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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 LATEIA MITCHELL, CASE NO. C19-0809JLR-TLF 11 Plaintiff, ORDER ADOPTING SECOND v. REPORT AND 12 RECOMMENDATION PATENAUDE & FELIX A.P.C., 13 Defendant. 14
15 I. INTRODUCTION 16 Before the court is the Report and Recommendation (“R&R”) of United States 17 Magistrate Judge Theresa L. Fricke (R&R (Dkt. # 29)), and Defendant Patenaude & 18 Felix, A.P.C.’s (“Patenaude”) objections thereto (Obj. (Dkt. # 31)). The court has 19 reviewed the R&R, Patenaude’s objections, Plaintiff Lateia Mitchell’s response to 20 Patenaude’s objections (Resp. (Dkt. # 32)), the relevant portions of the record, and the 21 governing law. Being fully advised, the court OVERRULES Patenaude’s objections, 22 ADOPTS the R&R, and DENIES Patenaude’s motion to certify questions to the 1 Washington Supreme Court or the Ninth Circuit Court of Appeals and to stay the case 2 (Mot. to Cert. (Dkt. # 25)).
3 II. STANDARD OF REVIEW 4 A district court has jurisdiction to review a Magistrate Judge’s report and 5 recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge 6 must determine de novo any part of the magistrate judge’s disposition that has been 7 properly objected to.” Id. “A judge of the court may accept, reject, or modify, in whole 8 or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.
9 § 636(b)(1). The court reviews de novo those portions of the report and recommendation 10 to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 11 1114, 1121 (9th Cir. 2003) (en banc). “The statute makes it clear that the district judge 12 must review the magistrate judge’s findings and recommendations de novo if objection is 13 made, but not otherwise.” Id. When no objections are filed, the court need not review de
14 novo the report and recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th 15 Cir. 2005). 16 III. DISCUSSION 17 In the motion underlying Magistrate Judge Fricke’s R&R, Patenaude asked the 18 court to certify three questions either to the Washington Supreme Court or the Ninth
19 Circuit Court of Appeals and to stay the case pending a decision on those questions. (See 20 Mot. to Cert. (Dkt. # 27).) In her R&R, Magistrate Judge Fricke denied both requests to 21 certify certain questions, as well as Patenaude’s request to stay the case. (See generally 22 R&R.) In its objections to Magistrate Judge Fricke’s R&R, Patenaude limited its 1 arguments to the portion of Magistrate Judge Fricke’s R&R denying certification to the 2 Ninth Circuit. (See Obj. at 1 n.1 (“While Patenaude initially asked for certification to
3 either the Washington Supreme Court or Ninth Circuit . . . , Patenuade limits its 4 objections here and only seeks certification . . . to the Ninth Circuit.”).) Thus, the court 5 need not review de novo the portion of Magistrate Judge Frick’s R&R denying 6 certification to the Washington Supreme Court, see Reyna-Tapia, 328 F.3d at 1121, and 7 limits its review to Magistrate Judge Fricke’s denial of certification to the Ninth Circuit. 8 Section 1292(b) of Title 28 authorizes a party to immediately appeal an
9 interlocutory order to the Ninth Circuit if the district judge is “of the opinion that such an 10 order involves a controlling question of law as to which there is substantial ground for 11 difference of opinion and that an immediate appeal from the order may materially 12 advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Patenaude 13 argues that Magistrate Judge Fricke applied an overly strict standard on the issue of
14 whether a “substantial ground for difference of opinion” exists. (Obj. at 4-5.) Patenaude 15 maintains that, instead of relying on the standard articulated in Couch v. Telescope, Inc., 16 611 F.3d 629, 633 (9th Cir. 2010), Magistrate Judge Fricke should have relied upon the 17 standard articulated in Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). 18 (See Obj. at 5.) Patenaude asserts that, under Couch, the Ninth Circuit held that a district
