LOGAN ANDERSON, Plaintiff, v. MANDANA POUR, et al., Defendants.

 

Case No. 5:14-cv-01759-PSG

 

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

 

2015 U.S. Dist. LEXIS 7997

 

 

January 23, 2015, Decided

January 23, 2015, Filed

 

 

PRIOR HISTORY: Anderson v. Mandana Pour, 2014 U.S. Dist. LEXIS 156703 (N.D. Cal., Nov. 4, 2014)

 

COUNSEL:  [*1] For Logan Anderson, Plaintiff: Aaron M Dawson, Alecto Law, San Francisco, CA.

 

For Reindeer Logistics, Inc., An Indiana Corporation, also known as Reindeer Auto Relocation, Defendant: David W. Evans, Haight Brown & Bonesteel LLP, San Francisco, CA; Stephen John Squillario, Haight Brown, Bonesteel, San Francisco, CA.

 

JUDGES: PAUL S. GREWAL, United States Magistrate Judge.

 

OPINION BY: PAUL S. GREWAL

 

OPINION

 

ORDER DENYING REQUEST TO CERTIFY

 

(Re: Docket No. 36)

Pursuant to 28 U.S.C. § 1292(b), Defendant Reindeer Logistics, Inc. seeks leave to file an interlocutory appeal of this court’s order denying Reindeer’s motion to dismiss.1 Specifically, Reindeer contends that the issue of whether a cause of action for tortious breach of the implied duty of good faith is preempted by the Interstate Commerce Commission Termination Act of 1995 (ICCTA) is one of first impression that should be immediately reviewed by the Ninth Circuit. Because this court finds that the issue at hand fails to meet the Ninth Circuit’s “exceptional situation” requirement, Reindeer’s request is DENIED.

 

1   See Docket No. 32.

 

I.

This case is about Plaintiff Logan Anderson’s car. The car allegedly was damaged during transport from New York to California during the summer of 2013. Anderson [*2]  brought claims of tortious breach of the implied duty of good faith and breach of contract against Reindeer–who served as the transportation broker. Reindeer sought dismissal based on the contention that the tortious breach of the implied duty of good faith is preempted by the ICCTA. This court denied the motion to dismiss, finding that because Reindeer’s alleged conduct occurred after the vehicle had been delivered, it was no longer within the contours of the ICCTA.2 Reindeer seeks leave to appeal immediately on the basis that the issue presented is highly contested and one of first impression in this district, and that dismissal of the claim would significantly expedite the litigation.

 

2   See id.

 

II.

This court has jurisdiction under 28 U.S.C. §§ 1331. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).

 

III.

To certify an interlocutory appeal under 28 U.S.C. § 1292(b), the court must find: “(1) that there [is] a controlling question of law, (2) that there [are] substantial grounds for difference of opinion, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation.”3 “[T]his section [is] to be used only in exceptional situations in which allowing [*3]  an interlocutory appeal would avoid protracted and expensive litigation.”4

 

3   In re Cement Antitrust Litigation (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1982).

4   Id.

First, Reindeer contends that an order dismissing the tortious breach of the implied duty of good faith would significantly limit the damages available for a breach of contract claim, thereby facilitating the resolution of the case. An issue is “controlling” if “resolution of the issue on appeal could materially affect the outcome of litigation in the district court.”5 But limiting the damages in a breach of contract claim cannot be the kind of “controlling question of law” that the Ninth Circuit contemplated in providing guidance to district courts on whether to certify an interlocutory appeal. As Anderson points out, limiting the scope of non-contract damages would not narrow the realm of discovery, witnesses, experts or motion practice.6 And Reindeer fails to show any other kind of efficiency that might come out of an early appeal process. On this record, it seems that allowing an interlocutory appeal might actually increase–rather than decrease–the cost of litigation.

 

5   Id.

6   See, e.g., Astiana v. Dreyer’s Grand Ice Cream, Inc., Case No. 11-cv-02910, 2012 U.S. Dist. LEXIS 147492, 2012 WL 4892391, at *4 (N.D. Cal. Oct. 12, 2012).

Second, Reindeer [*4]  argues that this court’s ruling resulted in a conflict of authority, citing cases from this circuit that suggest “substantial grounds for difference of opinion may exist where there is a dearth of precedent within the controlling jurisdiction and conflicting decisions in other circuits”7 and that “courts must examine to what extent the controlling law is unclear.”8 But Reindeer has failed to show how the case law is unclear. The Supreme Court was clear in Dan’s City Used Cars Inc. v. Pelkey that the Carmack Amendment no longer governs once the property is no longer in transit.9 And even if no clear precedent existed, the standard for finding “substantial grounds for difference of opinion” where there is no robust case law is permissive and not required. The case law may not speak to certain issues because they are undisputed and infrequently contested in a court setting. A “dearth of precedent” is necessary but not sufficient to satisfy Section 1292(b).

