Guidiville Rancheria of California et al v. United States Of America et al

Filing 245

ORDER by Judge Yvonne Gonzalez Rogers denying 237 Motion to Amend and Certify Orders for Interlocutory Review and Denying Request for Stay without Prejudice. The Court VACATES the hearing set for October 7, 2014. Case Management Conference is set for November 10, 2014 at 2:00pm. Joint Statement filed by 11/3/2014. (fs, COURT STAFF) (Filed on 10/2/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THE GUIDIVILLE RANCHERIA OF
CALIFORNIA, AND UPSTREAM POINT
MOLATE LLC,
Plaintiffs,

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vs.

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Northern District of California

United States District Court

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ORDER DENYING MOTION TO AMEND AND
CERTIFY ORDERS FOR INTERLOCUTORY
REVIEW AND DENYING REQUEST FOR STAY
WITHOUT PREJUDICE

THE UNITED STATES OF AMERICA, SALLY
JEWELL, et al.,
And
THE CITY OF RICHMOND,

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Case No.: 12-cv-1326 YGR

Defendants.
And Counterclaims.

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Plaintiffs Upstream Point Molate, LLC and Guidiville Rancheria of California filed their

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Motion to Amend and Certify Orders for Interlocutory Review Pursuant to 28 U.S.C. section

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1292(b). (Dkt. No. 237.) In that motion, Plaintiffs request that the Court certify two orders for

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immediate interlocutory appeal pursuant to 28 U.S.C. section 12921: (a) the Court’s July 24, 2014

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Order Denying: (1) Plaintiff’s Motion For Leave To File Motion For Reconsideration; and (2)

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Plaintiff’s Motion For Leave To File Fourth Amended Complaint (Dkt. No. 236 [“Reconsideration

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Order”]); and (b) the Court’s December 12, 2013 Order Granting Motion of City of Richmond For

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Plaintiffs move for certification under 28 U.S.C. section 1292(d)(2). That section addresses
certification for appeal of interlocutory orders made by judges of the U.S. Court of Federal Claims.
The Court presumes that Plaintiffs intended to cite to 28 U.S.C. section 1292(b) concerning decisions
of a district court judge.

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Judgment On The Pleadings (Dkt. No. 212 [“JOP Order”].) Plaintiffs also request the Court stay

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proceedings in this matter until the Ninth Circuit resolves Plaintiffs’ petition for interlocutory appeal.

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Having carefully considered the papers submitted and the pleadings in this action, and for the

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reasons set forth below, the Court hereby DENIES the motion to certify orders for interlocutory

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review.2 The Court finds that Plaintiffs have not met their burden to establish the exceptional

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circumstances required for certification of the interlocutory orders at issue here. The request to stay

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the action pending interlocutory appeal is DENIED WITHOUT PREJUDICE as premature, since no

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appeal is pending.

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I.

ANALYSIS
CERTIFICATION

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A.

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Under Title 28 U.S.C. section 1292(b), the district court may certify appeal of an

Northern District of California

United States District Court

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interlocutory order if: (1) the order involves a controlling question of law, (2) appealing the order

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may materially advance the ultimate termination of the litigation, and (3) there is substantial ground

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for difference of opinion as to the question of law. “Section 1292(b) is a departure from the normal

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rule that only final judgments are appealable, and therefore must be construed narrowly.” James v.

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Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n. 6 (9th Cir.2002). Courts apply the statute’s

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requirements strictly, and grant motions for certification only when exceptional circumstances

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warrant it. Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). A party seeking certification

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to appeal an interlocutory order has the burden of establishing the existence of such exceptional

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circumstances. Id. A party must establish that all three requirements of section 1292(b) are met in

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order to seek an appeal of an interlocutory order. Couch v. Telescope Inc., 611 F.3d 629, 633 (9th

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Cir. 2010).
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Substantial Ground for Difference of Opinion

Plaintiffs have not established that there is “substantial ground for difference of opinion.”

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The question of whether there is a “substantial ground for difference of opinion” turns upon the

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extent to which controlling law is unclear because, for instance, “the circuits are in dispute on the

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Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court
finds this motion appropriate for decision without oral argument. Accordingly, the Court VACATES
the hearing set for October 7, 2014.
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question and the court of appeals of the circuit has not spoken on the point, if complicated questions

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arise under foreign law, or if novel and difficult questions of first impression are presented.” Couch,

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611 F.3d at 633. An argument “[t]hat settled law might be applied differently does not establish a

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substantial ground for difference of opinion.” Id. Likewise, disagreement with the Court’s ruling is

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not sufficient to establish a “substantial ground for difference of opinion.” Id.

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Plaintiffs argue that “[t]here is still unclear and inconsistent authority” as to whether their

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claims “for breach of the LDA [Land Disposition Agreement] for failing to issue a final

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determination under CEQA or failing to exercise its discretion to evaluate the CEQA considerations

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in good faith towards achieving the stated goals of the LDA” constitute challenges to the approval

to no competing authority and offer nothing but their own conclusory arguments to establish

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Northern District of California

process under CEQA that could only be made by writ petition. (Mtn. at 7.) However, Plaintiffs cite

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United States District Court

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“substantial ground for difference of opinion.”

