Dahl v. Bain Capital Partners, LLC

D. Massachusetts

Dahl v. Bain Capital Partners, LLC

597 F. Supp. 2d 211, 2009 U.S. Dist. LEXIS 11035, 2009 WL 347413

CourtDistrict Court, D. Massachusetts

DecidedFebruary 12, 2009

DocketCivil Action 07-12388-EFH

StatusPublished

This text of 597 F. Supp. 2d 211 (Dahl v. Bain Capital Partners, LLC) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dahl v. Bain Capital Partners, LLC, 597 F. Supp. 2d 211, 2009 U.S. Dist. LEXIS 11035, 2009 WL 347413 (D. Mass. 2009).

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Opinion

MEMORANDUM AND ORDER

HARRINGTON, Senior District Judge.

Defendants’ Motion to Certify Order for Interlocutory Appeal (Docket No. 162) is denied.

The defendants seek to certify for interlocutory appeal this court’s Memorandum and Order denying their motion to dismiss, dated December 15, 2008. Dahl v. Bain Capital Partners, LLC, 589 F.Supp.2d 112 (D.Mass.2008). Interlocutory appeal sends a case to the Court of Appeals before the district court has made a final ruling on the matter, thus suspending the usual *213 course of litigation. This circuit, therefore, highly disfavors this measure, especially as to motions to dismiss. Caraballo-Seda v. Municipality of Hormigueros, 395 F.3d 7, 9 (1st Cir.2005). The district court shall certify an order for interlocutory appeal that (a) involves a controlling question of law; (b) as to which there is substantial ground for difference of opinion; and (c) where an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b) (2006).

Here, the court’s ruling rests on prong (b). Prongs (a) and (c) are clearly satisfied. The Memorandum and Order dealt with two specific issues: pre-emption and the sufficiency of the plaintiffs’ pleadings. Both of these issues are questions of law, thus satisfying prong (a). Meanwhile, prong (c) is met as this court’s Memorandum and Order related to a motion to dismiss. An appeals court decision could dismiss this matter, which would “materially advance the ultimate termination of the litigation” under prong (c).

Prong (b) focuses on whether there are substantial grounds for difference of opinion on the question of law at issue. The court rules that no such substantial grounds for difference of opinion exist here. This ruling applies to both elements of the defendants’ motion to dismiss, the so-called Billing and Twombly elements. Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264, 127 S.Ct. 2383, 168 L.Ed.2d 145 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). First, under Billing, preemption is proper where the SEC substantially regulates the activities in question. See Billing, 127 S.Ct. at 2392-93. The private nature of the transactions in the instant suit contrasts with the “public” nature of the transactions in Billing. Id. No regulatory regime oversees the activities in question here; by design, the transactions avoid any governmental oversight. Therefore, given that no governmental regime operates here, pre-emption is not possible. Pre-emption’s clear inapplicability means opinions could not differ as to this issue and this court cannot certify its Memorandum and Order for interlocutory appeal based on Billing.

Second, applying Twombly also demonstrates that no substantial grounds for difference of opinion can exist as to this court’s Memorandum and Order. Twom-bly requires that an anti-trust complaint “plausibly suggest” illegal agreement in order to survive a motion to dismiss. See Twombly, 127 S.Ct. at 1966. Distinct from Twombly, the facts pled here “plausibly suggest” an illegal agreement. The plaintiffs’ allegations contrast with the allegations of parallel conduct pled in Twombly. Id. at 1970. Instead, the plaintiffs’ allegations plausibly suggest illegal agreements between the defendants pertaining to the nine (9) specifically pled transactions. Therefore, here too, the court cannot certify its Memorandum and Order for interlocutory appeal. Opinions cannot differ that the pleadings satisfy Twombly, leaving prong (b) of the standard for interlocutory appeal certification unsatisfied.

In sum, the court rules that the defendants’ motion to certify this court’s Memorandum and Order for interlocutory appeal involves a controlling question of law. The defendants’ motion may materially advance the ultimate termination of this litigation, but no substantial grounds for a difference of opinion exist as to the law’s meaning because the Supreme Court has clearly spoken in Billing and Twombly. Therefore, the court’s Memorandum and Order on the defendants’ motion to dismiss cannot be certified for interlocutory appeal.