 

7   Racheria v. Salazar, Case No. 07-cv-02681, 2010 U.S. Dist. LEXIS 23317, *38-39 (N.D. Cal. Feb. 23, 2010).

8   Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010).

9   See 133 S. Ct. 1769, 1778, 185 L. Ed. 2d 909 (2013).

Third, Reindeer offers no evidence that an immediate appeal would advance the ultimate termination of the litigation. While Reindeer objects to Anderson’s characterization that the appeal must result in the termination [*5]  of the litigation, Reindeer seems to misunderstand Anderson’s position. Rather, the court understands Anderson to take the position that an immediate appeal would not in any way expedite the final resolution of the case. The underlying purpose of Section 1292(b) is to save time and expense where possible.10 But here, especially in light of Reindeer’s representation that at best an immediate appeal would result in a more narrowed scope of damages, the court can see no way in which certifying the requested appeal would be appropriate.

 

10   See CornerStone Staffing Solutions, Inc. v. James, Case No. 12-cv-01527, 2014 U.S. Dist. LEXIS 48579, 2014 WL 1364993, at *2 (N.D. Cal. Apr. 7, 2014).

The request for certification is DENIED.

SO ORDERED.

Dated: January 23, 2015

/s/ Paul S. Grewal

PAUL S. GREWAL

United States Magistrate Judge

Great American Insurance Company, Inc. v. Megatrux, Inc., et al.

 

EDCV 14-1866 JGB (DTBx)

 

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

 

2015 U.S. Dist. LEXIS 8709

 

 

January 26, 2015, Decided

January 26, 2015, Filed

 

 

COUNSEL:  [*1] Attorney(s) Present for Plaintiff(s): Not Present.

 

Attorney(s) Present for Defendant(s): Not Present.

 

JUDGES: Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE.

 

OPINION BY: JESUS G. BERNAL

 

OPINION

 

CIVIL MINUTES–GENERAL

 

Proceedings: ORDER to Show Cause re: Dismissal for Lack of Prosecution (IN CHAMBERS)

Plaintiff is ORDERED to show cause in writing why this action should not be dismissed for lack of prosecution as against the defendants listed below. See Fed. R. Civ. P. 4(m); Link v. Wabash R. Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (court has inherent power to dismiss for lack of prosecution on its own motion).

 

o Freight Funding, LLC

o Baxter Bailey & Associates

o Tone Transport Company

o 88 Transportation Inc

o M&A Trailer Repair

o Service Transport Incorporated

o Grand Express Corp

o Midwest Transport and Trucking, Inc

o Corelogic

o Castle Peak Carriers 88

o ESA Transportation

o Firstline Funding Group

o Balkan Express, LLC

o P&A Transportation, Inc

o Doc Transportation

o The DB7 Company, LLC

o Quick King Logistics Corp

o N-Johnny Corp

o Advanced Transportation, Inc

o Aerofund Financial

o MVP Trans, Inc

o Ave Transport, Inc

o DDM Logistics

o LJ Express Trucking Company of California, LLC

o VSV Logistics, Inc

o L&J Transportation Companies, Inc

o Merrell Transport

o North American Carriers

o Lubenow Express, LLC

[*2] o S.E.S. Transportation, LLC

o Global Transport Logistics

o Olympic Transfer Corporation

o Blackjack Express, Inc

o Sam Koch & Sons Trucking, Inc

o Owner Operators Independent Drivers Association

 

 

Plaintiff filed its Complaint against numerous defendants, including those listed above, on September 5, 2014. (Doc. No. 1.) Federal Rule of Civil Procedure 4(m) thus allowed Plaintiff until January 5, 2015, to complete service on all defendants.1 There are no proofs of service or executed waivers of service on file with the Court showing that the defendants listed above were served by that date.2 Plaintiff has thus failed to demonstrate that service was accomplished within 120 days of filing of the Complaint as required by Federal Rule of Civil Procedure 4(m), which provides as follows:

 

If a defendant is not served within 120 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

 

 

Fed. R. Civ. P. 4(m).

 

1   Because 120 days expired on Saturday, January 3, 2015, the deadline was extended until Monday, January 5, 2015. [*3]  See Fed. R. Civ. P. 6(a)(1)(C).

2   On January 16, 2015, Plaintiff filed proofs of service with respect to Defendants M&A Trailer Repair, 88 Transportation, Inc., and Doc Transportation. (Doc. Nos. 77, 78 & 79.) However, those proofs of service indicate that service was not completed within the 120-day window specified in Rule 4(m).

Plaintiff can satisfy this order by demonstrating that service was effectuated on each of the defendants listed above within the 120-day deadline — that is, by January 5, 2015 — or by showing “good cause” for Plaintiff’s failure to timely serve the Defendants listed above in accordance with Rule 4(m). Plaintiff must respond to this order in writing by February 5, 2015. Alternatively, Plaintiff can respond to this order by requesting dismissal of the action against the above-listed Defendants. Failure to adequately respond to this order will be deemed consent to the dismissal of the action without prejudice against the defendants listed above.

IT IS SO ORDERED.