Head v. Costco Wholesale Corporation

Background

Costco moved under 28 U.S.C. § 1292(b) for certification of an interlocutory appeal, meaning an appeal before the district court case is finished. The proposed appeal concerned whether a failure-to-accommodate claim, and any related claim, could be based on an associational disability. The court had discussed that legal issue in an earlier summary-judgment order, and the opinion states that conflicting authorities addressed it.

Legal standard

Section 1292(b) permits certification only when three requirements are met: there is a controlling question of law, substantial grounds for disagreement about that question, and an immediate appeal may materially advance the ultimate end of the litigation.

Court’s analysis

The court concluded that Costco had identified a controlling question of law. It also found substantial grounds for disagreement because the authorities conflicted and fair-minded judges could reach different conclusions.

The court found that the third requirement strongly weighed against certification. Costco had not raised the pure legal issue until summary judgment, close to the scheduled trial. The court stated that raising the issue on the eve of trial and stopping the trial would cause more delay than simply trying the case four months later. It also noted that, because the issue was based on state law, certification would require the United States Court of Appeals for the Ninth Circuit to consider certifying the question to the California Supreme Court. The court further observed that the issue might become moot if Costco prevailed, while a normal appeal could be filed only a few months later if Costco lost at trial.

Disposition

The court denied Costco’s motion to certify the matter for an interlocutory appeal. The order disposed of Docket No. 34. It did not resolve the underlying legal question or the claims in the case.