Home Depot U.S.A., Inc v. E.I. Dupont De Nemours & Co.

          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 ...