UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

DAVID SAMBRANO, individually and on 

behalf of all others similarly situated, et al.,

Plaintiffs,

v. Civil Action No.: 4:21-cv-01074-P

UNITED AIRLINES, INC., 

Defendant.

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO LIFT STAY 

AND FOR ENTRY OF PARTIAL FINAL JUDGMENT

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 1 of 13 PageID 19370
TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

ARGUMENT.................................................................................................................................. 1

CONCLUSION............................................................................................................................... 9

TABLE OF AUTHORITIES

Cases Page(s)

Ansam Assocs., Inc. v. Cola Petroleum, Ltd.,

760 F.2d 442 (2d Cir.1985) .................................................................................................... 4, 5

Bank of New York v. Hoyt, 

108 F.R.D. 184 (D.R.I. 1985)................................................................................................. 2, 3

Campbell v. Westmoreland Farm, Inc., 

403 F.2d 939 (2d Cir. 1968) ................................................................................................... 4, 5

Escobar v. Montee,

895 F.3d 387 (5th Cir. 2018) ...................................................................................................... 8

Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 

908 F.2d 1218 (5th Cir. 1990) .................................................................................................... 3

Medifast, Inc. v. Minkow, 

2012 WL 13175889 (S.D. Cal. Apr. 13, 2012)....................................................................... 2, 3

Migdon v. 171 Holdings, LLC, 

No. 21-30411, 2022 WL 404583 (5th Cir. Feb. 9, 2022)........................................................... 3

PYCA Indus., Inc. v. Harrison Cnty. Waste Water Mgmt. Dist., 

81 F.3d 1412 (5th Cir. 1996) .................................................................................................. 4, 5

Regents of Univ. of Cal. v. Credit Suisse First Bos. (USA), Inc., 

482 F.3d 372 (5th Cir. 2007) ...................................................................................................... 8

Schaeffer v. First Nat’l Bank of Lincolnwood, 

465 F.2d 234 (7th Cir. 1972) ...................................................................................................... 3

Rule

Fed. R. Civ. P. 54........................................................................................................................ 1, 4

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 2 of 13 PageID 19371
INTRODUCTION

In its continued quest to draw out these proceedings as long as possible, United Airlines, 

Inc. opposes Plaintiffs’ reasonable and well-supported request that the Court enter partial final 

judgment on its earlier decision granting in part United’s motion to dismiss, so that Plaintiffs can 

appeal that decision and have the Fifth Circuit consider it alongside the other issues that are 

currently on appeal. Op. & Order (ECF No. 231). By contrast, if United has its way, the parties 

and the Court will spend the next year proceeding through discovery, motions practice, and trial 

on the remaining class claims. Then, once a final judgment is entered after trial, the parties will

start that process all over if Plaintiffs’ eventual appeal of any aspect of the Court’s motion-todismiss decision is successful. 

That is a poor use of the parties’ and the Court’s resources. And it is no answer for United 

to assert that this is simply the “common” schedule under the Federal Rules. Opp’n at 1 (ECF 

No. 282). As the Court no doubt appreciates, this is not the “common” case, and Rule 54(b) exists 

for instances like these where the “common” schedule would be inefficient and where there is “no 

just reason for delay.” Fed. R. Civ. P. 54(b). But United’s opposition is especially misguided 

considering that proceedings in this Court are already stayed pending appeal, and the Fifth Circuit 

will be addressing many of the same issues in the current certification appeal that it will address 

when reviewing the motion-to-dismiss decision. Accordingly, it is reasonable and just to use the 

current pause of proceedings here to allow the Fifth Circuit to address each of these issues in 

tandem with other issues that are currently on appeal. 

ARGUMENT

United fails to rebut Plaintiffs’ showing that the Court should enter partial final judgment 

on its motion-to-dismiss decision. First, United baselessly claims that Plaintiffs unreasonably 

delayed in seeking relief under Rule 54(b). Second, United misstates the legal standard under 

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 3 of 13 PageID 19372
2

Rule 54(b) and ignores Plaintiffs’ showing that delaying the appeal of the motion-to-dismiss 

decision is inefficient, unjust, and an undue hardship on all parties and the Court.

1. On United’s first point: Plaintiffs filed their Rule 54(b) motion fewer than three months 

after the Court denied reconsideration. That timeline is hardly unreasonable, and it is certainly not 

“dilatory,” as United suggests. Opp’n at 6. United is mistaken on the law and the facts when 

arguing that this supposed delay is an independent reason to deny Plaintiffs’ motion.

