United States of America et al v. Dish Network LLC

Filing 293

OPINION entered by Judge Sue E. Myerscough on 5/10/2013. Defendant Dish Network LLC's 28 U.S.C. § 1292(b) Motion for Certification of an Interlocutory Appeal, d/e 277 is DENIED. (MAS, ilcd)

E-FILED

Friday, 10 May, 2013 04:21:02 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
and the STATES OF CALIFORNIA,
ILLINOIS, NORTH CAROLINA,
and OHIO,
Plaintiffs,
v.
DISH NETWORK, L.L.C.,
Defendant,

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No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Defendant Dish Network L.L.C.’s
28 U.S.C. § 1292(b) Motion for Certification of an Interlocutory Appeal
(d/e 277). The Motion is DENIED. The questions on which Defendant
seeks certification are not controlling questions of law on which there is a
substantial ground for difference of opinion. Because all of the statutory
factors for certifying an interlocutory appeal are not met, certification of
an interlocutory appeal is not appropriate.
Page 1 of 10

I. BACKGROUND
On January 17, 2013, this Court, sua sponte, entered a Text Order
setting the matter for a hearing. The Text Order advised the parties that
the Court was considering consolidating this case, Case No. 09-3073,
with the newly filed case of Federal Trade Commission v. Dish Network,
L.L.C. , Case No. 12-3221 and/or allowing Plaintiffs leave to amend their
complaint in this case to raise the claims contained in Case No. 12-3221.
See January 17, 2013 Text Order.
On March 12, 2013, following the hearing, this Court vacated
Judge Cudmore’s ruling (d/e 155) on Plaintiffs’ Motion for Leave to File
Second Amended Complaint. See Opinion (d/e 258); Sec. Am. Compl.
(d/e 257) (containing a new Count II). After noting that Judge
Cudmore’s disposition could be set aside only if it were clearly erroneous
or contrary to law, the Court found that under the circumstances of the
case leave to amend should have been granted. March 2013 Opinion, p.
16. This Court granted Plaintiffs leave to file their Second Amended
Complaint.
Page 2 of 10

Defendant filed a Motion to Reconsider (d/e 264), to which
Plaintiffs responded (d/e 275). On April 16, 2013, the Motion to
Reconsider was denied by way of a Text Order.
On April 22, 2012, Defendant filed the Motion for Certification of
an Interlocutory Appeal at issue herein. Defendant asks that the Court
certify the March 12, 2013 Opinion for interlocutory appeal pursuant to
28 U.S.C. § 1292(b).
II. LEGAL STANDARD
A district judge may certify an interlocutory appeal of a nonfinal
order if “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.” 28 U.S.C. § 1292(b); see also Boim v.
Quranic Literacy Inst. & Holy Land Found. For Relief and Dev., 291
F.3d 1000, 1007 (7th Cir. 2002). The request must also be filed within
a reasonable time. Ahrenholz v. Board of Tr. of the Univ. of Ill., 219
F.3d 674, 675 (7th Cir. 2000).
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Each of these criteria must be met before a district court can certify
its order for an immediate appeal. Ahrenholz, 291 F.3d at 675. Once
the district court certifies the request for an appeal, the Court of Appeals
has the discretion to permit the appeal from such order. 28 U.S.C. §
1292(b). Section 1292(b) “must be used sparingly lest interlocutory
review increase the time and expense required for litigation.” Asher v.
Baxter Intern. Inc., 505 F.3d 736, 741 (7th Cir. 2007).
III. ANALYSIS
Defendant asserts that this Court’s March 2013 Opinion presents
numerous questions of law that meet the statutory criteria for
certification. Defendant identifies the questions as follows:
1. May a Court sua sponte grant a previously denied motion
for leave to amend complaint, following the close of all
discovery and after the plaintiff filed a second lawsuit
asserting a similar claim, and where such amendment
prejudices the procedural and substantive rights of the
defendant?
2. May a Court sua sponte substitute an amendment of a
complaint for consolidation of two separate cases under
Federal Rule of Civil Procedure 42?

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3. Is the Court required to apply the “clearly erroneous”
standard under Federal Rule of Civil Procedure 72 when sua
sponte reviewing a Magistrate Judge’s Order denying a motion
for leave to amend under Federal Rule of Civil Procedure 15?
Defendant argues that each of the statutory criteria are met: that the
Opinion involves (1) a controlling question of law; (2) to which there is a
substantial ground for difference of opinion; and (3) an immediate
appeal from the order may materially advance the ultimate termination
of the litigation.
An immediate appeal may concededly materially advance the
ultimate termination of the litigation. If the Court of Appeals ruled in
Defendant’s favor so that Plaintiffs were not granted leave to file the new
Count II, such ruling would narrow the issues, shorten the length of any
trial, and the remaining claims would proceed to trial more quickly. See,
e.g., General Dynamics Corp. v. American Tel. & Tel. Co., 658 F. Supp.
417, 419 (N.D. Ill. 1987). However, Defendant has not shown that the
Opinion involves any controlling question of law on which there is a
substantial ground for difference of opinion.

