United States District Court, S.D. California
ORDER (1) DENYING MOTION FOR CERTIFICATION OF
INTERLOCUTORY APPEAL, AND (2) DENYING AS MOOT MOTION TO STAY
(ECF NO. 126)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion for Certification
Under 28 U.S.C. § 1292(b) and Motion to Stay
(“Mot. for Interloc. Appeal”). (ECF No. 126.)
Also before the Court are Plaintiff's Opposition to, (ECF
No. 132), and Defendant's Reply in Support of, (ECF No.
139), Defendant's Motion for Interlocutory Appeal. The
Court took the Motion for Interlocutory Appeal under
submission without oral argument pursuant to Civil Local Rule
7.1(d)(1). (ECF No. 141.) Having considered the Parties'
arguments and the law, the Court DENIES Defendant's
Motion for Interlocutory Appeal.
brought suit against the National Strength and Conditioning
Association (“NSCA”) for damages flowing from a
NSCA-published study that attributed incorrect injury data to
certain study participants' use of the CrossFit program.
(See generally First Am. Compl., ECF No. 71-6.)
CrossFit asserts that this alleged wrong constitutes various
causes of action, including (1) False Advertising under the
Lanham Act (15 U.S.C. § 1125(a)); (2) False Advertising
under California Business and Professions Code section 17500;
(3) Unfair Competition under California Business and
Professions Code section 17200; and (4) a common-law claim
for trade libel. (Id.) However, causes of action
(1)- (3) may only be maintained in the present case if the
NSCA-published study is legally classified as
to foreclose these claims, NSCA moved for summary judgment on
the commercial speech issue. (ECF No. 102.) The Court denied
the Motion as to that issue, and concluded that a reasonable
trier of fact could conclude both that the injury data
constituted commercial speech and that the data were not
“inextricably intertwined with the remainder of the
article.” (Order (1) Granting CrossFit Inc.'s
Partial MSJ and (2) Granting in Part and Den. in Part
Nat'l Strength and Conditioning Ass'n's MSJ 9-14,
ECF No. 121.) NSCA now moves the Court to certify a
particular aspect of that ruling for interlocutory appeal,
whether under the first step of the Ninth Circuit's
commercial speech test set forth in Dex Media West, Inc.
v. City of Seattle, 696 F.3d 952, 957 (9th Cir. 2012), a
court is limited to considering only the speech itself-and
should not consider extrinsic evidence of the speaker's
economic motivation and purported falsity or fabrication of
the speech-when determining whether speech “does no
more than propose a commercial transaction” under the
traditional “core” commercial speech test from
Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748 (1976).
(Mot. for Interloc. Appeal 1.)
U.S.C. § 1292(b) provides, in pertinent part, that a
district judge may certify an order for immediate
interlocutory appeal if the judge is “of the
opinion” that: (1) the order “involves a
controlling question of law”; (2) there is
“substantial ground for difference of opinion” as
to the resolution of that question; and (3) “an
immediate appeal from the order may materially advance the
ultimate termination of the litigation.” See
Kaltwasser v. AT&T Mobility, 2011 WL 5417085, at *1
(N.D. Cal. Nov. 8, 2011); In re LDK Solar Sec.
Litig., 584 F.Supp.2d 1230, 1258 (N.D. Cal. 2008). All
three criteria must be met. Couch v. Telescope Inc.,
611 F.3d 629, 633 (9th Cir. 2010). And such certification
should only be granted “in extraordinary cases where
decision of an interlocutory appeal might avoid protracted
and expensive litigation.” U.S. Rubber Co. v.
Wright, 359 F.2d 784, 785 (9th Cir. 1966).
fails to demonstrate that this is an exceptional case
warranting an override of the general policy disfavoring
piecemeal appeals. Although Defendant makes a solid case that
the commercial-speech issue involves a controlling issue of
law and that there is a substantial ground for difference of
opinion as to the resolution of the issue presented,
Defendant fails to establish the third criterion.
Specifically, Defendant admits that even if the Court
certified the commercial speech issue for interlocutory
appeal and the Circuit disagreed with this Court,
“CrossFit would be left with its trade libel claim . .
