Givens v. Revlon, Inc.

[[COURTLISTENER_SUBOPINION {"id":"11106681","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
United States District Court                             
                    EASTERN DISTRICT OF TEXAS                            
                        SHERMAN DIVISION                                 

JAIME GIVENS, individually and on  §                                     
behalf of all other similarly situated,  §                               
                               §                                         
           Plaintiffs,         §                                         
                                   Civil Action No. 4:23-cv-857          
v.                             §                                         
                                   Judge Mazzant                         
                               §                                         
REVLON, INC., et al.,          §                                         
                               §                                         
           Defendants.         §                                         
              MEMORANDUM OPINION AND ORDER                               
    Pending before the Court is Defendants Revlon, Inc.’s and Revlon Consumer Products, 
LLC’s Motion to Certify Question Pursuant to
28 U.S.C. § 1292
(b) (Dkt. #22). Having considered 
the Motion and the relevant pleadings, the Court finds that the Motion should be DENIED.    
                         BACKGROUND                                      
    This is a tort suit arising from a hair dye product. On July 1, 2023, Plaintiff Jaime Givens 
(“Plaintiff”)  used  Defendants  Revlon,  Inc.  and  Revlon  Consumer  Products,  LLC’s 
(“Defendants”) Creme of Nature Moisture-Rich Hair Color with Shea Butter Conditioner (the 
“Product”) to dye her hair (Dkt. #11 at ¶¶ 16–19). Plaintiff selected the Product because she is 
allergic to ammonia and the Product indicated it was ammonia free (Dkt. #11 at ¶¶ 17–21). 
According to Plaintiff, once she applied the product to her hair, she experienced an allergic reaction 
and suffered from swollen lymph nodes in her arm and neck area as well as chemical burns on her 
scalp (Dkt. #11 at ¶ 19). Due to her ammonia allergy, Plaintiff purchased home testing strips to 
determine if the Product contained ammonia (See Dkt. #11 at ¶¶ 21–22). Plaintiff claims that the 
home testing strips indicated there was ammonia in the Product. Accordingly, on September 25, 
2023, she filed suit in this Court (Dkt. #1). Eventually, Plaintiff filed an Amended Complaint (Dkt. 
#11), which Defendants sought to dismiss (Dkt. #13). Defendants contended that the Product never 
contained  ammonia  and  that  the  results  from  Plaintiff’s  home  testing  strips  were  woefully 
inadequate (See Dkt. #13 at pp. 17–22). So, according to Defendants, Plaintiff did not state a 

plausible claim for relief (See Dkt. #13 at pp. 17–22). The Court, however, determined that Plaintiff 
sufficiently pleaded plausible claims for relief, except as to her Breach of Express Warranty claim, 
which the Court dismissed with prejudice (Dkt. #21 at p. 4).              
    Defendants filed this Motion on February 21, 2025 (Dkt. #22). Through it, Defendants 
urge the Court to certify its Memorandum Opinion and Order (Dkt. #21) on February 12, 2025, 
for appellate review (Dkt. #22 at p. 1). Defendants seek clarity on the following question: Does a 

plaintiff who alleges the presence of an undisclosed substance in a product also need to allege 
possession of admissible evidence that the substance was present? (Dkt. #24 at p. 1). Plaintiff filed 
her Response (Dkt. #23) on March 7, 2025, and Defendants filed their Reply on March 10, 2025 
(Dkt. #24). The Motion is now ripe for adjudication.                      
                       LEGAL STANDARD                                    
    In the federal judicial system, courts of appeals can review district-court orders only when 
a decision becomes “final,” which generally occurs “upon completion of the entire case.” Ritzen 

