United States District Court, D. Massachusetts
SOUTH ORANGE CHIROPRACTIC CENTER, LLC, individually, and on behalf of all others similarly situated, Plaintiff,
CAYAN LLC d/b/a CAPITAL BANKCARD, Defendant.
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge
South Orange Chiropractic Center, LLC (“South
Orange”), filed a proposed a class action alleging that
Defendant Cayan LLC, doing business as Capital Bankcard
(“Capital Bankcard”), sent unsolicited faxes in
violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227.
December 18, 2015, Capital Bankcard served South Orange with
a settlement offer and an offer of judgment pursuant to
Federal Rule of Civil Procedure 68. On the basis of these
offers, Capital Bankcard moved to dismiss the case as moot.
Soon thereafter, the Supreme Court ruled that an unaccepted
offer of judgment, without more, does not moot a named
plaintiff’s claims. Campbell-Ewald Co. v.
Gomez, 136 S.Ct. 663, 670 (2016). Seeking another avenue
to mootness, Capital Bankcard then requested permission to
deposit a check with the Court and have the Court enter
judgment against it.
April 12, 2016, the Court denied Capital Bankcard’s
motion to dismiss. South Orange Chiropractic Ctr., LLC v.
Cayan LLC, No. 15-13069-PBS, 2016 WL 1441791 (D. Mass.
Apr. 12, 2016). The Court assumes familiarity with that
opinion, which sets forth the factual allegations in the
complaint. The Court held that while the named plaintiff
received complete relief for its individual claims, the class
action remained justiciable. The Court then requested that
the parties confer on whether to certify the Court’s
order for interlocutory review under 28 U.S.C. §
1292(b). On May 6, 2016, Capital Bankcard filed a motion to
certify the Court’s April 12, 2016 order for
interlocutory appeal. The defendant’s motion to certify
(Docket No. 55) is DENIED.
the United States Courts of Appeal have jurisdiction only to
hear appeals from final decisions of the district courts.
See 28 U.S.C. § 1291. In limited circumstances,
however, district courts may certify interlocutory appeals of
decisions that are not final. See id. §
1292(b). Interlocutory appeals under § 1292(b) require
an order that (1) “involves a controlling question of
law, ” (2) “as to which there is substantial
ground for difference of opinion, ” and (3) as to which
“an immediate appeal from the order may materially
advance the ultimate termination of the litigation.”
Id.; see Caraballo-Seda v. Mun. of
Hormigueros, 395 F.3d 7, 9 (1st Cir. 2005). These
appeals “require, among other things, leave of both the
trial and appellate courts.” Camacho v. P.R. Ports
Auth., 369 F.3d 570, 573 (1st Cir. 2004) (“Section
1292(b) is meant to be used sparingly, and appeals under it
are, accordingly, hen’s-teeth rare.”).
general rule, the First Circuit does not grant interlocutory
appeals from a denial of a motion to dismiss.
Caraballo-Seda, 395 F.3d at 9. The reluctance to
grant interlocutory appeals reflects the First
Circuit’s “policy preference against piecemeal
litigation.” Id. “Certification under
§ 1292(b) is an extraordinary procedure and the party
seeking it bears a heavy burden of convincing the court that
‘exceptional circumstances justify a departure from the
basic policy of postponing appellate review until after the
entry of final judgment.’” United Air Lines,
Inc. v. Gregory, 716 F.Supp.2d 79, 89 (D. Mass. 2010)
(quoting Coopers & Lybrand v. Livesay, 437 U.S.
463, 475 (1978)). The “fact that the case has
‘tremendous implications’” is not
determinative. Caraballo-Seda, 395 F.3d at 9
(quoting Slade v. Shearson, Hammill & Co., 517
F.2d 398, 400 (2d Cir. 1974)).
defendant argues-and the plaintiff does not contest- that the
Court’s April 12, 2016 order involves a controlling
question of law and that immediate appeal may materially
advance the termination of the litigation.
controlling question of law usually involves “a
question of the meaning of a statutory or constitutional
provision, regulation, or common law doctrine” rather
than an application of law to the facts. Ahrenholz v. Bd.
of Tr. of Univ. of Ill., 219 F.3d 674, 676 (7th Cir.
2000). “[W]hat the framers of § 1292(b) had in
mind is more of an abstract legal issue or what might be
called one of pure law, matters the court of appeals can
decide quickly and cleanly without having to study the
record.” McFarlin v. Conseco Servs., LLC, 381
F.3d 1251, 1258 (11th Cir. 2004) (internal quotation marks
requirement that an appeal may materially advance the
ultimate termination of the litigation is closely tied to the
requirement that the order involve a controlling question of
law.” Philip Morris Inc. v. Harshbarger, 957
F.Supp. 327, 330 (D. Mass. 1997) (quoting 16 Charles Alan
Wright et al., Federal Practice and Procedure §
3930 (2d ed. 1996)). Questions “found to be controlling
commonly involve the possibility of avoiding trial
proceedings, or at least curtailing and simplifying pretrial
or trial.” 16 Charles Alan Wright et al., Federal
Practice and Procedure § 3930 (3d ed. 1998).
Court agrees that the question of whether a class action
remains justiciable after a defendant’s attempt to
“pick off” the named plaintiff is a controlling
question of law. The issue is a purely legal one and
resolution of the issue does not require extensive
familiarity with the factual record. The Court also finds
that immediate appeal would materially advance the
termination of the litigation; if the First Circuit concluded
that a defendant could moot an entire proposed class action
by depositing a check with the Court in the amount of the
named plaintiff’s individual demands, the case would
come to a close.
more difficult question is whether there is substantial
ground for difference of opinion on this controlling question
of law. The defendant emphasizes that the Supreme Court in
Campbell-Ewald reserved this particular question and
that the four dissenting Justices would have resolved it in
the defendant’s favor. The plaintiff responds that all
of the decisions subsequent to Campbell-Ewald are
consistent with this Court’s April 12, 2016 order.
may be substantial ground for difference of opinion when an
issue involves “one or more difficult and pivotal
questions of law not settled by controlling authority.”