The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING PLAINTIFF'S MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL [Doc. No. 195]
Presently before the Court is Plaintiff and Counter-Defendant Hansen Beverage Company's ("Hansen") motion for certification for interlocutory appeal. (Doc. No. 195.) Defendant and Counter-Claimant Innovation Ventures, LLC dba Living Essentials ("Living Essentials") has filed an opposition, and Hansen has filed a reply.
The Court finds the motion suitable for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1). For the reasons stated herein, the Court deniesthe motion for certification.
This case involves two competing companies that produce energy drinks. Living Essentials produces a two-ounce"energy shot" under the 5-Hour Energy brand name. Hansen produces a number of energy products under the brand names Hansen, Monster, and Lost.
On July 1, 2008, Hansen filed a complaint against Living Essentials for false advertising in violation of the Lanham Act, and unfair competition, false advertising, and trade libel in violation of California law. (Doc. No. 1.) On August 18, 2008, Living Essentials filed an answer. (Doc. No. 8.)
Hansen filed its First Amended Complaint on August 11, 2009. (Doc. No. 97.) On August 27, 2009, Living Essentials filed an answer and asserted a counterclaim against Hansen. (Doc. No. 106.) The counterclaim set forth two causes of action: (1) false advertising in violation of the Lanham Act, and (2) unfair competition in violation of California Business and Professions Code § 17200 and false advertising in violation of § 17500.
On September 16, 2009, Hansen filed a motion to dismiss the counterclaim or, alternatively, to sever. (Doc. No. 111.) After Living Essentials filed an amended counterclaim asserting the same two causes of action (Doc. No. 128), Hansen filed a motion to dismiss and motion to sever the amended counterclaim (Doc. Nos. 136 & 137).
On December 22, 2009, the Court issued an order granting in part and denying in part Hansen's motion to dismiss. (Doc. No. 166.) On December 30, 2009, the Court denied Hansen's motion to sever. (Doc. No. 167.)
On January 4, 2010, Hansen filed the instant motion for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), seeking immediate review of the Court's December 22 Order ("the Order").
28 U.S.C. § 1292(b) authorizes certification of district court orders for interlocutory appeal. A district court may grant certification if it is of the opinion that its order (1) involves a controlling question of law, (2) as to which there is substantial ground for difference of opinion, and (3) an immediate ...