The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
RONALD TRIBBLE, Civ. No. 6:20-cv-00181-AA
Plaintiff, OPINION & ORDER
v.
SURFACE PREPARATION
SYSTEMS, INC.; SURFACE
LLC; SURFACE WORLDWIDE,
LLC; SURFACE HOLDINGS,
LLC; RONALD BENSON; DLS
FACTORY CONSULTING LLC;
ROTO GRIT LLC,
Defendants.
_______________________________________
AIKEN, District Judge.
This matter comes before the Court on Defendant Roto Grit LLC’s Motion to
Certify Order for Interlocutory Appeal and Stay Case Pending Appeal, ECF No. 64.
The Court concludes this motion is appropriate for resolution without oral argument.
For the reasons set forth below, the motion is DENIED.
LEGAL STANDARD
Pursuant to 28 U.S.C. § 1291, appellate review is available only after a final
judgment has been entered by a district court. However, Congress created a narrow
exception to this rule, authorizing district courts to certify an order for interlocutory
appeal if: (1) the “order involves a controlling question of law;” (2) there is “substantial
ground for difference of opinion;” and (3) “an immediate appeal from the order may
materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b)
(2020); In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982), aff’d sub
nom Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983). The requirements of §
1292(b) are jurisdictional and a district court may not certify an order for
interlocutory appeal if all three are not met. Couch v. Telescope, Inc., 611 F.3d 629,
633 (9th Cir. 2010). The party seeking certification bears the burden of showing
exceptional circumstances justifying a departure from the “basic policy of postponing
appellate review until after entry of a final judgment.” Coopers & Lybrand v. Livesay,
437 U.S. 463, 475 (1978).
Congress did not intend district courts to certify interlocutory appeals “merely
to provide rulings in hard cases.” United States Rubber Co. v. Wright, 359 F.2d 784,
785 (9th Cir. 1966). Rather, certification pursuant to 28 U.S.C. § 1292(b) is reserved
for “the most extraordinary situations.” Penk v. Or. State Bd. of Higher Educ., 99
F.R.D. 508, 509 (D. Or. 1982). “Even when all three requirements are satisfied, the
district court retains unfettered discretion to deny a motion to certify for interlocutory
review.” Hunter v. Legacy Health, Case No. 3:18-cv-02219-AC, 2021 WL 4238991, at
*5 (D. Or. April 13, 2021).
DISCUSSION
Defendant Roto Grit LLC seeks certification for interlocutory appeal of this
Court’s denial of Roto Grit’s motion to dismiss. The facts of this case are set forth in
detail in the Court’s prior Opinion & Order (“O&O”), ECF No. 61, and will not be
reproduced here.
I. Controlling Question of Law
A “question of law” is “controlling” under § 1292(b) if resolving it on appeal
could materially affect the outcome of litigation in the district court. In re Cement
Antitrust Litig., 673 F.2d at 1026. The Ninth Circuit rejected the “view that a
question is controlling if it is one the resolution of which may appreciably shorten the
time, effort, or expense of conducting a lawsuit,” noting such a view “essentially
read[s] the ‘controlling question of law’ requirement out of section 1292(b).” Id. at
1027.
Roto Grit requests certification of the question of “whether its purchasing
assets from a third party makes it so closely related to the seller that it was
foreseeable that it would be bound by a forum selection clause entered into by the
seller and another party.” The question, as presented, is a substantial
mischaracterization of the Court’s prior ruling. As set forth at some length in the
O&O, Roto Grit’s conduct went well beyond merely “purchasing assets from a third
party” and it was through that conduct that Roto Grit inserted itself into the larger
contractual relationship between Plaintiff and the Benson-Surface Defendants. In
addition, “foreseeability” is not part of the “closely related” test articulated by the
Ninth Circuit in Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n.5
(9th Cir. 1988) and Roto Grit has not provided any Ninth Circuit or federal district
court cases where foreseeability was considered as part of the “closely related”
analysis. Certifying the question presented by Roto Grit in its motion would not yield
valuable guidance because the proposed question is not connected to the Court’s
actual ruling or the applicable legal standard.
