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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

GUSTAVO ROJAS HERNANDEZ, 

MARIA JUAREZ BENAVIDES,

 Plaintiffs

-vsPRITCHARD INDUSTRIES 

(SOUTHWEST), LLC, PRITCHARD 

INDUSTRIES, INC.,

 Defendants

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SA-20-CV-00508-XR

ORDER

On this day, the Court considered Defendants’ motion to certify an interlocutory appeal. 

After reviewing Defendants’ motion (ECF No. 52) and Plaintiffs’ response (ECF No. 54), the 

Court issues the following Order. For the reasons stated herein, Defendants’ motion is DENIED. 

BACKGROUND

This case arises out of the alleged failure by Defendants to pay their employees a proper 

overtime rate under the Fair Labor Standards Act (“FLSA”). Plaintiffs Gustavo Rojas Hernandez 

and Maria Juarez Benavides (“Plaintiffs”) are former employees of Defendants Pritchard 

Industries (Southwest), LLC and Pritchard Industries, Inc. (together, “Defendants”). ECF No. 27 

¶¶ 3–4. Defendants operate an office and building janitorial service in Texas. Id. ¶¶ 5–6, 10. 

Plaintiffs allege they were employed with Defendants for approximately ten years and were paid 

on an hourly basis. Id. ¶¶ 12–13. Plaintiffs allege that they frequently worked over forty hours per 

workweek, but Defendants knowingly did not pay them the regular overtime rate required by the 

FLSA. Id. ¶¶ 16–18, 21–22. They assert the same for other similarly situated employees “in the 

cleaner role.” Id. ¶¶ 19–21. Plaintiffs further assert that they complained about these alleged FLSA 

violations to their supervisor but were terminated two weeks later. Id. ¶¶ 25–26. 

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On March 25, 2021, the Court granted Plaintiffs’ motion to certify a class action. ECF No. 

50. In that order, the Court ordered that notice be sent to “[a]ll current and former hourly employees 

. . . whose job duties include janitorial and cleaning services, and who received only their regular 

rate of pay for any hours worked over 40 during one or more workweeks.” Id. at 4. Defendants

then filed the instant motion to certify an interlocutory appeal and seek to prevent the issuance of 

notice until after the appeal has been adjudicated. ECF No. 52. 

DISCUSSION

I. Legal Standard

A party generally may not appeal an issue in a case until a final decision has been rendered. 

Under 28 U.S.C. § 1291, “[t]he courts of appeal . . . shall have jurisdiction of appeals from all final 

decisions of the district courts of the United States. . . .” However, a trial court may certify an 

interlocutory issue for appeal prior to the issuance of a final decision. 

Interlocutory appeals are governed by 28 U.S.C. § 1292(b). That section provides that 

“[w]hen a district judge, in making in a civil action an order not otherwise appealable under this 

section, shall be of the opinion that such order involves a controlling question of law as to which 

there is a substantial ground for difference of opinion and that an immediate appeal from the order 

may materially advance the ultimate termination of the litigation, he shall so state in writing in 

such order.” 28 U.S.C. § 1292(b). However, “[i]nterlocutory appeals are generally disfavored, and 

statutes permitting them must be strictly construed.” Allen v. Okam Holdings, Inc., 116 F.3d 153, 

154 (5th Cir. 1997) (per curiam); see also United States v. Nixon, 418 U.S. 683, 690 (1974) (“The

finality requirement of 28 U.S.C. § 1291 embodies a strong congressional policy against piecemeal 

reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory 

appeals.”).

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Three elements must be met for a district court to certify an interlocutory issue for appeal: 

“(1) The district court’s order must involve a controlling issue of law; (2) there must be substantial 

grounds for difference of opinion; and, (3) an immediate appeal from the order will materially 

advance the ultimate termination of the litigation.” Hopkins v. Cornerstone Am., 4:05-CV-332-Y, 

2007 WL 9772306, at *2 (N.D. Tex. Aug. 1, 2007) (citing White v. Nix, 43 F.3d 374, 377 (8th Cir. 

1994)). 

