1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SYDNEY JI, et al., Case No. 21-cv-05143-HSG
8 Plaintiffs, ORDER DENYING DEFENDANTS’ MOTION FOR CERTIFICATION OF 9 v. INTERLOCUTORY APPEAL
10 NAVER CORPORATION, et al., Re: Dkt. No. 134 11 Defendants.
12 13 Pending before the Court is Defendants’ motion to certify an order for interlocutory 14 appeal.1 Dkt. No. 134. The Court finds this matter appropriate for disposition without oral 15 argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed 16 below, the Court DENIES the motion. 17 I. BACKGROUND 18 Since the parties are familiar with this long-running case, the Court briefly reviews just 19 those facts relevant to this motion. 20 On October 28, 2022, Plaintiffs filed a first amended class action complaint, Dkt. No. 21 100, which both the Naver Defendants and Line Defendants moved to dismiss, Dkt. Nos. 108, 22 112. On October 3, 2023, the Court granted in part and denied in part the motions to dismiss, Dkt. 23 No. 128 (“MTD II Order”). As relevant here, the Court denied Defendants’ motions to dismiss 24 Plaintiffs’ complaint on certain standing grounds, finding that Plaintiffs had adequately pled 25 Article III standing for privacy harms based on Defendants’ alleged collection and storage of their 26 biometric data, and for property harms based on the alleged harm to their devices and the 27 1 diminution of the value of their biometric data. MTD II Order at 8–10. The Court also found that 2 Plaintiffs had standing to bring claims under sections 15(a) and (c) of the Illinois Biometric 3 Information Privacy Act (“BIPA”) and the California Unfair Competition Law (“UCL”). Id. at 4 11-13; 16. On Defendants’ motion, the Court also dismissed some of Plaintiffs’ other standing 5 theories, as well as several of their claims. See generally MTD II Order. 6 On November 2, 2023, Defendants filed this motion, which is now fully briefed. See Dkt. 7 Nos. 134 (“Mot.”), 147 (Opposition), 157 (Reply). 8 II. LEGAL STANDARD 9 Under the “final judgment rule,” codified in 28 U.S.C. § 1291, the courts of appeal have 10 jurisdiction over “appeals from all final decisions of the district courts of the United States.” 28 11 U.S.C. § 1291; see also Jewel v. Nat’l Sec. Agency, 810 F.3d 622, 627 (9th Cir. 2015) (“the 12 foundational rule [is] that generally we have jurisdiction to hear an appeal only if it arises from a 13 final order”); Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 747 (9th Cir. 14 2008) (holding that parties may only appeal orders as of right which “end[ ] the litigation on the 15 merits and leave [ ] nothing for the court to do but execute the judgment”). 16 That said, a “narrow exception” exists to the final judgment rule. See Couch v. Telescope 17 Inc., 611 F.3d 629, 633 (9th Cir. 2010). Under 28 U.S.C. § 1292(b), a district court may certify an 18 order for interlocutory appeal if certain requirements are met. Id. “These certification 19 requirements are (1) that there be a controlling question of law, (2) that there be substantial 20 grounds for difference of opinion, and (3) that an immediate appeal may materially advance the 21 ultimate termination of the litigation.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 22 1981). The Ninth Circuit has repeatedly held that appellate review before a final judgment is only 23 appropriate in “exceptional cases where decision of an interlocutory appeal might avoid protracted 24 and expensive litigation.” See, e.g., U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). 25 Because § 1292(b) is a departure from the final judgment rule, this exception “must be 26 construed narrowly.” See James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 27 2002). The decision to certify an issue for interlocutory appeal is discretionary, Swint v. 1 requirements “strictly” and certify for interlocutory appeal only when “exceptional circumstances” 2 justify a departure from the well-established policy of postponing appellate review until after a 3 final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). The party seeking 4 certification bears the burden of demonstrating that the requirements are satisfied and that such a 5 departure is warranted. Id. 6 III. DISCUSSION 7 Given that the motion to dismiss order at issue is not “final,” it is not appealable as of right 8 under the final judgment rule. The question is therefore whether this case presents a circumstance 9 falling within one of the “narrow exception[s]” supporting a discretionary certification of an 10 interlocutory appeal. Couch, 611 F.3d at 633. The Court finds it does not. 11 In resolving whether “exceptional circumstances” exist to justify certification under 28 12 U.S.C. § 1292(b), the Court need not wade deeply into Defendants’ assertions that the MTD II 13 Order raised four “important, unsettled, and controlling questions of law concerning Article III 14 standing and statutory standing” so as to warrant authorizing an interlocutory appeal. Mot. at 2. 