United States District Court, C.D. California
ORDER DENYING DEFENDANTS' MOTION TO CERTIFY
CONTROLLING QUESTION OF LAW [Dkt. 74]
DEAN
D. PREGERSON, UNITED STATES DISTRICT JUDGE
Presently
before the court is Defendants Nutribullet, LLC; Capital
Brands, LLC; Homeland Housewares, LLC; Call to Action, LLC;
and Nutriliving, LLC (collectively âDefendants â)' s
Motion to Certify Controlling Question of Law Pursuant 28
U.S.C. § 1292(b) (âMotionâ). Having considered the
submissions of the parties and the arguments therein, the
court DENIES the motion.
I.
BACKGROUND
The
court assumes the parties' familiarity with the factual
background of this case which has been recounted in the
court's prior orders. (See Dkts. 77, 85.) As relevant
here, Plaintiff Elizabeth Flack (“Plaintiff”) is
a citizen and resident of New Zealand. (First Amended
Complaint (“FAC”) ¶ 1.) Plaintiff brings
this action against Defendants - all “California
Limited Liability Compan[ies]” that “design,
develop, formulate . . . supply and/or sell products and
blenders marketed under the NutriBullet and MagicBullet brand
names.” (FAC ¶ 2.) Plaintiff alleges that on July
10, 2016, while using Defendants' NutriBullet product at
her home in New Zealand, the “canister separated from
the blade assembly leaving the blades exposed” and
caused “severe lacerations on her hand.” (FAC
¶¶ 13-14.)
On
December 4, 2018, the court denied Defendants' motion to
dismiss. (Dkt. 61.) On March 1, 2019, Defendants moved for an
order determining that New Zealand law applied to this
action. (Dkt. 65.) On April 12, 2019, the court issued an
order denying Defendants' motion concluding that
California law applied under California's governmental
interest test. (Dkt. 71.) Defendants now move for an order
certifying the choice-of-law question for immediate appeal
under 28 U.S.C. § 1292(b).
II.
LEGAL STANDARD
Under
28 U.S.C. § 1292(b), district courts may grant
certification for interlocutory appeal where the court
determines that (1) a controlling issue of law is involved,
(2) there is a “substantial ground for difference of
opinion” as to the controlling issue of law, and (3) an
immediate appeal will “materially advance the ultimate
termination of the litigation.” 28 U.S.C. §
1292(b). Even where all of these elements are met, district
courts have discretion to deny certification for
interlocutory appeal. Tsyn v. Wells Fargo Advisors,
LLC, No. 14-cv-02552-LB, 2016 WL 1718139, at *3 (N.D.
Cal. Apr. 29, 2016). The party seeking certification bears
the burden “of showing that exceptional circumstances
justify a departure from the basic policy of postponing
appellate review until after the entry of a final
judgment.” Fukuda v. Los Angeles Cty., 630
F.Supp. 228, 229 (C.D. Cal. 1986) (internal quotation and
citation omitted).
III.
DISCUSSION
There
is no dispute here that the underlying choice-of-law Order
involves a controlling question of law and that an immediate
appeal may materially advance the litigation. (Motion
“Mot.” at 10, 17; Opposition “Opp.”
at n.1.) The parties disagree, however, whether there is
substantial ground for difference of opinion on the
controlling question of law. Defendants argue that there is
substantial ground for difference of opinion because
reasonable jurists might disagree with this court's
“comparative impairment” analysis. (Mot. at 11.)
Defendants identify cases where, according to Defendants,
courts have “in fact[ ] disagreed with this
Court.” (Mot. at 11-12.) Plaintiff on the other hand,
argues that Defendants' arguments are the same as those
made for the underlying motion and do not demonstrate a
substantial ground for difference of opinion. (Opp. at 5-6.)
