Aluminum Trailer Company v. Sidi Spaces LLC ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Aluminum Trailer Company, No. CV-20-00140-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Sidi Spaces LLC, et al., 13 Defendants. 14 15 16 Before the Court is Defendants’ motion to certify order for interlocutory appeal, 17 which is fully briefed. (Docs. 29, 33, 34.) For the following reasons, Plaintiff’s motion is 18 denied. 19 I. Background 20 On March 18, 2020, Defendants filed a motion to dismiss that argued, inter alia, 21 that counts I through IV of Plaintiff’s complaint, bringing causes of action for defamation 22 and trade libel based on alleged pre-suit communications made by Defendants to third 23 parties outside the anticipated litigation, are foreclosed by the Noerr-Pennington doctrine. 24 (Doc. 9.) On July 17, 2020, the Court denied Defendants’ motion, concluding that the 25 Noerr-Pennington doctrine did not foreclose counts I through IV because the defamatory 26 communications on which Plaintiff’s defamation and trade libel claims were based did not 27 constitute protected petitioning activity or activity sufficiently related to petitioning 28 activity. (Doc. 23.) On October 8, 2020, Defendants moved to certify for interlocutory 1 appeal the following question: “Does the Noerr-Pennington doctrine bar the Plaintiff’s 2 claims as alleged in the Complaint (Doc. 1)?” 3 II. Legal Standard 4 Federal appeal courts have jurisdiction over appeals from all final decisions of the 5 district courts. 28 U.S.C. § 1291. However, an appellate court may also have jurisdiction 6 to hear an appeal of an otherwise non-appealable district court order in rare circumstances 7 in which such order involves (1) a controlling question of law as to which there is (2) 8 substantial ground for difference of opinion and (3) an immediate appeal from the order 9 may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). 10 Section 1292(b) “is a departure from the normal rule that only final judgments are 11 appealable, and therefore must be construed narrowly.” James v. Price Stern Sloan, Inc., 12 283 F.3d 1064, 1098 n.6 (9th Cir. 2002). “[E]ven when all three statutory criteria are 13 satisfied,” however, “district court judges have ‘unfettered discretion’ to deny 14 certification.” Villarreal v. Caremark LLC, 85 F. Supp. 3d 1063, 1068 (D. Ariz. 2015) 15 (quotation omitted). 16 III. Discussion 17 Certification for interlocutory appeal is inappropriate because the proposed 18 question—whether the Noerr-Pennington doctrine “bar[s] the Plaintiff’s claims as alleged 19 in the Complaint”—is not a pure question of law. See C.M. v. U.S., No. CV-19-05217- 20 PHX-SRB, 2020 WL 5232560, at *2 (D. Ariz. July 6, 2020) (citation omitted) (“In addition 21 to being ‘controlling,’ the issues must be ‘pure’ questions of law.”); XTO Energy, Inc. v. 22 ATD, LLC, 189 F. Supp. 3d 1174, 1193 (D.N.M. 2016) (quotation omitted) (“The legal 23 question must be stated at a high enough level of abstraction to lift the question out of the 24 details of the evidence or facts of a particular case and give it general relevance to other 25 cases in the same area of law.”); Porter v. Mabus, No. 1:07-CV-0825 AWI SMS, 2014 WL 26 669778, at *2 (E.D. Cal. Feb. 20, 2014) (citation omitted) (“The antithesis of a proper § 27 1292(b) appeal is one that turns on [] whether the district court properly applied settled law 28 to the facts.”). Looking to Defendants’ proposed question, it is apparent that this is not a || “matter the court of appeals ‘can decide quickly and cleanly without having to study the 2|| record.’” C.M., 2020 WL 5232560, at *2 (quotation omitted). Rather, the question requires 3 || the Ninth Circuit to study whether the facts forming the basis of Plaintiff's defamation and 4|| trade libel claims constitute communications within the protection of the Petition Clause || triggering the Noerr-Pennington doctrine. 6 Even if Defendants had sought to certify a pure question of law, certification 1s || nevertheless inappropriate because, even assuming that the Ninth Circuit were to conclude 8 || on interlocutory appeal that the Noerr-Pennington doctrine does foreclose Plaintiff from pursuing counts I through IV, eleven counts would remain. See Villareal, 85 F. Supp. 3d 10 || at 1072 (Where “a substantial amount of litigation remains in the case regardless of the 11 || correctness of the Court’s ruling . . . arguments that interlocutory appeal would advance the resolution of the litigation are unpersuasive.”). The Court therefore concludes an 13} interlocutory appeal is unlikely to materially advance the ultimate termination of this litigation. For these reasons, 15 IT IS ORDERED that Defendants’ motion to certify order for interlocutory appeal (Doc. 29) is DENIED. 17 IT IS FURTHER ORDERED that Defendants’ motion for stay and expedited ruling request (Doc. 30) is DENIED AS MOOT. 19 Dated this 2nd day of December, 2020. 20 21 22 {Z, 23 Ch 24 Ueied States Dictric Judge 25 26 27 28 -3-