Estrada

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

TINA ALONZO ESTRADA, on behalf of Case No. 1:21-cv-00688-CL

herself and all others similarly situated,

FINDINGS AND

Plaintiff, RECOMMENDATION

V.

AVALON HEALTH CARE HEARTHSTONE

LLC, et al.,

Defendants.

Plaintiff Tina Alonzo Estrada (“Plaintiff”) brings this case on behalf of herself and those

similarly situated against Defendants Avalon Health Care Hearthstone, LLC, Avalon Health’

Care Royale Gardens, LLC, Staffers, LLC, Avalon Health Care, Inc. d/b/a Avalon Health Care

Group, Avalon Health Care Management, Inc., and Avalon Health Care Management of Oregon,

LLC. Before the Court is Defendants’ Motion for Certification of Order for Interlocutory

Appeal and Partial Stay (ECF No. 299). For the following reasons, Defendants’ motion should

be DENIED.

BACKGROUND

Plaintiff filed her complaint in May 2021, on behalf of herself and those similarly

situated, for Fair Labor Standards Act (“FLSA”) and state wage law violations. ECF No. 1.

Plaintiff has amended her complaint four times. ECF Nos. 11, 21,27, 156. Defendants filed two

Dawa 1— FINDINGS ANT) RECOMMENT)A TION

motions for partial summary judgment (ECF Nos. 86, 101) and a motion to dismiss pursuant to

Rule 12(b)(6) and 12(b)(1) (ECF No. 171). Defendants have also filed numerous responses to

Plaintiffs motions to amend the pleadings (ECF No. 127) and to conditionally certify the class

(ECF No. 135).

In November 2023, the Court entered an F&R recommending that “Plaintiffs Motion for

FLSA Conditional Certification (#135) should be granted, allowing Plaintiff to proceed

collectively on only her FLSA claim for unpaid overtime, and ordering an opportunity to revisit

the proposed notice content and process.” ECF No. 211 at 26. The District Court granted

Plaintiff's Motion for FLSA Conditional Certification. ECF No. 219 at 7-8.

In July 2025, Plaintiff filed a motion for clarification of the November 2023 F&R or,

alternatively, for equitable tolling. ECF No. 248. Defendants subsequently filed a Notice of

Supplemental Authority that challenged—for the first time—the Court’s exercise of personal

jurisdiction as it pertained to the proposed out-of-state FLSA collective opt-in plaintiffs. ECF

No. 255. Defendants argued that in Harrington v. Cracker Barrel Old Country Store, nics 142

678 (9th Cir. 2025), cert. denied sub nom. Harrington v. Cracker Barrel Old Contin)

Store, Inc, 146 S. Ct. 1596, 224 L. Ed. 2d 6 (2026), and cert. denied, 146 S. Ct. 1626, 224 L. Ed.

2d 6 (2026), the Ninth Circuit “held that the District Court in an FLSA collective action

committed reversible error in authorizing ‘nationwide notice on the mistaken assumption that it

would not need to assess specific personal jurisdiction on a claim-by-claim-basis.’” Jd. at 2.

Thus, Defendants insisted that “Harrington represents a change in the law in this Circuit.” ECF

No. 259 at 9. .

In September 2025, the Court entered an F&R recommending that the District Court

approve Plaintiff's Proposed FLSA Notice and Consent to the Collective and grant Plaintiff's

Pace 7 —_ FINDINGS ANT) RECOMMENDATION

motion for equitable tolling. ECF No. 266 at 2. As relevant here, the Court explicitly rejected

Defendants’ reliance on Harrington. Id. at 8-9. The Court determined that the Ninth Circuit

“merely applied the principles laid out by the Supreme Court in Bristol-Meyers to the structure

of the FLSA” and “the mere fact that the Ninth Circuit confirmed that the personal jurisdiction

defense applies to FLSA collective action claims does not mean that defense was unavailable to

Defendants before Harrington.” Id. Accordingly, the Court found that Defendants had waived

any challenge to personal jurisdiction. /d. at 9. After noting that “fourteen out-of-state plaintiffs

have already opted in to this litigation,” the Court found that “Defendants cannot claim that they

were unaware that out-of-state opt-in plaintiffs would be asserting claims against them in this

forum” and that “at this late stage--after four years of appearing and defending this matter on the

merits--this argument has been waived.” ECF No. 266 at 5, 7.

