Fox v. Time, Inc.

Filing 55

ORDER denying 46 Motion for amendment and certification of orders for interlocutory appeal and stay pending appeal. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CINDY HALABURDA, individually, and
on behalf of all others similarly situated,
Plaintiff,
v.

Case No. 12-CV-12831
HON. GEORGE CARAM STEEH

BAUER PUBLISHING CO., LP, a
Delaware partnership,
Defendant.
_______________________________/
DAVID GRENKE, individually, and
on behalf of all others similarly situated,
Plaintiff,
v.

Case No. 12-CV-14221

HEARST COMMUNICATIONS, INC., a
Delaware Corporation,
Defendant.
_______________________________/
SUSAN FOX, individually, and
on behalf of all others similarly situated,
Plaintiff,
v.

Case No. 12-CV-14390

TIME, INC., a Delaware Corporation,
Defendant.
_______________________________/
ORDER DENYING DEFENDANTS’ MOTION FOR AMENDMENT AND
CERTIFICATION OF ORDERS FOR INTERLOCUTORY APPEAL AND STAY
PENDING APPEAL (DOC. # 50 IN HALABURDA CASE; DOC. # 41 IN GRENKE
CASE; DOC. # 46 IN FOX CASE)

These putative class actions, in which plaintiffs allege violations of the Michigan
Video Rental Privacy Act (“VRPA”), are before the court on defendants’ motions for
interlocutory appeal. The court denied defendants’ motions to dismiss the matter in
August of 2013, following which defendants moved for interlocutory appeal of that order
to the Sixth Circuit on the issue of Article III standing. The court’s determination on the
motion is set forth below. Because oral argument would not assist the court in its
resolution of the issue, the motions are ordered submitted on the briefs pursuant to E.D.
Mich. L.R. 7.1(e)(2).
Generally, interlocutory appeals are disfavored in the federal court system. See
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981). Exceptions to the final
judgment rule, set forth in 28 U.S.C. § 1291, are permitted under extraordinary
circumstances. See W. Tenn. Chapter of Assoc. Builders & Contractors, Inc. v. City of
Memphis, 293 F.3d 345, 350 (6th Cir. 2002).
Under 28 U.S.C. § 1292(b), a district court may designate an order for
interlocutory appeal if that order “involves a controlling question of law as to which there
is substantial ground for difference of opinion and [ ] an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” The Court of
Appeals then decides whether or not it will permit an appeal from the order. Defendants
contend that this court’s decision on the issue of Article III standing–i.e. that the violation
of a statutory right, without independent injury, confers Article III standing–meets the
requirements for an interlocutory appeal.
Not surprisingly, plaintiffs assert that the decision of the district court is not
subject to any difference of opinion. They contend that “[d]ecades of federal precedent
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(including both Supreme Court and Sixth Circuit cases) clearly establish the unanimous
rule that legislatures can grant their citizens substantive rights (here, a privacy right), the
invasion of which constitutes a concrete and particularized injury sufficient to confer
Article III standing.” Plaintiffs’ Response Brf. At 1. Accordingly, they argue that the
court should deny defendants’ motion.
As plaintiffs point out, citing In re Miedzianowski, 735 F.3d 383 (6th Cir. 2013),
“[w]here [the Sixth Circuit] has answered the question, the district court is bound by our
published authority.” In this court’s opinion of August 6, 2013, the court determined that
the Article III standing issue was governed by Beaudry v. Telecheck Servs., Inc., 579
F.3d 702 (6th Cir. 2009), “a case where the Sixth Circuit determined that the Fair Credit
Reporting Act included ‘actual damages’ as a form of relief in the alternative to statutory
damages, and thus found the statute did not require a showing of actual damages.”
Doc. # 47 at 10 (citing Beaudry, 579 F.3d at 705-06). The court notes that the identical
issue was recently decided by Chief Judge Rosen of this district, in Cain v. Redbox
Automated Retail, L.L.C., # 12-15014, where it was similarly held that the requirements
of Article III standing were met through the violation of plaintiffs’ VRPA statutory rights.
The Cain opinion, quoting the decision of the undersigned, similarly relied on Beaudry.
The court is not persuaded by defendants’ authorities or arguments that there is
substantial ground for difference of opinion. For instance, the case of Summers v. Earth
Island Institute, 555 U.S. 488 (2009), cited by defendants, is not analogous here. In that
case, where the “regulations under challenge...neither require nor forbid any action on
the part of respondents,” the Supreme Court found that the respondents could
“demonstrate standing only if application of the regulations by the Government will
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affect them in the manner described above.” Id. at 493-94. There is no question in this
case that the statute in question is directed at the protection of the putative class, so the
Summers case does not assist defendants’ arguments. Additional authority offered by
defendants does not dictate a different result, and was addressed in this court’s order
on the motion to dismiss.
Ultimately, while the “hesitation” expressed in this court’s August decision
concerning whether the statutory injury alleged here meets the requirement of an “injury
in fact” for Article III standing, the court is convinced its hesitation does not comprise the
exceptional circumstances meriting an interlocutory appeal. Defendants’ motions for
amendment and certification of orders for interlocutory appeal and stay pending appeal
are, accordingly, DENIED.
The parties shall contact the court regarding an amendment to the scheduling
orders in these matters.
IT IS SO ORDERED.
Dated: December 23, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
December 23, 2013, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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