Johansen v. Liberty Mutual Group Inc.

Filing 134

Judge Allison D. Burroughs: ORDER entered 124 Digitas, Inc's Motion for Certificate of Appealability and to Stay the Proceedings is DENIED. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

KEN JOHANSEN, individually and on behalf
of all others similarly situated,

Civil Action No. 1:15-cv-12920-ADB

Plaintiff,
v.

LIBERTY MUTUAL GROUP, INC.; and
SPANISH QUOTES, INC. d/b/a
WESPEAKINSURANCE,
Defendants,
LIBERTY MUTUAL GROUP, INC.,
Crossclaimant,
v.
SPANISH QUOTES, INC. d/b/a
WESPEAKINSURANCE,
Crossdefendant,
LIBERTY MUTUAL GROUP, INC.,
LIBERTY MUTUAL INSURANCE
COMPANY,
Third-party Plaintiffs,
v.
PRECISE LEADS, INC., and DIGITAS, INC.,
Third-party Defendants

MEMORANDUM AND ORDER
BURROUGHS, D.J.

1

On December 8, 2016, the Court entered an order denying Third-Party Defendant
Digitas, Inc.’s (“Digitas”) motion to dismiss because it concluded that Plaintiff Ken Johansen’s
claims against Liberty Mutual were not mooted by the settlement offer. [ECF No. 123].
Currently pending before this Court is Digitas’s motion for a certificate of appealability pursuant
to 28 U.S.C. § 1292(b) and to stay the proceedings [ECF No. 124], which Johansen has opposed
[ECF No. 130]. The Court held a hearing on the motion on February 28, 2017. [ECF No. 133].
For the foregoing reasons, the motion is DENIED.
Digitas seeks to certify the question of whether Johansen was provided all the relief
requested in his Complaint and whether his claims are moot as a result. Section 1292(b)
provides:
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, [she] 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.
28 U.S.C. § 1292(b). Thus, a non-final order is appealable when it (1) “involves a controlling
question of law,” (2) “as to which there is substantial ground for difference of opinion,” and an
appeal of it (3) “materially advance[s] the ultimate termination of the litigation.” Id.
“[I]nterlocutory appeals from a denial of a motion to dismiss” are strongly disfavored. CaraballoSeda v. Municipality of Hormigueros, 395 F.3d 7, 9 (1st Cir. 2005); see also Camacho v. P.R.
Ports Auth., 369 F.3d 570, 573 (1st Cir. 2004) (“Section 1292(b) is meant to be used sparingly,
and appeals under it are, accordingly, hen’s-teeth rare.”).
2

“[A] question of law is ‘controlling’ if reversal of the district court’s order would
terminate the action.” Philip Morris Inc. v. Harshbarger, 957 F. Supp. 327, 330 (D. Mass. 1997)
(quoting Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in
Amministrazione Straordinaria, 921 F.2d 21, 24 (2d Cir. 1990)) (alteration in original).
In denying Digitas’s motion to dismiss, the Court found that Digitas was not able to show that it
provided Johansen with all of the relief requested in the Complaint. It thus held that “the case is
not moot, even assuming that providing complete relief would moot the case, and putting aside
the policy considerations.” Whether Johansen received all the relief requested is not a controlling
question of law suitable for interlocutory appeal. “A controlling question of law usually involves
‘a question of the meaning of a statutory or constitutional provision, regulation, or common law
doctrine’ rather than an application of law to the facts.” S. Orange Chiropractic Ctr., LLC v.
Cayan LLC, Civ. Action No. 15-13069-PBS, 2016 WL 3064054, at *2 (D. Mass. May 31, 2016)
(quoting Ahrenholz v. Bd. of Trs. of Ill., 219 F.3d 674, 676 (7th Cir. 2000)). Here, the issue of
the comprehensiveness of the relief provided to Johansen is not a controlling question of law,
and involves both questions of fact and the application of law to facts. As a result, an
interlocutory appeal, at this stage, involving the question of whether providing all relief
requested moots a plaintiff’s claim would not materially advance the ultimate termination of this
litigation.
Accordingly, Digitas’s motion for a certificate of appealability and to stay the
proceedings [ECF No. 124] is DENIED.
SO ORDERED.
Dated: March 9, 2017

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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