As to the law, United’s motion is notable for one thing it is missing—a single case from 

this Circuit denying a Rule 54(b) motion due to delay. See Opp’n at 5–6. Instead, United grasps 

at inapposite, out-of-circuit cases to bolster its argument. But even those cases don’t help United. 

Take Medifast, Inc. v. Minkow, 2012 WL 13175889 (S.D. Cal. Apr. 13, 2012), where, according 

to United (at 5), the court held that a “delay of five months weighed against granting [the] motion.” 

Not so. That court only held that a Rule 54(b) motion must be “seasonable,” and the court further 

held that it “does not see the delay in filing the motion as a reason to deny it.” Medifast, 2012 WL 

13175889, at *2 (citation omitted from first quote).

1

Similarly unhelpful to United is Bank of New York v. Hoyt, 108 F.R.D. 184 (D.R.I. 1985). 

United suggests (at 5) that the Hoyt court criticized the movants for “thumb-twiddling” when 

seeking Rule 54(b) relief. But the Hoyt court held that the Rule 54(b) motion was timely, and it 

explained that timeliness “should not be accorded talismanic importance,” as there are “no express 

temporal restrictions” in Rule 54(b).2

 108 F.R.D. at 185–86. United’s failure to marshal any 

authority to support its argument speaks volumes. 

1 Additionally, United states (at 5) that Medifast is an example of where “courts routinely deny 

Rule 54(b) motions[.]” The trouble for United is that the Medifast court granted the request for 

partial final judgment. 2012 WL 13175889, at *2.

2 Other examples abound. United suggests a “general rule” that “it is an abuse of discretion ... to 

grant” Rule 54(b) relief when the motion is filed more than thirty days after the underlying order. 

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 4 of 13 PageID 19373
3

As to the facts, United is equally misguided. For one, United mischaracterizes the case 

history by repeatedly referencing a nine-month delay in requesting Rule 54(b) relief. See Opp’n 

at 5. That ignores Plaintiffs’ request for reconsideration less than one month after the motion-todismiss decision, and it ignores that Plaintiffs filed their Rule 54(b) motion fewer than three months

after the Court denied reconsideration. That timeline is hardly “dilatory.” Opp’n at 6. 

United is also mistaken when suggesting (at 6) that Plaintiffs’ appeal of the motion-todismiss decision lacked any “plausible jurisdiction[]” or that Plaintiffs “acquiesced” to “United’s 

motion to dismiss” the appeal. Plaintiffs simply opted for a more efficient route. Plaintiffs would 

have demonstrated on appeal that Rule 54(b) does not bar their appeal because there was an 

“unmistakable intent to enter a partial final judgment.” Migdon v. 171 Holdings, LLC, No. 21-

30411, 2022 WL 404583, at *1 (5th Cir. Feb. 9, 2022) (quoting Kelly v. Lee’s Old Fashioned 

Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir. 1990) (en banc) (per curiam)). That is clearly 

the case here: (i) the dismissal was entered with prejudice (ECF No. 231 at 32); (ii) the Court 

denied reconsideration, including the request to convert the dismissal to being without prejudice 

(ECF No. 241; ECF No. 263); and (iii) the Court subsequently administratively closed the case 

pending appeal, thereby confirming that it did not anticipate additional proceedings until after the 

Fifth Circuit’s proceedings concluded (ECF No. 265). However, Plaintiffs determined that a

protracted procedural dispute would be inefficient, and they opted instead to return to this Court 

for approval of a Rule 54(b) motion.

Opp’n at 5 (emphasis omitted) (citing Schaeffer v. First Nat’l Bank of Lincolnwood, 465 F.2d 234, 

236 (7th Cir. 1972)). But United fails to note that other cases—like the Hoyt decision it cites—

“eschew[] [Schaeffer’s] inflexible criterion.” 108 F.R.D. at 185; accord Medifast, 2012 WL 

13175889, at *2 (granting Rule 54(b) relief after five months). 

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 5 of 13 PageID 19374
4

When United’s mistaken view of the law and facts is set aside, it is clear that there was no 

undue delay on Plaintiffs’ part, and the timing of the Rule 54(b) motion is not a reason to deny it. 

On the contrary, and as explained next, Plaintiffs easily show that there is “no just reason for 

delay.” Fed. R. Civ. P. 54(b).