Grp., Inc. v. Jackson Masonry, LLC,
140 S. Ct. 582, 586
(2020); see United Disaster Response, LLC 
v. Omni Pinnacle, LLC,
511 F.3d 476, 482
(5th Cir. 2007) (“Under
28 U.S.C. § 1291
, unless one of 
the limited exceptions to the final judgment rule applies, we can review only ‘final decisions.’”). 
But in certain circumstances, Congress permits district judges to certify an issue for appellate 
review prior to a case’s culmination. Microsoft Corp. v. Baker,
137 S. Ct. 1702, 1708
(2017). The 
applicable statute,
28 U.S.C. § 1292
(b), reads, in relevant part:         
    When 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 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. 
    Disaggregated, the statutory requirements to certify an interlocutory order are threefold: 
“(1) a controlling question of law is involved, (2) there is substantial ground for difference of 
opinion about the question of law, and (3) immediate appeal will materially advance the ultimate 
termination of the litigation.” Rico v. Flores,
481 F.3d 234, 238
(5th Cir. 2007). “All three of these 
criteria must be met for an order to properly be certified for interlocutory appeal.” Crankshaw v. 
City of Elgin, No. 1:18-CV-75-RP,
2020 WL 1866884
, at *1 (W.D. Tex. Apr. 14, 2020) (citing Clark-
Dietz & Assocs.-Eng'rs v. Basic Constr. Co.,
702 F.2d 67
, 69 (5th Cir. 1983)); see Ahrenholz v. Bd. of 
Trs.  of  Univ.  of  Ill.,
219  F.3d  674,  676
(7th  Cir.  2000)  (“The  criteria  are  conjunctive,  not 
disjunctive.”). The party moving for certification bears the burden to demonstrate its necessity. 
Coates v. Brazoria Cnty.,
919 F. Supp. 2d 863, 867
(S.D. Tex. 2013)       
    “[I]nterlocutory appeals are exceptional.” Earl v. Boeing Co., No. 4:19-CV-00507,
2020 WL 
4220887
, at *2 (E.D. Tex. July 23, 2020) (quoting Clark-Dietz, 702 F.2d at 68). Section 1292(b) 
does not exist “to question the correctness of a district court's ruling or to obtain a second, more 
favorable opinion.” Ryan v. Flowserve Corp.,
444 F. Supp. 2d 718, 722
(N.D. Tex. 2006); German by 

German v. Fed. Home Loan Mortg. Corp.,
896 F. Supp. 1385, 1398
(S.D.N.Y. 1995) (“[Section 
1292(b)] is not intended as a vehicle to provide early review of difficult rulings in hard cases.”). 
Construing § 1292(b) as anything other than a “narrow exception” would effectively nullify the 
“[c]ongressional policy against piecemeal appeals.” Garner v. Wolfinbarger,
433 F.2d 117, 120
(5th 
Cir.  1970). “The  justification  for  immediate  appeal  must  therefore  be  sufficiently  strong  to 
overcome the usual benefits of deferring appeal until litigation concludes.” Mohawk Indus., Inc. v. 
Carpenter,
558 U.S. 100, 107
(2009); Jud. Watch, Inc. v. Nat'l Energy Pol'y Dev. Grp.,
233 F. Supp. 
2d 16, 20
(D.D.C. 2002) (“A party seeking certification pursuant to § 1292(b) must meet a high 
standard to overcome the ‘strong congressional policy against piecemeal reviews, and against 

obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.’” (quoting United 
States v. Nixon,
418 U.S. 683, 690
(1974))).                              
    The decision to certify an interlocutory appeal lies within the sound discretion of the 
district court. Richardson v. Univ. of Tex. Sys., No. 5:19-CV-271-XR,
2019 WL 5683470
, at *1 (W.D. 
Tex. Oct. 31, 2019); Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367
, 405 n.9 (2004) (Ginsburg, J., 
dissenting) (“[T]he decision whether to allow an [interlocutory] appeal lies in the first instance in 

the District Court's sound discretion.”). District courts wield this authority precisely because 
Congress,  in  enacting  §  1292(b), “chose  to  confer  on  [them]  first  line  discretion  to  allow 
interlocutory appeals.” Swint v. Chambers Cnty. Comm'n,
514 U.S. 35, 47
(1995); see In re Trump,
958 F.3d 274
, 282 n.2 (4th Cir. 2020) (en banc) (detailing § 1292(b)’s legislative history), vacated as 
moot by Trump v. D.C.,
141 S. Ct. 1262
(2021) (mem.). As such, even when the statutory criteria are 
met, district courts may nevertheless deny certification. SEC v. Sethi Petroleum, LLC, No. 4:15-CV-
338,
2016 WL 4400064
, at *2 (E.D. Tex. Aug. 18, 2016).                    

