Elorreaga v. ABB, Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERTO ELORREAGA, et al., Case No. 21-cv-05696-HSG

8 Plaintiffs, ORDER GRANTING MOTION TO CERTIFY QUESTION FOR 9 v. INTERLOCUTORY APPEAL

10 ROCKWELL AUTOMATION, INC., et al., Re: Dkt. Nos. 203, 204 11 Defendants.

12 13 Pending before the Court is Defendant ViacomCBS’s motion for certification of an order 14 for interlocutory appeal under 29 U.S.C. § 1292(b).1 Dkt. No. 203. Specifically, Defendants seek 15 to certify for interlocutory appeal the Court’s finding that the government contractor defense 16 outlined in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), does not apply to the federal 17 maritime law claims in this case. See id. The Court denied Defendants’ motions for summary 18 judgment and granted Plaintiffs’ motion for partial summary judgment on this basis. See Dkt. No. 19 194 at 2–8. Plaintiffs oppose the motion for certification. Dkt. No. 208. 20 In general, parties may only appeal orders which “end[] the litigation on the merits and 21 leave nothing for the court to do but execute the judgment.” Romoland School Dist. v. Inland 22 Empire Energy Center, LLC, 548 F.3d 738, 747 (9th Cir. 2008). Because the Court denied the 23 applicability of this defense to Plaintiffs’ claims, the order is not a final order that ends the 24 litigation and is not appealable as of right. Defendants seek to invoke a “narrow exception” to the 25 final judgment rule. See Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). Under 28 26 U.S.C. § 1292(b), a district court may certify an order for interlocutory appeal if certain 27 1 requirements are met. Id. “These certification requirements are (1) that there be a controlling 2 question of law, (2) that there be substantial grounds for difference of opinion, and (3) that an 3 immediate appeal may materially advance the ultimate termination of the litigation.” In re Cement 4 Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981). The Court finds that all 5 three requirements are met here. 6 First, the Court finds that Defendants seek appellate review of a controlling question of 7 law. The Ninth Circuit has previously noted that a “controlling” question of law exists where 8 “resolution of the issue on appeal could materially affect the outcome of litigation in the district 9 court.” In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d at 1026. And district courts have 10 characterized a question of law in this context as “a purely legal one that can be resolved quickly 11 without delving into a particular case’s facts.” Henley v. Jacobs, No. C 18-2244 SBA, 2019 WL 12 8333448, at *2 (N.D. Cal. Oct. 25, 2019). Resolution of the purely legal issue presented here 13 regarding the extent to which the government contractor defense is applicable to federal claims 14 will not require any factual inquiry. And the applicability of this defense will materially affect the 15 outcome of (or at a minimum the presentation of evidence regarding) Plaintiffs’ claims against 16 Defendants at trial. If the government contractor defense applies to federal maritime claims, it 17 could provide Defendants with a complete defense. 18 Second, the Court finds that there are substantial grounds for difference of opinion on this 19 issue. “To determine if a ‘substantial ground for difference of opinion’ exists under § 1292(b), 20 courts must examine to what extent the controlling law is unclear.” See Couch, 611 F.3d at 633. 21 Courts look to whether the issue is one “over which reasonable judges might differ” and whether 22 the “uncertainty provides a credible basis for a difference of opinion.” Reese v. BP Expl. (Alaska) 23 Inc., 643 F.3d 681, 688 (9th Cir. 2011). As the Court recognized in its order on the motions for 24 summary judgment, “[d]espite the age of Boyle, the parties have not cited—and the Court has not 25 found—a case directly addressing whether the defense may apply to federal claims.” See Dkt. No. 26 194 at 2. Several courts have applied the government contractor defense in the context of federal 27 claims, albeit without analysis. See id. at 7. 1 termination of the litigation. There is no requirement that an interlocutory appeal have a “final, 2 || dispositive effect on the litigation.” Reese, 643 F.3d at 688. Instead, this factor is related to 3 || whether the issue is a “controlling” one, and courts “consider the effect of a reversal by the Ninth 4 Circuit on the management of the case.” Mateo v. M/S KISO, 805 F. Supp. 792, 800 (N.D. Cal. 5 1992), abrogated on other grounds by Brockmeyer v. May, 361 F.3d 1222,1226-27 (9th Cir. 6 || 2004). Here, without an interlocutory appeal, the case will proceed to trial and Defendants will 7 || have no opportunity to introduce evidence relevant only to the government contractor defense. 8 This could, however, provide Defendants with a complete defense to Plaintiffs’ claims. 9 Accordingly, if the Ninth Circuit later finds that the government contractor defense is available in 10 || this context, the Court and the parties may have to re-try this case. An interlocutory appeal would 11 thus “materially advance” this litigation by eliminating a potentially substantial and needless 12 || waste of Court and party resources. 5 13 The Court finds that its order regarding the applicability of the government contractor 14 || defense “involves a controlling question of law as to which there is substantial ground for 3 15 difference of opinion and that an immediate appeal from the order may materially advance the a 16 ultimate termination of the litigation.” See 28 U.S.C. § 1292(b). Therefore, the Court GRANTS 3 17 Defendants’ motion to certify the order regarding the government contractor defense for 18 interlocutory appeal. 19 The Court further DIRECTS the parties to meet and confer and file a joint statement by 20 || June 23, 2023, regarding when Defendants anticipate filing an application for an interlocutory 21 appeal with the Ninth Circuit and whether the case should be stayed pending the application (and 22 || for the duration of the appeal if the Ninth Circuit grants review). This order also terminates Dkt. 23 || No. 204. 24 IT IS SO ORDERED. 25 || Dated: 6/16/2023 26 Aber 5 Mi 7 HAYWOOD S. GILLIAM, JR. United States District Judge 28