Luchini v. Carmax, Inc.

• Decision Date: 05 September 2012
• Docket Number: CASE NO. CV F 12-0417 LJO DLB
• Court: U.S. District Court — Eastern District of California
• Parties: MICHAEL LUCHINI, Plaintiff, v. CARMAX, INC., et al., Defendants.

MICHAEL LUCHINI, Plaintiff,

v.CARMAX, INC., et al., Defendants.

CASE NO. CV F 12-0417 LJO DLB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: September 5, 2012

ORDER ON PLAINTIFF'S 28 U.S.C. § 1292(b)

MOTION FOR INTERLOCUTORY APPEAL

(Doc. 71.)

INTRODUCTION

Plaintiff Michael Luchini ("Mr. Luchini") seeks an interlocutory appeal of this Court's order to compel his individual overtime compensation claims to arbitration and to dismiss his representative claims based on provisions in Mr. Luchini's employment agreement. Defendants¹ respond that Mr. Luchini fails to satisfy requirements for an interlocutory appeal. This Court considered Mr. Luchini's interlocutory appeal motion on the record and VACATES the September 11, 2012 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DENIES Mr. Luchini an interlocutory appeal of this Court's order.

BACKGROUND

Mr. Luchini signed a Carmax Dispute Resolution Agreement ("arbitration agreement") in connection with his Carmax employment to agree to arbitrate certain claims. In addition to the arbitration agreement, Carmax's Dispute Resolution Rule and Procedures ("arbitration rules") governarbitration of claims. This Court's July 23, 2012 order ("July 23 order") compelled to arbitration Mr. Luchini's overtime compensation claims arising under federal and California statutes and dismissed without prejudice class, collective and representative claims. Mr. Luchini contends that the July 23 order "involves controlling questions of law as to which there is substantial ground for difference of opinion" to warrant an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b) ("section 1292(b)"). After addressing section 1292(b) requirements and standards, this Court will discuss below the "specific questions" which Mr. Luchini identifies.

DISCUSSION

Interlocutory Appeal Certification

When an issue is unresolved and interlocutory resolution could materially advance the termination of litigation, section 1292(b) permits a district court judge to certify the question:

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. . .

Section 1292(b) provides for interlocutory appeals from otherwise not immediately appealable orders, if conditions specified in the section are met, the district court so certifies, and the court of appeals exercises its discretion to take up the request for review. Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, n. 10, 117 S.Ct. 467 (1996). Section 1292(b) requires a two-step application process; step one is before the district court for certification of the order, and step two is before the court of appeals for permission to appeal. The certification is discretionary within the power of the trial judge. S.Repr. 2434, 85th Cong., 2d Sess., 1958, in 1958 U.S. Code Cong. & Admin. News 5255, 5257. Indeed, the appellate court will not consider the appeal absent written certification by the district court. Credit Suisse v. U.S. District Ct., 130 F.3d 1342, 1346 (9th Cir. 1997). A party must obtain certification from both the district court and the court of appeals to bring an interlocutory appeal. City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001). As such, this Court has the authority to entertain Mr. Luchini's motion to certify an interlocutory appeal order because certification by the district court is the first step in section 1292(b) procedure.

A district court may amend its order to add findings for an interlocutory appeal. F.R.App.P. 5governs appeals by permission under section1292(b):

(a) Petition for Permission to Appeal

. . .

(3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party's motion, to include the required permission or statement.

If a district court determines to certify an order for interlocutory appeal after the order is initially entered, the proper procedure is to amend the order to contain the required certification. Haas v. Pittsburgh Nat. Bank, 627 F.2d 677, 679 n.1 (3d Cir. 1980). A certification order that is not directly framed as an amendment of the original order, however, may be treated as an amendment nonetheless. Haas, 627 F.2d at 679 n.1.

Mr. Luchini requests this Court to amend the July 23 order to permit him to pursue an appeal pursuant to section 1292(b).

