Hamm

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

AMY HAMM, ET AL., CIVIL ACTION

Plaintiffs

VERSUS NO. 20-1515

ACADIA HEALTHCARE SECTION: “E” (2)

CO., INC., ET AL.,

Defendants

ORDER AND REASONS

Before the Court is a Renewed Motion for Stay Pending Appeal filed by Acadia

LaPlace Holdings, LLC and Ochsner-Acadia, LLC (“Defendants”).1 Amy Hamm and Joye

Wilson (“Plaintiffs”) filed an opposition,2 and Defendants filed a reply.3

LAW AND ANALYSIS

I. Stays pending the appeal of an interlocutory order are discretionary

and rare.

The Defendants seek a stay pending the resolution of their appeal of this Court’s

interlocutory orders. Courts of Appeal have jurisdiction only over final decisions from

district courts unless an exception allowing an interlocutory appeal applies.4 Rule 23(f)

provides one such exception, as it allows a party to seek permission to appeal an order

granting or denying class certification within 14 days of its issuance. However, even if the

Fifth Circuit grants permission to appeal under Rule 23(f), “[a] stay does not follow

1 R. Doc. 374.

2 R. Doc. 377.

3 R. Doc. 378.

4 28 U.S.C. § 1291.

automatically from an interlocutory appeal.”5 In fact, stays issued pursuant to Rule 23(f)

appeals are not only discretionary, but rare.6

An appellate court may hear an appeal of an interlocutory order regarding

certification of an FLSA collective action only if the FLSA order is inextricably intertwined

with the Rule 23(f) appeal such that pendant appellate jurisdiction exists.7 Courts should

exercise this form of jurisdiction only in “rare circumstances.”8

II. Defendant’s Rule 23(f) class certification appeal does not warrant a

stay at the district court level.

The Court will first address whether Defendant’s Rule 23(f) class certification

appeal warrants issuing a rare stay at the district court level. The Fifth Circuit provided

four factors for consideration when determining whether to issue a stay pending appeal:

(1) whether the movant has made a showing of likelihood of success on the

merits, (2) whether the movant has made a showing of irreparable injury if

the stay is not granted, (3) whether the granting of the stay would

substantially harm the other parties, and (4) whether the granting of the

stay would serve the public interest.9

The party moving for a stay bears the burden of establishing these elements.10

A movant may demonstrate a lesser standard of a substantial case on the merits,

rather than a showing of likelihood of success on the merits (factor 1), only if “the balance

of equities [factors 2, 3, and 4] weighs heavily in favor of granting the stay.”11 However, if

5 Nicholas v. Alcatel USA, Inc., No. 5:05-CV-43-DF, 2007 WL 972452, at *1 (E.D. Tex. June 19, 2007) (citing

Taylor v. Sterrett, 640 F.2d 663, 668 (5th Cir. 1981)).

6 In re Cobalt Int’l Energy, Inc. Sec. Lit., No. CV H-14-3428, 2017 WL 3620590, at *4 (S.D. Tex. Aug. 23,

2017).

7 Thornton v. GMC, 136 F.3d 450, 453 (5th Cir. 1998).

8 Woods v. Smith 60 F.3d 1161, n.29 (5th Cir. 1995) (citing Swint v. Chambers Cnty. Comm'n, 514 U.S. 35,

51 (1995).

9 Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981).

10 See id.

11 Ruiz, 650 F.2d at 565-66. When an appeal presents a serious legal question and the balance of equities

weighs heavily in favor of granting a stay, the party moving for a stay may present a “substantial case on the

merits” rather than the more stringent showing of likelihood of success on the merits. Because Defendants

the balance of equities does not heavily favor granting a stay, the Defendants must show

a likelihood of success on the merits on the question of whether class certification was

proper.12

This Court already has found that the three equitable factors do not weigh in favor

of granting a stay.13 First, Defendants have not shown they will suffer irreparable harm if

the case is not stayed. While Defendants claim the class size has reached 1000 members,14

this size is relatively small compared to other class action lawsuits in this circuit in which

the district court has granted a stay.15 The relatively small size of this class renders the

financial risk of litigating class issues during Defendants appeal less significant.

