United States District Court, W.D. Washington, Seattle
ORDER DENYING CERTIFICATION FOR INTERLOCUTORY APPEAL
AND DENYING STAY
L. ROBART UNITED STATES DISTRICT JUDGE.
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.
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.)
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.
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).
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.
An Interlocutory Appeal Will Not Materially Advance the
Ultimate Termination of the Litigation
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 ...