Talley v. General Motors, LLC

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CHRIS TALLEY, et al., individually and on behalf of all others similarly sit- uated,

Plaintiffs,

No. 1:20-cv-01137-SB v.

GENERAL MOTORS, LLC,

Defendant.

Russell D. Paul, Amey J. Park, Abigail J. Gertner, BERGER MONTAGUE PC, Philadelphia, Pennsylvania; Kelly A. Green, SMITH, KATZENSTEIN, & JENKINS LLP, Wilmington, Delaware; Tarek H. Zohdy, Cody R. Padgett, Laura E. Goolsby, CAPSTONE LAW APC, Los Angeles, California.

Counsel for Plaintiffs.

Jody C. Barillare, MORGAN LEWIS & BOCKIUS LLP, Wilmington, Delaware; Oderah C. Nwaeze, FAEGRE DRINKER BIDDLE & REATH LLP, Philadelphia, Pennsylvania; Christine W. Chen, Crystal Nix-Hines, Shon Morgan, Meredith R. Mandell, QUINN EMANUEL URQUHART & SULLIVAN, LLP, Los Angeles, California.

Counsel for Defendant.

MEMORANDUM OPINION February 7, 2023 BIBAS, Circuit Judge, sitting by designation. Interlocutory appeals are rarely appropriate. This case is no exception. Plaintiffs ask me to send a question of California law up to the Third Circuit. But doing so will not “materially advance” the case. 28 U.S.C. § 1292(b). So I deny plaintiffs’ motion to

certify an interlocutory appeal. I previously held that, to state a claim for breach of implied warranty under Cali- fornia’s Song-Beverly Consumer Warranty Act, plaintiffs must give the manufacturer notice and a chance to fix the product within a year (new products) or three months (used products) of purchase. See D.I. 47; D.I. 61 (denying motion to reconsider). Be- cause Plaintiff Franzen failed to plead that she had done so, I dismissed her claim. D.I. 47. I also dismissed Plaintiff Previti’s claim, although he has since stipulated to

the dismissal of all his claims with prejudice. Id.; D.I. 93. Plaintiffs maintain that California law does not require notice and a chance to fix. So they ask me to certify my order dismissing Franzen’s claim for interlocutory ap- peal. D.I. 64. A district court judge can certify an order when it (1) “involves a con- trolling question of law” (2) about which there is “substantial ground” for disagree- ment, and (3) immediate appeal “may materially advance the ultimate termination

of the litigation.” 28 U.S.C. § 1292(b). The moving party carries the burden of proving that all three factors are met. See, e.g., Nat’l Liab. & Fire Ins. Co. v. Brimar Transit, Inc., 2021 WL 6098288, at *2 (W.D. Pa. Dec. 23, 2021). And even if the party proves all three, “permission to appeal is wholly within the discretion of the courts.” Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976). The first factor is clearly satisfied here. My resolution of this issue disposed of Franzen’s implied-warranty claim. So it could result in a “reversal of a judgment after final hearing.” Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974).

The next factor is also satisfied. Though I think the plain text of the Song-Beverly Act compels my interpretation, I have already acknowledged that rulings from Cali- fornia appellate courts are “mixed.” See D.I. 61 at 3. And the California Supreme Court has yet to weigh in. See id. at 6. Because even California courts cannot agree about this issue of California law, there are substantial grounds for disagreement. But things hit a snag on the third factor. An interlocutory appeal will not “elimi- nate the need for trial,” simplify trial, or make discovery easier and less costly. Durr

Mech. Constr., Inc. v. PSEG Fossil, LLC, 2021 WL 1040510, at *3 (D.N.J. Mar. 18, 2021). The merits of the surviving claims will “not be resolved or clarified in any way” by immediate appeal; those claims do not turn on the disputed interpretation. Ferre- ras v. Am. Airlines, Inc., 2017 WL 1709597, at *2 (D.N.J. May 1, 2017). Nor is the “dismissed claim … so different from the remaining claims that its presence or ab- sence would materially change the course or scope of litigation.” Durr, 2021 WL

1040510, at *3. Rather, Franzen’s surviving fraud claim will trigger discovery on the key factual issue in her implied-warranty claim: whether her car was defective at the time of sale. So if the Third Circuit later reverses me, many if not all facts necessary to prove the implied-warranty claim will already be in the record. Cf. id. at *3. Because plaintiffs have failed to carry their burden to show that immediate appeal will “materially advance” this litigation’s conclusion, I deny their request for interlocutory appeal. And because Previti has voluntarily dismissed his claims with prejudice, I dismiss as moot the request for interlocutory appeal and motion to enter final judgment on his claim.