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Connelly v. Hilton Grand Vacations Co., LLC

United States District Court, S.D. California

November 9, 2017

BRIAN CONNELLY, et al. on behalf of themselves and all others similarly situated, Plaintiffs,



         Presently before the Court is Plaintiffs' Motion to Vacate Order Dismissing Claims With Prejudice (“MTN, ” ECF No. 91). Also before the Court is Defendant's Opposition to the Motion (“Opp'n, ” ECF No. 92) and Plaintiffs' Reply in Support of the Motion (“Reply, ” ECF No. 95). After considering the Parties' arguments and the law, the Court GRANTS Plaintiffs' Motion.


         On March 9, 2012, Plaintiffs filed a putative class action against Defendant for violations of the Telephone Consumer Protection Act (“TCPA”). (See generally “Compl., ” ECF No. 1.) Plaintiffs then moved for class certification, which the Court denied. (ECF No. 68.) Plaintiffs petitioned permission for interlocutory review of that order pursuant to Federal Rule of Civil Procedure 23(f), and the Ninth Circuit denied the petition. (MTN 2[1]; see also ECF No. 72.)

         On March 4, 2014, the Parties stipulated to dismiss Plaintiffs' claims with prejudice in order for Plaintiffs “to appeal the Court's order denying class certification.” (“Stip., ” ECF No. 82, at 2 (citing Berger v. Home Depot USA, Inc., 741 F.3d 1061 (9th Cir. 2014).)

         At the time the Parties entered into the stipulation, Berger held “a dismissal of an action with prejudice, even when such dismissal is the product of a stipulation, is a sufficiently adverse-and thus appealable-final decision.” 741 F.3d at 1065. In the stipulation, the Parties agreed:

“If the order denying certification is affirmed, Plaintiffs will take nothing by way of their Complaint. If the order denying certification is reversed or the Ninth Circuit orders that a class or subclasses be certified or that an amended or renewed motion for class certification be pursued, the Parties agree that they will continue litigating this action from the same procedural stand point and factual record in place at the time of the appeal, subject to the direction by the Ninth Circuit.”

(Stip. 2.)

         The Court granted the Parties' stipulation and dismissed the action with prejudice. (ECF No. 83.) Plaintiffs filed a notice of appeal, and the Parties argued their case in front of the Ninth Circuit. See Connelly v. Hilton Grand Vacations Co., 693 F. App'x 669 (9th Cir. 2014). While the Parties' case was pending, the Supreme Court issued its opinion in Microsoft Corp. v. Baker, 137 S.Ct. 1702 (2017), which abrogated Berger, and held “[p]laintiffs in putative class actions cannot transform a tentative interlocutory order . . . into a final judgment within the meaning of § 1291 simply by dismissing their claims with prejudice.” Id. at 1715. The Ninth Circuit then dismissed Plaintiffs' appeal for lack of appellate jurisdiction and Plaintiffs filed the present Motion with this Court.


         Pursuant to Federal Rule of Civil Procedure 60(b)(6), “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . any [] reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). “[A] voluntary dismissal . . . is a judgment, order or proceeding from which Rule 60(b) relief can be granted.” In re Hunter, 66 F.3d 1002, 1004 (9th Cir. 1995).

         An “intervening change in the controlling law” can provide a basis for granting a Rule 60(b) motion. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). “The proper course when analyzing a Rule 60(b)(6) motion predicated on an intervening change in the law is to evaluate the circumstances surrounding the specific motion before the court.” Phelps v. Alameida, 549 F.3d 1120, 1133 (9th Cir. 2009). Courts must make a “case-by-case inquiry” based on balancing “numerous factors” when deciding whether to grant a Rule 60(b)(6) motion. Jones v. Ryan, 733 F.3d 825, 839 (9th Cir. 2013). “[A] change in the law will not always provide the truly extraordinary circumstances necessary to reopen a case[, ]” and “something more than a ‘mere' change in the law is necessary.” Phelps, 569 F.3d at 1133 (quotation marks omitted).

         When making this determination, courts should consider six factors: (1) the change in the law; (2) the petitioner's exercise of diligence in pursuing his claim for relief; (3) whether reopening the case would upset the parties' reliance interest in the finality of the case; (4) the extent of the delay between the finality of the judgment and the motion for Rule 60(b)(6) relief; (5) the relative closeness of the relationship between the decision resulting in the original judgment and the subsequent decision that represents a change in the law; and (6) concerns of ...

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