2. Indeed, it would be unjust to deny Plaintiffs’ motion because doing so would impose 

inefficiencies and an undue hardship on the parties and the Court. Here again, United is wrong on 

the law. United argues that Plaintiffs’ motion should be denied because they ignored controlling 

precedent by not separately invoking a supposed “danger of hardship or injustice” standard. Opp’n 

at 1 (quoting PYCA Indus., Inc. v. Harrison Cnty. Waste Water Mgmt. Dist., 81 F.3d 1412, 1421 

(5th Cir. 1996)). In fact, United repeats this refrain throughout its opposition as though it is a 

separate requirement beyond the requirement to show “no just reason for delay.” See id. at 1, 4, 

6, 7, 8, 12 (citing PYCA Indus., 81 F.3d at 1421). But that is not so. Rather, “danger of hardship 

or injustice” is just another way of saying “no just reason for delay,” as PYCA confirms: “A district 

court should grant certification only when there exists some danger of hardship or injustice through 

delay which would be alleviated by immediate appeal[.]” PCYA Indus., 81 F.3d at 1421 (emphasis 

added).

That fact is made even clearer by the authority the Fifth Circuit cites in PYCA. See id.

(citing Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 445 (2d Cir.1985)). The Ansam 

court took the phrase “hardship or injustice” from an earlier Second Circuit decision, which 

explained that “danger of hardship or injustice” is another way of saying “no just reason for delay.” 

Ansam Assocs., 760 F.2d at 445 (citing Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 942 

(2d Cir. 1968)). The Second Circuit could not have been clearer: “Before the trial judge may make 

a finding of finality, however, the words of Rule 54(b) require that there be ‘no just reason for 

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 6 of 13 PageID 19375
5

delay.’ In other words, there must be some danger of hardship or injustice through delay which 

would be alleviated by immediate appeal.” Campbell, 403 F.2d at 942 (emphasis added). 

United is thus flat wrong in its repeated insistence that Plaintiffs’ motion must be denied 

for failing to separately address a “danger of hardship or injustice.” Rather, Plaintiffs must only 

show that there is “no just reason for delay,” which they did in their motion. 

Indeed, Plaintiffs clearly demonstrated that it would be unjust to delay an appeal of the 

motion-to-dismiss decision as that would work a hardship on the parties and the Court. See Pls.’ 

Mot. at 6 (ECF No. 280) (“Because reasons of justice, judicial administration, and equities support 

partial final judgment here, the Court should exercise its discretion to enter final judgment on the 

motion-to-dismiss order.”). Specifically, as Plaintiffs demonstrated (at 6–7), the Fifth Circuit will 

already be reviewing several aspects of the motion-to-dismiss decision in the class-certification 

appeal. It would be a quintessential piecemeal appeal if the Fifth Circuit must wait to consider the 

other part of the motion-to-dismiss decision after full discovery and trial. And, as the Fifth Circuit 

explains: “One of the primary policies behind requiring a justification for Rule 54(b) certification 

is to avoid piecemeal appeals.” PYCA Indus., 81 F.3d at 1421 (citing Ansam Assocs., 760 F.2d

at 445). Such a piecemeal appeal necessarily creates hardship on the parties and courts by 

duplicating efforts and wasting time.3

 United’s counterarguments to this point all fail.

For instance, United resists the conclusion that there are overlapping issues between the 

Court’s decisions because, in United’s estimation, the Fifth Circuit might just affirm on one of 

“numerous independent grounds.” Opp’n at 10–11 (emphasis omitted). In other words, because 

3 Of course, in the mine-run case, it might be reasonable not to permit an appeal under Rule 54(b). 

This is not a mine-run case, however, as there are significant overlapping issues between the 

motion-to-dismiss decision and the certification decision, the proceedings in this Court are already 

stayed, and thus no delay will be caused by granting Plaintiffs’ motion.

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 7 of 13 PageID 19376
6

United believes the Fifth Circuit will completely agree with United’s arguments, there will not be 

any overlapping issues between the class-certification appeal and the motion-to-dismiss appeal. 

Of course, that is simply United’s “guessing,” to use its word, about what will occur on appeal. 

See id. at 13. That is not a basis for denying Plaintiffs’ motion, as the substantial likelihood 

remains that the Fifth Circuit will consider some or all of the various overlapping issues.4

 

Relatedly, United asks the Court (at 8) to deny Plaintiffs’ motion because Plaintiffs have a 

“low likelihood of success” in challenging the Court’s “persuasive” motion-to-dismiss decision. 