In addition, further delaying this case will prejudice Plaintiffs. This case is five

years old, and a stay further increases the risk of witnesses’ memories failing them when

litigation resumes.16 While Defenadants cite Earl v. Boeing Company for the proposition

that generalized concerns about spoliation of evidence and delaying resolution of a claim

do not demonstrate prejudice,17 the Court’s concern regarding additional delay of these

proceedings is not generalized. Plaintiffs’ claims have gone unresolved for five years. Such

a long length of time creates a concrete risk that relevant witnesses may not remember

do not show that the balance of equities weighs heavily in favor of granting a stay, the Court need not

address whether their appeal presents a serious legal question.

12 Id.

13 R. Doc. 367 at pp. 10-11.

14 R. Doc. 378 at p. 6.

15 See Pena v. Taylor Farms Pacific, Inc., No. 2:13-CV-01282-KJM-AC, 2015 WL 5103157, at *5 (E.D. Cal.

Aug. 31, 2015) (“[t]he class includes several thousand current and former employees….”); Cruson v. Jackson

Nat'l Life Ins. Co., No. 4:16-CV-00912, 2018 WL 2937471, at *5 (E.D. Tex. June 12, 2018) (“[t]he class in

this matter numbers in the thousands or tens of thousands….”).

16 See Star Sys. Int’l v. Neology, Inc., Civil Action No. 4:18-CV-00574, 2019 WL 679138, at *7 (E.D. Tex.

Feb. 19, 2019); see Neonode Smartphone LLC v. Samsung Elecs. Co. Ltd., No. 6:20-cv-00507-ADA, 2023

WL 11915742, at *7 (W.D. Tex. Mar. 22, 2023) (finding that “a stay risks the loss of testimonial and

documentary evidence potentially valuable to [the non-movant’s] case”); Allure Energy, Inc. v. Nest Labs,

Inc., No. 9-13-CV-102, 2015 WL 11110606, at *6 (E.D. Tex. Apr. 2, 2015) (“the longer this matter persists,

the more likely it is that evidence and witnesses’ memories will disappear or deteriorate.”).

17 21 F.4th 895, 898 (5th Cir. 2021).

specific events related to the case. In addition, further delay of this case will prejudice

Plaintiffs because they already have experienced significant delay in the resolution of their

claims. Considering these factors, the Court finds that declining the stay will not cause

Defendants irreparable harm, while staying the case will prejudice Plaintiffs.

Finally, Defendants have not shown a stay is in the public interest. It is in the

interest of judicial economy for the Court to proceed with Plaintiffs’ claims rather than

further delaying a case that has been pending before this Court for five years.

Furthermore, if the Fifth Circuit reverses this Court and de-certifies the class, the

members of the putative class may simply be notified of the court’s decision to de-certify

at that time.18

None of the equitable factors supports granting Defendants’ Motion to Stay.

Because Defendants have not shown the balance of equities weighs heavily in favor of

granting a stay, Defendants must demonstrate their appeal is likely to succeed on the

merits. To demonstrate a likelihood of success on the merits, the movant must

demonstrate “more than a mere possibility” of relief.19 Courts in this circuit have been

reluctant to find an appeal likely to succeed when the appeal simply reiterates facts and

reasoning the court has previously addressed, especially when the appellate court must

afford the district court’s decision some discretion.20

18 Rosen v. J.M. Auto Inc., No. 07-61234-CIV, 2009 WL 7113827, at *1 (S.D. Fla. May 20, 2009).

19 Quintanilla v. United States, 582 Fed.Appx. 412, 414 (5th Cir. 2014) (citing Nken v. Holder 556 U.S. 418,

434 (2009)).

