Hubbard v. Southwood Realty Company

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:24-CV-00481-MEO-DCK
JUSTIN HUBBARD,
Plaintiff,
v.
SOUTHWOOD REALTY COMPANY,
Defendant.
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MEMORANDUM & ORDER
THIS MATTER is before the Court on Plaintiff’s Motion for Leave to Certify
Order Denying Plaintiff’s Motion for Conditional Certification for Interlocutory
Appeal (Doc. No. 47). For the reasons explained below, Plaintiff’s Motion is DENIED.
On February 14, 2025, Plaintiff filed his “Motion for Conditional Certification
and to Provide Notice Pursuant to 29 U.S.C. § 216(b).” (Doc. No. 26). The Court held
a motion hearing on March 3, 2026. The Court denied Plaintiff’s motion without
prejudice, adopting the Fifth Circuit’s framework for assessing whether putative
plaintiffs are similarly situated as outlined in
Swales v. KLLM Transp. Servs., L.L.C.,
985 F.3d 430, 433–34, 441 (5th Cir. 2021). (Doc. No. 46). The Court further ordered
the parties to begin following the Court’s limited discovery plan.
Id. at 10. Plaintiff
now moves this Court to certify for interlocutory appeal its Order denying Plaintiff’s
“Motion 	for 	Conditional 	Certification 	and 	to 	Provide 	Notice 	Pursuant 	to
29 U.S.C. § 216(b).” (Doc. No. 47).
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I. 	LEGAL STANDARD
A district court may certify an interlocutory order for immediate appeal where
(1) the “order involves a controlling question of law”; (2) “as to which there is
substantial ground for difference of opinion”; and (3) “an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” 28 U.S.C. §
1292(b). “Unless all these elements are met, ‘the district court may not and should
not certify its order . . . for an immediate appeal under section 1292(b).’”
Raycap Asset
Holdings Ltd. v. Gora LLC, No. 3:20-CV-00363-KDB-DCK, 2023 WL 1768134, at *2
(W.D.N.C. Feb. 3, 2023) (quoting
Butler v. DirectSAT USA, LLC, 307 F.R.D. 445, 452
(D. Md. 2015)).
“The purpose of § 1292(b) is to allow for an early appeal of an order when
appellate-level resolution of issues addressed by that order may provide more
efficient disposition of the litigation.”
State ex rel. Howes v. Peele, 889 F. Supp. 849,
851–52 (E.D.N.C. 1995). This provision “was not intended to allow interlocutory
appeal in ordinary suits,” or “as a vehicle to provide early review of difficult rulings
in hard cases.”
Id. at 852 (citations omitted). Rather, section 1292(b) “is limited to
extraordinary 	cases 	where 	early 	appellate 	review 	might avoid 	protracted 	and
expensive litigation.”
Id. Accordingly, the Fourth Circuit has cautioned that section
1292(b) “should be used sparingly and . . . its requirements must be strictly
construed.”
Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989). The decision of
whether to certify an interlocutory appeal is a matter within the discretion of the
district court.
See Howes, 889 F. Supp. at 852.
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II. 	DISCUSSION
Here, “an immediate appeal from the order” would not “materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Moreover, nothing
indicates that granting Plaintiff’s motion “may provide more efficient disposition of
the litigation.”
Howes, 889 F. Supp. at 851–52.
Plaintiff argues immediate appeal would substantially shorten the litigation.
He contends that reversal of the Court’s Order would “bear heavily on potential
settlement pressure and the likelihood of an early resolution.” (Doc. No. 47-1 at 7–8).
Reversal may well do that. But as Defendant notes, “[c]oncerns about ‘settlement
pressure’ do not overcome the considerations weighing against certification.” (Doc.
No. 48 at 13). The Court declines to further one side’s potential settlement posture at
the expense of a just and efficient resolution of the merits.
Under this Court’s Order, the parties are well underway conducting limited
discovery. 	The evidence being gathered will allow the Court to determine whether
there is a collective of similarly situated employees entitled to notice. (Doc. No. 46 at
9). Granting Plaintiff’s Motion would impose substantial delay to this limited
discovery process. No matter the potential outcome at the Fourth Circuit (affirmance
or reversal), the case would return to this Court for further proceedings. And it would
remain to be determined whether there is a collective of similarly situated employees
entitled to notice.
Additionally, like in
Cronin v. Bank of Am. Corp., “this Court finds that the
Fourth Circuit and Supreme Court have provided guidance on this issue and
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concludes that this question is not suitable for an interlocutory appeal.” No. 3:23-CV-
00813-KDB-DCK, 2024 WL 3658837, at *2 (W.D.N.C. Aug. 5, 2024). Consequently,
the Court, in its discretion, does not find this to be an exceptional case that warrants
a grant of Plaintiff’s Motion.
III. 	CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Leave to Certify
Order Denying Plaintiff’s Motion for Conditional Certification for Interlocutory Appeal
(Doc. No. 47) is DENIED.
SO ORDERED.
Signed: May 14, 2026
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