15 The reason is simple: were the Court to countenance an interlocutory appeal from its MTD II 16 Order – a straightforward ruling simply declining to dismiss Plaintiffs’ claims on the pleadings on 17 Article III and statutory standing grounds – the “narrow exception” to the final judgment rule 18 would stop serving its gatekeeping purpose. Couch, 611 F.3d at 633. 19 Interlocutory appeals are intended to resolve pure questions of law, not challenges to the 20 district court’s application of settled law to specific alleged facts. See Henley v. Jacobs, No. C 18- 21 2244 SBA, 2019 WL 8333448, at *2 (N.D. Cal. Oct. 25, 2019) (characterizing a “controlling 22 question of law” as “a purely legal one that can be resolved quickly without delving into a 23 particular case’s facts”); see also J. B. v. G6 Hosp., LLC, No. 19-CV-07848-HSG, 2021 WL 24 6621068 (N.D. Cal. Dec. 16, 2021) (granting certification to address whether as a matter of law 25 plaintiff was required to plead violation of criminal statute to overcome immunity granted by 26 related civil statute). But here, Defendants seek review of the latter. While they assert that the 27 Court’s MTD II Order somehow “creates new theories” or endorses a “categorical reading of Patel 1 Court applied controlling Supreme Court and Ninth Circuit standing standards to the particulars of 2 || this case’s (alleged) facts.” That district courts may reach different conclusions when applying 3 these standards to unique factual scenarios is unremarkable, and does not necessitate an immediate 4 appeal. Were it otherwise, parties could seek interlocutory appeal of virtually any ruling with 5 || which they disagree, even at the motion to dismiss stage.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SYDNEY JI, et al., Case No. 21-cv-05143-HSG
8 Plaintiffs, ORDER DENYING DEFENDANTS’ MOTION FOR CERTIFICATION OF 9 v. INTERLOCUTORY APPEAL
10 NAVER CORPORATION, et al., Re: Dkt. No. 134 11 Defendants.
12 13 Pending before the Court is Defendants’ motion to certify an order for interlocutory 14 appeal.1 Dkt. No. 134. The Court finds this matter appropriate for disposition without oral 15 argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed 16 below, the Court DENIES the motion. 17 I. BACKGROUND 18 Since the parties are familiar with this long-running case, the Court briefly reviews just 19 those facts relevant to this motion. 20 On October 28, 2022, Plaintiffs filed a first amended class action complaint, Dkt. No. 21 100, which both the Naver Defendants and Line Defendants moved to dismiss, Dkt. Nos. 108, 22 112. On October 3, 2023, the Court granted in part and denied in part the motions to dismiss, Dkt. 23 No. 128 (“MTD II Order”). As relevant here, the Court denied Defendants’ motions to dismiss 24 Plaintiffs’ complaint on certain standing grounds, finding that Plaintiffs had adequately pled 25 Article III standing for privacy harms based on Defendants’ alleged collection and storage of their 26 biometric data, and for property harms based on the alleged harm to their devices and the 27 1 diminution of the value of their biometric data. MTD II Order at 8–10. The Court also found that 2 Plaintiffs had standing to bring claims under sections 15(a) and (c) of the Illinois Biometric 3 Information Privacy Act (“BIPA”) and the California Unfair Competition Law (“UCL”). Id. at 4 11-13; 16. On Defendants’ motion, the Court also dismissed some of Plaintiffs’ other standing 5 theories, as well as several of their claims. See generally MTD II Order. 6 On November 2, 2023, Defendants filed this motion, which is now fully briefed. See Dkt. 7 Nos. 134 (“Mot.”), 147 (Opposition), 157 (Reply). 8 II. LEGAL STANDARD 9 Under the “final judgment rule,” codified in 28 U.S.C. § 1291, the courts of appeal have 10 jurisdiction over “appeals from all final decisions of the district courts of the United States.” 28 11 U.S.C. § 1291; see also Jewel v. Nat’l Sec. Agency, 810 F.3d 622, 627 (9th Cir. 2015) (“the 12 foundational rule [is] that generally we have jurisdiction to hear an appeal only if it arises from a 13 final order”); Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 747 (9th Cir. 14 2008) (holding that parties may only appeal orders as of right which “end[ ] the litigation on the 15 merits and leave [ ] nothing for the court to do but execute the judgment”). 16 That said, a “narrow exception” exists to the final judgment rule. See Couch v. Telescope 17 Inc., 611 F.3d 629, 633 (9th Cir. 2010). Under 28 U.S.C. § 1292(b), a district court may certify an 18 order for interlocutory appeal if certain requirements are met. Id. “These certification 19 requirements are (1) that there be a controlling question of law, (2) that there be substantial 20 grounds for difference of opinion, and (3) that an immediate appeal may materially advance the 21 ultimate termination of the litigation.