United States District Court, D. Utah, Northern Division
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.
B. Pead Magistrate Judge.
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 Affairs.com, 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.
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.
court declines to certify the case for a permissive appeal
under § 1292 because an appeal will not materially
advance this litigation
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
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)).
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). 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.
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.
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.
court will deny Plaintiff's 54(b) motion because
Plaintiff fails to show there is “no just reason [to]