The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge
I. Request for Certification of an Interlocutory Appeal
On January 14, 2009, the court denied on the record defendant's motion to amend her answer to include as a defense the companionship exemption, 29 U.S.C. § 213(a)(15), to the Fair Labor Standards Act. On January 15, 2009, the court entered a Minute Order memorializing the ruling, to which was attached a written opinion more fully explaining the reasons for denying the defendant's motion. (Doc. 150.)
Now before the court is defendant's application for a certificate to file an interlocutory appeal of the denial of her second motion to amend her answer pursuant to 28 U.S.C. § 1292(b), filed on January 15, 2009. (Doc. 153 ("Def. Application").) Plaintiff filed her opposition on January 16, 2009. (Doc. 154.) For the reasons stated below, defendant's motion for certification of an interlocutory appeal is denied.
In her application for an interlocutory appeal, defendant contends that "there was significant basis for granting [defendant's second motion to amend her answer] to include the companionship services defense, in particular, the lack of any prejudice demonstrated by plaintiff," and that denying leave to amend the answer to include the defense "violates the previously established law of the case," as embodied in the court's Minute Order of December 17, 2008 ("the 12/17/08 Minute Order"). (Def. Application at 2).
In the 12/17/08 Minute Order regarding oral arguments on December 16, 2008 on the parties' cross-motions for summary judgment and defendant's first motion to amend her answer, the court granted defendant's first motion to amend the answer, to include a statute of limitations defense. The court also denied both defendant's motion for summary judgment on the companionship exemption, and plaintiff's cross-motion for summary judgment on the issue of equitable tolling of the statute of limitations.
On the issue of equitable tolling, plaintiff had asserted in her cross-motion for summary judgment that plaintiff was unaware of her right to bring her FLSA claim within the statutory time as a direct result of defendant's failure to post a notice of rights. (Doc. 110, "Pl.'s Cross-Motion" at 13.) Plaintiff had also asserted in her opposition to defendant's cross-motion for summary judgment that defendant had waived the companionship exemption by failing to plead it as an affirmative defense in the answer, and that leave to amend the answer to include the defense should be denied because of undue delay by defendant and prejudice to plaintiff. (Pl.'s Cross-Motion at 15-19.)
At oral argument of the parties' cross-motions on December 16, 2009, defendant argued that plaintiff had received notice during the litigation that defendant would assert the companionship exemption as an affirmative defense. Plaintiff denied that there was any such notice in the answer or elsewhere in the record. The court granted defendant's request for leave to make a second motion to amend the answer to include the companionship exemption as an affirmative defense, this providing defendant an opportunity to demonstrate where in the record defendant notified plaintiff that she was asserting the companionship exemption as a defense. Courts have found that formal pleading of a defense by one of two different defendants, or providing notice of a defense on the record at a deposition, is sufficient to dispel potential prejudice to the plaintiff and to allow a late amendment of the answer to formally plead a defense. See United States ex rel. Maritime Administration v. Continental Illinois National Bank and Trust, 889 F.2d 1248, 1254-55 (2d Cir. 1989); Schwind v. EW & Associates, 357 F. Supp. 2d 691, 697-99 (S.D.N.Y. 2005).
The court's 12/17/08 Minute Order denied plaintiff's cross-motion for summary judgment on equitable tolling because the issue could not be resolved without determining the applicability of the companionship exemption. This is because employers are required, under 29 C.F.R. § 516.4, to post a notice informing "any employees subject to the Act's minimum wage provisions" of their FLSA rights. Because a companionship services worker is exempt from the minimum wage requirements of the Act under 29 U.S.C. § 213(a)(15), no notice need be posted for a companionship services employee, and such employee would therefore not be entitled to equitable tolling due to the failure of the employer to post a notice of FLSA rights. However, an employer is not entitled to the exemption for an employee whose general household duties "exceed 20 percent of the total weekly hours worked." 29 C.F.R. § 552.6. The applicability of the companionship exemption could not be decided as presented in the parties' cross-motions for summary judgment, given defendant's request to make a second motion to amend the answer, and also given that the record did not indicate whether more than 20 percent of plaintiff's work consisted of general household duties.
The court, upon reviewing defendant's second motion to amend her answer to include the companionship defense, found no indication in the answer or in the record that plaintiff received notice of the intended defense. The court thus denied defendant's second motion to amend the answer. This application for an interlocutory appeal followed.
B. Discussion of 28 U.S.C. § 1292(b)
A district court may certify an interlocutory appeal under three conditions: (1) where the order appealed from "involves a controlling question of law" (2) "as to which there is substantial ground for difference of opinion" and (3) where "an immediate appeal from the order may materially advance the ultimate termination of the litigation[.]" 28 U.S.C. § 1292(b).
The Second Circuit has "urge[d] the district courts to exercise great care in making a § 1292(b) certification," Westwood Pharmaceuticals, Inc. v. National Fuel Gas Dist. Corp., 964 F.2d 85, 88-89 (2d Cir. 1992), because § 1292(b) is a "rare exception to the final judgment rule that generally prohibits piecemeal ...