In March 2026, the District Court adopted the Court’s F&R in full. ECF No. 297 at 4.

With respect to personal jurisdiction, the District Court explained:

Substantively, the Court has reviewed Judge Clarke’s conclusions and finds no

error. Defendants have waived their opportunity to challenge personal jurisdiction

by failing to raise the defense in either a Rule 12 motion or in their Answer. Fed.

R. Civ. P. 12(h). Nor did the Ninth Circuit’s decision in Harrington v. Cracker

Barrel Old Country Store, Inc., 142 F.4th 678 (9th Cir. 2025), represent such a sea-

change in FLSA litigation that the defense was not available prior to Harrington.

See, e.g., McNutt-v. Swift Transportation Co. of Ariz., LLC, CASE NO. C18-5668

BHS, 2020 WL 3819239, at *7-9 (W.D. Wash. July 7, 2020) (applying the

reasoning of Bristol Meyers Squibb Co. v. Superior Court of Cal., 582 U.S. 255

(2017) to an FLSA collective action and finding no personal jurisdiction over out-

of-state employees’ claims nearly five years before Harrington).

Id. at 3-4.

Defendants now move to certify for interlocutory appeal the District Court’s Order (ECF

No. 297) under 28 U.S.C. § 1292(b) and for a partial stay. ECF No 297 at 2. The Court held

oral argument on June 9, 2026. ECF No. 313.

Dage 3 — ETNDINGS ANT) RECOQMMENT)A TION

LEGAL STANDARD

Before a court nity may certify an issue for interlocutory appeal under Section 1292(b), it

must find that: (1) there is “a controlling question of law,” (2) “substantial grounds for difference

of opinion” exist, and (3) “an immediate appeal may materially advance the ultimate termination

of the litigation.” In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir.

1981), cause dismissed sub nom. Arizona y. U.S. Dist. Ct. for the Dist. of Arizona, 459 U.S. 961,

103 S. Ct. 285, 74 L. Ed. 2d 272 (1982), and aff'd sub nom. Arizona v. Ash Grove Cement Co.,

459 U.S. 1190, 103 S. Ct. 1173, 75 L. Ed. 2d 425 (1983). The party seeking interlocutory appeal

bears the burden of establishing all statutory requirements. Couch v. Telescope Inc., 611 F.3d

629, 633 (9th Cir. 2010).

The Ninth Circuit has explained that “section 1292(b) is to be applied sparingly and only

in exceptional cases.” In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d at 1027. The

statute “was not intended merely to provide review of difficult rulings in hard cases.” U. S.

Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). Thus, “[e]ven if these three statutory

criteria are satisfied, district courts have unfettered discretion to deny certification.” Oft v.

Mortg. Invs. Corp., No. 3:14-CV-00645-ST, 2015 WL 1648702, at *1 (D. Or. Apr. 14, 2015)

(internal quotation marks omitted).

DISCUSSION

Defendants’ motion should be denied. The Court the finds that Defendants have failed to

establish the second requirement of Section 1292(b), that “substantial grounds for difference

opinion exist.” Jn re Cement Antitrust Litigation (MDL No. 296), 673 F.2d at 1027.

Alternatively, even if Defendants could establish all three requirements, the Court would

recommend that the District Court exercise its discretion to deny certification.

Page 4 — sotareenats ANT) RECOMMENT)A TION

A. Defendants Present Controlling Questions of Law

“A controlling question of law must be one of law—not fact—and its resolution must

_ materially affect the outcome of litigation in the district court.” ICTS Oregon, Inc. v. Int'l

Longshore & Warehouse Union, 22 F.4th 1125, 1130 (9th Cir. 2022) (internal quotation marks

omitted). A question of law does “not necessarily depend on a fact-specific inquiry or set of

assumptions.” PharmacyChecker.com LLC v. LegitScript LLC, No. 3:22-CV-252-SI, 2024 WL

982784, at *4 (D. Or. Mar. 7, 2024).

Defendants seek certification of the following questions:

(1) In an FLSA collective action, when must a defendant assert lack of personal

jurisdiction to avoid waiving that defense?

(2) In an FLSA collective action, where the proposed nationwide notice describes

claims against out of state defendants, is the “core limitation of federal district court ©

power” the Ninth Circuit described in Harrington a waivable defense or a true

limitation on the power of the Court deriving from due process?

