[Cite as Oakley v. Ohio State Univ. Wexner Med. Ctr., 2019-Ohio-3557.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

James Oakley et al., : 

 Plaintiffs-Appellants, : No. 18AP-843 

 (Ct. of Cl. No. 2017-00845JD)

v. : 

 (REGULAR CALENDAR) 

The Ohio State University : 

Wexner Medical Center, 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on September 3, 2019 

 

On brief: Mansell Law, LLC, Gregory R. Mansell, and 

Carrie J. Dyer; The Friedmann Firm LLC, Rachel A. Sabo, 

and Peter G. Friedmann, for appellants. Argued: Gregory R. 

Mansell.

On brief: Dave Yost, Attorney General, and Randall W. 

Knutti, for appellee; Vorys, Sater, Seymour and Pease LLP, 

Robert N. Webner, Mark A. Knueve, Michael J. Ball, and 

Natalia M. Cabrera, special counsel for appellee. Argued: 

Mark A. Knueve.

 

APPEAL from the Court of Claims of Ohio 

LUPER SCHUSTER, J. 

{¶ 1} Plaintiffs-appellants, a proposed class led by James Oakley and Channing 

Capehart, appeal from a judgment entry of the Court of Claims of Ohio denying their 

motion for conditional class certification in their suit against defendant-appellee, The Ohio 

State University Wexner Medical Center ("OSUWMC"). Appellants additionally appeal 

from the trial court's denial of their motion for leave to file a second notice of supplemental 
No. 18AP-843 2 

evidence. For the following reasons, we sua sponte dismiss the appeal due to lack of a final 

appealable order.

I. Facts and Procedural History 

{¶ 2} On October 18, 2017, appellants filed a collective action complaint in the trial 

court on behalf of themselves and all other similarly situated hourly, non-exempt 

employees of OSUWMC. The complaint alleged OSUWMC was in violation of the Fair 

Labor Standards Act ("FLSA"), codified at 29 U.S.C. 201, et seq., and owed appellants 

unpaid wages stemming from its practice of rounding clock-in and clock-out times. 

Additionally, appellants asserted a Civ.R. 23 class action against OSUWMC due to the same 

rounding practice, alleging a violation of the Ohio Minimum Fair Wage Standards Act, 

codified at R.C. 4111.03. 

{¶ 3} Prior to conducting discovery, appellants filed, on January 22, 2018, a motion 

for conditional class certification requesting the trial court conditionally certify the class of 

"[a]ll current or former hourly, non-exempt employees of [OSUWMC] employed between 

October 18, 2014 and the present, who are or were subject to the 'Clock In and Clock Out 

Rounding Policy.' " (Pls.' Pre-Discovery Mot. at 3.) In their briefing, appellants relied on 

evidence of 17 individuals that they alleged OSUWMC failed to properly compensate based 

on OSUWMC's rounding practice. Appellants then filed an "unopposed notice of 

supplemental evidence in support of their pre-discovery motion for conditional class 

certification" on February 9, 2018. OSUWMC filed a response on April 6, 2018, and 

appellants, with leave of court, filed a reply in support of their motion on April 30, 2018. 

Following a May 10, 2018 status conference, the parties filed a joint exhibit providing 

further details on the clock-in and clock-out procedures at issue in the case. 

{¶ 4} After the parties completed briefing on the issue of conditional class 

certification but before the magistrate had issued a recommendation on appellants' motion, 

appellants sought leave to file a second notice of supplemental evidence for the magistrate 

to consider in deciding whether to grant conditional class certification. The proposed 

supplemental evidence consisted of a sampling of time records and an analysis of 39 

different hourly, non-exempt employees. OSUWMC filed a substantive response in 

opposition. 
No. 18AP-843 3 

{¶ 5} In an August 8, 2018 decision, the magistrate denied appellants' motion for 

leave to file their second notice of supplemental evidence in support of their motion for 

conditional class certification. Specifically, the magistrate noted that the briefing period for 

appellants' motion for conditional class certification closed on April 30, 2018, but 

appellants did not seek leave to file their second notice of supplemental evidence until July 

23, 2018. Additionally, the magistrate recommended the trial court deny appellants' 

motion for conditional class certification on the grounds that appellants "failed to present 

evidence that conduct in conformity with both the rounding and the attendance policy 

proves a violation as to all the plaintiffs." (Mag.'s Decision at 12.) 

{¶ 6} Appellants timely filed objections to the magistrate's decision. Along with 

their objections, appellants filed additional supplemental evidence from two individuals 

that had joined the suit after appellants had filed their motion for leave to file supplemental 

evidence. In a September 26, 2018 decision, the trial court overruled appellants' objections 

to the magistrate's decision and declined to consider appellants' supplemental evidence 

submitted along with their objections. Pursuant to its decision, the trial court overruled 

appellants' objections and adopted and modified the magistrate's decision in a 

September 26, 2018 judgment entry. 

{¶ 7} Appellants timely appeal. Additionally, appellants filed an April 9, 2019 

motion to supplement the record on appeal pursuant to App.R. 9.

