Linlor v. Five9, Inc. et al
Filing
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ORDER Denying 49 Plaintiff's Ex Parte Motion for Modification to Order to Permit Interlocutory Appeal. Signed by Judge Michael M. Anello on 4/5/2018. (All non-registered users served via U.S. Mail Service)(rmc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JAMES LINLOR,
Case No.: 17cv218-MMA (BLM)
Plaintiff,
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v.
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ORDER DENYING PLAINTIFF'S EX
PARTE MOTION FOR
MODIFICATION TO ORDER TO
PERMIT INTERLOCUTORY
APPEAL
FUTERO, INC.; and DOES 1-9,
Defendants.
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[Doc. No. 49]
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Presently before the Court is pro se Plaintiff James Linlor’s ex parte motion to
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amend the Court’s March 22, 2018 Order for the purpose of certifying the Order for
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interlocutory appeal or, alternatively, to reconsider its Order. Doc. No. 49 at 1.
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Specifically, Plaintiff moves the Court to reconsider its Order denying his motion for
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leave to issue a subpoena upon third party Five9, Inc., which Plaintiff contends will
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identify additional defendants in this action. Doc. No. 49-1 at 2-3. If the Court declines
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to reconsider its Order, then Plaintiff moves the Court to “permit Plaintiff leave to file an
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interlocutory appeal to the 9th Circuit” and to stay the case “pending that result.” Id. at
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3-4. For the reasons stated herein, the Court DENIES Plaintiff’s ex parte motion.
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//
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17cv218-MMA (BLM)
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BACKGROUND
On March 16, 2018, Plaintiff filed two ex parte motions with the Court. Doc. Nos.
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44, 46. Plaintiff sought leave to amend his complaint to add two additional defendants.
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Doc. No. 44 at 1. In one motion, Plaintiff sought leave to add Scott Stagg as a defendant
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in this action. Doc. No. 44. In the second motion, Plaintiff requested permission to issue
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a third party subpoena pursuant to Federal Rule of Civil Procedure 45 “to seek the
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identity/ies and contact information claimed to be known to Five9, Inc., for the sender of
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telemarketing messages and phone calls to Plaintiff’s cellphone.” Doc. No. 46 at 1.
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Plaintiff intended to use that information to seek leave to add additional defendants to this
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action. Doc. No. 44 at 1.
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On March 22, 2018, the Court denied Plaintiff leave to amend his complaint
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pursuant to Federal Rule of Civil Procedure 15, and therefore denied as moot Plaintiff’s
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request to issue a third party subpoena to obtain information to seek leave to add
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additional defendants to this action. Doc. No. 47. Specifically, the Court found that
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leave to amend was not warranted in part because Plaintiff raised “only conclusory
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arguments in support of his two motions,” and because “Plaintiff has been given ample
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opportunities to amend his complaint.” Id. at 3. The Court noted that Plaintiff filed his
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original Complaint on January 4, 2017, a First Amended Complaint on January 13, 2017,
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a Second Amended Complaint on July 28, 2017, and a Third Amended Complaint on
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December 27, 2017. Id. at 3-4; see also Docket.
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MOTION FOR RECONSIDERATION
Plaintiff requests the Court reconsider its March 22, 2018 Order and permit him to
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issue a third party subpoena upon Five9, Inc. Doc. No. 49-1 at 4. In support, Plaintiff
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contends that “the Court’s declining to permit definitive identification and confirmation
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of responsible Defendants at this phase” is inappropriate. Id. at 2.
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Pursuant to Federal Rule of Civil Procedure 59(e), district courts have the power
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to reconsider a previous ruling or entry of judgment. Fed. R. Civ. P. 59(e). A Rule 59(e)
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motion seeks “a substantive change of mind by the court.” Tripati v. Henman, 845 F.2d
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205, 206 n.1 (9th Cir. 1988). Rule 59(e) provides an extraordinary remedy and, in the
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interest of finality and conservation of judicial resources, such a motion should not be
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granted absent highly unusual circumstances. Carroll v. Nakatani, 342 F.3d 934, 945
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(9th Cir. 2003); McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Rule 59
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may not be used to re-litigate old matters, raise new arguments, or present evidence that
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could have been raised prior to entry of the judgment. Exxon Shipping Co. v. Baker, 554
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U.S. 471, 485 n.5 (2008).
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Under Rule 59(e), it is appropriate to alter or amend a previous ruling or judgment
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if “(1) the district court is presented with newly discovered evidence, (2) the district court
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committed clear error or made an initial decision that was manifestly unjust, or (3) there
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is an intervening change in controlling law.” United Nat’l Ins. Co. v. Spectrum
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Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009) (citation omitted).
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The Court has reviewed Plaintiff’s ex parte motion and finds that Plaintiff does not
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argue there is newly discovered evidence, the Court committed clear error or made an
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initial decision that was manifestly unjust, or that there is an intervening change in
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controlling law. See Doc. No. 49. It appears that Plaintiff is aware he cannot carry his
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burden of proof, as he states he cannot obtain relief without the Court certifying the
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March 22, 2018 Order for interlocutory appeal “unless the Court were to sua sponte
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reconsider its Order and approve Plaintiff’s Subpoena . . . .” Doc. No. 49-1 at 3. In light
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of Plaintiff’s failure to carry his burden of showing relief under Rule 59(e) is appropriate,
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the Court DENIES Plaintiff’s request to reconsider the March 22, 2018 Order.
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CERTIFICATION OF AN ORDER FOR INTERLOCUTORY APPEAL
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In the alternative to relief under Rule 59, Plaintiff requests the Court certify its
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March 22, 2018 Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Doc.
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No. 49-1.