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Dismissal of Plaintiffs’ claims was based chiefly upon the fact that the terms of a settlement

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agreement between the parties precluded the claims. (JOP Order at 10-11.) The Court rejected the

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breach of contract claims for the additional reason that they constituted an improper attack on the

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City’s exercise of its discretionary CEQA approval authority because a writ petition is the exclusive

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mechanism for challenging that conduct, citing Mission Oaks Ranch, Ltd. v. Cnty of Santa Barbara,

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65 Cal. App. 4th 713, 722 (1998), overruled on other grounds by Briggs v. Eden Council for Hope

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and Opportunity, 19 Cal. 4th 1106 (1999) (barring developer’s breach claim against county based on

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allegedly improper EIR when developer had not challenged the EIR). In the instant motion,

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Plaintiffs’ assert that there are “no cases directly on point in this or any other jurisdiction” on the

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issue of the interplay between a contract or settlement agreement and CEQA, including Mission

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Oaks, and thus there is a “difference of opinion.” (Mtn. at 7.) Even assuming the assertion was true,

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that alone would not establish a “substantial ground for a difference of opinion” as required by

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section 1292(b). Couch, 611 F.3d at 633 (“just because a court is the first to rule on a particular

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question…does not mean there is such a substantial difference of opinion as will support an

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interlocutory appeal”) (internal citation omitted). Plaintiffs’ disagreement with the Court’s decision

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is not difference of opinion sufficient to create a certifiable issue.

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Finally, Plaintiffs’ argue that certification is appropriate upon nothing more than a showing

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that “the case law is confused,” citing out-of-circuit authority. This is an incorrect statement of the

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applicable Ninth Circuit law. It is a standard that they have failed to meet in any event.
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Controlling Question of Law

determined on appeal. Although the statute and case law has not established a precise definition for

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what constitutes a “controlling question of law,” the Ninth Circuit has suggested that a “controlling

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question” should be limited to such issues as who are proper parties, whether a court has jurisdiction,

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and whether state or federal law should apply. See Rollins v. Dignity Health, 13-CV-01450-TEH,

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2014 WL 1048637 (N.D. Cal. Mar. 17, 2014) citing In re Cement Antitrust Litig., 673 F.2d 1020,

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1026 (9th Cir. 1982). Plaintiffs have not established that the issues they would raise on appeal

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Northern District of California

Plaintiffs also have not established that there is a “controlling question of law” to be

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United States District Court

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concern “controlling questions of law” in that sense, but merely garden-variety issues of correct

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application of the law to the facts.
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Materially Advance the Ultimate Termination of the Litigation

Plaintiffs still have claims pending against the Federal Defendants. They suggest that the

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Tribe will “continue[] to maintain that it has been wronged by the U.S. Defendants even if its claims

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against the City fail.” (Mtn. at 6.) Plaintiffs continue to maintain a declaratory relief claim against

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the City. Thus, Plaintiffs have failed to meet their burden to show that an interlocutory appeal of the

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orders at issue would materially advance the ultimate termination of the litigation. Rather, it appears

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that interlocutory appeal of these orders would lead to piecemeal appeals and unnecessary

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complication of procedural matters.

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Based on the foregoing, the request to certify the orders here for appeal is DENIED.3

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B.

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Plaintiffs also request that the Court stay proceedings as to the claims against the Federal

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Defendants pending an interlocutory appeal. There is no appeal pending currently and, given the

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STAY

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The Court notes that Plaintiffs have not requested entry of a partial final judgment as to less
than all claims or all parties under Rule 54(b) of the Federal Rules of Civil Procedure, nor did
Plaintiffs accede to the Court’s suggestion that the parties agree to entry of dismissal on the
remaining claim in order to expedite an appeal, since the parties agree that claim rises or falls with
the ruling on the others.
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current posture of the case, it is not clear there will be one in the near future. Plaintiffs are mistaken

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when they say that the Court “has already stayed the Tribe’s claims against the Federal Defendants

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through interlocutory appeal.” (Mtn. at 8.) The Court stayed litigation as to Plaintiffs’ claims

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against the Federal Defendants pending “any motion for reconsideration of the Court’s Order of

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December 12, 2013, and any interlocutory appeal of the December 12, 2013 Order.” (Dkt. 225,

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Order of January 29, 2014). Plaintiffs elected to file a motion for reconsideration, which was denied.

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(Dkt. No. 236, July 24, 2014 Order.) In that same July 24, 2014 Order, the Court explicitly stated

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that the stay of the claims as to the U.S. Defendants, entered on January 29, 2014, was dissolved.

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(Id. at 10:16-18.)

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Northern District of California

United States District Court

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II.

CONCLUSION
Accordingly, the Motion to Amend and Certify Orders for Interlocutory Review is DENIED.

The motion for a stay pending appeal is DENIED WITHOUT PREJUDICE as premature.
Plaintiffs filed the complaint in this action on March 16, 2012. Resolution of the claims is

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required. The Court therefore SETS a case management conference for November 10, 2014, at 2:00

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p.m. in Courtroom 1. The parties shall file a joint case management statement no later than

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November 3, 2014.

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This Order terminates Docket No. 237.

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IT IS SO ORDERED.

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Dated: October 2, 2014
_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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