United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANTS' MOTION TO CERTIFY
QUESTION FOR INTERLOCUTORY APPEAL [RE: ECF 150]
BETH
LABSON FREEMAN UNITED STATES DISTRICT JUDGE.
Plaintiff
Home Depot U.S.A., Inc. (“Home Depot”) claims
that Defendants E.I. du Pont de Nemours and Co.
(“DuPont”), Cristal USA, Inc.
(“Cristal”), Huntsman International, LLC
(“Huntsman”), and Kronos Worldwide, Inc.
(“Kronos”) participated in a conspiracy to fix
the price of titanium dioxide. This is one of several
antitrust actions filed throughout the country based on the
alleged price-fixing conspiracy. All of the actions share
substantially the same record.
After
the Third Circuit affirmed summary judgment for the
defendants in a published opinion, Valspar Corp. v. E.I.
Du Pont de Nemours and Co., 873 F.3d 185 (3d Cir. 2017),
Defendants here requested leave to file an early motion for
summary judgment. Defendants asserted that the legal
standards applied in Valspar were the same as those
applied to the Ninth Circuit, and therefore that
Valspar was dispositive of the present case. This
Court granted Defendants' request, after which they filed
a motion for summary judgment that presented two issues:
whether Third Circuit law as articulated in Valspar
is identical to Ninth Circuit law, and whether Defendants are
entitled to summary judgment under Ninth Circuit law.
See Defs.' Motion for SJ, ECF 121. This Court
answered both questions in the negative in its Order Denying
Defendants' Motion for Summary Judgment (“MSJ
Order”). See MSJ Order, ECF 148.
Defendants
DuPont and Cristal (“Moving Parties”) have filed
a motion to certify for interlocutory appeal the following
issue: “What is the appropriate standard by which
courts should assess evidence at summary judgment on a §
1 Sherman Act conspiracy claim that is based on
circumstantial evidence, where the market is an oligopoly and
the alleged scheme is plausible.” Motion for Interloc.
Appeal at 1, ECF 150. Home Depot has filed opposition and
Moving Parties have filed a reply. See Opp., ECF
151; Reply, ECF 152. The Court finds that the motion is
appropriate for decision without oral argument and therefore
VACATES the hearing set for December 19, 2019. See
Civ. L.R. 7-1(b). The motion is DENIED for the reasons
discussed below.
I.
LEGAL STANDARD
The
governing statute, 28 U.S.C. § 1292(b), “provides
a mechanism by which 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. (MDL No. 296), 673 F.2d 1020, 1025-26
(9th Cir. 1981). The requirements for certification of an
appeal under § 1292(b) are: “(1) that there be a
controlling question of law, (2) that there be substantial
grounds for difference of opinion, and (3) that an immediate
appeal may materially advance the ultimate termination of the
litigation.” Id. at 1026. Section 1292(b) is
“to be used only in exceptional situations in which
allowing an interlocutory appeal would avoid protracted and
expensive litigation.” Id.
“Because
§ 1292(b) is a departure from the final judgment rule,
this exception must be construed narrowly.” Stiner
v. Brookdale Senior Living, Inc., 383 F.Supp.3d 949, 957
(N.D. Cal. 2019). “[T]he district court should apply
the requirements ‘strictly' and certify for
interlocutory appeal only when ‘exceptional
circumstances' justify a departure from the
well-established policy of postponing appellate review until
after a final judgment.” Id. “The party
seeking certification bears the burden of demonstrating that
the requirements are satisfied and that such a departure is
warranted.” Id. “Even where all of these
elements are met, district courts have discretion to deny
certification for interlocutory appeal.” Flack v.
Nutribullet, L.L.C., No. 2:18-CV-05829-DDP (SSX), 2019
WL 2568393, at *1 (C.D. Cal. June 21, 2019).
II.
DISCUSSION
Before
addressing Moving Parties' showing with respect to these
requirements, the Court takes up Home Depot's contention
that the motion should be denied as untimely. “Though
there is no specified time limit for seeking certification,
§ 1292(b) provides for an immediate appeal, and a
district judge should not grant an inexcusably dilatory
request.” Spears v. Washington Mut. Bank FA,
No. C-08-00868 RMW, 2010 WL 54755, at *1 (N.D. Cal. Jan. 8,
2010). In Spears, the defendant sought interlocutory
review of the district court's denial of its motion to
dismiss the plaintiff's RESPA claim eight months after
denial of its first motion to dismiss the claim and more than
two months after denial of its second motion to dismiss the
claim. Id. at *1-2. The district court found that
the motion for interlocutory review was untimely absent an
explanation why the defendant had waited so long to file.
Id. at *2.
Spears
is factually distinguishable from the present case, in which
Moving Parties filed the present motion approximately one
month after the Court issued the sealed version of its MSJ
Order and ten days after the Court issued the public version
of the order. The pending motion does not affect any
deadlines in the case. Under these circumstances, the Court
finds the motion for interlocutory appeal to be timely.
The
Court next turns to the requirements for an interlocutory
appeal under § 1292(b).
A.
Controlling Question of Law
As
recited above, Moving Parties seek certification of the
following issue: “What is the appropriate standard by
which courts should assess evidence at summary judgment on a
§ 1 Sherman Act conspiracy claim that is based on
circumstantial evidence, where the market is an oligopoly and
the alleged scheme is plausible.” Motion for Interloc.
Appeal at 1, ECF 150.
The
Court notes that this is not one of the issues that
Defendants presented to this Court in its summary judgment
motion. See Defs.' Motion for SJ, ECF 121.
Defendants' Statement of Issues to be ...