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Icon Health & Fitness, Inc. v. Consumer Affairs.Com

United States District Court, D. Utah, Northern Division

May 8, 2018

ICON HEALTH & FITNESS, INC., a Delaware corporation, Plaintiff,
CONSUMER AFFAIRS.COM, a Nevada corporation, CONSUMERS UNIFIED, LLC, a Nevada limited liability company; and DAVID ZACHARY CARMAN, an individual, Defendants.


          Dustin B. Pead Magistrate Judge.


         The parties consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF No. 14). The matter is presently before the court on Plaintiff Icon Health and Fitness, Inc.'s (“Plaintiff”) related motions seeking entry of final judgment pursuant to Rule 54(b) (ECF No. 49), and seeking permission to file a permissive appeal under 28 U.S.C. § 1292(b) (ECF No. 53). Defendants Consumer, Consumers Unified, LLC, and David Zachary Carman (collectively “Defendants”) oppose both motions. (ECF Nos. 54, 56). Plaintiff filed timely replies in further support of its motions. (ECF Nos. 55, 57). The court did not hear oral argument. For the reasons set forth below the court will deny both motions.


         As discussed in detail below, the court will deny Plaintiff's motions because Plaintiff fails to persuade the court that this case merits a departure from the ordinary practice of appeal only after final judgment on all claims. Whether measured in terms of “materially advanc[ing] the ultimate termination of the litigation” under 28 U.S.C. § 1292, or in terms of “no just reason for delay” under Rule 54(b), the court finds an early appeal unwarranted here.

         I. The court declines to certify the case for a permissive appeal under § 1292 because an appeal will not materially advance this litigation

         a. Parties' arguments

         Plaintiff argues an immediate appeal from the court's decision dismissing its claims will materially advance the termination of this litigation because a reversal on appeal “would necessitate a second, entirely new trial.” (ECF No. 53 at 6).

         Defendants argue an appeal will only delay the termination of this lawsuit because an appeal will not obviate the need for trial, simplify issues at trial, or eliminate any issues to be tried. (ECF No. 56 at 9). Defendants also contend that speculation about future Tenth Circuit rulings does not provide evidence that an interlocutory appeal will materially advance litigation. (Id.) (citing Lindley v. Life Investors Ins. Co. of Am., No. 08-CV-379, 2010 WL 2465515, at *4 (N.D. Okla. June 11, 2010)).

         b. Analysis

         Plaintiff fails to show that an immediate appeal may materially advance the ultimate termination of this litigation. A district court may certify a civil order for interlocutory appeal if the judge is “of the opinion that” three elements are met: (1) the order involves a controlling question of law; (2) there is a substantial ground for difference of opinion; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b).[1] Interlocutory appeals under § 1292(b) are appropriate only in extraordinary cases. Utah State Dep't of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994) (“Our recommendation is founded upon the premise that the enlargement of the right to appeal should be limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate final decision of controlling questions encountered early in the action.”). “[T]he basic inquiry must be whether immediate appeal may substantially reduce the danger of unnecessary, or unnecessarily burdensome, proceedings.” Charles A. Wright, et al., Fed. Prac. & Proc. Juris. § 3931 (3d ed.). “There is no right to appeal from orders of any sort that are generally within the statute, and it is to be expected that permission will be denied frequently.” Id.

         Plaintiff identifies nothing that might be gained by allowing an appeal at the present time. Plaintiff contends that a reversal on appeal will result in future proceedings at the trial court level. (ECF No. 53 at 6) (ECF No. 57 at 9). This contention is entirely unremarkable. Nearly all successful appeals, particularly appeals of orders dismissing claims at the pleading stage, result in additional proceedings at the trial court level. Nonetheless, interlocutory appeals remain the rare exception; not the rule.

         Plaintiff's proposal seeks to turn the rule on its head. A hypothetical involving the case at bar illustrates this point. Had the court reached a contrary decision on Defendants' motions to dismiss-finding CDA immunity did not apply-Defendants could have credibly argued that decision would expose them to “extended and expensive proceedings [that] can be avoided” by immediate appeal. Kennecott at 1495. Defendants would have been defending a case that might have been unnecessary if the court were later reversed on its hypothetical refusal to extend CDA immunity. Prolonged defense of claims that an appellate court may later find immunized by statute could constitute the variety of harm § 1292(b) seeks to ameliorate. Of course, the court made the opposite ruling here. The court applied CDA immunity. Plaintiff does not identify any extended or expensive proceedings that might be avoided by immediate appeal under the extant circumstances. Quite the contrary; Plaintiff suggests the proceedings here might be expanded if it succeeds on appeal.

         II. The court will deny Plaintiff's 54(b) motion because Plaintiff fails to show there is “no just reason [to] ...

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