The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
EX PARTE APPLICATION TO ORDER DENYING DEFENDANTS' AND DENIAL OF DEFENDANTS' SHORTEN TIME FOR HEARING ON MOTION FOR CERTIFICATION OF TO 28 U.S.C. § 1292(b) ORDER FOR APPEAL PURSUANT
Defendants, Yosemite Chevron, Abbco Investments, LLC and Robert Abbate ("Defendants" seek an ex parte application for order shortening time to hear their motion to certify for immediate appeal the Court's December 30, 2010 Order Denying Summary Judgment pursuant to 28 U.S.C. § 1292(b). No oral argument is necessary and the matter is submitted for decision.
This case, brought by Tiffany Fenters, a former employee of the Abbate Defendants, alleges claims for violation of her civil rights and other damages arising from the alleged wrongful termination of her employment, abusive employment practices, and accusations of criminal wrongdoing against her made by the Abbate Defendants, leading to a criminal prosecution of Fenters, which resulted in her acquittal.
Defendants have suggested that the denial of their summary judgment motion was erroneous based on their contention that as private parties they could not have conspired or acted in concert with public officials and other state actors in the Merced County District Attorney's Office and related law enforcement agencies.
A. Required Legal Standard.
Defendants seek certification of the Court's decision granting in part and denying in part Defendants' Motion for Summary Judgment, an interlocutory order from which no appeal is available until the entry of final judgment following trial on the merits. Hopkins v. City of Sierra Vista, Ariz., 931 F.2d 524, 529 (9th Cir. 1991). The standard for a permissive interlocutory appeal requires that a district court find and certify 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 appeal may materially advance ultimate termination of the litigation.
In the Ninth Circuit, § 1292(b) is to be applied sparingly and only in exceptional cases. The "controlling question of law" requirement must be interpreted in such a way as to implement this policy. In re Cement Antitrust Litigation, 673 F.2d 1020, 1027 (9th Cir. 1982); Davis Moreno Construction, Inc. v. Frontier Steel Buildings Corp., 2011 WL 347127 (E.D. Cal. Feb. 2, 2011). A party seeking interlocutory review "has the burden of persuading the Court of Appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers & Lybrand v. Livisay, 437 U.S. 463, 475 (1978). The standard to certify a question of law is high and a district court generally should not permit such an appeal where "it would prolong litigation rather than advance its resolution." Syufy Enter. v. Am. Multi Cinema, Inc., 694 F.Supp. 725, 729 (M.D. Cal. 1988). In applying these standards, the trial court must weigh the asserted need for the proposed interlocutory appeal with the policy in the ordinary case of discouraging piecemeal appeals. Association of Irritated Residents v. Fred Schakel Dairy, 634 F.Supp.2d 1081, 1087 (E.D. Cal. 2008).
To establish a "substantial ground for difference of opinion," a showing that there is a dearth of case law, or that the issue is a question of first impression is insufficient. Davis Moreno, 2011 WL 347127 at **2-3. The Court should also consider: 1) if there are other claims (even ones of state law) for which trial would nonetheless be required; 2) whether trial is imminent; 3) whether the trial promises to be lengthy or complex; and 4) how long the litigation has been pending. Id. at **3-4.
This case has been pending since 2005. It is now approximately six years old. The summary judgment ruling now sought to be appealed was entered December 30, 2010. The present motion filed 78 days later seeks to avoid an imminent June 14, 2011 trial date, previously scheduled with the agreement of the parties in January 2011. This delay alone is sufficient to deny certification. Falise v. American Tobacco Co., 94 F.Supp.2d 316, 357 (E.D. N.Y. 2000) (denying certification motion two and one- half months before the scheduled trial and holding, "[T]o delay proceedings for appellate review on the eve of trial would not advance the ends of justice, and would unnecessarily burden both this Court and the Court of Appeals."). The party seeking certification must act with "diligence." Jiddes Richard Electronics, Ltd. v. Panache Broadcasting of Pennsylvania, Inc., 202 F.3d 957, 958-59 (7th Cir. 2000) (two month delay in filing for certification was untimely); Weir v. Propst, 915 F.2d 283, 285-87 (7th Cir. 1990) (sixty-three days between interlocutory order and certification motion justified denial on the grounds of lack of timeliness); see also Jiddes v. Glenn Falls Ins. Co., 2003 WL 23486911, *1 (M.D. Fla. 2003).
There are other claims advanced by Plaintiff. The trial will not be lengthy (approximately eight days). The trial will not be complex as the issues turn almost entirely on the credibility of witnesses. The motion lacks diligence, is untimely, and simply seeks to avoid trial in this case. This lack of diligence justifies denial of a motion.
Arguendo, the Defendants argue that a claim cannot be maintained under the Civil Rights Act, 42 U.S.C. § 1983 solely against a private actor. The Court has addressed the issue on pages 57-75 of the underlying decision denying summary judgment. Under the authority of Arnold v. IBM Corp., 637 F.2d 1350, 1356-57 (9th Cir. 1981), a civil rights plaintiff can establish the requisite causation between the conduct of private persons and a violation of § 1983 by proving that private individuals exercise control over the decision-making state law enforcement in an investigation. (Cited with approval and followed in Franklin v. Fox, 312 F.3d 423, 445-446. Defendants' argument that the dismissal of governmental co-defendants ends the ability to maintain the claim against the private defendants is belied by the Arnold case, 637 F.2d at 1352, where the plaintiff did not sue any governmental defendants.
Defendant Abbate, an individual, actively participated in the District Attorney's investigation working with the team assigned to the Fenters' criminal investigation and prosecution. District Attorney Investigator Hutton acknowledged that Defendant Abbate assisted the District Attorney's investigation in the Fenters' matter between May 14 and June 4, 2003. Defendant Abbate acknowledged he assisted with the investigation and had his most extensive contacts with Investigator Hutton during the District Attorney's investigative phase of the criminal case.
Investigator Hutton testified about an interview protocol set up between Defendant Abbate and Hutton to conduct the June 4, 2003 interview of a co-employee of Fenters. Abbate also set up the June 4, 2003 interview with his employee, Acevas. Abbate himself conducted the first part of the District Attorney's interview, in conformity with guidelines provided by Investigator Hutton. Abbate also provided an additional eight months of financial analysis to assist the District Attorney. Investigator Hutton spent approximately 20 hours working on the ...