19 court “need never certify any question of first impression,” but a year later, in Reese, 20 “softened” its approach by allowing district courts to certify novel issues “on which fair- 21 mined jurists might reach contradictory conclusions” without waiting for the 22 development of contradictory precedent. (See id.) Thus, Patenaude argues that because 1 Magistrate Judge Fricke applied the wrong standard, she erred when she concluded that 2 Patenaude failed to establish a substantial ground for difference of opinion on the novel
3 issues it sought to certify. (See id. at 4-10; see also R&R at 8-11.) 4 The court overrules Patenaude’s objections because Patenaude misinterprets both 5 Couch and Reese. As the Reese court noted while quoting its prior decision in Couch, 6 “[c]ourts traditionally . . . find that a substantial ground for difference of opinion exists 7 where ‘. . . novel and difficult questions of first impression are presented,’” and courts 8 need not await the development of contrary precedent to do so. Reese, 643 F.3d at 688
9 (quoting Couch, 611 F.3d at 633). Thus, contrary to Patenaude’s argument, the standard 10 that the Ninth Circuit articulated in Reese concerning under what circumstances novel 11 issues may be certified for appeal did not depart from the standard the Ninth Circuit 12 articulated in Couch. 13 Further, contrary to Patenaude’s argument, Magistrate Judge Fricke applied the
14 correct standard in determining whether a substantial ground for difference of opinion 15 exists on the issues Patenaude presented. Indeed, Magistrate Judge Fricke expressly 16 stated that “[w]hen a novel legal issue is presented, on which fair minded jurist[s] may 17 disagree, the issue may be certified for interlocutory appeal” and the “district court need 18 not first wait for the development of contradictory precedent.” (See R&R at 8 (citing
19 Reese, 643 F.3d at 688, and Couch, 611 F.3d at 633).) Accordingly, the court concludes 20 that Magistrate Judge Fricke applied the correct standard under both Couch and Reese. 21 Further, the court has reviewed Magistrate Judge Fricke’s analysis under that standard 22 and concurs with her conclusions that Patenaude failed to establish a substantial ground 1 for difference of opinion on any of the three issues Patenaude sought to certify to the 2 Ninth Circuit. (See R&R at 8-11.)
3 Finally, even assuming that Patenaude is correct that there is a substantial ground 4 for difference of opinion on the issues Patenaude seeks to certify and the other criteria of 5 28 U.S.C. § 1292(b) are met, the court would still overrule Patenaude’s objections and 6 adopt Magistrate Judge Fricke’s R&R. This is because “[e]ven where the statutory 7 criteria of [28 U.S.C] § 1292(b) are met, the district court ‘retains discretion to deny 8 permission for interlocutory appeal.’” Tsyn v. Wells Fargo Advisors, LLC, No.
9 14-CV-02552-LB, 2016 WL 1718139, at *3 (N.D. Cal. Apr. 29, 2016) (quoting Kuzinski 10 v. Schering Corp., 614 F. Supp. 2d 247, 249 (D. Conn. 2009)); see also Swint v. 11 Chambers Cty.
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1 2
3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 LATEIA MITCHELL, CASE NO. C19-0809JLR-TLF 11 Plaintiff, ORDER ADOPTING SECOND v. REPORT AND 12 RECOMMENDATION PATENAUDE & FELIX A.P.C., 13 Defendant. 14
15 I. INTRODUCTION 16 Before the court is the Report and Recommendation (“R&R”) of United States 17 Magistrate Judge Theresa L. Fricke (R&R (Dkt. # 29)), and Defendant Patenaude & 18 Felix, A.P.C.’s (“Patenaude”) objections thereto (Obj. (Dkt. # 31)). The court has 19 reviewed the R&R, Patenaude’s objections, Plaintiff Lateia Mitchell’s response to 20 Patenaude’s objections (Resp. (Dkt. # 32)), the relevant portions of the record, and the 21 governing law. Being fully advised, the court OVERRULES Patenaude’s objections, 22 ADOPTS the R&R, and DENIES Patenaude’s motion to certify questions to the 1 Washington Supreme Court or the Ninth Circuit Court of Appeals and to stay the case 2 (Mot. to Cert. (Dkt. # 25)).
