Adell v. Cellco Partnership

Filing 37

Opinion and Order denying Plaintiff's Motion to Amend for Certification under 28 U.S.C. § 1292(b) (Related Doc # 33 ). Judge Christopher A. Boyko on 10/18/2019.(D, I)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LORRAINE ADELL, individually and )
on behalf of all others similarly situated, )
Plaintiff,
)
)
vs.
)
)
CELLCO PARTNERSHIP dba
)
VERIZON WIRELESS,
)
Defendant.
)

CASE NO. 1:18CV623
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #33) of Plaintiff to
Amend for Certification under 28 U.S.C. § 1292(b). For the following reasons, the Motion is
denied.
I. BACKGROUND
On March 5, 2019, the Court granted Defendant’s Motion to Compel Arbitration and
Stay Proceedings under the Federal Arbitration Act (“FAA”). The Court found against
Plaintiff’s contentions that her consent to arbitration under the FAA was not voluntary and
that the Class Action Fairness Act of 2005 (“CAFA”) and the FAA are in conflict. Further,
the Court refused to find that the arbitration agreement with Verizon Wireless is

unenforceable.
In the instant Motion (ECF DKT #33), Plaintiff is asking the Court to certify for
interlocutory appeal under § 1292(b) the “propriety of that part of its Order staying rather
than dismissing this action.” Plaintiff contends that if the Sixth Circuit agrees that the case
should have been dismissed, then her arbitrability challenges under the Constitution and
CAFA can be appealed directly. Plaintiff argues that this will prevent the parties and the
Court from expending substantial resources and will eliminate the delay in resolving the
arbitrability challenges she intends to take up on appeal anyway.
Defendant objects and insists that the Court properly exercised its discretion by
staying rather than dismissing the lawsuit consistent with the FAA’s statutory scheme and
pro-arbitration policy.
II. LAW AND ANALYSIS
Under 28 U.S.C. § 1292(b), a district judge has discretion to certify a non-final order
for an interlocutory appeal if the judge believes the petitioner has adequately shown that:
(1) the question involved is one of law; (2) the question is controlling; (3) there
is substantial ground for difference of opinion respecting the correctness of the
district court’s decision; and (4) an immediate appeal would materially
advance the ultimate termination of litigation.
In re Allstate Ins. Co., 2010 U.S. App. LEXIS 27325, *1 (6th Cir. 2010) (citing 28 U.S.C
§ 1292(b) and Cardwell v. Chesapeake & Ohio Ry. Co., 504 F.2d 444, 446 (6th Cir. 1974))
(quotations omitted). Although discretionary, “review under § 1292(b) should be sparingly
granted and then only in exceptional cases.” In re Allstate, 2010 U.S. App. LEXIS at *2
(citing Kraus v. Bd. of County Rd. Comm’rs for Kent County, 364 F.2d 919, 922 (6th Cir.
1966)). Thus, “doubts regarding appealability . . . [should be] resolved in favor of finding
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that the interlocutory order is not appealable.” United States v. Stone, 53 F.3d 141, 143-44
(6th Cir. 1995) (citation omitted).
The Court finds that all the requirements for certification are not satisfied here.
Whether a district court should dismiss an action or stay it after all claims have been referred
to arbitration is a matter of the exercise of discretion. There is no question of “correctness” or
“incorrectness” as intended by the § 1292(b) analysis.
The FAA at 9 U.S.C. § 3 directs that “upon being satisfied that the issue involved in
such suit or proceeding is referable to arbitration,” the court “shall on application of one of
the parties stay the trial of the action until such arbitration has been had in accordance with
the terms of the agreement.” (Emphasis added). The Court reads that language as mandatory.
Furthermore, the issuance of a stay comports with the longstanding pro-arbitration policy
codified in the FAA and supported in federal jurisprudence.
The issuance of a stay enables the parties to proceed to arbitration unburdened by
uncertainty and the cost of further litigation. An immediate appeal is said to advance the
ultimate termination of litigation if it would “appreciably shorten the time, effort, and expense
exhausted between the filing of a lawsuit and its termination.” Trimble v. Bobby, No.
5:10cv14, 2011 U.S. Dist. LEXIS 54142 at *6 (N.D. Ohio May 20, 2011) (citing Berry v. Sch.
Dist. of City of Benton Harbor, 467 F. Supp. 721, 727 (W.D. Mich. 1978)). The Court finds
in this instance that a stay rather than an immediate appeal materially advances the ultimate
termination of litigation.

Plaintiff has not adequately shown that certification for an interlocutory appeal is

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warranted.
III. CONCLUSION
Therefore, the Motion (ECF DKT #33) of Plaintiff to Amend for Certification under
28 U.S.C. § 1292(b) is denied.

IT IS SO ORDERED.
DATE: October 18, 2019
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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