United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR
MODIFICATION TO ORDER TO PERMIT INTERLOCUTORY APPEAL [DOC.
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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).
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).
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.
of an Order for Interlocutory Appeal
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.
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.
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