II. Assignments of Error 

{¶ 8} Appellants assign the following errors for our review: 

[1.] The trial court erred by failing to consider the additional 

evidence in appellants' second notice of filing supplemental 

evidence. 

[2. ] The trial court erred by failing to consider the additional 

evidence in appellants' objections to the magistrate's decision. 

[3.] The trial court erred by denying appellants' motion for 

conditional certification. 

III. Discussion 

{¶ 9} Before analyzing appellants' assignments of error, we must, as a preliminary 

matter, address our subject-matter jurisdiction in this appeal. Although neither party has 
No. 18AP-843 4 

raised the issue of whether the trial court's September 26, 2018 entry is a final appealable 

order, an appellate court may raise that jurisdictional issue sua sponte and must dismiss an 

appeal that is not taken from a final appealable order. Riverside v. State, 190 Ohio App.3d 

765, 2010-Ohio-5868, ¶ 8 (10th Dist.). 

{¶ 10} Under the Ohio Constitution, Article IV, Section 3(B)(2), this court's 

jurisdiction on appeal is limited to a review of final orders of lower courts. Final orders are 

those that "dispos[e] of the whole case or some separate and distinct branch thereof." 

Lanstberry v. Tilley Lamp Co., Ltd., 27 Ohio St.2d 303, 306 (1971). A trial court order is 

final and appealable only if it satisfies the requirements in R.C. 2505.02 and, if applicable, 

Civ.R. 54(B).

{¶ 11} The order of the trial court from which appellants seek to appeal is a 

judgment entry denying appellants' "Pre-Discovery Motion for Conditional Class 

Certification and Court-Supervised Notice to Potential Opt-In Plaintiffs Pursuant to 29 

U.S.C. [Section] 216(b)." (Jan. 22, 2018 Pls.' Mot.) By this motion, appellants sought 

conditional certification for collective action under the FLSA. 

{¶ 12} "In order to be included in a collective action under the FLSA, putative class 

members must opt into the class." 533 Short North LLC v. Zwerin, 10th Dist. No. 14AP1016, 2015-Ohio-4040, ¶ 35, citing O'Brien v. Ed Donnelly Ents., Inc., 575 F.3d 567, 583 

(6th Cir.2009). As a means of determining whether a suit should properly continue as a 

collective action under the FLSA, a court must determine whether prospective opt-in 

plaintiffs are "similarly situated" for purposes of the FLSA requirements. Comer v. WalMart Stores, Inc., 454 F.3d 544, 546 (6th Cir.2006). Generally, courts use a two-stage 

approach to make the "similarly situated" determination. Id. Under the first stage, which 

determines whether conditional class certification is appropriate, courts utilize a " 'fairly 

lenient standard' " requiring only a " 'modest factual showing' " that the plaintiffs' positions 

are similar to those of other employees. Id. at 546-47, quoting Morisky v. Pub. Serv. Elec. 

& Gas Co., 111 F. Supp.2d 493, 497 (D.N.J.2000), and Pritchard v. Dent Wizard Internatl. 

Corp., 210 F.R.D. 591, 596 (S.D.Ohio 2002). This first stage, potentially resulting in 

conditional class certification, is also known as the "notice stage." Harrison v. McDonald's 

Corp., 411 F.Supp.2d 862, 868 (S.D.Ohio 2005), quoting Hoffmann-La Roche Inc. v. 

Sperling, 493 U.S. 165, 169 (1989) (stating "[c]ourts have discretion to conditionally certify 
No. 18AP-843 5 

a class for purposes of serving notice, but only in 'appropriate cases' "). The first stage takes 

place at the beginning of discovery. Comer at 546.

{¶ 13} Under the second stage, a court engages in a thorough review of the record 

after discovery is completed and makes a final determination on whether potential opt-in 

class members are similarly situated within the meaning of the FLSA. Id. at 547; Schwab 

v. J.F. Bernard, Inc., N.D.Ohio No. 5:11CV1216 (Mar. 28, 2012). The second stage, 

resulting in the ultimate determination of whether class certification is appropriate, 

employs a stricter standard to determine whether the opt-in plaintiffs are truly similarly 

situated. Comer at 547, citing Morisky at 497. 

{¶ 14} Pursuant to R.C. 2505.02(B), an order is a final order that may be reviewed 

on appeal when it is "[a]n order that determines that an action may or may not be 

maintained as a class action." R.C. 2505.02(B)(5). Here, the trial court denied appellants' 

motion for conditional class certification under the FLSA. Because of the two-stage 

framework for collective action certification under the FLSA, the trial court reached only 

the first stage of the inquiry and did not make a final determination on whether the action 

may be maintained as a class action. See Comer at 546 ("[a]t the notice stage, the 

certification is conditional and by no means final"). Under the terms of R.C. 2505.02(B)(5), 

only an order that determines whether an action may or may not be maintained as a class 

action is considered a final appealable order. The nature of the two-stage framework means 

the trial court, during the first phase, specifically reserves its ultimate determination on 

class certification until the second stage. Here, the trial court's decision did not "determine" 

whether the action may or may not be maintained as a class action; instead, it determined 

conditional class certification was not appropriate at the time but specifically noted 

appellants could move again for conditional certification, supporting its motion with 

additional evidence. Thus, we conclude the trial court's decision denying appellants' 

motion for conditional class certification does not fall within the parameters of R.C. 

