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Perry v. Columbia Recovery Group, LLC

United States District Court, W.D. Washington, Seattle

February 23, 2017

ROD PERRY, Plaintiff,
v.
COLUMBIA RECOVERY GROUP, LLC, Defendant.

          ORDER DENYING CERTIFICATION FOR INTERLOCUTORY APPEAL AND DENYING STAY

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the court is Plaintiff Rod Perry's motion to certify for interlocutory appeal and stay this court's order granting Defendant Columbia Recovery Group LLC's (“Columbia”) motion to dismiss. (Mot. (Dkt. # 29); see also Order (Dkt. # 28).) The court has reviewed the motion, Columbia's response (Resp. (Dkt. # 30)), the relevant portions of the record, and the applicable law. Being fully advised, the court DENIES Mr. Perry's motion for an interlocutory appeal and to stay the litigation. The court also GRANTS Mr. Perry seven (7) days from the filing of this order to file an amended complaint that adequately alleges Article III standing.

         II. BACKGROUND

         The parties are familiar with the facts and prior proceedings, which are set forth in the court's prior order. (See Order at 2-4.) In its October 19, 2016, order, the court granted Columbia's motion to dismiss after concluding that Mr. Perry had insufficiently alleged an injury-in-fact necessary to establish standing under Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540 (2016), as revised (May 24, 2016). (Order at 12-20.) The court granted Mr. Perry leave to amend his complaint within 14 days of the order to adequately allege Article III standing. (Id. at 20-21.)

         On November 2, 2016, Mr. Perry filed the instant motion asking the court to certify its October 19, 2016, order for interlocutory appeal and to stay the litigation. (Mot.) Mr. Perry “believes the complaint can be amended to plead the additional elements that the [c]ourt outlined in its order, i.e. that the debt was inaccurate and that Plaintiff did dispute it, ” but he chooses not to do so because “pleading these additional facts will change the focus of the litigation and how the parties allocate their resources on the issues.” (Id. at 6.) Instead, he seeks to immediately appeal the court's order. (Id. at 1.) Columbia opposes Mr. Perry's motion. (See Resp.) The court now considers the motion.

         III. ANALYSIS

         A. Legal Standard

         “As a general rule, an appellate court should not review a district court ruling until after the entry of final judgment.” Herrera v. Cty. of L.A., No. CV 09-7359 PSG (CWx), 2013 WL 12120073, at *5 (C.D. Cal. June 17, 2013) (citing 28 U.S.C. § 1291). Nevertheless, a party may move to certify an order for interlocutory appeal and stay the case pursuant to 28 U.S.C. § 1292(b). Section 1292(b) states:

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. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

28 U.S.C. §1292(b).

         Interlocutory appeals are generally disfavored, but the court has discretion to grant leave to appeal where the appeal (1) involves a controlling question of law; (2) there is substantial ground for difference of opinion; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. In re Allen-Vrablik, No. C12-0185JLR, 2012 WL 681654, at *2 (W.D. Wash. Feb. 27, 2012). To grant an interlocutory appeal, the court must find that all three elements are met. Id.; Herrera, 2013 WL 12120073, at *5 (citing United States v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959)). The proponent must demonstrate that “exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Herrera, 2013 WL 12120073, at *5 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)). “The moving party bears the burden of establishing § 1292(b)'s narrowly construed elements.” Id.

         B. An Interlocutory Appeal Will Not Materially Advance the Ultimate Termination of the Litigation

         The court begins its analysis with the last of the three required elements-whether an interlocutory appeal will materially advance the ultimate termination of the litigation. In re Allen-Vrablik, 2012 WL 681654, at *2. “An interlocutory appeal must be likely to materially speed the termination of the litigation.” Ass'n of Irritated Residents v. FredSchakel Dairy, 634 F.Supp.2d 1081, 1092 (E.D. Cal. 2008) (holding that a motion for interlocutory appeal satisfied the material advancement factor where a reversal on appeal would obviate the need for extensive expert testimony, alleviate the need for additional experts, eliminate trial time, and conserve judicial resources). In analyzing the material advancement factor, the “[c]ourt should consider the effect of a reversal by the court of appeals on the management of the case.” Id. (citing In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982)). An interlocutory appeal need not have a final, dispositive effect on the litigation; it is enough that it “may materially advance” the litigation. Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011) (holding that the potential that a reversal could remove a defendant and several ...


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