Barton v. Serve All Help All Inc

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 NATHEN W. BARTON, CASE NO. 3:21-cv-05338-RJB 11 Plaintiff, ORDER DENYING MOTION TO 12 v. CERTIFY 13 SERVE ALL, HELP ALL, INC., 14 Defendant. 15

16 This matter comes before the Court on the pro se Plaintiff’s Motion to Certify Dkt. 136. 17 Dkt. 141. The Court has considered the pleadings filed regarding the motion and the remaining 18 file. 19 On February 13, 2023, the Order on Cross Motions for Summary Judgment and Motions 20 to Strike (Dkt. 136) was issued. In part, this order granted the Plaintiff’s motion for summary 21 judgment on the Defendant’s counterclaim for fraud by omission (Dkt. 111) and denied the 22 Plaintiff’s motion for summary judgment on the Defendants’ remaining counterclaims (Dkt. 23 24 1 111). Dkt. 136. On February 15, 2023, the Plaintiff’s motion for reconsideration of that order 2 (Dkt. 138) was denied. Dkt. 140. 3 The next day, February 16, 2023, the Plaintiff filed the instant “Motion to Certify Dkt. 4 136,” in which he moves the Court to certify the February 13, 2023, order to the Ninth Circuit 5 Court of Appeals for an interlocutory appeal. Dkt. 141. The Plaintiff argues that the Ninth

6 Circuit Court of Appeals should be given an early opportunity to review the Court’s decision to 7 deny his motion for summary judgment on the Defendant’s counterclaims for fraud and 8 misrepresentation. Id. 9 Pursuant to 28 U.S.C. § 1292(b), certification for an interlocutory appeal is warranted: 10 When a district judge . . . shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference 11 of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation[.] 12 “The legislative history of § 1292 suggests that it ought to be used ‘only in exceptional 13 situations in which allowing an interlocutory appeal would avoid protracted and 14 expensive litigation.’” United States v. Hoyte, 2012 WL 1898926 (W.D. Wash. May 24, 15 2012) (citing In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982)). 16 The Plaintiff’s motion (Dkt. 141) should be denied. He has not shown that the 17 order involved a “controlling question of law as to which there is substantial ground for 18 difference of opinion.” Further, the Plaintiff has not demonstrated that an immediate 19 appeal would “materially advance the ultimate termination of the litigation.” Resolution 20 of one or two of the counterclaims on appeal would not eliminate the need for a trial on 21 the Plaintiff’s remaining claims. This is not a case in which allowing the interlocutory 22 appeal would “avoid protracted and expensive litigation.” The Plaintiff’s Motion to 23 Certify Dkt. 136 (Dkt. 141) should be denied. 24 1 IT IS SO ORDERED. 2 The Clerk is directed to send uncertified copies of this Order to all counsel of 3 record and to any party appearing pro se at said party’s last known address. 4 Dated this 6th day of March, 2023. 5 A

6 ROBERT J. BRYAN 7 United States District Judge

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