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Spirit of Aloha Temple v. County of Maui

United States District Court, D. Hawaii

May 16, 2019

SPIRIT OF ALOHA TEMPLE AND FREDRICK R. HONIG, Plaintiffs,
v.
COUNTY OF MAUI, Defendant, and STATE OF HAWAII, Intervenor-Defendant

          ORDER DENYING PLAINTIFFS' MOTION TO CERTIFY ORDER OF APRIL 23, 2019, FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(B)

          SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION.

         On April 23, 2019, this court granted Intervenor-Defendant State of Hawaii's motion for partial summary judgment with respect to the prior restraint claim asserted in Count V, as well as Defendant County of Maui's joinder therein. The order left for further adjudication the facial challenges asserted in Counts I, II, IV, VI, VII, VIII, and IX against the County of Maui. Plaintiffs Fredrick R. Honig and Spirit of Aloha Temple seek certification under 28 U.S.C. § 1292(b) to allow them to file an interlocutory appeal of the order. The court declines to grant Plaintiffs such certification and denies the motion without a hearing pursuant to Local Rule 7.2(d).

         II. ANALYSIS.

         Plaintiffs seek to immediately appeal this court's order of April 23, 2019. The Ninth Circuit has stated that piecemeal review of cases, except when authorized by Rule 54(b) or 28 U.S.C. § 1292(b), is not favored. Hartford Fire Ins. Co. v. Herrald, 434 F.2d 638, 639 (9th Cir. 1970). Rule 54(b) and § 1292(b) provide alternative bases for appeal. James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002).

         Rule 54(b) of the Federal Rules of Civil Procedure allows a court to enter final judgment on a claim before final judgment is entered on all claims, stating:

When an action presents more than one claim for relief--whether as a claim, counterclaim, crossclaim, or third-party claim--or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b). “Rule 54(b) applies where the district court has entered a final judgment as to particular claims or parties, yet that judgment is not immediately appealable because other issues in the case remain unresolved.” James, 283 F.3d at 1068 n.6.

         While Rule 54(b) allows this court to certify a final judgment for appeal with respect to a portion of a case, 28 U.S.C. § 1292(b) allows an appeal of an interlocutory order that raises an important and unsettled question of law that advances the termination of proceedings:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

28 U.S.C. § 1292(b). Normally, interlocutory orders are not immediately appealable. James, 283 F.3d at 1068 n.6. But, “[i]n rare circumstances, the district court may approve an immediate appeal of such an order by certifying that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Id.

         Plaintiffs seek to appeal this court's order of April 23, 2019, under § 1292(b), rather than under Rule 54(b). See ECF No. 242. As the parties seeking an interlocutory appeal, Plaintiffs have the burden of demonstrating “exceptional circumstances” justifying a departure from the basic policy of postponing appellate review until a final judgment has issued.” See Coopers & Lybrand, 437 U.S. 463, 475 (1978). Because § 1292(b) is a departure from the normal final judgment rule, the Ninth Circuit has stated that § 1292(b) should be construed “narrowly.” See James, 283 F.3d at 1068 n.6.

         Before the Ninth Circuit exercises its discretion to permit an interlocutory appeal under § 1292(b), this court must first certify: “(1) that there be a controlling question of law, (2) that there be substantial grounds for difference of opinion, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981).

         Section 1292(b) is primarily intended to expedite litigation by permitting appellate consideration of legal questions that, if decided in favor of appellant, would end the lawsuit. United States v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959). Accordingly, controlling questions of law include issues relating to jurisdiction or a statute of limitations, as an appeal from the denial of dismissal based on either, if decided differently on appeal, would terminate a case. Id. However, an issue need not be dispositive of the lawsuit to be considered controlling. Id. Instead, a “question of law” is controlling if a “resolution of the issue on appeal could materially affect the outcome of litigation in the district court.” In re CementAntitrust Litigation, 673 F.2d at 1026. The Ninth Circuit has noted that such issues include ...


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