II. Analysis

Defendants make two arguments in favor of certification for an interlocutory appeal. First, 

that the first and third elements are satisfied here because “[i]f the Fifth Circuit determines that the 

allegations in this case are not susceptible of collective treatment . . . then this matter will proceed 

quickly to termination based on the individual claims of the two named plaintiffs.” ECF No. 52 at 

6. Second, that there is substantial ground for difference of opinion because “[t]his Court was one 

of the first to address certification under the Fifth Circuit’s new standard as announced in Swales, 

and thus necessarily operated in an area of legal uncertainty.” Id. (citing Swales v. KLLM Transp. 

Servs., No. 19-60847, 2021 WL 98229 (5th Cir. 2021)).

Plaintiffs counter that discrepancies in the amount of uncompensated overtime—a key 

focal point in Defendants’ argument that this order contains a controlling question of law—are 

insufficient to defeat certification of a class. ECF No. 54 at 3 (citing Maynor v. Dow Chem. Co., 

671 F. Supp. 2d 902, 933 (S.D. Tex. 2009)). Plaintiffs further respond that “simply because a court 

is the first to rule on a question or counsel disagrees on applicable precedent does not qualify the 

issue as one over which there is substantial disagreement.” Id. at 4 (citing Ryan v. Flowserve Corp., 

444 F. Supp. 2d 718, 724 (N.D. Tex. 2006)). Plaintiffs finally argue that the only way that 

interlocutory appeal would materially advance the litigation would be if the Fifth Circuit overturns 

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this Court’s ruling and requires the case to proceed solely on the claims of the named Plaintiffs. 

This would make the case cheaper and quicker than proceeding on a class-wide basis. Id. at 6–7. 

The Court declines to certify its order for interlocutory appeal. Defendants’ argument boils 

down to a disagreement with the Court’s order. The order only involves a controlling issue of law 

insofar as it applies the Fifth Circuit’s recent ruling in Swales. However, the thrust of Defendants’

argument is that the Court’s order granting class certification misidentifies a common issue 

applicable to all members of the class—whether a payroll code error resulted in the janitor 

receiving less overtime pay than that to which he/she was entitled. This amounts to a disagreement 

over the application of the controlling law, not an issue with the controlling law itself. 

Further, Defendants have not shown a substantial ground for difference of opinion. 

Defendants assert that the novelty of the Swales decision, coupled with one pre-Swales decision 

that is similar to Defendants’ preferred outcome, evidences a substantial likelihood of 

disagreement among the courts. It does not. See Ryan v. Flowserve Corp., 444 F. Supp. 2d 718, 

724 (N.D. Tex. 2006) (“[S]imply because a court is the first to rule on a question or counsel 

disagrees on applicable precedent does not qualify the issue as one over which there is substantial 

disagreement.” (citation omitted)). The Court finds that Defendants have not met their burden of 

showing a substantial ground for difference of opinion. 

Finally, an immediate appeal of the Court’s order will not materially advance the ultimate 

termination of the litigation. In fact, the Court finds that the interlocutory appeal is more likely to 

delay the proceedings than it is to expedite them. In evaluating this factor, the “district court is to 

examine whether an immediate appeal would (1) eliminate the need for trial, (2) eliminate complex 

issues so as to simplify the trial, or (3) eliminate issues to make discovery easier and less costly.”

Coates v. Brazoria Cnty. Tex., 919 F. Supp. 2d 863, 867 (S.D. Tex. 2013). Even if the Defendants

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have their way, the case would still need a trial on the named Plaintiffs’ surviving FLSA claims. 

Likewise, the trial would not be simplified because the ultimate questions would remain the same

regardless of the number of employees involved in the litigation—were the plaintiffs subject to a 

policy that resulted in the employees being underpaid? Certainly the appeal has the potential to 

make discovery easier and less costly, but only if the Fifth Circuit overturns the Court’s order. 

However, the Fifth Circuit is unlikely to review the decision even if the Court certifies it for an 

interlocutory appeal for the same reasons outlined above. See id. (“Even if the district court 

certifies a section 1292(b) appeal, the court of appeals must determine that the certification 

requirements of the statute have been met.” (citing Castellanos–Contreras v. Decatur Hotels, LLC, 

622 F.3d 393, 399 (5th Cir. 2010) (en banc))). The Court finds that this factor has not been 

satisfied. 

CONCLUSION

For the reasons stated herein, the Court DENIES Defendants’ motion (ECF No. 52) to 

certify the order granting class certification for interlocutory appeal. 

It is so ORDERED.

SIGNED this 14th day of May, 2021. 

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