Menzel v. Scholastic, Inc. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PETER MENZEL, Case No. 17-cv-05499-EMC 8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION FOR RECONSIDERATION OR CERTIFICATION 10 SCHOLASTIC, INC., Docket No. 139 11 Defendant. 12 13 14 Scholastic has moved for reconsideration or, in the alternative, for certification for an 15 interlocutory appeal. Having considered the parties’ briefs, the Court hereby DENIES 16 Scholastic’s motion. 17 With respect to the motion to reconsider, Rotkiske v. Klemm, 205 L. Ed. 2d 291 (2019), is 18 not directly on point as it concerns the Fair Debt Collection Practices Act, and not the Copyright 19 Act. Notably, the language used in the FDCPA (concerning the statute of limitations) is different 20 from that used in the Copyright Act. Compare 15 U.S.C. § 1692k(d) (in the FDCPA, providing 21 that an action “may be brought in any appropriate United States district court without regard to the 22 amount in controversy, or in any other court of competent jurisdiction, within one year from the 23 date on which the violation occurs”) (emphasis added), with 17 U.S.C. § 507(b) (in the Copyright 24 Act, providing that “[n]o civil action shall be maintained . . . unless it is commenced within three 25 years after the claim accrued”) (emphasis added). 26 As for the motion for certification of an interlocutory appeal, the governing statute is 28 27 U.S.C. § 1292(b), which provides as follows: involves a controlling question of law as to which there is 1 substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate 2 termination of the litigation, he shall so state in writing in such order. 3 4 28 U.S.C. § 1292(b). 5 Here, even if there were a controlling question of law and substantial ground for difference 6 of opinion, an immediate appeal will not materially advance the ultimate termination of the 7 litigation, particularly given that the instant case is essentially on the eve of trial. See, e.g., Pablo 8 v. ServiceMaster Glob. Holdings, Inc., No. C 08-03894 SI, 2011 U.S. Dist. LEXIS 93638, at *3-4 9 (N.D. Cal. Aug. 22, 2011) (“The parties have expended significant time and resources over the 10 past three years litigating this case. The Court has entered orders on several significant motions, 11 each of which will be subject to appeal when a final judgment has issued in this case. The trial 12 now finally set is not expected to last more than a week. Allowing defendants to file an 13 interlocutory appeal with regard to one legal issue (or, according to defendants, two legal issues) 14 on the eve of trial will impede, rather than materially advance, the ultimate termination of this 15 litigation.”); Corwin v. NYC Bike Share, LLC, No. 14-CV-1285 (SN), 2017 U.S. Dist. LEXIS 16 53812, at *28-29 (S.D.N.Y. Apr. 7, 2017) (“In this case, it is plain that permitting an interlocutory 17 appeal at this juncture, on the very eve of trial, would severely delay the termination of the 18 litigation. Such an appeal would lead to the proceedings being stayed, potentially for years, as to 19 all parties. On the contrary, proceeding to trial and final judgment would lead to a prompt finding 20 as regards to liability and damages as to all the defendants remaining in the case, while preserving 21 the City's ability to appeal in the ordinary course on the question of law it identifies in the event 22 that it is found liable.”); Stuart v. RadioShack Corp., No. C-07-4499 EMC, 2009 U.S. Dist. LEXIS 23 57963, at *12 (N.D. Cal. June 25, 2009) (“The additional burden of waiting several months and 24 having to complete trial before taking the appeal is not substantial. On the other hand, permitting 25 the interlocutory appeal will vacate the trial date and potentially postpone the trial for many 26 /// 27 /// 1 months, thus materially prejudicing the Plaintiffs and disrupting the Court’s calendar.”); cf. Conlin 2 || v. Sw. Cmty. Coll., No. 2:99cv247-C, 2001 U.S. Dist. LEXIS 27248, at *8 (W.D.N.C. Mar. 2, 3 || 2001) (“An interlocutory appeal .. . ‘is limited to extraordinary cases where early appellate review 4 || might avoid protracted and expensive litigation.’”). 5 This order disposes of Docket No. 139. 6 7 IT IS SO ORDERED. 8 9 Dated: January 17, 2020 10 Lx 11 : fr ED M. CHEN 12 United States District Judge © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28