                           ANALYSIS                                      
    Defendants fail to satisfy all requirements in
28 U.S.C. § 1292
(b), and even if Defendants 
could satisfy them, the Court would exercise its discretion and deny certification. See Sethi 
Petroleum, LLC,
2016 WL 4400064
, at *2.                                   
I.   Substantial Ground for Difference of Opinion About the Question of Law 
    Defendants do not prove that there is substantial ground for a difference of opinion on the 
question of law—Does a plaintiff who alleges the presence of an undisclosed substance in a product 
also need to allege possession of admissible evidence that the substance was present? “The 
threshold for establishing the ‘substantial ground for difference of opinion’ . . . is a high one.” Jud. 
Watch, Inc., 233 F. Supp. at 19.  Courts normally find substantial grounds for difference of opinion 

when (1) “a trial court rules in a manner which appears contrary to the rulings of all Courts of 
Appeals which have reached the issue”; (2) “the circuits are in dispute on the question and the 
court of appeals of the circuit has not spoken on the point”; (3) “complicated questions arise under 
foreign law”; or (4) “novel and difficult questions of first impression are presented.” Coates, 919 F. 
Supp. 2d at 868–69 (citation modified). Defendants argue that they cited numerous federal court 
decisions that dismissed claims similar to Plaintiff’s because the claims were not supported by 

competent laboratory analysis (Dkt. #22 at p. 12; Dkt. #13 at pp. 17–22). True, Defendants cited 
numerous decisions from federal district courts across the country and cases from the Fifth and 
Ninth Circuits (See Dkt. #22 at pp. 12–16; Dkt. #13 at pp. 17–22). Be that as it may, Defendants’ 
argument rings hollow. The Court’s decision does not appear “contrary to the rulings of all Courts 
of Appeals which have reached the issue.” Coates, 919 F. Supp. 2d at 868–69 (citation modified). 
In fact, Defendants only cite cases from the Fifth and Ninth Circuits that are related to the suit 
before the Court. Relatedly, Defendants does not prove that the “circuits are in dispute on the 

question and the [Fifth Circuit] has not spoken on the issue” because Defendants only cites two 
circuit cases. Id. Further, this case does not involve foreign law. See id. (noting courts find grounds 
for difference of opinion when “complicated cases arise under federal law”). Lastly, the Court does 
not find that this a “novel and difficult question[] of first impression.” Id. Rather, as Plaintiff notes, 
Defendants takes umbrage with the sufficiency of Plaintiff’s home testing strips (Dkt. #23 at p. 2). 
That is an issue for summary judgment.                                    
    Thus, Defendants do not prove that “there is substantial ground for difference of opinion 
about the question of law . . . .” Rico,
481 F.3d at 238
. Since “[a]ll three of these criteria must be met 
for an order to properly be certified for interlocutory appeal,” the Court will not analyze the other 

criteria. Crankshaw,
2020 WL 1866884
, at *1 (citing Clark-Dietz & Assocs.-Eng'rs, 702 F.2d at 69. 
And, even if the statutory criteria were met, the Court would exercise its discretion and deny 
certification. Sethi Petroleum, LLC,
2016 WL 4400064
, at *2; see also Escobedo v. Ace Gathering, Inc., 
No. H-22-538,
2023 WL 5511199
, at *1 (S.D. Tex. Aug. 25, 2023) (“District courts have unfettered 
discretion to deny certification, even when all statutory criteria are satisfied.”) (citation modified); 
Nieman v. City of Dallas, No. 3:14-CV-3897,
2016 WL 470235
, at *3 (N.D. Tex. Feb. 8, 2016) 

(same).                                                                   
                         CONCLUSION                                      
    It is therefore ORDERED that Defendants Revlon, Inc.’s and Revlon Consumer Products, 
LLC’s  Motion  to  Certify  Question  Pursuant  to
28  U.S.C.  §  1292
(b)  (Dkt.  #22)  is  hereby 
DENIED.                                                                   
    It is further ORDERED that the Parties must file a report informing the Court of this 
case’s status within 14 days of the issuance of this Memorandum Opinion and Order. 

    IT IS SO ORDERED.