Stiller et al v. Costco et al

Filing 262

ORDER Denying 255 Motion to Intervene; Vacating Hearing Date Set for April 17, 2015. Signed by Judge Gonzalo P. Curiel on 4/9/15. (All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ERIC STILLER and JOSEPH MORO,
on behalf of themselves individually
and all other similarly situated,

12

Plaintiffs,

13

v.

CASE NO. 3:09-cv-2473-GPC-BGS
ORDER:
(1) DENYING MOTION TO
INTERVENE;
(2) VACATING HEARING DATE

14

[ECF No. 255]

15
16
17
18
19

COSTCO WHOLESALE
CORPORATION and DOES 1
through 25, inclusive,
Defendants.

20
21
22

I. INTRODUCTION
Before the Court are Flora Castor, Michael Drentea, and Michael Stewart’s

23 (collectively, “Intervenors”) Motion to Intervene. (ECF No. 255.) Defendant Costco
24 Wholesale Corporation (“Defendant”) opposes. (ECF No. 260.) The parties have fully
25 briefed the motion. (ECF Nos. 255, 260, 261.) The Court finds the motion suitable for
26 disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1). Upon review
27 of the moving papers, admissible evidence, and applicable law, the Court DENIES
28 Intervenors’ Motion to Intervene.
-1-

3:09-cv-2473-GPC-BGS

1
2

II. BACKGROUND
This was a class and collective action instituted by Plaintiffs Joseph More and

3 Eric Stiller (collectively, “Plaintiffs”) against Defendant. (ECF No. 96.) On April 15,
4 2014, the Court decertified the class and collective actions. (ECF No. 224.) On January
5 30, 2015, Plaintiffs notified the Court that they had settled their individual claims.
6 (ECF No. 250.) On February 3, 2015, pursuant to the parties’ settlement, the Court
7 dismissed Plaintiffs’ individual claims, (ECF No. 251), which constituted a final
8 judgment. (See ECF No. 254.) On March 2, 2015, Intervenors filed their motion to
9 intervene. (ECF No. 255.) The same day, Plaintiffs filed a notice of appeal seeking to
10 challenge the decertification order. (ECF No. 256.)
11
12

III. DISCUSSION
The parties dispute whether this Court has jurisdiction to hear Intervenors’

13 motion. Citing Bryant v. Crum & Forster Speciality Ins. Co., 502 Fed App’x. 670 (9th
14 Cir. 2012), Defendant contends that the filing of the notice of appeal divested this
15 Court of jurisdiction. (ECF No. 260, at 3.)1 Intervenors respond that the “in aid of
16 appeal” exception to the divestment of jurisdiction, see Resnik v. La Paz Guest Ranch,
17 289 F.2d 814, 818 (9th Cir. 1961), allows the Court to rule on the motion to intervene.
18 (ECF No. 261, at 1–5.)
19

“The filing of a notice of appeal is an event of jurisdictional significance—it

20 confers jurisdiction on the court of appeals and divests the district court of its control
21 over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer
22 Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). As an initial matter, Bryant is an
23 unpublished memorandum disposition with minimal analysis and is at least somewhat
24 distinguishable from this case because the motion to intervene in that case was filed
25
26
27
1

Defendant refers to the 9th Circuit’s decision in Bryant as a “succinct opinion.”
28 (ECF No. 260, at 3.) This is incorrect as the decision in Bryant is actually a nonprecedential memorandum. See 502 Fed. App’x at 671; 9th Cir. R. 36-1, 36-3(a).
-2-

3:09-cv-2473-GPC-BGS

1 approximately two weeks after the filing of the notice of appeal.2 However, other
2 circuits have addressed factual scenarios identical to the one at hand. See, e.g., Doe v.
3 Public Citizen, 749 F.3d 246, 258–59 (4th Cir. 2014); Taylor v. KeyCorp, 680 F.3d
4 609, 617 (6th Cir. 2012); Drywall Tapers and Pointers of Greater N.Y., Local Union
5 1974 v. Nastasi & Assocs. Inc., 488 F.3d 88, 94–95 (2d Cir.2007); Roe v. Town of
6 Highland, 909 F.2d 1097, 1100 (7th Cir.1990); Nicol v. Gulf Fleet Supply Vessels, Inc.,
7 743 F.2d 298, 299 (5th Cir.1984).
8