To be sure, United felt differently about this Court’s class-certification decision, which United told 

the Fifth Circuit was “completely unprecedented” and “contrary to well-established principles in 

[the Fifth] Circuit governing class certification.” United’s Pet. for Leave to Appeal at 8, No. 24-

90016 (5th Cir. filed July 8, 2024), Doc. 2. United appears to believe immediate appeals are 

warranted when the Court rules against it, but they are improper when United agrees with the 

decision. Once again, that is not a sound basis for denying Plaintiffs’ motion.

United also ignores serious inefficiencies and injustices that would result from denying 

Plaintiffs’ motion. Indeed, United overlooks that the Court’s motion-to-dismiss decision 

eliminated several named Plaintiffs. For example, the Court dismissed with prejudice the claims 

of those subject to United’s harsh masking-and-testing policies, including Kimberly Hamilton and 

David Castillo. See, e.g., Op. & Order at 8–9 (ECF No. 231). Yet the lawfulness of United’s 

masking-and-testing accommodation is part of the certification appeal. See, e.g., Op. & Order 

4 This similarly dooms United’s attempt (at 9 n.1) to prevent the Court from granting Rule 54(b) 

relief with respect to the dismissed retaliation claims of Plaintiffs Sambrano and Kincannon. As 

United sees it, those retaliation claims are just repackaged failure-to-accommodate claims, and 

thus they do not satisfy the requirement that the dismissed claims be distinct. See id. And, while 

that is certainly United’s legal argument, Plaintiffs have already demonstrated why United is 

mistaken. See ECF No. 242 at 10–12. 

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 8 of 13 PageID 19377
7

at 8–9 (ECF No. 263). Suppose the Fifth Circuit reverses this Court’s decision about the proposed 

masking-and-testing subclass and holds that United’s severe masking-and-testing 

accommodations plausibly caused more than de minimis harm. That reversal will be hollow,

because there will be no named plaintiff to represent that subclass on remand. Rather, the Fifth 

Circuit must also reverse the portion of the motion-to-dismiss decision that dismissed parties on 

that same basis. Surely having no named plaintiff for a class at this stage of the litigation, when 

class-certification discovery has concluded, is an undue hardship and highly inefficient.

5

 

Relatedly, if Plaintiffs must wait until after trial to appeal the motion-to-dismiss decision

and the scope of the class changes during that appeal because, for example, the Fifth Circuit 

concludes that planning to place employees on unpaid leave, even if United later reversed course,

is an adverse employment action, the parties and the Court must start the class-certification process 

from scratch after having already completed discovery and a trial on the currently certified class.6

Perhaps recognizing the obvious injustice of this approach, United next claims (at 9) that 

if the motion-to-dismiss and class-certification issues were truly intertwined, Plaintiffs should have 

asked the Fifth Circuit to exercise pendent appellate jurisdiction. United’s sole authority for that 

5 There are several other overlapping issues the Fifth Circuit will need to address when reviewing 

the class-certification decision and the motion-to-dismiss decision. The lawfulness of the 

masking-and-testing accommodation arises in both decisions. See ECF No. 231 at 6–7; ECF No. 

263 at 15. So too does the lawfulness of related requirements, including being forced to eat alone 

outside. See ECF No. 231 at 6–7; ECF No. 263 at 15. Similarly, both decisions held that the plan 

to place all “accommodated” employees on unpaid leave was not an adverse action unless the 

employee was actually placed on unpaid leave. See ECF No. 231 at 8; ECF No. 263 at 10. Of 

course, there is not complete overlap between the decisions. But even for the few issues that do 

not overlap, there are still ramifications for the remaining parties and claims. Thus, it remains 

most beneficial to the parties and the Court to have the Fifth Circuit consider all of these issues at 

the same time.

6 United also argues (at 13) that similar inefficiencies may result from granting Plaintiffs’ motion 

because the Court has already issued its certification decision. While the parties may need to 

engage in supplemental briefing about class certification on remand, it would be far preferable to 

do so now, before discovery resumes, rather than to do so after trial. 

