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Ketab Corp. v. Mesriani Law Group

United States District Court, C.D. California

May 20, 2015

KETAB CORP., Plaintiff,
v.
MESRIANI LAW GROUP, RODNEY MESRIANI, SEYED ALI LIMONADI, ALI LIMONADI, STUDIO CINEGRAPHIC LOS ANGELES dba IRTV, MELLI YELLOW PAGES, INC., and DOES 1 through 10, inclusive, Defendants.

ORDER RE: PLAINTIFF'S APPLICATION FOR A CERTIFICATE OF APPEALABILITY PURSUANT TO 28 U.S.C. § 1292 (B) AND REQUEST FOR STAY OF PROCEEDINGS PENDING INTERLOCUTORY APPEAL [103]

RONALD S.W. LEW, Senior District Judge.

Currently before the Court is Plaintiff Ketab Corp.'s ("Plaintiff") Application for a Certificate of Appealability Pursuant to 28 U.S.C. § 1292(b) and Request for Stay of Proceedings Pending Interlocutory Appeal [103] ("Application"). Plaintiff's Application regards the Court's Order granting Mesriani Defendants' Motion to Dismiss [42] and the Court's subsequent Order denying Plaintiff's Motion for Reconsideration [98]. Pl.'s Appl. 1:1-5, ECF No. 103.

Upon review of all papers submitted and pertaining to this Application [103], the Court DENIES Plaintiff's Application [103].

I. BACKGROUND

A more thorough factual background of this Action is provided in the Court's February 6, 2015, Order [42] granting Mesriani Defendants' Motion to Dismiss. Plaintiff brings this trademark-related Action [1, 53] against five named defendants and alleges various trademark-related claims against Rodney Mesriani and Mesriani Law Group ("Mesriani Defendants").

On February 6, 2015, the Court granted Mesriani Defendants' Motion to Dismiss, dismissing some claims with prejudice and some claims with leave to amend. Dckt. ## 42, 99. On March 13, 2015, Plaintiff moved for reconsideration [63] of the Order. The Court denied [98] Plaintiff's Motion for Reconsideration on May 5, 2015.

On February 26, 2015, Plaintiff filed its First Amended Complaint. See Dckt. ## 48, 49, 52, 53, 55, 57-59 (operative First Amended Complaint is Dckt. # 53). Mesriani Defendants moved to dismiss [64] Plaintiff's First Amended Complaint on March 14, 2015, and on March 18, 2015, Plaintiff filed a Motion for Leave to Amend its First Amended Complaint [69]. On May 5, 2015, the Court granted Mesriani Defendants' Motion to Dismiss Plaintiff's First Amended Complaint and denied Plaintiff's Motion for Leave to Amend its First Amended Complaint. Dckt. # 100. On May 15, 2015, Plaintiff filed the instant Application for Certificate of Appealability Pursuant to 28 U.S.C. § 1292(b) and Request for Stay of Proceedings Pending Interlocutory Appeal [103].

II. LEGAL STANDARD

Section 1292(b) of Title 28 of the U.S. Code "provides for interlocutory appeals from otherwise not immediately appealable orders, if conditions specified in the section are met, the district court so certifies, and the court of appeals exercises its discretion to take up the request for review.'" Asis Internet Serv. v. Active Response Grp., No. C07 6211 THE, 2008 WL 4279695, at *2 (N.D. Cal. Sept. 16, 2008) (quoting City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001)).

Section 1292(b) specifies that a certificate of appealability may be issued if a district judge is "of the opinion that [the order at issue] involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).

As such, the certification requirements of Section 1292(b) are "(1) that there be a controlling question of law, (2) that there be substantial grounds for difference of opinion, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation." In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1982).

Even if the Order meets the criteria for certification under Section 1292(b), the district court "has discretion to grant or deny certification, and its decision is unreviewable." Asis Internet Serv., 2008 WL 4279695, at *2 (citing Executive Software N. Am., Inc. v. U.S. Dist. Ct. Cent. Dist. Cal., 24 F.3d 1545, 1550 (9th Cir. 1994)). "The party seeking review bears the burden of showing that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Id . (citing Coopers & Lyband v. Livesay, 437 U.S. 463, 474-75 (1978)).

III. DISCUSSION

Plaintiff's Application for a Certificate of Appealability under 28 U.S.C. § 1292(b) requests that the Court certify for interlocutory appeal three issues related to two Orders: the Court's Order [42] granting Mesriani Defendants Motion to Dismiss and the Court's subsequent ...


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