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Busker v. Wabtec Corp.

United States Court of Appeals, Ninth Circuit

September 6, 2018

John Busker, on behalf of himself and all others similarly situated and the general public, Plaintiff-Appellant,
v.
Wabtec Corporation, a Pennsylvania corporation; Mark Martin, an individual; Does, 1 through 100, Defendants-Appellees.

          D.C. No. 2:15-cv-08194-ODW-AFM

          Before: Richard R. Clifton and Consuelo M. Callahan, Circuit Judges, and Kenneth M. Hoyt, [*] District Judge.

         ORDER

         SUMMARY[**]

         Certified Question to California Supreme Court

         In a case involving the Southern California Regional Rail Authority ("Metrolink") and a federally-mandated comprehensive communications network known as Positive Train Control ("PTC"), the panel certified the following question of state law to the Supreme Court of California:

Whether work installing electrical equipment on locomotives and rail cars (i.e., the "onboard work" for Metrolink's PTC project) falls within the definition of "public works" under California Labor Code § 1720(a)(1) either (a) as constituting "construction" or "installation" under the statute or (b) as being integral to other work performed for the PTC project on the wayside (i.e., the "field installation work").

          ORDER

         We respectfully ask the Supreme Court of California to exercise its discretion to decide the certified question set forth in Part II of this Order, below. See Cal. R. Ct. 8.548. The answer to this question of California law will be dispositive of the appeal before us, and no clear controlling California precedent exists. Id. Moreover, because the question that we certify is of great importance to many employees in California, considerations of comity and federalism suggest that the court of last resort in California, rather than our court, should have the opportunity to answer the question in the first instance. See Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192, 1196-97 (9th Cir. 2013); Klein v. United States, 537 F.3d 1027, 1028 (9th Cir. 2008).

         I. Administrative Information

         We provide the following information as required by California Rule of Court 8.548(b)(1):

The title of this case is: JOHN BUSKER, on behalf of himself and all others similarly situated and the general public, Plaintiff-Appellant v. WABTEC CORPORATION, a Pennsylvania corporation, and MARK MARTIN, an individual, Defendants-Appellees.

         The case number in our court is 17-55165.

         The names and addresses of counsel are:

For Plaintiff-Appellant: Richard E. Donahoo, Donahoo & Associates, Tustin, California; Thomas G. Foley, Jr., Kevin D. Gamarni, Foley, Bezek, Behle & Curtis, LLP, Santa Barbara, California; Tiffany J. Gates, Law Offices of Tiffany J. Gates, Santa Rosa, California; Stuart B. Esner, Holly N. Boyer, Shea S. Murphy, Esner, Chang & Boyer, Pasadena, California.
For Defendants-Appellees: Patrick Madden, Todd L. Nunn, K&L Gates LLP, Seattle, Washington.

         We designate John Busker as the petitioner if our request for a decision is granted. He is the appellant before our court, and he moved for an order requesting a decision from the ...


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