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Lisker v. City of Los Angeles

United States District Court, Ninth Circuit

January 27, 2014

BRUCE LISKER, Plaintiff,
v.
CITY OF LOS ANGELES, et al., Defendants.

ORDER DENYING DEFENDANTS' MOTION TO CERTIFY INTERLOCUTORY APPEAL [445]

OTIS D. WRIGHT, II, District Judge.

I. INTRODUCTION

On December 16, 2013, Defendants filed a Motion for Certification of Interlocutory Appeal under 28 U.S.C. § 1292(b). (ECF No. 445.) The Defendants seek to appeal the Court's February 4, 2013 Order denying the Defendant City of Los Angeles's Motion for Summary Judgment on Lisker's Monell claim and denying all Defendants' Motion for Summary Judgment based on the statute of limitations. (ECF No. 432.) For the reasons discussed below, the Court DENIES Defendants' Motion.[1]

II. BACKGROUND

This action was reassigned to this Court on May 13, 2013, after the retirement of the Honorable Howard A. Matz. (ECF No. 441.) Prior to retirement, Judge Matz granted in part and denied in part Defendants' Motion for Summary Judgment. (ECF No. 432.) The Court granted Defendants' motion with respect to Lisker's claim that the Defendants violated his Fourteenth Amendment right to a fair trial by failing to disclose exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963). ( Id. ) The Court denied Defendants Andrew Monsue, and Howard Landgren's motion with respect to Lisker's claim that the Defendants had violated his Fourteenth Amendment right to a fair trial by introducing fabricated evidence at his criminal trial-concluding that Defendants were not shielded by absolute witness immunity. ( Id. ) On March 4, 2013, Defendants Monsue and Landgren filed an interlocutory appeal in the Ninth Circuit challenging the Court's denial of absolute witness immunity. (ECF No. 434.) This appeal is currently pending in the Ninth Circuit.

The Court also denied Defendant City of Los Angeles's motion for summary judgment with respect to Lisker's Monell and statute-of-limitations claims. (ECF No.432.) On December 16, 2013, Defendants filed a motion seeking certification of the remaining issues-the Monell claims against the City and all Defendants' assertion of the statute of limitations-for appeal under to 28 U.S.C. § 1292(b).

III. LEGAL STANDARD

Under the final-judgment rule codified in 28 U.S.C § 1291, appellate courts have jurisdiction over "appeals from all final decisions of the district courts of the United States." Accordingly, "parties may appeal only from orders which "end[] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment." Couch v. Telescope Inc. , 611 F.3d 629, 632 (9th Cir. 2010) (quoting Coopers & Lybrand v. Livesay , 437 U.S. 463, 467 (1978)) (internal quotations omitted).

But there is a narrow exception to the final-judgment rule: a district court may certify a nonfinal order for interlocutory appeal by stating in writing, as part of the order, that the order (1) "involves a controlling question of law, " (2) "as to which there is substantial ground for difference of opinion, " and (3) "that an immediate appeal may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).

Because the requirements of § 1292(b) are jurisdictional, courts cannot certify an appeal if the circumstances don't strictly satisfy the statutory prerequisites for granting certification. Couch , 611 F.3d at 633. Certification under § 1292(b) is not routine. Indeed, interlocutory appeals are reserved for only exceptional cases. See Caterpillar Inc. v. Lewis , 519 U.S. 61, 74 (1996); see also Switz. Cheese Ass'n v. E. Horne's Mkt. , 385 U.S. 23, 25(1966) (noting that certification is contrary to the federal policy against piecemeal appeals).

IV. DISCUSSION

The Defendants argue that certification is appropriate because an appellate determination that the Lisker's claims are time-barred and that the City has no Monell liability could materially affect the outcome of the litigation and potentially terminate the entire action. Lisker agrees that an interlocutory appeal of these issues may materially advance the termination of the ligation because settlement discussions would likely be more productive after these issues are resolved. But Lisker asserts that the third requirement for certification-that substantial grounds for difference of opinion exist-is absent because the law regarding both issues is clearly established. Because the Court agrees with Lisker, the Court DENIES Defendants' Motion to Certify Interlocutory Appeal. (ECF No. 445.)

A. Statute of Limitations

Defendants first assert that a substantial ground for difference of opinion exists as to whether Lisker's action is barred by the applicable statute of limitations. A substantial ground for difference of opinion may exist where "novel and difficult questions of first impression are presented." Couch , 611 F.3d at 633. But a substantial difference of opinion does not exist merely "because a court is the first to rule on a particular question or just because counsel contends that one precedent rather than another is controlling." Id. The mere fact that "settled law might be applied differently does not establish a substantial ground for difference of opinion." Id. Defendants contend that it is unsettled whether Lisker's established "probable innocence"-which excused his untimely habeas petition-also "serves to indefinitely delay accrual and the running of the statute of limitations on Lisker's § 1983 claims. (Mot. 6.) Defendants inexplicably import their contention that Lisker's habeas petition should have been denied as ...


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