Adams v. County of Sacramento ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 KATE ADAMS, No. 2:22-cv-01499 WBS KJN 13 Plaintiff, 14 v. ORDER GRANTING MOTION FOR INTERLOCUTORY APPEAL1 15 COUNTY OF SACRAMENTO, a political subdivision of the 16 state of California; SHERIFF SCOTT JONES in his individual 17 and official capacity as Sheriff of the County of Sacramento, and 18 DOES 1-10, 19 Defendants. 20 21 ----oo0oo---- 22 Plaintiff moves for certification of the court’s March 23 27, 2023 Order (Docket No. 32) for interlocutory appeal pursuant 24 to 28 U.S.C. § 1292(b). (Docket No. 37.) Defendants do not 25 oppose the motion. (Docket No. 38.) 26 Under 28 U.S.C. § 1292(b), a district court may certify 27 1 The court takes this motion under submission on the 28 papers, without oral argument, pursuant to Local Rule 230(g). 1 for appeal an interlocutory order which is not otherwise 2 appealable if the district court is “of the opinion that such 3 order [1] involves a controlling question of law as to which [2] 4 there is substantial ground for difference of opinion and that 5 [3] an immediate appeal from the order may materially advance the 6 ultimate outcome of the litigation.” 28 U.S.C. § 1292(b). The 7 party seeking to appeal has the burden of justifying a departure 8 from the basic policy of postponing appellate review until after 9 the entry of a final judgment. In re Cement Antitrust Litig., 10 673 F.2d 1020, 1026 (9th Cir. 1982). 11 First, the court’s dismissal of plaintiff’s First 12 Amendment and First Amendment conspiracy claims involves a 13 controlling question of law. A question of law is controlling if 14 “resolution of the issue on appeal could materially affect the 15 outcome of litigation in the district court” and it is not 16 collateral to the major issues of the case. In re Cement, 673 17 F.2d at 1026. However, “the Ninth Circuit has not limited 18 1292(b) motions to actions where the question is dispositive of 19 the entire action: ‘we do not hold that a question brought here 20 on interlocutory appeal must be dispositive of the [entire] 21 lawsuit in order to be regarded as controlling.’” Finder v. 22 Leprino Foods Co., 1:13-cv-02059 AWI BAM, 2016 WL 4095833, *3 23 (E.D. Cal. Aug. 1, 2016) (quoting Ass’n of Irritated Residents v. 24 Schakel Dairy, 634 F. Supp. 2d 1081, 1093 (E.D. Cal. 2008) 25 (quoting U.S. v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959)) 26 (quotations omitted). 27 The question of law raised by plaintiff here is whether 28 speech made in a private text message, purportedly condemning an 1 example of racism to a friend, is protected First Amendment 2 speech because it involves a matter of public concern. (Pl.’s 3 Mot. at 2-3 (Docket No. 37).) If this issue were to be decided 4 in plaintiff’s favor, plaintiff would be able to proceed with her 5 First Amendment claim. Her First Amendment conspiracy claim is 6 also contingent on that question. Therefore, an immediate appeal 7 would affect the outcome of both the third and fourth claims. 8 Counsel represents that these are the primary claims plaintiff 9 wishes to assert at trial. 10 Second, there is substantial ground for difference of 11 opinion on the question at issue. 28 U.S.C. § 1292(b). To 12 determine whether a substantial ground for difference of opinion 13 exists, the court “must examine to what extent the controlling 14 law is unclear.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th 15 Cir. 2010). Here, the question addresses whether the speech at 16 issue constitutes a matter for public concern. The Ninth Circuit 17 has “not articulated a precise definition of ‘public concern,’ 18 recognizing instead that such inquiry is not an exact science.” 19 Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir. 20 2009) (citations and internal quotations omitted). Instead, to 21 determine “whether an employee’s speech addresses a matter of 22 public concern,” a court must consider “the content, form, and 23 context of a given statement, as revealed by the whole record.” 24 Eng, 552 F.3d at 1070 (citations and quotations omitted). The 25 Ninth Circuit has expressly recognized the “difficulty [in] 26 deciding when speech deals with an issue of ‘public concern.’” 27 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (quoting 28 McKinley v. City of Eloy, 705 F.2d 1110, 1113-14 (9th Cir. 1 1983)). 2 Third, the immediate appeal from the order is likely to 3 materially advance the ultimate outcome of the litigation. 28 4 U.S.C. § 1292(b). Within the Ninth Circuit, courts have held 5 that “resolution of a question materially advances the 6 termination of litigation if it ‘facilitate[s] disposition of the 7 action by getting a final decision on a controlling legal issue 8 sooner, rather than later [in order to] save the courts and 9 litigants unnecessary trouble and expense.” Finder, 2016 WL 10 4095833, at *4 (citing United States v. Adams Bros. Farming, 11 Inc., 369 F. Supp. 2d 1180, 1182 (C.D. Cal. 2004)). Of course, 12 whether an immediate appeal would materially advance the ultimate 13 outcome of the litigation usually depends on whether the appeal 14 is successful. 15 Although plaintiff will still have pending claims 16 against defendants regardless of her success on appeal, an 17 immediate appeal need not resolve every claim. See id. (“[T]o 18 materially advance litigation it is sufficient to remove a set of 19 claims against defendants in the lawsuit; it need not remove all 20 of the claims.”) (citing Reese v. BP Exploration (Alaska) Inc., 21 F.3d 681, 688 (9th Cir. 2011)). And an immediate appeal could 22 avoid the need for two separate trials in the event this court’s 23 dismissal of Claims 3 and 4 is reversed. 24 IT IS THEREFORE ORDERED that plaintiff’s motion for 25 certification of this court’s March 27, 2023 Order for 26 interlocutory appeal be, and the same hereby is, GRANTED.2 27 2 Contrary to plaintiff’s attorney’s understanding, under 28 28 U.S.C. § 1292(b) the court may properly consider a motion for nen ee nme nen enn nn nn nnn en OI OD NE 1 IT IS FURTHER ORDERED that all proceedings in this case 2 are STAYED pending the outcome of such appeal. If no application 3 is made to the United States Court of Appeals to the Ninth 4 Circuit to accept the interlocutory appeal within ten (10) days 5 as set forth in § 1292(b), or if the Ninth Circuit should deny 6 any such application, the stay will automatically be lifted. If 7 the Ninth Circuit should accept any such application, the parties 8 shall file a joint status report within fourteen days after 9 | resolution of the interlocutory appeal. 10 | Dated: May 12, 2023 . ak. 2 11 WILLIAM B. SHUBB 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 certification of interlocutory appeal and is not limited to 23 issuing the certification sua sponte. In the federal courts, it is not uncommon to grant such formal motions to certify an 24 interlocutory appeal. See, e.g., Fed. Energy Reg. Comm’n v. Vitol Inc., No. 2:20-cv-Q0040-KJM-AC, 2022 WL 583998 (E.D. Cal. 29 Feb. 25, 2022); L.A. Lakers, Inc. v. Fed. Ins. Co., --- F. Supp. 26 3d. ---, 2022 WL 16571193 (C.D. Cal. Oct. 26, 2022); Somberg v. Cooper, 582 F. Supp. 3d 438 (E.D. Mich. 2022) (certifying a First 27 Amendment question); CFPB v. Navient Corp., 522 F. Supp. 3d 107 (M.D. Pa. 2021); Tantaros v. Fox News Network, LLC, 465 F. Supp. 28 | 3d 385 (S.D. N.Y. 2020).