Law

Plaintiffs contend that the issue of whether the Court is permitted to take into account the National Right to Work Legal Defense Foundation's ("Foundation") policy pronouncements in determining whether to disqualify its counsel as class counsel is a controlling question of law.*fn2

Since the October 24 Decision involves an exercise of discretion that turns on its analysis of the factual record presented by both parties, leave to seek review under ยง 1292(b) is denied. See Herold v. Braun, 671 F.Supp. 936, 937 (E.D.N.Y. 1987) ("Ordinarily a district court should refuse to certify matters ... that lie within its discretion.") (citations omitted). Moreover, the October 24 Decision is not controlling because it neither terminates the action nor "influence[s] the outcome of many other cases." See Genentech, 907 F. Supp. at 99. Plaintiffs assert that this Court's Order is controlling because it will "significantly alter the conduct of this action" because new class counsel will present the case differently than the Foundation's counsel. Plaintiffs Br. ("Pls. Br.") at 9. However, it has not yet been determined who the substitute counsel will be, or even whether the case will be certified as a class action. Accordingly, it is at best, speculative for plaintiff to state that the October 24 Decision will alter the conduct of this lawsuit in any ...


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