Roberts v. At&T Mobility LLC

          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 ...