Drywall Tapers and Doe are instructive. In Drywall Tapers, a motion to

9 intervene was filed several months before the notice of appeal.3 The Second Circuit
10 held that the filing of the notice of appeal divested the district court of jurisdiction even
11 though the motion to intervene had been filed before the notice of appeal. Drywall
12 Tapers, 488 F.3d at 94. In Doe, a motion to intervene was filed approximately two
13 months before the notice of appeal.4 The district court delayed ruling on the motion
14 until the notice of appeal had been filed. Doe, 749 F.3d at 257–8. The district court
15 eventually decided “that it had authority, under the ‘in aid of appeal’ exception, to act
16 on the intervention motion” but ultimately denied the motion. Id. On appeal, the Fourth
17 Circuit rejected the district court’s jurisdictional determination, “conclud[ing] that the
18 ‘in aid of appeal’ exception” was “inapposite” because any ruling on a motion to
19
20

2

27

4

Notice of Appeal, Mattel, Inc. v. MGA Entm’t, Inc., No. 2:04-cv-9049-DOCRNB (C.D. Cal. Aug. 11, 2011), ECF No. 10707; Motion to Intervene, Mattel, Inc. v.
21 MGA Entm’t, Inc., No. 2:04-cv-9049-DOC-RNB (C.D. Cal. Aug. 26, 2011), ECF No.
10724. The district court denied the motion on non non-jurisdictional grounds on
22 September 26, 2011. Order on Motion, Mattel, Inc. v. MGA Entm’t, Inc., No. 2:04-cv9049-DOC-RNB (C.D. Cal. Sept. 26, 2011), ECF No. 10790. The Ninth Circuit
23 affirmed the district court’s ruling on the alternative ground that the district court
lacked jurisdiction. Bryant, 502 Fed App’x. at 671.
24
3
Motion to Intervene, Drywall Taper and Pointers of Greater N.Y. v. Bovis Lend
25 Lease Interiors, Inc., No. 1:05-cv-2746-JG-CLP (E.D.N.Y. Nov. 4, 2005), ECF No. 70;
Notice of Appeal, Drywall Taper and Pointers of Greater N.Y. v. Bovis Lend Lease
26 Interiors, Inc., No. 1:05-cv-2746-JG-CLP (E.D.N.Y. Jan. 13, 2006), ECF No. 93.
Motion to Intervene, The ERGO Baby Carrier Inc. v. Tenenbaum, No. 8:11-cv2958-DKC (D. Md. Aug. 7, 2012), ECF No. 52; Sealed Notice of Appeal, The ERGO
28 Baby Carrier Inc. v. Tenenbaum, No. 8:11-cv-2958-DKC (D. Md. Oct. 3, 2012), ECF
No. 64.
-3-

3:09-cv-2473-GPC-BGS

1 intervene “alter[s] the status of the case as it rests before the court of appeals” and thus
2 vacated the district court’s order on the motion to intervene. Id. at 253, 258(quoting
3 Coastal Corp. v. Tx. E. Corp., 869 F.2d 817, 820 (5th Cir. 1989)).
4

Intervenors incorrectly contend that this Court can “aid” the Ninth Circuit so that

5 the Ninth Circuit has jurisdiction on appeal. (ECF No. 261, at 3.) The exception does
6 not allow the Court to act “in aid of appellate jurisdiction,” (id. (emphasis added)), but
7 rather act to in aid of the appeal itself through methods such as memorializing an oral
8 opinion. See,e.g., Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007,
9 1013 (6th Cir. 2003) (“Several appellate courts have allowed district courts to use this
10 exception to memorialize oral opinions soon after a decision was rendered; that action
11 has been considered one ‘in aid of the appeal.’”). Whether or not the Ninth Circuit has
12 jurisdiction over the pending appeal is material to Intervenors and Plaintiffs, not to the
13 Ninth Circuit. By “alter[ing] the status of the case as it rests before the court of
14 appeals,” the Court would not be acting “in aid of appeal.” Coastal Corp., 869 F.2d at
15 820. Were the Court to grant intervention, that would not “aid [the Ninth Circuit’s]
16 analysis” on jurisdiction, but instead substantively change that analysis. Inland Bulk
17 Transfer Co., 332 F.3d at 1014. Accordingly, the Court finds that the “in aid of appeal”
18 exception does not apply to this case and therefore DENIES Intervenors’ motion to
19 intervene for lack of jurisdiction.
20

IV. CONCLUSION AND ORDER

21

For the reasons stated above, IT IS HEREBY ORDERED that:

22

1.

Intervenors’ Motion to Intervene, (ECF No. 255), is DENIED; and

23

2.

The hearing set for April 17, 2015, is VACATED.

24 DATED: April 9, 2015
25
26
27

HON. GONZALO P. CURIEL
United States District Judge

28
-4-

3:09-cv-2473-GPC-BGS