3 II. STANDARD OF REVIEW 4 A district court has jurisdiction to review a Magistrate Judge’s report and 5 recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge 6 must determine de novo any part of the magistrate judge’s disposition that has been 7 properly objected to.” Id. “A judge of the court may accept, reject, or modify, in whole 8 or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.
9 § 636(b)(1). The court reviews de novo those portions of the report and recommendation 10 to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 11 1114, 1121 (9th Cir. 2003) (en banc). “The statute makes it clear that the district judge 12 must review the magistrate judge’s findings and recommendations de novo if objection is 13 made, but not otherwise.” Id. When no objections are filed, the court need not review de
14 novo the report and recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th 15 Cir. 2005). 16 III. DISCUSSION 17 In the motion underlying Magistrate Judge Fricke’s R&R, Patenaude asked the 18 court to certify three questions either to the Washington Supreme Court or the Ninth
19 Circuit Court of Appeals and to stay the case pending a decision on those questions. (See 20 Mot. to Cert. (Dkt. # 27).) In her R&R, Magistrate Judge Fricke denied both requests to 21 certify certain questions, as well as Patenaude’s request to stay the case. (See generally 22 R&R.) In its objections to Magistrate Judge Fricke’s R&R, Patenaude limited its 1 arguments to the portion of Magistrate Judge Fricke’s R&R denying certification to the 2 Ninth Circuit. (See Obj. at 1 n.1 (“While Patenaude initially asked for certification to
3 either the Washington Supreme Court or Ninth Circuit . . . , Patenuade limits its 4 objections here and only seeks certification . . . to the Ninth Circuit.”).) Thus, the court 5 need not review de novo the portion of Magistrate Judge Frick’s R&R denying 6 certification to the Washington Supreme Court, see Reyna-Tapia, 328 F.3d at 1121, and 7 limits its review to Magistrate Judge Fricke’s denial of certification to the Ninth Circuit. 8 Section 1292(b) of Title 28 authorizes a party to immediately appeal an
9 interlocutory order to the Ninth Circuit if the district judge is “of the opinion that such an 10 order involves a controlling question of law as to which there is substantial ground for 11 difference of opinion and that an immediate appeal from the order may materially 12 advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Patenaude 13 argues that Magistrate Judge Fricke applied an overly strict standard on the issue of
14 whether a “substantial ground for difference of opinion” exists. (Obj. at 4-5.) Patenaude 15 maintains that, instead of relying on the standard articulated in Couch v. Telescope, Inc., 16 611 F.3d 629, 633 (9th Cir. 2010), Magistrate Judge Fricke should have relied upon the 17 standard articulated in Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). 18 (See Obj. at 5.) Patenaude asserts that, under Couch, the Ninth Circuit held that a district
19 court “need never certify any question of first impression,” but a year later, in Reese, 20 “softened” its approach by allowing district courts to certify novel issues “on which fair- 21 mined jurists might reach contradictory conclusions” without waiting for the 22 development of contradictory precedent. (See id.) Thus, Patenaude argues that because 1 Magistrate Judge Fricke applied the wrong standard, she erred when she concluded that 2 Patenaude failed to establish a substantial ground for difference of opinion on the novel