ECF No. 299 at 4. Plaintiff argues that Defendants do not present controlling questions of law

because whether a party has waived its right to object to personal jurisdiction is a “fact-intensive

inquiry.” ECF No. 302 at 13.

The Court finds that Defendants present controlling questions of law. Whether a

defendant has waived a personal jurisdiction defense depends on the specific facts of that case.

E.g., Peterson vy. Highland Music, Inc., 140 F.3d 1313, 1318-19 (9th Cir. 1998), as amended on

denial of reh’g and reh’g en banc (June 15, 1998). However, Defendants’ questions inquire as

to when a defendant in an FLSA collective action must raise a personal jurisdiction defense and

the limits on that defense. Those questions do not necessarily require a fact-specific inquiry. See

PharmacyChecker.com LLC, 2024 WL 982784, at *4 (identifying “neutrally and appropriately

articulated” questions of law). Therefore, Defendants present controlling questions of law. The

Court now considers the second requirement under Section 1292(b).

Pace 5 — FINDINGS AND RECOMMENDATION

B. Defendants Fail to Establish Substantial Grounds for Difference of Opinion

“To determine if a ‘substantial ground for difference of opinion’ exists under § 1292(b),

courts must examine to what extent the controlling law is unclear.” Couch, 611 F.3d at 633. The

“substantial grounds prong is satisfied when novel legal issues are presented, on which fair-

minded jurists might reach contradictory conclusions.” JCTSI Oregon, Inc., 22 F.4th.at 1130 □

(internal quotation marks omitted). However, “[i]t is well settled that ‘the mere presence of a

disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate

a substantial ground for difference of opinion.’”” Couch, 611 F.3d at 634 (quoting Jn re Flor, 79

F.3d 281, 284 (2d Cir. 1996)).

“[A] party’s strong disagreement with [a] Court’s ruling is not sufficient for there to be a

substantial ground for difference.” Couch, 611 F.3d at 634 (brackets and internal quotation

marks omitted). Specifically, courts in this district have explained that “merely fepesifitia’ the

authority and argument cited in [the moving party’s] original briefing” fails to “provide[ ] a basis

for interlocutory review.” Ott, 2015 WL 1648702, at *4; see also Wyatt B. v. Brown, No. 6:19-

CV-00556-AA, 2022 WL 4547903, at *3 (D. Or. Sept. 29, 2022) (“Defendants clearly disagree

with the Court’s conclusion in denying their motion to dismiss, but that disagreement does not

justify the extraordinary step of certifying the Court’s decision for interlocutory appeal.”).

Further, “just because a court is the first to rule on a particular question or just because counsel

contends that one precedent rather than another is controlling does not mean there is such a

substantial difference of opinion as will support an interlocutory appeal.” Couch, 611 F.3d at

633 (internal quotation marks omitted).

The Court finds that Defendants have failed to satisfy the second statutory requirement.

As a preliminary matter, a substantial portion of their Motion is premised on the same arguments

and authorities that they presented in their Notice of Supplemental Authority and its supporting

Page f —__ FINTIDINGS ANT) RECOMMENT)A TION

briefing. Compare ECF Nos. 255 and 259 with ECF No. 299. Specifically, Defendants reprise

their responses to Plaintiff's prior arguments concerning waiver of the personal jurisdiction

defense. Compare ECF No. 259 at 13-15 with ECF No. 299 at 6-12. The Court rejected

Defendants’ arguments in its F&R, as did the District Court in adopting the FR. ECF Nos.

266, 297. Indeed, the District Court emphasized that the controlling law is clear and explained

that Harrington did not “represent such a sea-change in FLSA litigation that the defense was not

available prior to” the decision. ECF No. 297 at 4. The District Court further determined that

“Defendants have waived their opportunity to challenge personal jurisdiction by failing to raise

the defense in either a Rule 12 motion or in their Answer. Fed. R. Civ. P. 12(h).” Jd.

In addition, the Court is unpersuaded by Defendants’ arguments concerning “both FRCP

23 class actions and traditional single-plaintiff jurisprudence” that, in Defendants’ view,

“demonstrate the inconsistency with which waiver principles... are applied in the context of §

216(b) FLSA collective actions.” ECF No. 299 at 9. Moser v. Benefytt, Inc., 8 F.4th 872 (9th

Cir. 2021) is one example. Defendants argue that Moser “epitomizes [a] split of authority” and

that “the Ninth Circuit rejected the reasoning the Order here relies on that a waiver finding is

appropriate because the defense was always available.” ECF No. 305 at 11, ECF No. 299 at 9.

