Kanbar v. O'Melveny & Myers

Filing 42

ORDER by Judge Edward M. Chen Denying 39 Plaintiff's Motion for Leave to File Motion for Reconsideration; and Denying Plaintiff's Alternative Petition for Certification. (emcsec, COURT STAFF) (Filed on 9/2/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAULINA KANBAR,

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For the Northern District of California

United States District Court

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No. C-11-0892 EMC

Plaintiff,
v.
O’MELVENY & MYERS,

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Defendant.

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ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION;
AND DENYING PLAINTIFF’S
ALTERNATIVE PETITION FOR
CERTIFICATION
(Docket No. 39)

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Plaintiff Paulina Kanbar has moved for leave to file a motion for reconsideration with respect

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to the Court’s order of July 21, 2011, in which it granted Defendant O’Melveny & Myers’s

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(“OMM”) motion to compel arbitration. In the alternative, Ms. Kanbar asks the Court to certify its

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order for interim appeal pursuant to 28 U.S.C. § 1292(b). The Court hereby DENIES both requests

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for relief.

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Regarding Ms. Kanbar’s first request for relief, she has failed to make the showing required

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by Civil Local Rule 7-9(b). Ms. Kanbar claims that the Court failed to consider material facts or

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dispositive legal arguments which were presented to it before issuance of the July 21 order, but that

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is not the case. Ms. Kanbar never argued before the Court that the factors enumerated in Walker v.

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Ryan’s Family Steak Houses, Inc., 400 F.3d 370 (6th Cir. 2005) or that the totality of the

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circumstances weighed in her favor (i.e., no knowing waiver). Nor did she argue as she does now

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that OMM failed to submit evidence with respect to those factors. In fact, OMM did submit

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evidence as to some of those factors, including, of course, Ms. Kanbar’s opportunity to consult with

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a lawyer. Finally, Ms. Kanbar emphasizes that she never wanted to arbitrate but the Court did not

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fail to take that into account. The Court simply noted that Ms. Kanbar did not dispute that her

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attorney stipulated to arbitration without her consent. See Docket No. 35 (Order at 14). Ms. Kanbar

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has never contended she did not know that was she agreeing to arbitration through her attorney. If

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that was not true, then Ms. Kanbar could have and should have presented evidence to that effect; she

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was aware of the significance of such knowledge (or lack thereof) in Blanton v. Womancare, Inc., 38

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Cal. 3d 396 (1985), which was cited in her supplemental papers. The Court was aware that she

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contends her consent to arbitration was not informed because she was not aware of the

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Davis decision (an issue she continues to press); the July 21 order addressed that issue. In moving

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for consideration, Ms. Kanbar has cited no evidence which was not available prior to the Court’s
July 21 order.

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For the Northern District of California

United States District Court

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As for Ms. Kanbar’s second request for relief, here, she has also failed to make the requisite

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showing – i.e., that the “order involves a controlling question of law as to which there is substantial

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ground for difference of opinion and that an immediate appeal from the order may materially

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advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). In particular, Ms. Kanbar

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fails to address whether there is a substantial ground for difference of opinion with respect to the

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legal question at issue – whether she should be bound by her counsel’s stipulation to arbitration. See

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19-203 Moore’s Fed. Prac. & Proc. – Civ. § 203.31[4] (explaining that the rationale underlying this

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requirement is that “[i]f the law is clear and there is no question that the district court’s order is

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correct as a matter of law, there is no purpose in appealing the ruling”). The case on which Ms.

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Kanbar relies, Kuehner v. Dickinson & Co., 84 F.3d 316 (9th Cir. 1996), did not address this point;

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rather, it discussed only the issue of what a “controlling question of law” is.

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Accordingly, the Court denies both Ms. Kanbar’s motion for leave to file a motion for
reconsideration as well as her alternative petition for certification.
This order disposes of Docket No. 39.

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IT IS SO ORDERED.

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Dated: September 2, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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