3 issues it sought to certify. (See id. at 4-10; see also R&R at 8-11.) 4 The court overrules Patenaude’s objections because Patenaude misinterprets both 5 Couch and Reese. As the Reese court noted while quoting its prior decision in Couch, 6 “[c]ourts traditionally . . . find that a substantial ground for difference of opinion exists 7 where ‘. . . novel and difficult questions of first impression are presented,’” and courts 8 need not await the development of contrary precedent to do so. Reese, 643 F.3d at 688
9 (quoting Couch, 611 F.3d at 633). Thus, contrary to Patenaude’s argument, the standard 10 that the Ninth Circuit articulated in Reese concerning under what circumstances novel 11 issues may be certified for appeal did not depart from the standard the Ninth Circuit 12 articulated in Couch. 13 Further, contrary to Patenaude’s argument, Magistrate Judge Fricke applied the
14 correct standard in determining whether a substantial ground for difference of opinion 15 exists on the issues Patenaude presented. Indeed, Magistrate Judge Fricke expressly 16 stated that “[w]hen a novel legal issue is presented, on which fair minded jurist[s] may 17 disagree, the issue may be certified for interlocutory appeal” and the “district court need 18 not first wait for the development of contradictory precedent.” (See R&R at 8 (citing
19 Reese, 643 F.3d at 688, and Couch, 611 F.3d at 633).) Accordingly, the court concludes 20 that Magistrate Judge Fricke applied the correct standard under both Couch and Reese. 21 Further, the court has reviewed Magistrate Judge Fricke’s analysis under that standard 22 and concurs with her conclusions that Patenaude failed to establish a substantial ground 1 for difference of opinion on any of the three issues Patenaude sought to certify to the 2 Ninth Circuit. (See R&R at 8-11.)
3 Finally, even assuming that Patenaude is correct that there is a substantial ground 4 for difference of opinion on the issues Patenaude seeks to certify and the other criteria of 5 28 U.S.C. § 1292(b) are met, the court would still overrule Patenaude’s objections and 6 adopt Magistrate Judge Fricke’s R&R. This is because “[e]ven where the statutory 7 criteria of [28 U.S.C] § 1292(b) are met, the district court ‘retains discretion to deny 8 permission for interlocutory appeal.’” Tsyn v. Wells Fargo Advisors, LLC, No.
9 14-CV-02552-LB, 2016 WL 1718139, at *3 (N.D. Cal. Apr. 29, 2016) (quoting Kuzinski 10 v. Schering Corp., 614 F. Supp. 2d 247, 249 (D. Conn. 2009)); see also Swint v. 11 Chambers Cty. Comm’n, 514 U.S. 35, 47 (1995) (“Congress thus chose to confer on 12 district courts first[-]line discretion to allow interlocutory appeals [under § 1292(b)].”). 13 Section 1292(b) embodies a “narrow exception to the final judgment rule,” Couch, 611
14 F.3d at 633, and indeed, is only to be used in “exceptional situations,” Cement Antitrust, 15 673 F.3d at 1026. As the party seeking certification, Patenaude bears “the burden of 16 showing that exceptional circumstances justify a departure from the ‘basic policy of 17 postponing appellate review until after the entry of a final judgment.’” Fukuda v. L.A. 18 Cty., 630 F. Supp. 228, 299 (C.D. Cal. 1986) (citing Coopers & Lybrand v. Livesay, 437
19 U.S. 463, 475 (1978)). Patenaude has not met that burden here. Accordingly, the court 20 overrules Patenaude’s objections, adopts the R&R, and declines to exercise its discretion 21 to permit an interlocutory appeal to the Ninth Circuit. 22 // 1 IV. CONCLUSION 2 For the foregoing reasons, the court hereby ORDERS as follows:
3 (1) The court ADOPTS the R&R (Dkt. # 29) in its entirety; 4 (2) The court OVERRULES Patenaude’s objections (Dkt. # 31); 5 (3) The court DENIES Patenaude’s motion to certify certain questions and stay the 6 case (Dkt. # 25); and 7 (4) The court DIRECTS the Clerk to send copies of this order to the parties and to 8 Magistrate Judge Fricke.
9 Dated this 16th day of January, 2020. 10 A 11 12 JAMES L. ROBART United States District Judge 13 14 15 16 17 18 19 20 21 22