Roshan v. Lawrence ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PEYMAN ROSHAN, Case No. 21-cv-01235-JST 8 Plaintiff, ORDER DENYING ADMINISTRATIVE 9 v. MOTION TO AMEND ORDERS TO PERMIT INTERLOCUTORY APPEAL 10 MELANIE J. LAWRENCE, et al., Re: ECF No. 173 Defendants. 11 12 13 Before the Court is Plaintiff Peyman Roshan’s motion for certification under 28 U.S.C. 14 § 1292(b). The Court will deny the motion. 15 The final judgment rule ordinarily provides that courts of appeal shall have jurisdiction 16 only over “final decisions of the district courts of the United States.” 28 U.S.C. § 1291. However, 17 “[w]hen a district judge, in making in a civil action an order not otherwise appealable under this 18 section, shall be of the opinion that such order involves a controlling question of law as to which 19 there is substantial ground for difference of opinion and that an immediate appeal from the order 20 may materially advance the ultimate termination of the litigation, he shall so state in writing in 21 such order.” 28 U.S.C. § 1292(b). “Certification under § 1292(b) requires the district court to 22 expressly find in writing that all three § 1292(b) requirements are met.” Couch v. Telescope Inc., 23 611 F.3d 629, 633 (9th Cir. 2010). “These certification requirements are (1) that there be a 24 controlling question of law, (2) that there be substantial grounds for difference of opinion, and (3) 25 that an immediate appeal may materially advance the ultimate termination of the litigation.” In re 26 Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981), aff’d sub nom. 27 Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983). 1 appealable, and therefore must be construed narrowly.” James v. Price Stern Sloan, Inc., 283 F.3d 2 1064, 1067 n.6 (9th Cir. 2002). To that end, “section 1292(b) is to be applied sparingly and only 3 in exceptional cases.” In re Cement Antitrust Litigation, 673 F.2d at 1027. 4 The Court concludes that Roshan has failed to show that two of the three requirements of 5 Section 1292(b) are met. 6 The Court begins with whether there is a substantial ground for a difference in opinion. 7 “To determine if a ‘substantial ground for difference of opinion’ exists under [Section] 1292(b), 8 courts must examine to what extent the controlling law is unclear.” Couch, 611 F.3d at 633. 9 Roshan contends that “the question of whether the State Bar is entitled to Eleventh Amendment 10 immunity is controlling” in this litigation. ECF No. 173 at 2. At the time Roshan filed his motion 11 on December 3, 2023, that issue was pending before the Ninth Circuit in Kohn v. State Bar. On 12 December 6, 2023, however, the Ninth Circuit released its opinion in Kohn and held, in part, that 13 the State Bar “is an arm of the state and entitled to sovereign immunity.” Kohn v. State Bar of 14 California, --- F.4th ----, No. 20-17316, 2023 WL 8441781, at *9 (9th Cir. Dec. 6, 2023). Thus, 15 even if there was a “substantial ground for difference of opinion” as to controlling law at the time 16 of filing, such a ground no longer exists. This factor is not satisfied. 17 Second, “[w]hen litigation will be conducted in substantially the same manner regardless 18 of our decision, the appeal cannot be said to materially advance the ultimate termination of the 19 litigation.” Hansen Beverage Co. v. Innovation Ventures, LLC., No. 08CV1166 IEG(POR), 2010 20 WL 743750, at *4 (S.D. Cal. Feb. 25, 2010). Roshan has not demonstrated that an immediate 21 appeal of these orders will materially advance this litigation. He contends that an immediate 22 appeal may materially advance this litigation in light of his “current appeal in Roshan v. 23 McCauley,” which also concerns the Rooker-Feldman doctrine. ECF No. 173 at 3. However, the 24 Court agrees with Defendants that “[t]his case is already nearly resolved[,]” and Roshan “may 25 benefit more quickly by allowing this case to remain in the district court.” ECF No. 174 at 3–4. 26 Accordingly, this factor is likewise not satisfied. 1 27 1 For the foregoing reasons, the Court denies Roshan’s motion for Section 1292(b) 2 || certification. 3 IT IS SO ORDERED. 4 Dated: December 8, 2023 ° JON S. TIGAR 6 nited States District Judge 7 8 9 10 11 12 13 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28