Captain Bounce, Inc. et al v. Business Financial Services, Inc. et al

Filing 44

ORDER denying 38 Plaintiffs' Motion for Certification of Interlocutory Appeal under 28 USC § 1292(b). Accordingly, Plaintiffs' motion for certification of interlocutory appeal is DENIED. Signed by Judge Janis L. Sammartino on 5/21/2012. (All non-registered users served via U.S. Mail Service). (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CAPTAIN BOUNCE, INC.; et al.,

CASE NO. 11-CV-858 JLS (WMC)

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ORDER: DENYING PLAINTIFFS’
MOTION FOR CERTIFICATION
OF INTERLOCUTORY APPEAL
UNDER 28 U.S.C. § 1292(b)

Plaintiffs,
vs.

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(ECF No. 38)
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BUSINESS FINANCIAL SERVICES, INC.;
et al.,

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Defendants.
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Presently before the Court is Plaintiffs’ motion for certification of interlocutory appeal

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under 28 U.S.C. § 1292(b). (ECF No. 38.) Also before the Court are Defendants’ opposition

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(ECF No. 41) and Plaintiffs’ reply (ECF No. 42). The motion was taken under submission without

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oral argument pursuant to Civil Local Rule 7.1(d)(1). Having considered the parties’ arguments

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and the law, the Court DENIES Plaintiffs’ motion to certify the Court’s Order compelling

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arbitration and staying action (March 19, 2012 Order, ECF No. 37) for interlocutory appeal.
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28 U.S.C. § 1292(b) provides, in pertinent part, that a district judge may certify an order

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for immediate interlocutory appeal if the judge is “of the opinion” that: (1) the order “involves a

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controlling question of law”; (2) there is “substantial ground for difference of opinion” as to the

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resolution of that question; and (3) “an immediate appeal from the order may materially advance

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the ultimate termination of the litigation[ ].” See Kaltwasser v. AT&T Mobility, 2011 U.S. Dist.

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LEXIS 133544 (N.D. Cal. Nov. 8, 2011); In re LDK Solar Sec. Litig., 584 F. Supp. 2d 1230, 1258

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(N.D. Cal. 2008). Such certification should only be granted “in extraordinary cases where

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decision of an interlocutory appeal might avoid protracted and expensive litigation.” U.S. Rubber

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Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). The Court finds the circumstances presented in

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this case do not overcome the general policy disfavoring piecemeal appeals, and that they do not

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merit § 1292(b) certification.

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In its March 19, 2012 Order compelling arbitration and staying the action, the Court found

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there was “minimal” procedural unconscionability in the parties’ contractual arbitration

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agreement, and further found the agreement was not unenforceable. (March 19, 2012 Order 12,

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18.) Plaintiffs now contend interlocutory appeal is warranted because the “law under the Federal

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Arbitration Act (‘FAA’) is in flux” following the Supreme Court’s recent decision in AT&T

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Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1753 (2011), and that “California unconscionability

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law is also evolving rapidly.” (Mot. for Cert. 2.) However, in its March 19, 2012 Order the Court

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explicitly declined to address the preemption issues raised by Concepcion because such discussion

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was unnecessary given the Court’s ruling that the arbitration provision was not unconscionable.

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(March 19, 2012 Order 18.) Thus, Plaintiffs’ arguments that the “law is in flux” because of

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Concepcion and federal preemption is unavailing.

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Further, it is clear that certifying its March 19, 2012 Order for interlocutory appeal would

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not “materially advance the ultimate termination of [this] litigation.” 28 U.S.C. § 1292(b).

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Indeed, such certification would delay, rather than advance, the termination of this case, even

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under Plaintiffs’ reasoning that the expense of arbitration may force them to abandon the case,

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because it would “require the parties to undertake proceedings at the appellate level before any

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arbitration could take place.” Kaltwasser, 2011 U.S. Dist LEXIS 133544, at *8 (N.D. Cal. Nov. 8,
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2011) (citing Owner-Operator Indep. Drivers Ass’n, Inc. v. Swift Trans. Co., Inc., 2004 U.S. Dist.

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LEXIS 30604, at *1 (D. Ariz. July 28, 2004) (declining to certify an order compelling arbitration

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for interlocutory appeal, in part because “the appeal process would realistically take far longer

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than would the arbitration process, an interlocutory appellate ruling . . . would only prolong the

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termination” of the case)). Indeed, the Federal Arbitration Act’s policy of avoiding unnecessary

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delays in arbitrating disputes is furthered in part through discouragement of immediate appellate

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review of orders compelling arbitration. Bushley v. Credit Suisse First Boston, 360 F.3d 1149,

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1153 (9th Cir. 2004) (“The Federal Arbitration Act represents Congress’s intent to move the

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parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.”

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(internal quotation and citation omitted)). Accordingly, Plaintiffs’ motion for certification of

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interlocutory appeal is DENIED.

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IT IS SO ORDERED.

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DATED: May 21, 2012
Honorable Janis L. Sammartino
United States District Judge

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