Du Preez v. Banis et al

Filing 90

ORDER DENYING DEFENDANTS' MOTION TO CERTIFY FOR AN INTERLOCUTORY APPEAL THE COURT'S JANUARY 30, 2015 ORDER ON DEFENDANT'S MOTION TO DISMISS [DOC. 74 ] (28 USC § 1292(B)) re 76 Defendants' Motion to Certify for an Interlocutory Appeal the Court's January 30, 2015 Order on Defendants' Motion to Dismiss [Doc. [74[] (28 USC Section filed by Kent Green, Don Carano, Rachel Bridgewater, Rick Banis, Western Equities, LLC, John Mackall, Fred Sca rpello, WNP Enterprises LLC. Signed by JUDGE LESLIE E. KOBAYASHI on 02/27/2015. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RONI DU PREEZ,

)
)
Plaintiff,
)
)
vs.
)
)
RICK BANIS, DON CARANO, FRED )
SCARPELLO, JOHN MACKALL, ET
)
AL.,
)
)
)
Defendants.
_____________________________ )

CIVIL NO. 14-00171 LEK-RLP

ORDER DENYING DEFENDANTS’ MOTION TO CERTIFY FOR AN
INTERLOCUTORY APPEAL THE COURT’S JANUARY 30, 2015 ORDER ON
DEFENDANT’S MOTION TO DISMISS [DOC. 74] (28 USC § 1292(B))
On January 30, 2015, this Court issued its Order
Granting in Part and Denying in Part Defendants’ Motion to
Dismiss First Amended Complaint [Doc. 38] (“1/30/15 Order”).
[Dkt. no. 74.1]

On February 13, 2015, Defendants Rick Banis,

Don Carano, Fred Scarpello, John Mackall, individually and as
Trustees of the Estate of William Pennington (collectively, “the
Estate Defendants”); Kent Green; Raquel Bridgewater (sued
erroneously herein as Rachel Bridgewater); WNP Enterprises, Inc.;
and Western Equities, LLC (all collectively, “Defendants”) filed
their Motion to Certify for an Interlocutory Appeal the Court’s
January 30, 2015 Order on Defendant’s Motion to Dismiss [Doc. 74]
(28 USC § 1292(b)) (“Motion”).

[Dkt. no. 76.]

On February 14,

2015, this Court issued an entering order denying Defendants’
1

The 1/30/15 Order is also available at 2015 WL 415890.

Motion (“2/14/15 EO”).

[Dkt. no. 84.]

The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

After careful consideration of the

Motion and the relevant legal authority, Defendants’ Motion is
HEREBY DENIED for the reasons set forth below.

This Order

supercedes the 2/14/15 EO.
DISCUSSION
In the instant Motion, Defendants ask this Court to
certify - for an interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b) - the issue of whether Nevada law or Hawai`i law
applies to the issue of whether pro se Plaintiff Roni Du Preez
(“Plaintiff”) timely brought her claims against the Estate
Defendants.

[Motion at 2-3.]

Section 1292(b) states:

When a district judge, in making in a civil action
an order not otherwise appealable under this
section, shall be of the opinion that such order
involves a controlling question of law as to which
there is substantial ground for difference of
opinion and that an immediate appeal from the
order may materially advance the ultimate
termination of the litigation, he shall so state
in writing in such order. The Court of Appeals
which would have jurisdiction of an appeal of such
action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application
is made to it within ten days after the entry of
the order: Provided, however, That application for
an appeal hereunder shall not stay proceedings in
the district court unless the district judge or
the Court of Appeals or a judge thereof shall so
order.
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This district court has described the standard applicable to
requests for § 1292(b) certification as follows:
A movant seeking an interlocutory appeal has
a heavy burden to show that “exceptional
circumstances justify a departure from the basic
policy of postponing appellate review until after
the entry of a final judgment.” Coopers & Lybrand
v. Livesay, 437 U.S. 463, 475 (1978); see also
James v. Price Stern Sloan, Inc., 283 F.3d 1064,
1067 n.6 (9th Cir. 2002) (“Section 1292(b) is a
departure from the normal rule that only final
judgments are appealable, and therefore must be
construed narrowly.”); Pac. Union Conference of
Seventh–Day Adventists v. Marshall, 434 U.S. 1305,
1309 (1977) (“The policy against piecemeal
interlocutory review other than as provided for by
statutorily authorized appeals is a strong one.”
(citations omitted)). Indeed, § 1292(b) is used
“only in exceptional situations in which allowing
an interlocutory appeal would avoid protracted and
expensive litigation.” In re Cement Antitrust
Litig., 673 F.2d 1020, 1026 (9th Cir. 1982)
(citing U.S. Rubber Co. v. Wright, 359 F.2d 784,
785 (9th Cir. 1966) (per curiam)). . . .
Leite v. Crane Co., Civil No. 11–00636 JMS/RLP, 2012 WL 1982535,
at *2 (D. Hawai`i May 31, 2012).

“A court has substantial

discretion whether to grant a party’s motion for certification.”
Pitts v. Sequeira, Civil No. 11-00281 LEK/RLP, 2014 WL 346523, at
*2 (D. Hawai`i Jan. 29, 2014) (citing Adobe Sys., Inc. v. Hoops
Enter., 2012 WL 1710951, *1 (N.D. Cal. 2012)).
As to the first factor - whether there is a controlling
question of law, this Court finds that the resolution of the
choice of law issue is material to significant claims in this
case, but the issue is not a purely legal issue.

See Leite, 2012

WL 1982535, at *5 (discussing the standard for determining what
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is a controlling question of law).

This Court therefore finds

that the first § 1292(b) factor is not met in this case.
This Court also finds that the second § 1292(b) factor
is not met in this case.

There is no substantial ground for a

difference of opinion because the controlling case law governing
the choice of law analysis is clear.

See Couch v. Telescope

Inc., 611 F.3d 629, 633 (9th Cir. 2010) (“To determine if a
‘substantial ground for difference of opinion’ exists under
§ 1292(b), courts must examine to what extent the controlling law
is unclear.”).
Further, this Court finds that the third § 1292(b)
factor is not met in this case.

The proposed interlocutory

appeal would not materially advance the ultimate termination of
the litigation because the choice of law issue only affects
Plaintiff’s claims against the Trustee Defendants.

Allowing

Defendants to take an interlocutory appeal of the choice of law
issue would result in disruptive, piecemeal litigation.

Cf. Pac.

Union Conference, 434 U.S. at 1309 (regarding the policy against
piecemeal interlocutory review).
Insofar as this Court has found that Defendants have
not established any of the requirements for an interlocutory
appeal, this Court FINDS that the instant case does not present
the type of exceptional circumstances which warrant certification
of an interlocutory appeal.

This Court CONCLUDES that Defendants

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should not be allowed to file the proposed interlocutory appeal
in this case.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Certify for an Interlocutory Appeal the Court’s January 30, 2015
Order on Defendant’s Motion to Dismiss [Doc. 74] (28 USC
§ 1292(b)), filed February 13, 2015, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 27, 2015.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

RONI DU PREEZ VS. RICK BANIS, ET AL; CIVIL 14-00171 LEK-RLP;
ORDER DENYING DEFENDANTS’ MOTION TO CERTIFY FOR AN INTERLOCUTORY
APPEAL THE COURT’S JANUARY 30, 2015 ORDER ON DEFENDANT’S MOTION
TO DISMISS [DOC. 74] (28 USC § 1292 (B))

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