Although Defendants acknowledge that Moser was a class action case—not an FLSA collective

action—Defendants nonetheless contend that, because “the Ninth Circuit in Moser rejected the

notion that a personal jurisdiction defense must be raised in the pleadings in the context of a Rule

23 class, it stands to reader that the same would be true for an opt-in collective.” ECF No. 305

at 11-12. The Court is unpersuaded that the class action analysis in that case establishes

ambiguity in FLSA collective action law as to support a “substantial ground for difference of

opinion” determination. See Couch, 611 F.3d at 633 (“To determine if a ‘substantial ground for

Dace 7 FINDINGS AND RECOMMENDATION □

difference of opinion’ exists under § 1292(b), courts must examine to what extent the controlling

law is unclear.”).

In sum, the Court has considered and rejected the arguments that Defendants presented in

their prior briefing and is unpersuaded by the new authorities on which Defendants rely.

Defendants’ strong disagreement with the prior rulings in this case does not establish “substantial

ground for difference of opinion.” See id.; see also Tribble v. Surface Preparation Sys., Inc., No.

6:20-CV-00181-AA, 2021 WL 4593817, at *2 (D. Or. Oct. 6, 2021) (“[D]issatisfaction with the

Court’s ruling and its preference for a different outcome will not suffice to establish substantial

grounds for difference of opinion.”). Consequently, the Court finds that Defendants have failed

to satisfy the second requirement for interlocutory appeal. See Assuredpartners of Oregon, LLC

v. Reese, No. 6:22-CV-00673-MC, 2023 WL 5670710, at *4 (D. Or. Apr. 10, 2023) (‘Plaintiff's

own disagreement with the Court's interpretation is an insufficient basis for interlocutory

appeal.”).

C. Whether Immediate Appeal May Materially Advance the Conclusion of the

Litigation

Because the Court finds that Defendants have failed to establish the second requirement

for certification, the Court declines to address the third requirement. See Couch, 611 F.3d at 633

(“Certification under § 1292(b) requires the district court to expressly find in writing that all

three § 1292(b) requirements are met.”); see also Wyatt B., 2022 WL 4547903, at *3 (“Because

_ Defendants have failed to meet their burden of establishing substantial grounds for difference of

opinion, the Court need not reach the question of whether granting certification would materially

advance termination of the litigation.”); Cooksey v. Diamond Resorts Int'l Club, Inc., No. 6:19-

CV-01760-MK, 2020 WL 8971500, at *2 (D. Or. Sept. 4, 2020), report and recommendation

adopted No. 6:19-CV-01760-MK, 2021 WL 1136053 (D. Or. Mar. 24, 2021) (declining to

Page 8 —__ FTINT)INGS ANT) RECOMMENT)A TION

address the first and third requirements of Section 1292(b) when the second requirement was not

satisfied).

Finally, even if Defendants could establish all three requirements of Section 1292(b), the

Court would recommend that the District Court exercise its discretion to deny certification

because Defendants have not demonstrated “exceptional circumstances” that would “justify a

departure from the basic policy of postponing appellate review until after the entry of a final

judgment.” JCTSI Oregon, Inc., 22 F.4th at 1131.

RECOMMENDATION

For the reasons above, Defendants’ Motion for Certification of Order for Interlocutory

Appeal and Partial Stay (ECF No. 299) should be DENIED.

This Findings and Recommendation will be referred to a district judge. Objections, if

any, are due no later than fourteen (14) days after the date this recommendation is filed. If

objections are filed, any response is due within fourteen (14) days after the date the objections

are filed. See Fed. R. Civ. P. 72, 6. Parties are advised that the failure to file objections within

the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

F.2d 1153 (9th Cir. 1991). This Recommendation is not an order that is immediately appealable

to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of

Appellate Procedure 4(a)(1) should not be filed until entry of the district court’s judgment or

appealable order. .

DATED this □□□ __ day of Dsus D026.

vie ZB

“ok D. CLARKE

United States Magistrate Judge

Page 9 — FINDINGS ANT) RECOMMENTA TION