Section 1292(b) Requirements

The purpose of section 1292(b) is to allow for an early appeal of an order when appellate-level resolution of issues addressed by that order may provide more efficient disposition of the litigation. Ford Motor Credit Co. v. S.E. Barnhart & Sons, Inc., 664 F.2d 377, 380 (3d Cir.1981). Section 1292(b) imposes three criteria that must be met before a district court may certify an interlocutory appeal: the order must state "(1) that there is a controlling question of law, (2) that there is substantial grounds for difference of opinion, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation." In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1982), aff'd, 459 U.S. 1190 (1983); 28 U.S.C. §1292(b); Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152 (1974).

Section 1292(b) is not intended to allow interlocutory appeal in ordinary suits. Kraus v. Board of County Comm'rs, 364 F.2d 919, 922 (6th Cir.1966). "Section 1292(b) is meant to be used sparingly, and appeals under it are, accordingly, hen's-teeth rare." Camacho v. Puerto Rico Ports Authority, 369 F.3d 570, 573 (1st Cir. 2004). "Because permitting piecemeal appeals is bad policy, permitting liberal use of § 1292(b) interlocutory appeals is bad policy." McFarlin v. Conseco Services, LLC, 381 F.3d1251, 1259 (11th Cir. 2004). "Congress did not intend 28 U.S.C. § 1292(b) to serve an error-correction function." Weber v. U.S. Trustee, 484 F.3d 154, 159, n. 3 (2nd Cir. 2007). Only "exceptional circumstances justify departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454 (1978).

The appellate court determines "whether the district court has properly found that the certification requirements of the statute have been met," In re Cement Antitrust Litigation (MDL No. 296), 673 F.2d at 1026, and "the party pursuing the interlocutory appeal bears the burden of so demonstrating." Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). The party seeking a section 1292(b) appeal "has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Fisons, Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir.), cert. denied, 405 U.S. 1041, 92 S.Ct. 1312 (1972). The "decision of whether to certify is wholly within the discretion of the court issuing that order." State of N.C. ex rel. Howes v. W.R. Peele, Sr. Trust, 889 F.Supp. 849, 852 (E.D.N.C. 1995). "Even if these three [section 1292(b)] requirements are satisfied, a district court still has the discretion in deciding whether or not to grant a party's motion for certification." In re LDK Solar Securities Litigation, 584 F.Supp.2d 1230, 1258 (N.D. Cal. 2008).

Controlling Question Of Law

Mr. Luchini argues that enforcement of the arbitration agreement materially affects this action "as it impacts whether Plaintiff may proceed before this Court or whether he (and others similarly situated) may proceed only in individual arbitration." Mr. Luchini contends that the July 23 order "involves numerous questions that are highly disputed among federal and state courts" to render guidance from the Ninth Circuit Court of Appeals "extremely useful." Carmax responds that the July 23 order is "consistent with the strong federal policy in favor of the resolution of disputes through arbitration" and "does not present an exceptional situation."

An order is "controlling" if its resolution could materially affect the outcome of the litigation. In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d at 1026 (trial judge's recusal is a collateral issue). Section 1292(b) appeals should be reserved for "situations in which the court of appeals can rule on a pure, controlling question of law without having to delve beyond the surface of the record in order todetermine the facts." McFarlin, 381 F.3d at 1259. "The antithesis of a proper § 1292(b) appeal is one that turns on whether there is a genuine issue of fact . . ." McFarlin, 381 F.3d at 1259. "The legal question must be stated at a high enough level of abstraction to lift the question out of the details of the evidence or facts of a particular case and give it general relevance to other cases in the same area of law." McFarlin, 381 F.3d at 1259; see Kuehnerv. Dickinson & Co., 84 F.3d 316, 319 (9th Cir. 1996) ("an order may involve a controlling question of law if it could cause the needless expense and delay of litigating an entire case in a forum that has no power to decide the matter"); Dalie v. Pulte Home Corp., 636 F.Supp.2d 1025, 1028 (E.D. Cal. 2009) ("the question is controlling because it will determine what claims are litigated in this court and, practically, whether the plaintiffs will continue to pursue a majority of their claims in any forum").

"The standard to certify a question of law is high and a district court generally should not permit such an appeal...