Community Association for Restoration of the Environment Inc et al v. Cow Palace LLC, No. 2:2013cv03016 - Document 331 (E.D. Wash. 2015)
Court Description: ORDER DENYING 322 DEFENDANT COW PALACE LLC'S MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND GRANTING 323 MOTION TO EXPEDITE. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)
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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 9 10 COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT, INC, a Washington Non-Profit Corporation; and CENTER FOR FOOD SAFETY, INC., a Washington, D.C. Non-Profit Corporation, 11 12 13 NO: 2:13-CV-3016-TOR ORDER DENYING DEFENDANT COW PALACE, LLC’S MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS Plaintiffs, v. COW PALACE, LLC, a Washington Limited Liability Company, et al., 14 Defendants. 15 16 BEFORE THE COURT are Defendant Cow Palace, LLC’s Motion for 17 Certification for Interlocutory Appeal of Order Re: Cross Motions for Summary 18 Judgment and Motion to Stay Proceedings Pending Interlocutory Appeal (ECF No. 19 322) and Motion to Expedite (ECF No. 323). These matters were submitted for 20 ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS ~ 1 1 consideration without oral argument. The Court has reviewed the briefing and the 2 record and files herein, and is fully informed. 3 BACKGROUND 4 On January 14, 2015, this Court issued its Order Re: Cross Motions for 5 Summary Judgment (“Order”). ECF No. 320. In its Order, this Court found, inter 6 alia, no genuine issue of material fact that Defendants’ application, storage, and 7 management of manure at Cow Palace Dairy violated RCRA’s substantial and 8 imminent endangerment and open dumping provisions. Id. at 109. Trial regarding 9 several other issues of liability and remedies is currently set to begin March 23, 10 2015, for this matter. Multiple other dairies face proceedings before this Court 11 involving the same or similar issues. See CARE v. George & Margaret LLC, No. 12 13-cv-3017-TOR; CARE v. Henry Bosma Dairy; No. 13-cv-3019. 13 In the instant Motion, Defendant Cow Palace seeks certification for 14 interlocutory appeal and a stay of these proceedings pending appeal. ECF No. 322. 15 If the Court grants this Motion, Defendant seeks final resolution from the Ninth 16 Circuit regarding whether RCRA applies to dairies’ manure management 17 operations. Id. at 2. Plaintiffs oppose both certification for interlocutory appeal 18 and a stay of these proceedings. ECF No. 325. 19 Given the quickly-approaching trial date, this Court will first consider 20 whether, if it were to grant certification for interlocutory appeal, it would stay these ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS ~ 2 1 proceedings pending resolution by the Ninth Circuit. After all, an interlocutory 2 appeal makes little sense with final resolution of this case less than two months 3 away, unless this Court also stays these proceedings. 4 DISCUSSION 5 A. Stay of Proceedings 6 If a party successfully appeals under 28 U.S.C. § 1292(b), such application 7 “shall not stay proceedings in the district court unless the district judge or the 8 Court of Appeals or a judge thereof shall so order.” 28 U.S.C. 1292(b). “The 9 district court has broad discretion to stay proceedings as an incident to its power to 10 control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). Courts 11 traditionally consider four factors when determining whether to grant a stay 12 pending the appeal of a civil order: (1) the likelihood of the moving party’s success 13 on the merits; (2) whether the moving party will be irreparably injured if a stay is 14 not granted; (3) whether a stay will substantially injure the opposing party; and (4) 15 the public interest. See Nken v. Holder, 556 U.S. 418, 426 (2009) (citing Hilton v. 16 Braunskill, 481 U.S. 770, 776 (1987)). 17 Here, this Court finds the public interest in addressing current levels of 18 contamination and minimizing any further risk of harm immeasurably outweighs 19 any argument in favor of staying these proceedings pending appeal. As this Court 20 determined in its previous Order, the Dairy’s operations may currently be ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS ~ 3 1 presenting an imminent and substantial engagement to the nearby residents who 2 are consuming the nitrate-contaminated groundwater. ECF No. 320 at 104-05. 3 Any delay in these proceedings only increases the already-present risk to the public 4 health. Accordingly, this Court declines to stay these proceedings if it grants 5 certification for interlocutory appeal. 6 B. Certification for Interlocutory Appeal 7 Pursuant to 28 U.S.C. § 1292(b), an otherwise non-final order may be 8 subject to interlocutory appeal if the district court certifies, in writing, the 9 following: (1) the order involves a “controlling issue of law,” (2) the controlling 10 issue of law is one to which there is a “substantial ground for difference of 11 opinion,” and (3) “an immediate appeal from the order may materially advance the 12 ultimate termination of the litigation.” 28 U.S.C. § 1292(b). If permission for 13 interlocutory appeal is required, “the district court may amend its order, either on 14 its own or in response to a party’s motion, to include the required permission or 15 statement.” Fed. R. App. Proc. 5(a)(3). As the Ninth Circuit has noted “the 16 legislative history of 1292(b) indicates that this section was to be used only in 17 exceptional situations in which allowing an interlocutory appeal would avoid 18 protracted and expensive litigation.” In re Cement Antitrust Litig., 673 F.2d 1020, 19 1026 (9th Cir. 1982) (emphasis added); see also Coopers & Lybrand v. Livesay, 20 437 U.S. 463, 474 (1978) (“[E]ven if the district judge certifies the order under ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS ~ 4 1 § 1292(b), the appellant still ‘has the burden of persuading the court of appeals that 2 exceptional circumstances justify a departure from the basic policy of postponing 3 appellate review until after the entry of a final judgment.”). 4 Here, this Court declines to certify its Order for interlocutory appeal. 5 Although the first two factors are arguably satisfied, this Court finds that an 6 immediate interlocutory appeal will not materially advance the termination of 7 litigation, even considering the lenient “may” standard afforded by the statutory 8 text. Trial is scheduled to begin in less than two months. Defendant’s Motion 9 comes after two years of extensive discovery and dispositive motion practice and 10 immediately before final resolution of this matter at trial. Without a stay of 11 proceedings, which this Court declines to grant as discussed above, an 12 interlocutory appeal cannot materially advance this litigation: even if the Ninth 13 Circuit were to grant Defendant the relief it seeks, such a ruling could not possibly 14 come into effect before trial has concluded and the remaining liability and remedy 15 issues resolved. Therefore, because granting certification for appeal would not 16 materially advance termination of litigation or otherwise “avoid protracted and 17 expensive litigation,” In re Cement Antitrust Litig., 673 F.3d at 1026, this Court 18 DENIES Defendant Cow Palace’s motion for certification for interlocutory appeal. 19 // 20 // ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS ~ 5 1 2 ACCORDINGLY, IT IS HEREBY ORDERED: 1. Defendant Cow Palace, LLC’s Motion for Certification for Interlocutory 3 Appeal of Order Re: Cross Motions for Summary Judgment and Motion to 4 Stay Proceedings Pending Interlocutory Appeal (ECF No. 322) is DENIED. 5 2. Defendant’s Motion to Expedite (ECF No. 323) consideration of the 6 following motion is GRANTED. 7 The District Court Executive is hereby directed to enter this Order and 8 9 provide copies to counsel. DATED January 28, 2015. 10 11 THOMAS O. RICE United States District Judge 12 13 14 15 16 17 18 19 20 ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS ~ 6
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