United States District Court, D. Oregon
KELLY OTT; NANCY LUEBBEN; and BENJAMIN GESLER, on behalf of themselves and all others similarly situated, Plaintiffs,
MORTGAGE INVESTORS CORPORATION OF OHIO, INC., an Ohio corporation also doing business as MORTGAGE INVESTORS CORPORATION, AMERIGROUP MORTGAGE CORPORATION, VETERANS INFORMATION DEPARTMENT and VETERANS HOME LOANS; WILLIAM EDWARDS, individually; JEFFREY CRILLEY, individually; JAMES SHATZ, individually; and JOHN WESLEY BAILEY III, individually, Defendants.
OPINION AND ORDER
JANICE M. STEWART, Magistrate Judge.
Plaintiffs filed this class action against defendants for violations of the Telephone Consumer Protection Act, 47 USC § 227 ("TCPA"), by means of a nationwide telemarketing scheme targeted at U.S. military veterans. Defendant, Mortgage Investors Corporation of Ohio, Inc. ("MIC"), is a mortgage lending company doing business under several other names and specializing in Interest Rate Reduction Refinance Loans guaranteed by the United States Department of Veterans Affairs. The four individual defendants (William Edwards, Jeffrey Crilley, James Shatz, and John Wesley Bailey III) are directors, officers and employees of MIC ("Individual Defendants").
The Individual Defendants filed a Motion to Dismiss pursuant to FRCP 12(b)(2) based on lack of personal jurisdiction (docket #33) which this court denied by Order dated December 3, 2014 (docket #83). Ott v. Mortgage Investors Corp. of Ohio, Inc., No. 3:14-CV-00645-ST, 2014 WL 6851964 (D Or Dec 3, 2014). The Individual Defendants now have filed a Motion to Certify Order for Interlocutory Appeal (docket #103). For the reasons set forth below, that motion is denied.
Pursuant to 28 USC § 1291, appellate review is available only after a final judgment has been entered by a district court. However, the Interlocutory Appeals Act, 28 USC § 1292(b), provides a limited exception to this final judgment rule. It authorizes district courts to certify an order for interlocutory appeal if: (1) the "order 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." Id; Reese v. BP Exploration (Alaska), Inc., 643 F.3d 681, 687-88 (9th Cir 2011).
Even if these three statutory criteria are satisfied, district courts have "unfettered discretion" to deny certification. Villareal v. Caremark LLC, No. CV-14-00652-PHX-DJH, 2015 WL 545522, at *3 (D Ariz. Feb. 2, 2015) (internal quotation marks and citation omitted); see also Exec. Software N. Am., Inc. v. U.S. Dist. Court for the Cent. Dist. of Cal., 24 F.3d 1545, 1550 (9th Cir 1994) (noting that a district court's certification decision is "unreviewable"). As the Ninth Circuit has cautioned, § 1292(b) "is to be applied sparingly and only in exceptional cases." United States v. Woodbury, 263 F.2d 784, 799 n11 (9th Cir 1959) (citations omitted). "Congress did not intend that the courts abandon the final judgment doctrine and embrace the principle of piecemeal appeals." Id (internal quotation marks and citation omitted). Instead, the legislative history makes clear that § 1292(b) is reserved for "exceptional cases where a decision of the appeal may avoid protracted and expensive litigation, as antitrust and similar protracted cases." U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 n2 (9th Cir 1966) (quotation omitted). It "was not intended merely to provide review of difficult rulings in hard cases." Id.
Plaintiffs first object to the Individual Defendants' motion for certification as untimely filed. A motion under § 1292(b) need not be filed within any particular time, but some courts require that it be filed "within a reasonable time." Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir 2000) (emphasis omitted); Lopez v. Youngblood, No. 1:07cv0464 DLB, 2009 WL 2062883, at *3 (ED Cal July 15, 2009) (adopting the Ahrenholz "reasonable time" requirement). Although what constitutes a "reasonable time" varies, some courts have condemned delays of two months. Richardson Elec. Ltd. v. Panache Broad., 202 F.3d 957, 958 (7th Cir 2000) (finding two month delay to file § 1292(b) motion to be "inexcusably dilatory"); Ferraro v. Sec'y of U.S. Dep't of Health & Human Servs., 780 F.Supp. 978, 979 (EDNY 1992) (rejecting § 1292(b) motion when no justification offered for a nearly two and a half month delay).
The Individual Defendants waited 78 days after entry of the court's Order on December 3, 2014, before filing their motion on February 19, 2015. They explain that delay due to the intervening holiday season with previously scheduled vacations, the need to respond to discovery requests and prepare a motion for a protective order, and the need to confer with four individual clients to consider the utility of filing the motion. Given this explanation, this court finds that the Individual Defendants brought this motion within a reasonable time.
II. Statutory Criteria
A. Controlling Questions of Law
A "question of law" is "controlling" under § 1292(b) if "resolution of the issue on appeal could materially affect the outcome of litigation in the district court." Shurance v. Planning Control Int'l, Inc., 839 F.2d 1347, 1347 (9th Cir 1988) (internal quotation marks and citation omitted). A "question of law" means a "pure question of law, " not a mixed question of law and fact or an application of law to a particular set of facts. See Ahrenholz, 219 F.3d at 675-77. However, when the underlying facts are ...