United States District Court, D. Hawaii
ORDER DENYING DEFENDANT BRYSON CHOW'S MOTION TO
CERTIFY ORDER FOR INTERLOCUTORY APPEAL
E. Kobayashi United States District Judge.
December 31, 2018, the Court issued its Order Granting in
Part and Denying in Part: Plaintiffs' Motion for Partial
Summary Judgment; Defendant AOAO's Motion for Summary
Judgment; and Defendant Chow's Motion for Summary
Judgment (“12/31/18 Order”). [Dkt. no.
On March 8, 2019, this Court issued an order denying
Defendant Bryson Chow's (“Chow”) January 9,
2019 motion for reconsideration of the 12/31/18 Order
(“3/8/19 Order”). [Dkt. nos. 177,
Before the Court is Chow's motion, filed on April 10,
2019, seeking certification of the 12/31/18 Order and 3/8/19
Order for interlocutory appeal (“Certification
Motion”). [Dkt. no. 210.] Plaintiffs Rudy Akoni Galima
and Roxana Beatriz Galima (“Plaintiffs”) filed
their memorandum in opposition on April 25, 2019. [Dkt. no.
227.] The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local
Rules of Practice for the United States District Court for
the District of Hawaii (“Local Rules”).
Chow's Certification Motion is hereby denied for the
reasons set forth below.
factual and procedural background of this case is set forth
in the 12/31/18 Order and will not be repeated here. In the
12/31/18 Order, this Court ruled that, as a matter of law: 1)
Defendant Association of Apartment Owners of Palm Court
(“AOAO”) was not authorized to utilize the
version of Haw. Rev. Stat. Chapter 667, Part I in effect in
2010 to foreclose upon Plaintiffs' condominium unit; 2)
the AOAO was required to utilize Haw. Rev. Stat. Chapter 667,
Part II; and 3) the AOAO's use of Part I was a violation
of Chapter 667. 12/31/18 Order, 2018 WL 6841818, at *9. This
Court denied Chow's motion for summary judgment as to the
only remaining claim against him, a claim alleging violations
of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et
seq. This Court ruled that there are genuine issues of
material fact as to: 1) whether Plaintiffs' FDCPA claim
is timely; 2) whether the obligation that was being collected
from Plaintiffs in the foreclosure process was a
“debt” for purposes of the FDCPA; and 3) whether
Chow is relieved from liability because of the bona fide
error defense. 12/31/18 Order, 2018 WL 6841818, at *14-18. In
the 3/8/19 Order, this Court expressly rejected Chow's
argument that a lack of knowledge about the law cannot be
used to invoke the discovery rule to delay the running of the
statute of limitations, and this Court reiterated that there
are triable issues of fact as to whether Plaintiffs'
FDCPA claim is timely. 2019 WL 1102188, at *3-5.
Certification Motion, Chow argues this Court should certify
the 12/31/18 Order and the 3/8/19 Order for interlocutory
appeal because the issue of whether Plaintiffs' ignorance
of the law can support the application of the discovery rule
is a controlling question of law in this case. Further, Chow
contends there are substantial grounds supporting a contrary
opinion on this issue, and an interlocutory appeal of this
issue would materially advance this case and other similar
A “movant seeking an interlocutory appeal [under 28
U.S.C. § 1292(b)] has a heavy burden to show that
exceptional circumstances justify a departure from the basic
policy of postponing appellate review until after the entry
of a final judgment.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 475 (1978) (internal quotation
marks and citation omitted); see also James v. Price Stern
Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002)
(“Section 1292(b) is a departure from the normal rule
that only final judgments are appealable, and therefore must
be construed narrowly”); Du Preez v. Banis,
No. CIV. 14-00171 LEK-RLP, 2015 WL 857324, at *1 (D. Haw.
Feb. 27, 2015) (collecting cases). Certification for
interlocutory appeal under § 1292(b) is only appropriate
where: (1) the order involves a controlling question of law;
(2) a substantial ground for difference of opinion exists as
to that question; and (3) an immediate appeal from the order
may materially advance the ultimate termination of the
litigation. 28 U.S.C. § 1292(b).
Botelho v. Nielsen, CIV. NO. 18-00032 ACK-RLP, 2019
WL 1521980, at *1 (D. Hawai`i Apr. 8, 2019) (alterations in
proposed interlocutory appeal would “involve an issue
over which reasonable judges might differ and such
uncertainty provides a credible basis for a difference of
opinion on the issue.” See Reese v. BP Expl.
(Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011)
(citation and internal quotation marks omitted). Thus, the
second § 1292(b) requirement is met. The proposed
interlocutory appeal, however, does not meet the other §
Plaintiffs' claims are premised upon this Court's
conclusion that the AOAO was not authorized to utilize
Chapter 667, Part I to foreclose upon Plaintiffs'
condominium unit. The AOAO has argued that Senate Bill 551,
which was passed during the 2019 session of the Hawai`i State
Legislature and is currently enrolled to the Governor,
“may very well end this case” because it
establishes that a condominium association was entitled to
use Part I, even if its governing documents did not have an
express power of sale provision. [Mem. in Supp. of Motion to
Continue Trial Date and Pretrial Deadlines, filed 5/3/19
(dkt. no. 240-1), at 2.] If Senate Bill 551 becomes law and
is applied to this case, it would not be necessary to address
whether Plaintiffs' FDCPA claim against Chow is timely.
Therefore, the discovery rule issue that would be the subject
of Chow's proposed interlocutory appeal is not a
controlling issue in this case.
instant case has been pending for over three years and,
before the AOAO raised the Senate Bill 551 issue, the trial
date was imminent. See Third Amended Rule 16
Scheduling Order, filed 5/14/18 (dkt. no. 144), at ¶ 1
(setting July 9, 2019 trial date); EO, filed 8/22/18 (dkt.
no. 171) (moving the trial date to July 8, 2019). Thus, even
without considering Senate Bill 551, allowing Chow's
proposed interlocutory appeal would not materially advance
the instant case when the proceedings that remain are weighed
against the litigation that has already taken
place. Chow must pursue the discovery rule issue
on appeal in the normal course, if Plaintiffs obtain a
judgment against him.
has failed to establish that the instant case presents the
type of “exceptional circumstances” which warrant
an interlocutory appeal. See Coopers & Lybrand,
437 U.S. at 475.
basis of the foregoing, Chow's Motion to Certify Order
for Interlocutory Appeal, filed ...