Clerkin et al v. Mylife.com Inc. et al

Filing 90

ORDER by Judge Claudia Wilken ORDER DENYING 84 MOTION TO CERTIFY FOR INTERLOCUTORY APPEAL. (ndr, COURT STAFF) (Filed on 11/15/2011)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5

JOHN CLERKIN and VERONICA MENDEZ,
individually and on behalf of all
others similarly situated,

6
7
8
9

United States District Court
For the Northern District of California

10

Plaintiffs,

ORDER DENYING MOTION TO
CERTIFY FOR
INTERLOCUTORY APPEAL

v.
MYLIFE.COM, INC.,
Defendant.
________________________________/

11
12

No. C 11-0527 CW

BACKGROUND
Mylife.com, Inc. moves for an order certifying an

13

interlocutory appeal of the Court's Order of August 29, 2011 on

14

the question of whether class allegations may be dismissed at the

15

pleading stage pursuant to a motion to dismiss under Federal Rule

16

of Civil Procedure 12(b)(6).

17

matter was taken under submission on the papers.

18

considered all of the papers submitted by the parties, the Court

19

DENIES Defendant's motion.

Plaintiffs oppose the motion.

The

Having

20

DISCUSSION

21

Pursuant to Title 28 U.S.C. section 1292(b), the district

22

court may certify appeal of an interlocutory order if (1) the

23

order involves a controlling question of law, (2) appealing the

24

order may materially advance the ultimate termination of the

25

litigation, and (3) there is substantial ground for difference of

26

opinion as to the question of law.

27
28

"Section 1292(b) is a departure from the normal rule that
only final judgments are appealable, and therefore must be

1

construed narrowly."

2

1064, 1068 n.6 (9th Cir. 2002).

3

statute's requirements strictly, and should grant a motion for

4

certification only when exceptional circumstances warrant it.

5

Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).

6

seeking certification to appeal an interlocutory order has the

7

burden of establishing the existence of such exceptional

8

circumstances.

9

deciding whether to grant a party's motion for certification.

Id.

James v. Price Stern Sloan, Inc., 283 F.3d
Thus, the court should apply the

The party

A court has substantial discretion in

United States District Court
For the Northern District of California

10

Brown v. Oneonta, 916 F. Supp. 176, 180 (N.D.N.Y. 1996) rev'd in

11

part on other grounds, 106 F.3d 1125 (2nd Cir. 1997).

12

While Defendant argues that it should be entitled to contest

13

class certification in a motion to dismiss, it has failed to show

14

that class treatment is improper in this case.

15

the Court certified an interlocutory appeal and the Ninth Circuit

16

held that class certification could be challenged in a motion to

17

dismiss, resolution of this case would not be advanced.

18

29, 2011 Order at 7, n.4.

19

certification is due January 12, 2012.

20

entitled to represent a class will be long resolved before the

21

result of any appeal to the Ninth Circuit would be announced.

22

Therefore, even if

See Aug.

Plaintiffs' motion for class
Whether Plaintiffs are

Defendant argues that there are substantial differences of

23

opinion on controlling questions of law on this issue because it

24

has not been directly addressed by the Ninth Circuit.

25

"The mere presence of a disputed issue that is a question of first

26

impression, standing alone, is insufficient to demonstrate a

27

substantial ground for difference of opinion under [section]

28

1292(b)."

However,

In re Conseco Life Ins. Cost Of Ins. Litig., 2005 WL
2

1

5678841, at *7 (C.D. Cal.) (citing Flor v. Bot Financial Corp., 79

2

F.3d 281, 284 (2d Cir. 1996); see also Lenz v. Universal Music

3

Group, 2008 WL 4790669, at *2 (N.D. Cal.).

4

"substantial ground for difference of opinion does not exist

5

merely because there is a dearth of cases."

6

Office of Educ., 2009 WL 331488, at *6 (E.D. Cal.)(quotations

7

omitted)(citing White v. Nix, 43 F.3d 374, 378 (8th Cir. 1994).

8

Defendant fails to demonstrate any exceptional circumstances here

9

that would warrant the Court certifying an interlocutory appeal.

United States District Court
For the Northern District of California

10
11
12

Similarly,

S.A. v. Tulare County

CONCLUSION
For the foregoing reasons the Court DENIES the motion to
certify its order for interlocutory appeal. (Docket no. 84.)

13
14

IT IS SO ORDERED.

15
16
17

Dated: 11/15/2011

CLAUDIA WILKEN
United States District Judge

18
19
20
21
22
23
24
25
26
27
28
3