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In the March 2013 Opinion, this Court sua sponte determined that
Magistrate Judge Cudmore clearly erred by denying Plaintiffs’ Motion for
Leave to File Second Amended Complaint. Defendant argues that the
March 2013 Opinion should be certified for an interlocutory appeal.
Defendant asserts that the March 2013 Opinion involves
controlling questions of law. A question of law generally refers to “a
question regarding the meaning of a statutory or constitutional provision,
regulation or common law doctrine.” Boim, 291 F.3d at 1007; but see
also In re Text Messaging Antitrust Litigation, 630 F.3d 622, 626 (7th
Cir. 2010) (noting “that application of a legal standard is a controlling
question of law” where the legal standard is unsettled).
According to the Seventh Circuit, the idea behind the question-oflaw requirement is that, “if a case turned on a pure question of law,
something the court of appeals could decide quickly and cleanly without
having to study the record, the court should be enabled to do so without
having to wait till the end of the case.” Ahrenholz, 219 F.3d at 675; see
also, e.g., Resolution Trust Corp. v. Gallagher, 1992 WL 315218, at *4
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(N.D. Ill. 1992) (finding that whether a statute preempted federal
common law causes of actions was a controlling question of law). A
question of law is controlling if “its resolution is quite likely to affect the
further course of the litigation, even if not certain to do so.” Sokaogon
Gaming Enter. Corp. v. Tushi-Montgomery Assocs., Inc., 86 F.3d 656,
659 (7th Cir. 1996).
Defendant attempts to narrowly frame the issues in the March
2013 Opinion as follows: (1) whether this Court may sua sponte
reconsider an order denying leave to amend a complaint when doing so
prejudices the procedural and substantive rights of the defendant; (2)
whether the Court has the power to allow amendment to the complaint
rather than consolidate the case with another case; and (3) whether the
Court was required to apply the clearly erroneous standard when sua
sponte reviewing a magistrate judge’s order denying a motion for leave to
amend.
Despite this framing of the issues, however, Defendant actually
appears to be challenging the Court’s decisions to sua sponte reconsider
Page 7 of 10

Magistrate Judge Cudmore’s Order and grant the motion for leave to
amend rather than to consolidate this case with Case No. 12-3221.
Those issues are not pure questions of law that the Seventh Circuit can
decide “quickly and cleanly without having to study the record.”
Ahrenholz, 219 F.3d at 675. Instead, resolution of the issues in this
Court’s March 2013 Opinion are fact specific, which generally make
them inappropriate for an appeal under § 1292(b). See, e.g., Richardson
Elecs., Ltd. v. Panache Broad. of Pa., Inc., 202 F.3d 957, 958 (7th Cir.
2000) (noting, in class certification case, that the question of whether
legal and factual questions common to the class predominate over
individual questions seemed “rather too fact-specific to be suitable for a
1292(b) appeal”); In re Beale, 2008 WL 538913, at *4 (N.D. Ill. 2008)
(finding that a fact-specific issue was not appropriate for interlocutory
review); Solis v. Kirschenbaum, 2013 WL 1451980, at *5 (E.D. N.Y.
2013) (reasonableness of a fee award is a factual determination and not a
controlling question of law appropriate for interlocutory review).

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Even if the Court accepts Defendant’s narrow characterization of
the issues, Defendant has not shown a substantial ground for difference
of opinion. The Seventh Circuit has held that a district judge may sua
sponte reconsider a decision by the Magistrate Judge. See Schur v. L.A.
Weight Loss Centers, Inc., 577 F.3d 752, 760 (7th Cir. 2009) (stating
“the district judge remains the final authority in the case, and he may
reconsider sua sponte any matter determined by a magistrate judge”); see
also, e.g., Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir. 2000) (noting
that “even without considering the objections, the district judge should
have reviewed the magistrate judge’s recommendation for clear error”).
Moreover, a district court has the discretion to control its docket. See
Reales v. Consol. Rail Corp., 84 F.3d 993, 996 (7th Cir. 1996).
Therefore, because Defendant has failed to show that the March
2013 Opinion involves controlling questions of law on which there is a
substantial ground for difference of opinion, the request for certification
of an interlocutory appeal is denied.

Page 9 of 10

IV. CONCLUSION
For the reasons stated, Defendant Dish Network L.L.C.’s 28 U.S.C.
§ 1292(b) Motion for Certification of an Interlocutory Appeal (d/e 277)
is DENIED.
ENTER: May 10, 2013
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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