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 9 of 13 PageID 19378
8

proposition is Escobar v. Montee, 895 F.3d 387 (5th Cir. 2018). But that case is not instructive, 

as it addressed a plaintiff’s attempt to have the Fifth Circuit review a motion-to-dismiss order on 

one claim alongside a decision on qualified immunity. Id. at 390. The case says nothing about 

pendent appellate jurisdiction in the context of class certification. In any event, United cannot 

demand that Plaintiffs follow United’s preferred litigation strategy, nor may it show that deviating 

from that strategy is a reason to deny Plaintiffs’ motion.

United further claims (at 11) that a partial final judgment would “defeat the purpose of 

Rule 23(f)’s specialized appellate-review provision.” United goes on to argue that Rule 23(f) 

“does not permit ‘wide-ranging inquiries into the merits of claims.’” Opp’n at 12 (citing Regents 

of Univ. of Cal. v. Credit Suisse First Bos. (USA), Inc., 482 F.3d 372, 381 (5th Cir. 2007)). But 

Credit Suisse cuts against United. The quote about “wide-ranging inquiries” concerned district 

courts examining the merits when determining whether to certify a class. Credit Suisse, 482 F.3d

at 381. The quote has nothing to do with Rule 23(f). What’s more, Credit Suisse states that, while 

Rule 23(f) only permits a review of class-certification issues, “[t]he fact that an issue is relevant to 

both class certification and the merits, however, does not preclude review of that issue.” Id. at 380; 

accord id. at 381 (explaining that, in a “rule 23(f) appeal, this court can, and in fact must, review 

the merits of the district court’s theory of liability insofar as they also concern issues relevant to 

class certification”). Thus, nothing about Plaintiffs’ motion compromises the proper use of 

Rule 23(f). 

Finally, United repeatedly argues that it would be inefficient for the Fifth Circuit to 

consider these issues in a consolidated appeal. See, e.g., Opp’n at 9 (discussing what Rule 23(f) 

permits the Fifth Circuit to consider in a single appeal); id. at 12 (arguing that the presence of any 

independent issues would make a consolidated appeal “less efficient”). But that puts the cart 

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 10 of 13 PageID 19379
9

before the horse. Plaintiffs are not asking the Court to authorize them to pursue a consolidated 

appeal of the motion-to-dismiss decision and the certification decision. That is a question for the 

Fifth Circuit. The question here is only whether it is efficient and just to allow appeals of both 

decisions to occur at the same time while the proceedings here are stayed. The answer to that 

narrow question is obviously “yes.” 

CONCLUSION

United proposes to extend this case, unnecessarily, for several more years. But Rule 54(b) 

gives the Court an efficient mechanism for avoiding such a harmful and unjust delay. The 

proceedings here are currently stayed, and allowing the Fifth Circuit to consider both the 

certification decision and the motion-to-dismiss decision at the same time (if it so chooses) will 

provide the most sensible path forward, and it will clearly define what issues need to be addressed 

during discovery and trial. United has failed to provide any reason to conclude otherwise. 

Accordingly, the Court should grant Plaintiffs’ motion so the Fifth Circuit may address each of 

these issues now before the proceedings here resume.

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 11 of 13 PageID 19380
10

September 27, 2024 Respectfully submitted,

John C. Sullivan

Texas Bar No. 24083920

David Austin R. Nimocks

Texas Bar No. 24002695

S|L LAW PLLC

610 Uptown Boulevard, Suite 2000

Cedar Hill, TX 75104

Telephone: (469) 523-1351

Facsimile: (469) 613-0891

john.sullivan@the-sl-lawfirm.com

/s/ Mark R. Paoletta

Mark R. Paoletta*

D.C. Bar No. 422746

Gene C. Schaerr*

D.C. Bar No. 416368

Brian J. Field*

D.C. Bar No. 985577

Cristina Martinez Squiers

Texas Bar No. 24093764

SCHAERR |JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

Telephone: (202) 787-1060

Facsimile: (202) 776-0136

mpaoletta@schaerr-jaffe.com

* Admitted pro hac vice

Counsel for Plaintiffs

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 12 of 13 PageID 19381
CERTIFICATE OF SERVICE

On September 27, 2024, I filed the foregoing document with the clerk of court for the 

United States District Court, Northern District of Texas. I hereby certify that I have served the 

document on all counsel and/or pro se parties of record by a manner authorized by Federal Rule 

of Civil Procedure 5(b)(2) (ECF System).

/s/ Brian J. Field 

Brian J. Field

Case 4:21-cv-01074-P Document 283 Filed 09/27/24 Page 13 of 13 PageID 19382