*214 Defendants’ Motion to Certify Order for Interlocutory Appeal (Docket No. 162) is DENIED.

SO ORDERED.

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MEMORANDUM AND ORDER

HARRINGTON, Senior District Judge.

Defendants’ Motion to Certify Order for Interlocutory Appeal (Docket No. 162) is denied.

The defendants seek to certify for interlocutory appeal this court’s Memorandum and Order denying their motion to dismiss, dated December 15, 2008. Dahl v. Bain Capital Partners, LLC, 589 F.Supp.2d 112 (D.Mass.2008). Interlocutory appeal sends a case to the Court of Appeals before the district court has made a final ruling on the matter, thus suspending the usual *213 course of litigation. This circuit, therefore, highly disfavors this measure, especially as to motions to dismiss. Caraballo-Seda v. Municipality of Hormigueros, 395 F.3d 7, 9 (1st Cir.2005). The district court shall certify an order for interlocutory appeal that (a) involves a controlling question of law; (b) as to which there is substantial ground for difference of opinion; and (c) where an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b) (2006).

Here, the court’s ruling rests on prong (b). Prongs (a) and (c) are clearly satisfied. The Memorandum and Order dealt with two specific issues: pre-emption and the sufficiency of the plaintiffs’ pleadings. Both of these issues are questions of law, thus satisfying prong (a). Meanwhile, prong (c) is met as this court’s Memorandum and Order related to a motion to dismiss. An appeals court decision could dismiss this matter, which would “materially advance the ultimate termination of the litigation” under prong (c).

Prong (b) focuses on whether there are substantial grounds for difference of opinion on the question of law at issue. The court rules that no such substantial grounds for difference of opinion exist here. This ruling applies to both elements of the defendants’ motion to dismiss, the so-called Billing and Twombly elements. Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264, 127 S.Ct. 2383, 168 L.Ed.2d 145 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). First, under Billing, preemption is proper where the SEC substantially regulates the activities in question. See Billing, 127 S.Ct. at 2392-93. The private nature of the transactions in the instant suit contrasts with the “public” nature of the transactions in Billing. Id. No regulatory regime oversees the activities in question here; by design, the transactions avoid any governmental oversight. Therefore, given that no governmental regime operates here, pre-emption is not possible. Pre-emption’s clear inapplicability means opinions could not differ as to this issue and this court cannot certify its Memorandum and Order for interlocutory appeal based on Billing.

Second, applying Twombly also demonstrates that no substantial grounds for difference of opinion can exist as to this court’s Memorandum and Order. Twom-bly requires that an anti-trust complaint “plausibly suggest” illegal agreement in order to survive a motion to dismiss. See Twombly, 127 S.Ct. at 1966. Distinct from Twombly, the facts pled here “plausibly suggest” an illegal agreement. The plaintiffs’ allegations contrast with the allegations of parallel conduct pled in Twombly. Id. at 1970. Instead, the plaintiffs’ allegations plausibly suggest illegal agreements between the defendants pertaining to the nine (9) specifically pled transactions. Therefore, here too, the court cannot certify its Memorandum and Order for interlocutory appeal. Opinions cannot differ that the pleadings satisfy Twombly, leaving prong (b) of the standard for interlocutory appeal certification unsatisfied.

In sum, the court rules that the defendants’ motion to certify this court’s Memorandum and Order for interlocutory appeal involves a controlling question of law. The defendants’ motion may materially advance the ultimate termination of this litigation, but no substantial grounds for a difference of opinion exist as to the law’s meaning because the Supreme Court has clearly spoken in Billing and Twombly. Therefore, the court’s Memorandum and Order on the defendants’ motion to dismiss cannot be certified for interlocutory appeal.

*214 Defendants’ Motion to Certify Order for Interlocutory Appeal (Docket No. 162) is DENIED.

SO ORDERED.

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597 F. Supp. 2d 211, 2009 U.S. Dist. LEXIS 11035, 2009 WL 347413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dahl-v-bain-capital-partners-llc-mad-2009.

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