United States District Court, S.D. California
BRIAN CONNELLY, et al. on behalf of themselves and all others similarly situated, Plaintiffs,
HILTON GRAND VACATIONS COMPANY, LLC, Defendant.
ORDER GRANTING PLAINTIFFS' MOTION TO VACATE ORDER
DISMISSING CLAIMS WITH PREJUDICE (ECF NO. 91)
JONIS SAMMARTINO, DISTRICT JUDGE.
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
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
see also ECF No. 72.)
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).)
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.”
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.
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).
“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).
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 ...