United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT GENERAL MOTOR
LLC'S MOTION FOR CERTIFICATION TO FILE AN INTERLOCUTORY
APPEAL UNDER 28 U.S.C. § 1292(b)
V. PARKER, U.S. DISTRICT JUDGE.
January 30, 2018, Plaintiff filed this lawsuit against
Defendants asserting the following claims: (I) age
discrimination in violation of the federal Age Discrimination
and Employment Act (“ADEA”); (II) age
discrimination in violation of Michigan's Elliott-Larsen
Civil Rights Act (“ELCRA”); (III) race and ethnic
discrimination in violation of 42 U.S.C. § 1981; (IV)
race and national origin discrimination in violation of Title
VII of the Civil Rights Act of 1964 (“Title
VII”); and (V) race and national origin discrimination
under the ELCRA. Defendants are General Motors, LLC
(“GM”) and GM (China) Investment Co., Ltd.
(“GMCIC”). On March 30, 2018, GM filed a motion
to dismiss arguing, in part, that Title VII and the ADEA are
in conflict with the law of the People's Republic of
China (“PRC”) in that PRC law provides that male
employees shall be retired at sixty years of age. GM
therefore argued that Plaintiff's claims under Title VII
and the ADEA were subject to dismissal under those
statutes' “foreign law” provisions, 29 U.S.C.
§ 623(f)(1); 42 U.S.C. § 2000e-1(b).
full briefing on GM's motion to dismiss, the Court
requested supplemental briefing with respect to PRC law. On
March 5, 2019, after additional materials were filed and
reviewed, this Court issued a decision granting in part and
denying in part GM's motion to dismiss. (ECF No. 34.)
With respect to GM's foreign law argument, the Court
could not conclude based on the parties' submissions that
GM and/or GMCIC would have violated PRC law if
Plaintiff's employment had been continued in China after
he turned sixty. (Id. at Pg ID 887-88.)
seeks to immediately appeal this ruling to the Sixth Circuit
Court of Appeals. (ECF No. 38.) GM also asks the Court to
stay the proceedings during the pendency of any interlocutory
appeal. Plaintiff opposes GM's motion. (ECF No. 45.)
district court has the discretion to grant permission to a
party to appeal a non-final order if: (1) the challenged
directive “involves a controlling question of
law”; (2) a “substantial ground for difference of
opinion” exists regarding the correctness of the
decision; and, (3) an immediate appeal “may materially
advance the ultimate termination of the litigation[.]”
28 U.S.C. § 1292(b). “[D]istrict court judges have
broad discretion to deny certification even where the
statutory criteria are met.” Century Pac., Inc. v.
Hilton Hotels Corp., 574 F.Supp.2d 369, 370 (S.D.N.Y.
2008) (citation omitted). When exercising this discretion,
this Court must heed the Sixth Circuit Court of Appeals'
warning that interlocutory review should be “granted
sparingly and only in exceptional cases.” In re
City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002).
decision “involves a controlling question of law”
if “resolution of the issue on appeal could materially
affect the outcome of litigation in the district
court.” In re Baker & Getty Fin. Services,
Inc., 954 F.2d 1169, 1172 n. 8 (6th Cir. 1992). Sixth
Circuit law establishes that “‘substantial
grounds for difference of opinion' exist only when there
is conflicting authority on an issue.” Serrano v.
Cintas Corp., Nos. 04-40132, 06-12311, 2010 WL 940164,
at *3 (E.D. Mich. Mar. 10, 2010) (citing In re City of
Memphis, 293 F.3d at 350-51). District courts in this
Circuit have held that this occurs where: (1) an issue is
difficult and of first impression; (2) a difference of
opinion exists within the controlling circuit concerning the
issue; or, (3) the circuits are split on the issue.
Id. (citing Gaylord Entm't. Co. v. Gilmore
Entm't. Grp., 187 F.Supp.2d 926, 956 (M.D. Tenn.
2001)). The moving party satisfies the third requirement
where the resolution of a controlling legal question would
avoid trial, as well as when it would “otherwise
substantially shorten the litigation.” The Clark
Constr. Group, Inc. v. Allglass Sys., Inc., No. Civ. A.
DKC 2002-1590, 2005 WL 736606, at *4 (D. Md. Mar. 30, 2005)
(citing 16 Charles Alan Wright, Arthur R. Miller & Edward
H. Cooper, Federal Practice and Procedure § 3930, at 432
(2nd ed.1996)). In other words, “[a]n interlocutory
appeal materially advances litigation when it ‘saves
judicial resources and litigant expense.'”
Newsome v. Young Supply Co., 873 F.Supp.2d 872, 878
(E.D. Mich. 2012) (quoting West Tennessee Chapter of
Associated Builders and Contractors, Inc. v. City of
Memphis, 138 F.Supp.2d 1015, 1026 (W.D. Tenn. 2000)).
proposed interlocutory appeal involves a controlling issue of
law, albeit an issue of PRC law. If the Sixth Circuit
concludes that PRC law conflicts with Title VII and the ADEA,
the decision would resolve those claims except to the extent
Plaintiff alleges discrimination based on GM's failure to
transfer him to a position in the United States. Such a
ruling would significantly narrow the scope of this
litigation. Thus, this Court finds the first factor met for
certifying the matter for interlocutory appeal The Court
finds the issue regarding PRC law to be difficult and novel
and one for which there is little precedent. There is limited
case law addressing Title VII's or the ADEA's foreign
law provisions, generally. The parties did not identify any
decisions within the United States interpreting PRC's
purported mandatory retirement provisions. While this Court
concluded that GM's foreign law argument set forth an
affirmative defense for which Defendants had the burden of
proof, there is little precedent addressing this issue as
well. For these reasons, the Court also finds the second
factor met for allowing an interlocutory appeal.
the immediate appeal of the foreign law issue would expedite
the resolution of this case. If the Sixth Circuit disagrees
with this Court's ruling on the issue, Plaintiff's
Title VII and ADEA claims arising from his termination from
GMIC would be subject to dismissal. The scope of this
litigation would be substantially narrowed for purposes of
discovery and, if necessary, trial. If GM prevails on appeal,
discovery in China and the depositions of PRC residents
likely will be unnecessary, saving significant costs to the
parties. Thus, the third factor is satisfied.
reasons above, the Court concludes that the foreign law issue
raised in GM's motion to dismiss deserves interlocutory
review pursuant to 28 U.S.C. § 1292(b).
IT IS ORDERED that GM's Motion for
Certification to File an Interlocutory Appeal under 28 U.S.C.
§ 1292(b) is GRANTED and the
proceedings are STAYED pending the appeal.
hereby certify that a copy of the foregoing document was
mailed to counsel of record and/or pro se parties on this
date, May 2, 2019, ...