20 See A. A. by & through P.A. v. Phillips, No. CV 19-00770-BAJ-SDJ, 2021 WL 2589180, at *2 (M.D. La.

June 24, 2021) (stating a Rule 23(f) petition was unlikely to succeed partially because defendants “merely

repackage the same arguments soundly rejected in the Certification Order”); see also Innovention Toys,

LLC v. MGA Ent., Inc., No. CV 07-6510, 2010 WL 11538657, at *2 (E.D. La. Apr. 14, 2010) (“[h]aving

previously found against defendants, the Court is not persuaded that the defendants have a strong

probability of success on the merits. The defendants assert the same arguments previously advanced…[t]he

Court considered these arguments in its prior rulings”) (“because some of the Court’s underlying rulings

will be afforded some discretion on appeal, the defendants’ success on the merits is correspondingly

diminished”).

Defendants’ arguments that the appeal is likely to succeed on the merits simply

reiterate facts and reasoning this Court already has addressed. This Court has laid out its

reasons for certifying the class in multiple orders. Defendants have failed to present new

arguments not already addressed by the Court. In fact, Defendants’ appeal focuses largely

on the merits of Plaintiffs’ claims, rather than on whether the class should have been

certified which is the issue on appeal. For this and other reasons discussed in previous

orders, the Court finds Defendants have not met their burden of showing their appeal is

likely to succeed on the merits.21

Finally, as statistical evidence of their appeal’s likely success, Defendants argue

that, nationally, 25% of Rule 23(f) appeals are granted and of these, national reversal rates

are 54%.22 However, as Plaintiffs point out, this is the national average of reversals.23 The

rate of reversals for Rule 23 appeals before the Fifth Circuit is 43%; not even half of the

Rule 23 appeals in this circuit are successful.24 These figures do not demonstrate the

certainty of reversal that Defendants seem to believe exists.

21 Defendants vehemently argue this Court improperly ignored the predominant benefit test in its

certification analysis. R. Doc. 374-1 at pp. 4-5. It is correct the Court did not address the predominant

benefit test in its certification analysis because that test focuses on merits-based questions which should

not be addressed at the class certification stage. Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir.

1996). In making the argument that the Court should have considered the predominant benefit test,

Defendants rely on Dean v. Akal Sec., Inc., which lays out four factors for determining whether a meal break

constitutes a predominant benefit for the employer. 3 F.4th 137, 144 (5th Cir. 2021) (citing Bernard v. IBP,

Inc. of Nebraska, 154 F.3d 259, 265 (5th Cir. 1998)). The Dean and Bernard cases hold only that the

frequency of actual interruptions is a factor in determining whether the predominant benefit is to the

employer or the employee. The Bernard case did not involve an FLSA collective action nor a class action.

Instead, Bernard addressed an appeal after a jury trial of individual FLSA claims. The Dean case concerned

the appeal of a summary judgment ruling in favor of the employer in a collective action. The issues in both

cases were the merits of the FLSA claims rather than the certification of a class action. Whether there were

actual break interruptions will impact who gets the predominant benefit, but there is no indication in these

cases that this question impacts whether a class should be certified. The Defendants overstate the support

for their argument. The predominant benefits test will be considered on the merits of the case but not

whether the class should be certified.

22 R. Doc. 374-1 at p. 3.

23 R. Doc. 377 at n.7.

24 R. Doc. 374-1, Exh. A, p. 311.

Accordingly, Defendants have not met their burden of showing that a stay of the

class action is warranted.

III. The Fifth Circuit does not have jurisdiction to hear an interlocutory

appeal of the certification of the collective action or the denial of the

Defendants’ right to move for decertification of the collective action.

The Court will now address whether the Fifth Circuit has pendant jurisdiction over

Defendants’ FLSA collective action interlocutory appeal. In its previous order denying

Defendant’s motion to stay, the Court held the Fifth Circuit did not have jurisdiction over

Defendants’ FLSA collective action appeal.25 Defendants argue their FLSA appeal

warrants a stay because it presents a novel legal question. Even if true, this is not the

relevant analysis. Instead, the issue is whether pendant appellate jurisdiction exists.