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 22 1981). The Ninth Circuit has repeatedly held that appellate review before a final judgment is only 23 appropriate in “exceptional cases where decision of an interlocutory appeal might avoid protracted 24 and expensive litigation.” See, e.g., U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). 25 Because § 1292(b) is a departure from the final judgment rule, this exception “must be 26 construed narrowly.” See James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 27 2002). The decision to certify an issue for interlocutory appeal is discretionary, Swint v. 1 requirements “strictly” and certify for interlocutory appeal only when “exceptional circumstances” 2 justify a departure from the well-established policy of postponing appellate review until after a 3 final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). The party seeking 4 certification bears the burden of demonstrating that the requirements are satisfied and that such a 5 departure is warranted. Id. 6 III. DISCUSSION 7 Given that the motion to dismiss order at issue is not “final,” it is not appealable as of right 8 under the final judgment rule. The question is therefore whether this case presents a circumstance 9 falling within one of the “narrow exception[s]” supporting a discretionary certification of an 10 interlocutory appeal. Couch, 611 F.3d at 633. The Court finds it does not. 11 In resolving whether “exceptional circumstances” exist to justify certification under 28 12 U.S.C. § 1292(b), the Court need not wade deeply into Defendants’ assertions that the MTD II 13 Order raised four “important, unsettled, and controlling questions of law concerning Article III 14 standing and statutory standing” so as to warrant authorizing an interlocutory appeal. Mot. at 2. 15 The reason is simple: were the Court to countenance an interlocutory appeal from its MTD II 16 Order – a straightforward ruling simply declining to dismiss Plaintiffs’ claims on the pleadings on 17 Article III and statutory standing grounds – the “narrow exception” to the final judgment rule 18 would stop serving its gatekeeping purpose. Couch, 611 F.3d at 633. 19 Interlocutory appeals are intended to resolve pure questions of law, not challenges to the 20 district court’s application of settled law to specific alleged facts. See Henley v. Jacobs, No. C 18- 21 2244 SBA, 2019 WL 8333448, at *2 (N.D. Cal. Oct. 25, 2019) (characterizing a “controlling 22 question of law” as “a purely legal one that can be resolved quickly without delving into a 23 particular case’s facts”); see also J. B. v. G6 Hosp., LLC, No. 19-CV-07848-HSG, 2021 WL 24 6621068 (N.D. Cal. Dec. 16, 2021) (granting certification to address whether as a matter of law 25 plaintiff was required to plead violation of criminal statute to overcome immunity granted by 26 related civil statute). But here, Defendants seek review of the latter. While they assert that the 27 Court’s MTD II Order somehow “creates new theories” or endorses a “categorical reading of Patel 1 Court applied controlling Supreme Court and Ninth Circuit standing standards to the particulars of 2 || this case’s (alleged) facts.” That district courts may reach different conclusions when applying 3 these standards to unique factual scenarios is unremarkable, and does not necessitate an immediate 4 appeal. Were it otherwise, parties could seek interlocutory appeal of virtually any ruling with 5 || which they disagree, even at the motion to dismiss stage. And this outcome would be in serious 6 || tension with the principle that resorting to the “narrow exception” of an interlocutory appeal is 7 “generally disfavored.” In re Cameron, No. C, 13-02018 SI, 2014 WL 1028436, at *4 (N.D. Cal. 8 Mar. 17, 2014); see also Siegler v. Sorrento Therapeutics, Inc., No. 318CV01681GPCNLS, 2019 9 |} WL 2549248, at *2 (S.D. Cal. June 20, 2019) (Section 1292(b) was not intended to “open the 10 || floodgates to a vast number of appeals from interlocutory orders in ordinary litigation.”). In short, 11 this case does not involve the sort of “controlling question of law” that would justify an immediate 12 appeal. 13 If warranted, Defendants can reassert their standing arguments in a summary judgment 14 || motion once an actual factual record is developed. But the Court has little trouble concluding that 3 15 || the denial of Defendants’ motion to dismiss does not warrant granting the extraordinary a 16 || discretionary relief of an immediate interlocutory appeal. 2 17 || Iv. CONCLUSION Z 18 The Court DENIES Defendants’ motion for certification of interlocutory appeal, Dkt. No. 19 134. 20 IT IS SO ORDERED. 21 Dated: = 1/23/2024 22 7 Maepuread 3B. Md, ab. HAYWOOD S. GILLIAM, JR. 23 United States District Judge 24 25 26 27 2 For example, Defendants’ repeated insinuation that the Court’s ruling assessing the sufficiency 2g || of the allegations in the 121-page complaint somehow was not “fact-specific,” Dkt. No. 13, is simply baseless.