2505.02(B)(5). See Gabbard v. Ohio Bur. of Workers' Comp., 10th Dist. No. 02AP-976, 

2003-Ohio-2265, ¶ 29 (relying on the plain language of R.C. 2505.02(B)(5) and concluding 

R.C. 2505.02(B)(5) "allow[s] an appeal following the initial finding that a class action, as 

opposed to an individual action, could be maintained" and does not permit an appeal from 

other attendant decisions surrounding the certification of a class); Rosette v. Countrywide 
No. 18AP-843 6 

Home Loans, Inc., 8th Dist. No. 86823, 2006-Ohio-4488, ¶ 10-11. See also In re NFL 

Players Concussion Injury Litigation, 775 F.3d 570, 588 (3d Cir.2014) (concluding an 

order granting conditional certification is not final, and "there is nothing to review until the 

district court issues its certification order"); Mickles v. Country Club, Inc., 887 F.3d 1270, 

1278 (11th Cir.2018) ("[a]ppellants could not have appealed from the conditional 

certification order because that order was not a final order").

{¶ 15} Despite our conclusion that the trial court's decision denying appellants' 

motion for conditional class certification does not fall within R.C. 2505.02(B)(5), we must 

still determine whether the decision is a final appealable order under some other provision 

of R.C. 2505.02. The only other provisions with arguable application would be R.C. 

2505.02(B)(1) and 2505.02(B)(4).

{¶ 16} Under R.C. 2505.02(B)(1), an order is final and appealable if it "affects a 

substantial right in an action that in effect determines the action and prevents a judgment." 

To the extent appellants would have us construe their right to pursue collective action under 

the FLSA as a "substantial right," the trial court's September 26, 2018 decision does not 

determine the action or prevent a judgment in appellants' favor on the issue of class 

certification. The trial court specifically noted appellants could move again for conditional 

class certification. 

{¶ 17} Additionally, an order is final and appealable under R.C. 2505.02(B)(4) if it 

"grants or denies a provisional remedy," provided the order meets two conditions. Initially, 

the order subject of appeal must determine the action with respect to the provisional 

remedy and prevent a judgment in favor of the appealing party regarding the provisional 

remedy. R.C. 2505.02(B)(4)(a). Secondly, an appeal following judgment must not afford 

a meaningful and effective remedy to the appealing party. R.C. 2505.02(B)(4)(b). 

{¶ 18} R.C. 2505.02(A)(3) defines a provisional remedy as "a proceeding ancillary 

to an action, including, but not limited to, a proceeding for a preliminary injunction, 

attachment, discovery of privileged matter, suppression of evidence," or prima facie 

showings with respect to specified statutes. Assuming arguendo that an order denying a 

motion to conditionally certify a collective action is a provisional remedy within the 

meaning of the statute, we conclude the trial court's decision here fails to satisfy the first 

prong of R.C. 2505.02(B)(4) because it does not determine the action with respect to the 
No. 18AP-843 7 

provisional remedy, nor does it prevent a judgment in favor of the appealing party 

regarding the provisional remedy. As we noted above, the trial court specifically noted in 

its decision denying conditional certification that appellants could move for conditional 

certification again, supporting any future motion with additional evidence. Thus, the trial 

court's September 26, 2018 decision is not a final appealable order within the meaning of 

R.C. 2505.02(B)(4).

{¶ 19} We additionally note that while neither the trial court's September 26, 2018 

decision nor the September 26, 2018 judgment entry contains language, pursuant to Civ.R. 

54(B), that there is no just reason for delay, the trial court issued a nunc pro tunc entry on 

November 5, 2018, after appellants filed their notice of appeal, adding to its September 26, 

2018 entry "the express determination that there is no just cause for delay, pursuant to 

Civ.R. 54(B)." However, the inclusion of Civ.R. 54(B) language "does not turn an otherwise 

non-final order into a final appealable order." Noble v. Colwell, 44 Ohio St.3d 92, 96 

(1989). Thus, even though the trial court issued a nunc pro tunc entry to include the Civ.R. 

54(B) language in its September 26, 2018 decision, the order, for the reasons outlined 

above, is not a final appealable order under R.C. 2505.02. Covatch v. Cent. Ohio Sheltie 

Rescue, Inc., 10th Dist. No. 15AP-699, 2016-Ohio-1241, ¶ 20. We therefore lack jurisdiction 

to consider the appeal. 

IV. Disposition 

{¶ 20} Based on the foregoing reasons, appellants do not appeal from a final 

appealable order of the trial court, and this court lacks jurisdiction to consider appellants' 

assignments of error. Accordingly, we sua sponte dismiss appellants' appeal for lack of 

jurisdiction. We similarly dismiss appellants' April 9, 2019 motion to supplement the 

record for lack of jurisdiction.

Appeal dismissed; 

motion to supplement the record dismissed. 

BROWN and SADLER, JJ., concur.