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John Clerkin and Veronica Mendez, Individually and v. Mylife.Com

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


November 15, 2011

JOHN CLERKIN AND VERONICA MENDEZ, INDIVIDUALLY AND ON BEHALF OF ALL, OTHERS SIMILARLY SITUATED
PLAINTIFFS,
v.
MYLIFE.COM, INC., DEFENDANT.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER DENYING MOTION TO CERTIFY FOR INTERLOCUTORY APPEAL

BACKGROUND

United States District Court For the Northern District of California

Mylife.com, Inc. moves for an order certifying an interlocutory appeal of the Court's Order of August 29, 2011 on 14 the question of whether class allegations may be dismissed at the 15 pleading stage pursuant to a motion to dismiss under Federal Rule 16 of Civil Procedure 12(b)(6). Plaintiffs oppose the motion. The 17 matter was taken under submission on the papers. Having 18 considered all of the papers submitted by the parties, the Court 19 DENIES Defendant's motion. 20

DISCUSSION

Pursuant to Title 28 U.S.C. section 1292(b), the district 22 court may certify appeal of an interlocutory order if (1) the 23 order involves a controlling question of law, (2) appealing the 24 order may materially advance the ultimate termination of the 25 litigation, and (3) there is substantial ground for difference of 26 opinion as to the question of law. 27

"Section 1292(b) is a departure from the normal rule that 28 only final judgments are appealable, and therefore must be construed narrowly." James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002). Thus, the court should apply the 3 statute's requirements strictly, and should grant a motion for 4 certification only when exceptional circumstances warrant it. 5

Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). The party 6 seeking certification to appeal an interlocutory order has the 7 burden of establishing the existence of such exceptional 8 circumstances. Id. A court has substantial discretion in 9 deciding whether to grant a party's motion for certification. 10

Brown v. Oneonta, 916 F. Supp. 176, 180 (N.D.N.Y. 1996) rev'd in 11 part on other grounds

While Defendant argues that it should be entitled to contest class certification in a motion to dismiss, it has failed to show 14 that class treatment is improper in this case. Therefore, even if 15 the Court certified an interlocutory appeal and the Ninth Circuit 16 held that class certification could be challenged in a motion to 17 dismiss, resolution of this case would not be advanced. See Aug. 18 29, 2011 Order at 7, n.4. Plaintiffs' motion for class 19 certification is due January 12, 2012. Whether Plaintiffs are 20 entitled to represent a class will be long resolved before the 21 result of any appeal to the Ninth Circuit would be announced. 22 23 opinion on controlling questions of law on this issue because it 24 has not been directly addressed by the Ninth Circuit. However, 25

"The mere presence of a disputed issue that is a question of first 26 impression, standing alone, is insufficient to demonstrate a 27 substantial ground for difference of opinion under [section] 28 1292(b)." In re Conseco Life Ins. Cost Of Ins. Litig., 2005 WL , 106 F.3d 1125 (2nd Cir. 1997).

Defendant argues that there are substantial differences of 5678841, at *7 (C.D. Cal.) (citing Flor v. Bot Financial Corp., 79 F.3d 281, 284 (2d Cir. 1996); see also Lenz v. Universal Music 3 Group, 2008 WL 4790669, at *2 (N.D. Cal.). Similarly, 4 "substantial ground for difference of opinion does not exist 5 merely because there is a dearth of cases." S.A. v. Tulare County 6 Office of Educ., 2009 WL 331488, at *6 (E.D. Cal.)(quotations 7 omitted)(citing White v. Nix, 43 F.3d 374, 378 (8th Cir. 1994). 8

Defendant fails to demonstrate any exceptional circumstances here 9 that would warrant the Court certifying an interlocutory appeal. 10

CONCLUSION

For the foregoing reasons the Court DENIES the motion to certify its order for interlocutory appeal. (Docket no. 84.) 13

IT IS SO ORDERED.

Dated:

20111115

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