An order certifying a collective action under the FLSA is not immediately

appealable. The Fifth Circuit has jurisdiction to hear Defendant’s FLSA appeal only if

pendant appellate jurisdiction exists. Pendant appellate jurisdiction applies only when a

final appealable order is inextricably intertwined with an unappealable order or where

review of the unappealable order is necessary to ensure meaningful review of the

appealable order;26 it “is not to be used for the appeal of normally unappealable

interlocutory orders that happen to be related, even closely related, to the appealable

order.”27 As this Court did not find Defendants’ FLSA appeal inextricably intertwined with

its Rule 23 appeal, the Court held that the Fifth Circuit did not have jurisdiction over

Defendants’ FLSA appeal.28 Defendants have offered no new substantive arguments

refuting this analysis.

25 Id. at pp. 12-13.

26 Thornton v. GMC, 136 F.3d 450, 453 (5th Cir. 1998).

27 See Silver Star Enterprises, Inc. v. M/V Saramacca 19. F.3d 1008, 1014 (5th Cir. 1984) (quoting People

of State of Illinois v. Peters, 861 F.2d 164, 166 (7th Cir. 1988)).

28 R. Doc. 367 at pp. 10-11.

Instead, the only argument Defendants offer as to why the Fifth Circuit has

jurisdiction to hear their FLSA appeal is the fact that the Fifth Circuit granted their Rule

23(f) petition. Defendants argue that the Fifth Circuit’s granting of their Rule 23(f)

petition indicates the Fifth Circuit has affirmatively found it has jurisdiction over

Defendants’ FLSA claims. However, the Fifth Circuit’s order merely states “[i]t is ordered

that the motion for leave to appeal under Fed. R. Civ. P. 23(f) is granted.” The order does

not mention the FLSA claims, nor does it state that the court intends to hear Defendant’s

appeal “in full.” Defendants cite cases for the proposition that, if the Fifth Circuit did not

intend to hear Plaintiff’s FLSA claims, it would have specified that the appeal was only of

the Rule 23(f) order. The cases Defendants cite do not support this argument. In Powers

v. Clay, the Magistrate Judge held that when a group of prisoners filed a Rule 23(f) appeal,

the separate issue of whether the prisoners had to pay separate filing fees was non-

appealable. This case does not support Defendant’s argument that the Fifth Circuit would

have specified in its order that it intended only to hear Defendants’ Rule 23 appeal, if it

believed it did not have pendant jurisdiction to hear Defendants’ FLSA appeal. The second

case cited, Hawkland v. Hall, merely states that the Fifth Circuit has pendant jurisdiction

when an appealable order is inextricably intertwined with an unappealable order.29 In

that case, the Fifth Circuit exercised pendant jurisdiction over the issue of qualified

immunity when the district court denied a defendant’s motion to dismiss a First

Amendment retaliation claim.30 The Hawkland case did not deal with whether an order

certifying a collective action is inextricably intertwined with an order certifying a class

action. Likewise, Hawkland does not support Defendants’ argument that, if the Fifth

29 860 Fed. Appx. 326, 328–29 (5th Cir. 2021).

30 Id.

Circuit believed it did not have jurisdiction to hear Defendants’ FLSA appeal, it would

have expressly stated so in its order granting Defendants’ Rule 23(f) petition.

The Fifth Circuit’s order states only that Defendants’ “motion for leave to appeal

under Fed. R. Civ. P. 23(f) is granted.” The order does not indicate that the Fifth Circuit

will hear Defendants’ FLSA collective action certification claims. This Court believes the

Fifth Circuit does not have pendant jurisdiction over Defendants’ FLSA appeal. As a

result, this Court finds there is no basis for it to grant a stay of the FLSA collective action.

CONCLUSION

IT IS ORDERED that Defendants’ Renewed Motion for Stay Pending Appeal is

DENIED.?!

IT IS FURTHER ORDERED that Defendants produce the class contact

information to Plaintiffs on or before January 5, 2026.

New Orleans, Louisiana, this 17th day of December, 2025.

SUSIE MORGAN

UNITED STATES DISTRICT JUDGE

Doc. 374. Additionally, R. Doc. 375 is DENIED AS MOOT.