To
determine whether substantial difference of opinion exists,
“courts must examine to what extent the controlling law
is unclear.” Couch v. Telescope Inc., 611 F.3d
629, 633 (9th Cir. 2010). “Courts traditionally will
find that a substantial ground for difference of opinion
exists where the circuits are in dispute on the question and
the court of appeals of the circuit has not spoken on the
point, if complicated questions arise under foreign law, or
if novel and difficult questions of first impression are
presented.” Couch v. Telescope Inc., 611 F.3d
629, 633 (9th Cir. 2010) (internal quotation marks and
citation omitted). Similarly, substantial ground for
difference of opinion “exists where reasonable jurists
might disagree on an issue's resolution, not merely where
they have already disagreed.” Reese v. BP Expl.
(Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011).
However, “[t]hat settled law might be applied
differently does not establish a substantial ground for
difference of opinion.” Id.
Here,
there is no substantial ground for difference of opinion
because the controlling law at issue is clear.
California's governmental interest test is settled, and
the court's comparative impairment analysis considered
the relevant jurisdictions' interests, including the
predominant interest placed on the place of the wrong, and
considered which jurisdiction's interests would be more
impaired. (Dkt. 71 at 6.) Indeed, Defendants do not contend
that the controlling law is unclear, or that the choice of
law issue presents novel and difficult questions, instead,
Defendants argue that substantial ground for difference of
opinion exists because courts have disagreed with this court
on the choice-of-law issue. (Mot. at 11-12.)
The
various cases Defendants identify to support their position
are lacking. The first case identified, McGougan v. Depuy
Int'l Ltd., is a New Zealand opinion discussing
Great Britain's dismissal of a product liability case
where the alleged injuries occurred in New Zealand and the
alleged defective product was manufactured in England. (2018)
NZCA 91. McGougan is a foreign, non-binding decision
and therefore does not demonstrate actual disagreement.
See Couch v. Telescope Inc., 611 F.3d 629, 634 (9th
Cir. 2010) (holding that “single, non-binding, advisory
opinion by a division of California Attorney General's
office is not ‘substantial' ground for disagreement
as to the controlling law.”). Defendants also point to
Lueck v. Sundstrand Corp. and contend that the 9th
Circuit affirmed a forum non conveniens dismissal
because “under Arizona law, New Zealand law would apply
to personal injury claim[s] arising out of [an] accident in
New Zealand.” (Mot. at 12 (citing 236 F.3d 1137 (9th
Cir. 2001)). Defendants misstate the 9th Circuit's
holding. In Lueck, the 9th Circuit did not decide
whether New Zealand law or Arizona law would apply because
the court determined that “there is no arguably
applicable law that would end the forum non conveniens
inquiry [in this case] . . . .” Lueck, 236
F.3d at 1148 (citations omitted). In other words,
choice-of-law was not an issue decided in Lueck.
Defendants discussion of Tucci v. Club Mediterranee,
S.A., 107 Cal.Rptr.2d 401 (2001) and Mazza v. Am.
Honda Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012) is
also of no avail to demonstrate actual disagreement. Like
Tucci, and Mazza, the court's
underlying order here properly accounted for the place of
injury's predominant interest, however, this court
reached a different conclusion at the comparative impairment
step because the interests implicated were different than
those in Tucci and Mazza. See Dkt. 71, at 8
(comparing California's interest in deterring tortious
conduct with New Zealand's interest in providing
compensation without litigation); Tucci, 107
Cal.Rptr.2d at 190-91 (comparing California's interest in
assuring maximum workers' compensation benefits with
Dominican Republic's interest in providing limited and
predictable legal liability to employers); Mazza,
666 F.3d at 593-94 (comparing in a nationwide putative class
action California's interest in regulating businesses
within its borders with numerous states' interest in
calibrating liability to foster commerce.)
Because
Defendants have not satisfied the second element under 28
U.S.C. § 1292(b), the court declines certify the
choice-of-law issue for interlocutory appeal. Further, this
case does not present exceptional circumstances to depart
from the general policy of postponing appellate review.
IV.
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