Even assuming Roto Grit’s question could be reframed into some formulation
that more accurately reflected the Court’s ruling and went to a controlling question
of law, the Court would still decline to certify the question for the reasons discussed
in the following section.
II. Substantial Grounds for Difference of Opinion
To determine if a “substantial difference of opinion” exists under § 1292(b),
courts must examine to what extent the controlling law is unclear. Courts
traditionally will find 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 question arise under foreign law, or if novel and
difficult questions of first impression are presented.” Couch, 611 F.3d at 633. “Just
because counsel contends that one precedent, rather than another is controlling does
not mean there is such a substantial difference of opinion as will support an
interlocutory appeal.” Id. at 633. Additionally, “a party’s strong disagreement with
the Court’s ruling is not sufficient for there to be a substantial ground for difference,”
and the mere possibility that “settled law might be applied differently does not
establish a substantial ground for difference of opinion.” Id. (internal quotation
marks and citations omitted, alterations normalized).
In this case, Roto Grit asserts that there are substantial grounds for a
difference of opinion based on the decision of a New York state trial court holding
that a non-signatory “is considered closely related when the enforcement of the clause
is foreseeable by virtue of the relationship between them,” and dismissing claims
against a member of a company’s board who was not part of the board when the
disputed contract was signed. Pegasus Strategic Parts., LLC v. Stroden, No.
653523/2015, 2016 WL 3386980, at *3-4 (N.Y. Sup. June 20, 2016) (internal quotation
marks and citation omitted).
Pegasus is a New York state court decision applying New York law. Pegasus
does not provide any basis to deviate from the Ninth Circuit and federal district court
decisions applied in the O&O, nor will it suffice to establish substantial grounds for
a difference of opinion.
Roto Grit also cites to AMA Multimedia, LLC v. Sagan Ltd., 807 F. App’x 677,
679 (9th Cir. 2020) and Tribank Capital Invests., Inc. v. Orient Paper, Inc., 523 F.
App’x 484, 485-86 (9th Cir. 2013), in which the Ninth Circuit reversed district court
decisions applying the Manetti-Farrow “closely related” test for failure to properly
consider whether the conduct of the non-signatory parties rendered those parties
subject to a forum selection clause.
These cases do not provide substantial grounds for difference of opinion,
however, because this Court examined and discussed Roto Grit’s conduct in some
detail in its prior decision. O&O, at 14. The Court’s consideration of Roto Grit’s
conduct was consistent with the Ninth Circuit’s holdings in both AMA Multimedia
and Tribank Capital.
Roto Grit’s dissatisfaction with the Court’s ruling and its preference for a
different outcome will not suffice to establish substantial grounds for difference of
opinion.
III. Materially Advance Ultimate Termination of Litigation
Resolution of a question materially advances the termination of litigation if it
“facilitate[s] disposition of the action by getting a final decision on a controlling legal
issue sooner, rather than later in order to save the courts and the litigants
unnecessary trouble and expense.” United States v. Adams Bros. Farming, Inc., 369
F. Supp.2d 1180, 1182 (C.D. Cal. 2004) (internal quotation marks and citation
omitted). “Where a substantial amount of litigation remains in this case, regardless
of the correctness of the Court’s ruling, arguments that interlocutory appeal would
advance the resolution of this litigation are unpersuasive.” Hunter, 2021 WL
4238991, at *12 (internal quotation marks and citations omitted, alterations
normalized). As discussed in the previous sections, Roto Grit has failed to carry its
burden on the other elements, rendering consideration of this final element
superfluous. See Couch, 611 F.3d at 633 (“Certification under § 1292(b) requires the
district court to expressly find in writing that all three § 1292(b) requitements are
met).
Roto Grit’s motion to certify is DENIED. As the Court has denied the request
for certification of interlocutory appeal, the concurrent request to stay the case
pending appeal is likewise DENIED.
CONCLUSION
For the reasons set forth above, Defendant’s Motion to Certify Order for
Interlocutory Appeal and Stay Case Pending Appeal, ECF No. 64, is DENIED.
It is so ORDERED and DATED this 6th day of October 2021.
/s/Ann Aiken
ANN AIKEN
United States District Judge