. .” (Recon. Mot. 2.) “As a result, . . . the
case would still proceed to trial based on [another]
theory.” Ill. Union Ins. Co. v. Intuitive Surgical,
Inc., No. 13-CV-04863-JST, 2016 WL 5905935, at *3 (N.D.
Cal. Oct. 11, 2016) (denying motion for interlocutory appeal
due to same). And here, the elements largely overlap between
trade libel and at least one of the claims implicated by the
requested interlocutory appeal. Compare New.Net, Inc. v.
Lavasoft, 356 F.Supp.2d 1090, 1113 (C.D. Cal. 2004)
(“To prove trade libel, Plaintiff must show (1) a
statement that (2) was false, (3) disparaging, (4) published
to others in writing, (5) induced others not to deal with it,
and (6) caused special damages.”), with Southland
Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th
Cir. 1997) (“The elements of a Lanham Act § 43(a)
false advertising claim are: (1) a false statement of fact by
the defendant in a commercial advertisement about its own or
another's product; (2) the statement actually deceived or
has the tendency to deceive a substantial segment of its
audience; (3) the deception is material, in that it is likely
to influence the purchasing decision; (4) the defendant
caused its false statement to enter interstate commerce; and
(5) the plaintiff has been or is likely to be injured as a
result of the false statement . . . .” (footnotes
omitted)). Therefore, evidence presented at trial will
largely be the same regardless of the outcome of the
requested interlocutory appeal, and Defendant's
assertions that “a favorable appeal can influence
different avenues for resolution of the case” and
“streamline trial and simplify (or obviate) any
post-judgment appeal” do not alone make this an
“extraordinary case” for purposes of
interlocutory appeal certification. See Yeager v.
Cingular Wireless LLC, No. 207CV02517FCDGGH, 2010 WL
935431, at *2 (E.D. Cal. Mar. 15, 2010) (certifying
interlocutory appeal on commercial-speech issue because
Circuit classifying speech differently would “call
into question” the “viability of all of
plaintiff's claims[, ]” but Circuit ultimately
denying same interlocutory appeal (Yeager v.
AT&T Mobility, LLC, Case No. 10-80074 (9th Cir. Jun.
14, 2010) (ECF No. 5))).
and as Plaintiff notes in its Opposition,
“Defendant['s] certification ‘[m]otion comes
after [multiple] years of extensive discovery and dispositive
motion practice” and was filed very close to
“final resolution of this matter at trial . . .
.” Cali. Sportfishing Prot. All. v. Chico Scrap
Metal, Inc., No. 2:10-CV-01207-GEB-AC, 2016 WL 64419, at
*2 (E.D. Cal. Jan. 5, 2016) (quoting Cmty. Ass'n for
Restoration of the Env't, Inc. v. Cow Palace, LLC,
No. 2:13-CV-3016-TOR, 2015 WL 403178, at *2 (E.D. Wash. Jan.
28, 2015)). Although the trial deadlines have now been
postponed due to alleged discovery misconduct by Defendant,
it is nonetheless true that, “[a]t this late stage in
the action, ‘allowing an interlocutory appeal would
[not] avoid protracted and expensive litigation.' ”
Cali. Sportfishing, 2016 WL 64419, at *2 (second
alteration in original) (quoting In re Cement Antitrust
Litig., 673 F.2d 1020, 1026 (9th Cir. 1982)); see
Mann v. Cty. of San Diego, No. 3:11-CV-0708-GPC-BGS,
2016 WL 245480, at *3 (S.D. Cal. Jan. 21, 2016)
(“Immediate appeal may be found inappropriate if there
is a good prospect that . . . the character of the trial is
not likely to be affected.” (quoting 16 Charles Alan
Wright & Arthur R. Miller et al, Federal Practice and
Procedure § 3930 (3d ed. 2017))).
the foregoing, the Court concludes that Defendant has not
sufficiently established that this case is one of the few
“exceptional” ones that warrants certifying an
interlocutory appeal. Accordingly, the Court DENIES
Defendant's Motion ...