Stevens v. HMSHost Corporation, 1:10-cv-03571

Plaintiff Easton Stevens, an assistant manager, sued HMSHost and related entities under the FLSA alleging misclassification as exempt and sought collective treatment under 29 U.S.C. § 216(b).
The district court granted conditional collective certification in 2012 but later decertified the collective after discovery (Decertification Order, Aug. 27, 2014), concluding opt-in plaintiffs were not sufficiently similarly situated.
Stevens moved to certify the Decertification Order for interlocutory appeal under 28 U.S.C. § 1292(b); defendants opposed as untimely and meritless.
The court considered (1) timeliness of a § 1292(b) request, (2) whether the Decertification Order raised a controlling question of law with substantial ground for difference of opinion, and (3) whether an appeal would materially advance termination of the litigation.
The court rejected defendants’ timeliness argument (no 10‑day limit to seek § 1292(b) certification) but denied certification on the merits, finding no substantial ground for difference of opinion about the standard applied and that factual findings supported decertification.
The court also denied as moot a separate stay motion tied to a dismissed interlocutory appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of § 1292(b) application	The motion was timely; no statutory time limit to seek district-court permission for § 1292(b) appeal	The motion was untimely because it was not filed within 10 days of the Decertification Order	Court held no statutory 10-day limit; timeliness objection rejected
Controlling question of law / substantial ground for difference of opinion	Decertification involves unsettled law about the proper standard for final FLSA collective certification (e.g., whether a ‘single decision, policy, or plan’ test controls)	Decertification applied the ad hoc, case-by-case standard consistent with Second Circuit practice; no controlling legal disagreement exists	Court held no substantial ground for difference of opinion; denied § 1292(b) certification
Applicability of other circuits’ standards (Third, Eleventh)	Other circuits’ formulations (Zavela, Morgan) create split warranting interlocutory review	Those cases employ ad hoc multi-factor analyses substantially similar to the court’s approach; no meaningful conflict	Court found substantial agreement across circuits; no basis for interlocutory appeal
Stay pending appeal / collateral-order appeal	Requested stay pending Second Circuit resolution of collateral-order appeal	Defendants opposed; circuit dismissed that appeal earlier	Stay denied as moot because the collateral-order appeal was dismissed

Flor v. BOT Fin. Corp., 79 F.3d 281 (2d Cir. 1996) (interlocutory appeal certification is an exception and should be sparingly used)
Richardson Elecs., Ltd. v. Panache Broad. of Pa., Inc., 202 F.3d 957 (7th Cir.) (no statutory time limit for seeking district-court permission under § 1292(b))
Marisol A. ex rel. Forbes v. Giuliani, 104 F.3d 524 (2d Cir. 1996) (discussing interlocutory appeal standards)
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095 (10th Cir. 2001) (endorsing ad hoc, case-by-case approach for collective actions)
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008) (affirming a fact-driven, multi-factor inquiry for collective certification)
Zavella v. Wal-Mart Stores, Inc., 691 F.3d 527 (3d Cir. 2012) (ad hoc multi-factor test for final certification of collective actions)