Head v. Costco Wholesale Corporation

• Court: District Court, N.D. California
• Decided: September 10, 2025
• Docket: 3:24-cv-01203
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TERRY HEAD, Case No. 24-cv-01203-EMC

8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION TO CERTIFY FOR INTERLOCUTORY APPEAL 10 COSTCO WHOLESALE CORPORATION, 11 Defendant. Docket No. 34

12 13 14 Pending before the Court is Costco’s motion to certify for an interlocutory appeal pursuant 15 to 28 U.S.C. § 1292(b). Having considered the parties’ briefs, the Court finds this matter suitable 16 for disposition without oral argument. Costco’s motion is hereby DENIED. 17 Under § 1292(b), a court may certify only if (1) there is a controlling question of law, (2) 18 there are substantial grounds for difference of opinion on that question, and (3) an immediate 19 resolution of that question may materially advance the ultimate termination of the litigation. See 20 ICTSI Or., Inc. v. Int’l Longshore & Warehouse Union, 22 F.4th 1125, 1130 (9th Cir. 2022). 21 Costco has identified a controlling question of law: to wit, whether a claim for failure to 22 accommodate (and any related claim) may be brought based on an associational disability. There 23 are also substantial grounds for difference of opinion on that legal question. See id. (stating that 24 “[t]he ‘substantial grounds’ prong is satisfied when ‘novel legal issues are presented, on which 25 fair-minded jurists might reach contradictory conclusions’”). As the Court noted in its summary 26 judgment order, there are conflicting authorities on this issue. See Docket No. 33 (Order at 31- 27 35). Mr. Head suggests that the authorities that favor Costco should be given no weight because 1 in whether there are substantial grounds for difference of opinion, see, e.g., In re Delta Air Lines, 2 Inc., No. LA CV20-00786 JAK (SKx), 2024 U.S. Dist. LEXIS 96649, at *38 (C.D. Cal. May 30, 3 2024) (stating that “a minor conflict with [an] isolated, unpublished and unrepeated 1996 decision 4 by [a federal agency] does not reflect a ‘substantial ground for disagreement’”), it is not 5 dispositive. 6 The critical factor, therefore, is whether an interlocutory appeal would materially advance 7 the ultimate termination of the litigation. The Court finds that this factor strongly weighs against 8 Costco. To be sure, if an appellate court were to find in favor of Costco on the legal question, that 9 would end this lawsuit. However, the Court must also take into account that Costco did not bring 10 up the legal question until summary judgment close to the scheduled trial. Although Costco 11 sought certification for an interlocutory appeal soon after the summary judgment order issued, the 12 fact remains that Costco did not tee up the legal issue – a pure question of law – until late in the 13 proceedings. Bringing the issue up on the eve of trial does not materially advance the ultimate 14 termination of the litigation any more than a trial would.1 Cf. Teladoc, Inc. v. Tex. Med. Bd., No. 15 1:15-CV-343-RP, 2016 U.S. Dist. LEXIS 107443, at *8 (W.D. Tex. Aug. 15, 2016) (noting that 16 “[d]istrict courts across the country have . . . exercised their discretion to deny motions for 17 certification deemed untimely,” although admittedly in the context of whether a party moves to 18 certify soon after the district court issues the interlocutory order). At this juncture, certification 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 1 The Court also notes that, because the legal issue here is based on state law, Costco is ultimately 25 asking this Court to certify the legal question for the Ninth Circuit who would then have to certify the matter to the California Supreme Court. See Cal. R. Ct. 8.548(a) (“On request of the United 26 States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth, the Supreme Court may decide a question of California law if: (1) 27 The decision could determine the outcome of a matter pending in the requesting court; and (2) 1 and staying of the trial will cause more delay than simply trying the case four months from now. 2 If Costco prevails, the legal issue may be moot. If Costco loses the trial, then it may still file an 3 appeal in the normal course, an appeal which could be instituted just a few months later than an 4 appeal pursuant to a $1292 certification. 5 Accordingly, Costco’s motion to certify for an interlocutory appeal is denied. 6 This order disposes of Docket No. 34. 7 8 IT IS SO ORDERED. 9 10 Dated: September 10, 2025 11 12 EDW. . CHEN 13 United States District Judge

15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28