Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Linlor v. Futero, Inc.

United States District Court, S.D. California

April 5, 2018

JAMES LINLOR, Plaintiff,
v.
FUTERO, INC.; and DOES 1-9, Defendants.

          ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR MODIFICATION TO ORDER TO PERMIT INTERLOCUTORY APPEAL [DOC. NO. 49]

          HON. MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.

         Presently before the Court is pro se Plaintiff James Linlor's ex parte motion to amend the Court's March 22, 2018 Order for the purpose of certifying the Order for interlocutory appeal or, alternatively, to reconsider its Order. Doc. No. 49 at 1. Specifically, Plaintiff moves the Court to reconsider its Order denying his motion for leave to issue a subpoena upon third party Five9, Inc., which Plaintiff contends will identify additional defendants in this action. Doc. No. 49-1 at 2-3. If the Court declines to reconsider its Order, then Plaintiff moves the Court to “permit Plaintiff leave to file an interlocutory appeal to the 9th Circuit” and to stay the case “pending that result.” Id. at 3-4. For the reasons stated herein, the Court DENIES Plaintiffs ex parte motion.

         Background

         On March 16, 2018, Plaintiff filed two ex parte motions with the Court. Doc. Nos. 44, 46. Plaintiff sought leave to amend his complaint to add two additional defendants. Doc. No. 44 at 1. In one motion, Plaintiff sought leave to add Scott Stagg as a defendant in this action. Doc. No. 44. In the second motion, Plaintiff requested permission to issue a third party subpoena pursuant to Federal Rule of Civil Procedure 45 “to seek the identity/ies and contact information claimed to be known to Five9, Inc., for the sender of telemarketing messages and phone calls to Plaintiffs cellphone.” Doc. No. 46 at 1. Plaintiff intended to use that information to seek leave to add additional defendants to this action. Doc. No. 44 at 1.

         On March 22, 2018, the Court denied Plaintiff leave to amend his complaint pursuant to Federal Rule of Civil Procedure 15, and therefore denied as moot Plaintiffs request to issue a third party subpoena to obtain information to seek leave to add additional defendants to this action. Doc. No. 47. Specifically, the Court found that leave to amend was not warranted in part because Plaintiff raised “only conclusory arguments in support of his two motions, ” and because “Plaintiff has been given ample opportunities to amend his complaint.” Id. at 3. The Court noted that Plaintiff filed his original Complaint on January 4, 2017, a First Amended Complaint on January 13, 2017, a Second Amended Complaint on July 28, 2017, and a Third Amended Complaint on December 27, 2017. Id. at 3-4; see also Docket.

         Motion for Reconsideration

         Plaintiff requests the Court reconsider its March 22, 2018 Order and permit him to issue a third party subpoena upon Five9, Inc. Doc. No. 49-1 at 4. In support, Plaintiff contends that “the Court's declining to permit definitive identification and confirmation of responsible Defendants at this phase” is inappropriate. Id. at 2.

         Pursuant to Federal Rule of Civil Procedure 59(e), district courts have the power to reconsider a previous ruling or entry of judgment. Fed.R.Civ.P. 59(e). A Rule 59(e) motion seeks “a substantive change of mind by the court.” Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988). Rule 59(e) provides an extraordinary remedy and, in the interest of finality and conservation of judicial resources, such a motion should not be granted absent highly unusual circumstances. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Rule 59 may not be used to re-litigate old matters, raise new arguments, or present evidence that could have been raised prior to entry of the judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008).

         Under Rule 59(e), it is appropriate to alter or amend a previous ruling or judgment if “(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law.” United Nat'l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009) (citation omitted).

         The Court has reviewed Plaintiffs ex parte motion and finds that Plaintiff does not argue there is newly discovered evidence, the Court committed clear error or made an initial decision that was manifestly unjust, or that there is an intervening change in controlling law. See Doc. No. 49. It appears that Plaintiff is aware he cannot carry his burden of proof, as he states he cannot obtain relief without the Court certifying the March 22, 2018 Order for interlocutory appeal “unless the Court were to sua sponte reconsider its Order and approve Plaintiffs Subpoena . . . .” Doc. No. 49-1 at 3. In light of Plaintiff s failure to carry his burden of showing relief under Rule 59(e) is appropriate, the Court DENIES Plaintiffs request to reconsider the March 22, 2018 Order.

         Certification of an Order for Interlocutory Appeal

         In the alternative to relief under Rule 59, Plaintiff requests the Court certify its March 22, 2018 Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Doc. No. 49-1.

         Generally, the United States Courts of Appeals have jurisdiction over appeals from “final decisions of the district courts.” 28 U.S.C. § 1291. However, 28 U.S.C. § 1292(b) is an exception to the final judgment rule, where “litigants can bring an immediate appeal of a non-final order upon the consent of both the district court and the court of appeals.” In re Cement Antitrust Litig, 673 F.2d 1020, 1025-26 (9th Cir. 1982). Under § 1292(b), the court may certify an issue for interlocutory appeal if three elements are satisfied: (1) the issue is a controlling question of law; (2) the issue offers substantial grounds for a difference of opinion; and (3) an immediate appeal may materially advance the ultimate termination of the litigation. Id. at 1026; 28 U.S.C. § 1292(b). “[T]his section [is] to be used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation.” In re Cement Antitrust Litig., 673 F.2d at 1026.

         “The decision to certify an order for interlocutory appeal is committed to the sound discretion of the district court.” United States v. Tenet Healthcare Corp., No. CV04-857 GAF(JTLX), 2004 WL 3030121, at *1 (CD. Cal. Dec. 27, 2004) (citing Swint v. Chambers Cnty. Comm 'n,514 U.S. 35, 47 (1995)). As such, “[e]ven when all three statutory criteria are satisfied, district court judges have ‘unfettered discretion' to deny certification.” Brizzee v. Fred Meyer Stores, Inc., No. CV 04-1566-ST, 2008 WL 426510, at *3 (D. Or. Feb. 13, 2008); see also In re Gugliuzza,852 F.3d 884, 898 (9th Cir. 2017) (noting that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.