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Generally, the United States Courts of Appeals have jurisdiction over appeals from
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“final decisions of the district courts.” 28 U.S.C. § 1291. However, 28 U.S.C. § 1292(b)
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is an exception to the final judgment rule, where “litigants can bring an immediate appeal
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of a non-final order upon the consent of both the district court and the court of appeals.”
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In re Cement Antitrust Litig., 673 F.2d 1020, 1025-26 (9th Cir. 1982). Under § 1292(b),
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the court may certify an issue for interlocutory appeal if three elements are satisfied: (1)
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the issue is a controlling question of law; (2) the issue offers substantial grounds for a
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difference of opinion; and (3) an immediate appeal may materially advance the ultimate
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termination of the litigation. Id. at 1026; 28 U.S.C. § 1292(b). “[T]his section [is] to be
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used only in exceptional situations in which allowing an interlocutory appeal would avoid
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protracted and expensive litigation.” In re Cement Antitrust Litig., 673 F.2d at 1026.
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“The decision to certify an order for interlocutory appeal is committed to the sound
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discretion of the district court.” United States v. Tenet Healthcare Corp., No. CV04-857
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GAF(JTLX), 2004 WL 3030121, at *1 (C.D. Cal. Dec. 27, 2004) (citing Swint v.
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Chambers Cnty. Comm’n, 514 U.S. 35, 47 (1995)). As such, “[e]ven when all three
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statutory criteria are satisfied, district court judges have ‘unfettered discretion’ to deny
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certification.” Brizzee v. Fred Meyer Stores, Inc., No. CV 04-1566-ST, 2008 WL
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426510, at *3 (D. Or. Feb. 13, 2008); see also In re Gugliuzza, 852 F.3d 884, 898 (9th
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Cir. 2017) (noting that the Ninth Circuit lacks jurisdiction over a district court’s order
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pursuant to § 1292 where the district court does not certify its decision for interlocutory
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review).
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The party seeking certification bears the burden of showing that exceptional
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circumstances justify a departure from the basic policy of postponing appellate review
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until after the entry of a final judgment. See Villarreal v. Caremark LLC, 85 F. Supp. 3d
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1063, 1067 (D. Ariz. 2015).
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The Court finds that Plaintiff has not met his burden of showing exceptional
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circumstances justifying certification of the March 22, 2018 Order exist. Id.
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Specifically, the Court finds that Plaintiff has not established a controlling question of
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law exists. A question of law is “controlling” under § 1292(b) if resolving it on appeal
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could materially affect the outcome of the litigation in the district court. In re Cement
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Antitrust Litig., 673 F.2d at 1026. “A ‘question of law’ means a ‘pure question of law,’
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not a mixed question of law and fact or an application of law to a particular set of facts.”
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Brizzee, 2008 WL 426510, at * 4 (citing Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219
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F.3d 647, 675-77 (7th Cir. 2000).
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Here, Plaintiff argues that the March 22, 2018 Order “involves controlling
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questions of law . . . due to its basis on ‘opportunities’ Plaintiff has had to name, add, and
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serve Defendants.” Doc. No. 49 at 2. The number of opportunities Plaintiff has had to
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amend his complaint and serve defendants is not a legal question, but a factual question.
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As discussed previously, Plaintiff has amended his complaint three times, and thus, has
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had three opportunities to name, add, and serve defendants. Even if Plaintiff takes issue
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with the Court’s application of Federal Rule of Civil Procedure 15 to the facts of this
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case, that is not a question of law under § 1292(b). See Brizzee, 2008 WL 426510, at * 4
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(stating that a question of law is not an application of law to a particular set of facts).
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Even further, denying Plaintiff leave to amend at this juncture is not “controlling”
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under § 1292(b) because it will not materially affect the outcome of the litigation.
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Plaintiff contends that he has a right to substitute the John Doe defendants listed in his
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Complaint, but that he can only do so if he is permitted to issue a third party subpoena
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upon Five9, Inc. Doc. No. 49-1 at 1-2. He explains that this is “part of Plaintiff’s
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[Federal] Rule [of Civil Procedure] 26 and [Federal] Rule [of Civil Procedure] 45 rights.”
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Id. at 2. As explained to Plaintiff previously, discovery motions pursuant to Federal
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Rules of Civil Procedure 26 and 45 are premature at this point. See Doc. No. 19 at 2.
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“Because Defendant has not yet answered Plaintiff’s complaint, the Court has not
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conducted an Early Neutral Evaluation or Case Management Conference and has not
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opened discovery or issued a scheduling order.” Id. The Court advises Plaintiff that a
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scheduling order, which follows the Early Neutral Evaluation and Case Management
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Conference, will set a deadline to amend his pleadings following the commencement of
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discovery.
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Because the Court finds that Plaintiff has not established the existence of a
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controlling question of law, the Court declines to address the additional elements under
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28 U.S.C. § 1292(b) and finds that Plaintiff has failed to demonstrate an exceptional need
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for interlocutory appeal of the Court’s March 22, 2018 Order. Accordingly, the Court
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DENIES Plaintiff’s motion for certification of the March 22, 2018 Order for
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interlocutory appeal.1 See In re Gugliuzza, 852 F.3d at 898 (noting that the Ninth Circuit
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lacks jurisdiction over a district court’s order pursuant to § 1292 where the district court
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does not certify its decision for interlocutory review).
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CONCLUSION
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For the foregoing reasons, the Court DENIES Plaintiff’s ex parte motion for
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modification to order to permit interlocutory appeal. Doc. No. 49.
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IT IS SO ORDERED.
Dated: April 5, 2018
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As such, the Court also DENIES AS MOOT Plaintiff’s request to stay the case pending appeal. See
Doc. No. 49-1 at 4.
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