United States District Court, N.D. California
MARCUS A. ROBERTS, et al., Plaintiffs,
v.
AT&T MOBILITY LLC, Defendant.
ORDER GRANTING PLAINTIFFS' MOTION TO CERTIFY FOR
IMMEDIATE INTERLOCUTORY APPEAL DOCKET NO. 61
EDWARD
M. CHEN, United States District Judge
Currently
pending before the Court is Plaintiffs' motion to certify
for immediate interlocutory appeal the Court's order
granting AT&T's motion to compel arbitration.
See Docket No. 60 (order). At the hearing on the
motion, the Court granted Plaintiffs' motion. This order
memorializes the Court's oral ruling and as supplemented
herein.
I.
DISCUSSION
A.
Legal Standard
Title
28 U.S.C. § 1292(b) governs interlocutory appeals. It
provides as follows:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order 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, he shall so state in writing in such order. The
Court of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to
it within ten days after the entry of the order: Provided,
however, That application for an appeal hereunder shall not
stay proceedings in the district court unless the district
judge or the Court of Appeals or a judge thereof shall so
order.
28 U.S.C. § 1292(b).
As
indicated by the above, the critical requirements of §
1292(b) are (1) the order must involve a controlling question
of law; (2) there must be a substantial ground for difference
of opinion regarding that legal question; and (3) an
immediate appeal may materially advance the ultimate
termination of the litigation. These requirements are
addressed briefly below.
B.
Controlling Question of Law
According
to Plaintiffs, there are two legal issues that warrant
certification: (1) whether there is state action under
Denver Area Educational Telecommunications Consortium,
Inc. v. Federal Communications Commission, 518 U.S. 727
(1996), and (2) whether there is state action under the
"encouragement" test. In its papers, AT&T does not
dispute that these issues are in fact controlling questions
of law. The Court agrees. This Court's order granting
AT&T's motion to compel arbitration was predicated on
these issues. See Yamaha Motor Corp. v. Calhoun, 516
U.S. 199, 204 (1996) (concluding that an appellate court can
"'exercise jurisdiction over any question that is
included within the order that contains the controlling
question of law identified by the district court'";
"the appellate court may address any issue fairly
included within the certified order because 'it is the
order that is appealable, and not the controlling
question identified by the district court'")
(emphasis in original).
C.
Materially Advance Ultimate Termination of
Litigation
Although
AT&T makes an argument that an immediate appeal would not
materially advance the ultimate termination of the
litigation, see, e.g., Opp'n at 6-7 (pointing
out that an arbitration before the AAA typically takes 7
months while an appeal before the Ninth Circuit typically
takes 14.3 months), the Court is not persuaded. As Plaintiffs
argue, interlocutory appeal will materially advance the
ultimate termination of this litigation because, regardless
of the result of the arbitration proceedings, Plaintiffs are
likely to appeal their case to the Ninth Circuit on the basis
of their opposition to the motion to compel which raises the
issues certified herein. See Mot. at 7; see also
Duffield v. Robertson, No. C-95-109 EFL, 1997 U.S. Dist.
LEXIS 14996, at *21 n.5 (N.D. cal. Mar. 13, 1997)) (noting
that, "regardless of the result of the arbitration
proceedings, plaintiff will appeal her case, " and so it
was preferable "to have a ruling from the Ninth Circuit
sooner rather than later").
D.
Substantial Ground for ...