Gorrell v. Sneath et al

Filing 115

ORDER Directing the Clerk to Not Forward Plaintiff's Third Notice of Interlocutory Appeal to the Ninth Circuit 112 , signed by Magistrate Judge Jennifer L. Thurston on 9/27/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILSON GORRELL,
Plaintiff,

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v.

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THOMAS SNEATH, et al.,
Defendants.

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Case No.: 1:12-cv-0554 - JLT
ORDER DIRECTING THE CLERK TO NOT
FORWARD PLAINTIFF’S THIRD NOTICE OF
INTERLOCUTORY APPEAL TO THE NINTH
CIRCUIT
(Doc. 112)

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Plaintiff filed a third “Notice of Interlocutory Appeal” on September 25, 2013. (Doc. 112).

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Plaintiff seeks appellate review of the Court’s orders (1) denying as moot his motion for judicial notice

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(Doc. 102) and (2) denying his motion for hair analysis toxicological testing and administration of a

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polygraph examination (Doc. 103). For the following reasons, the Court directs the Clerk of Court to

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not forward Plaintiff’s third “Notice of Interlocutory Appeal” to the Ninth Circuit.

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I.

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Interlocutory Appeals
The general rule is that an appellate court should not review a district court ruling until after

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entry of a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 474 (1978); In re Cement

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Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). The Supreme Court explained that the “policy

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against piece meal appeals . . . promotes judicial efficiency and hastens the ultimate termination of

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litigation.” United States v. Nixon, 418 U.S. 683, 690 (1974) (citation omitted). Thus, interlocutory

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appeals are highly disfavored. Id. Nevertheless, the Supreme Court has recognized exceptions to allow
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appeals of decisions, which allow the Circuit courts “to hear interlocutory appeals of orders that (1)

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conclusively determine a disputed opinion, (2) resolve an important issue completely separate from the

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merits of the action, and (3) are effectively unreviewable on appeal from a final judgment.” United

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States v. Zone, 403 F.3d 1101, 1106 (9th Cir. 2005) (citations and quotation marks omitted).

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Certification of interlocutory appeals is governed by 28 U.S.C. § 1292(b), which provides:

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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 [1] a controlling question of
law [2] as to which there is substantial ground for difference of opinion and [3] 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 . . .

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Thus, a party seeking appeal under §1292(b) “must first obtain the consent of the trial judge.” Coopers

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& Lybrand v. Livesay, 437 U.S. 463, 474 (1978). The Supreme Court explained “th[e] screening

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procedure serves the dual purpose of ensuring that such review will be confined to appropriate cases

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and avoiding time-consuming jurisdictional determinations in the court of appeals.” Id.
The party seeking appeal bears the burden of showing “exceptional circumstances justify a

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departure from the basic policy of postponing appellate review until after the entry of final judgment.”

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Coopers & Lybrand, 437 U.S. at 475. Previously, this Court explained: “[I]t is generally accepted that

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‘questions of fact, questions as to how agreed-upon law should be applied to particular facts, or

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questions regarding the manner in which the trial judge exercised his or her discretion may not be

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properly certified for interlocutory review.’” Meeker v. Belridge Water Storage Dist., 2007 U.S. Dist.

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LEXIS 22673, at *16 (E.D. Cal. March 13, 2007) (quoting 2. Fed. Proc., L. Ed., § 3:210).

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II.

Discussion and Analysis

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As an initial matter, Plaintiff may not obtain certification for an interlocutory appeal simply by

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filing a notice, which he has now done three times in this action. Volpicelli v. Palmer, 2012 U.S. Dist.

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LEXIS 148531, at *4 (Dist. Nev. Oct. 16, 2012). Rather, to obtain this relief, Plaintiff “instead must

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file a motion complying with the requirements of Rule 7 of the Federal Rules of Civil Procedure.” Id.

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Nevertheless, even if Plaintiff filed a motion for certification, he has not satisfied the requirements for

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an interlocutory appeal.

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The issues addressed by the Court in its orders denying Plaintiff’s request for judicial notice and
denying his motion for toxicological and polygraph testing do not “involv[e] a controlling question of
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law.” The Ninth Circuit explained that an issue is “controlling” if “resolution of the issue on appeal

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could materially affect the outcome of litigation in the district court.” In re Cement Antitrust Litigation,

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673 F.2d 1020, 1026 (1982). The issues identified by Plaintiff fail to meet this standard.
A final decision “is one which ends the litigation on the merits and leaves nothing for the court

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to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). As explained by

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the Ninth Circuit, “[d]iscovery decisions are generally not final judgments that may be appealed under

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28 U.S.C. § 1291.” United States v. Zone, 403 F.3d 1101, 1106 (9th Cir. 2005) Catlin, 324 U.S. at 233.

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Here, Plaintiff does not assert the Court erred, but simply seeks review of its decisions. (See Doc. 112).

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However, even if Plaintiff disagrees with the Court, his disagreement is not sufficient demonstrate a

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“substantial ground for difference.” Mateo v. M/S KISO, 805 F. Supp. 792, 800 (N.D. Cal. 1992).
Finally, the timing of Plaintiff’s “Notice of Interlocutory Appeal” demonstrates an appeal is not

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likely to speed the termination of the litigation. The trial in this action is scheduled to begin on

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December 10, 2013. (Doc. 32 at 1). Granting a request for interlocutory appeal shortly before trial is

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unwise, because review at this juncture would delay the completion of the case. See, e.g., Shurance v.

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Planning Control Int’l Inc., 839 F.2d 1347, 1348 (9th Cir. 1988) (considering the fact that the trial was

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scheduled to take place in five months as a reason to deny a petition for leave to appeal under §1292);

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Baranski v. Serhant, 602 F.Supp. 33, 36 (D.C. Ill.1985) (“Delay is a particularly strong ground for

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denying appeal if certification is sought from a ruling made shortly before trial”).

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III.

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Conclusion and Order
Because Plaintiff’s third “Notice of Interlocutory Appeal” fails to meet the standards for

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interlocutory appeal, IT IS HEREBY ORDERED that the Clerk of Court not forward the “Notice of

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Interlocutory Appeal” (Doc. 112) to the Ninth Circuit Court of Appeals.

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IT IS SO ORDERED.
Dated:

September 27, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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