Elorreaga v. ABB, Inc.

Background

The opinion addresses Defendant ViacomCBS’s motion under 28 U.S.C. § 1292(b) to certify an earlier order for interlocutory appeal. An interlocutory appeal is an appeal before the district court has entered a final judgment ending the case. The earlier order held that the government-contractor defense described in Boyle v. United Technologies Corp. did not apply to the plaintiffs’ federal maritime-law claims. In that earlier order, the court denied the defendants’ motions for summary judgment and granted the plaintiffs’ motion for partial summary judgment on the defense issue.

Because the earlier order did not end the litigation, the defendants could not appeal it as of right. They therefore sought certification under the narrow exception in Section 1292(b).

Certification Requirements

The court found that all three statutory requirements for certification were met:

1. Controlling question of law. The issue was purely legal and could be resolved without examining the case’s facts. Its resolution could materially affect the litigation because, if the government-contractor defense applied to federal maritime claims, it could provide the defendants with a complete defense or at least affect the evidence presented at trial.

2. Substantial grounds for difference of opinion. The court found that the law was sufficiently unclear for reasonable judges to disagree. Although the government-contractor defense is longstanding, the parties had not identified—and the court had not found—a case directly deciding whether the defense applies to federal claims. The court also noted that several courts had applied the defense to federal claims without analyzing that issue.

3. Material advancement of the litigation. Without an interlocutory appeal, the case would proceed to trial, and the defendants would not be able to present evidence relevant only to the defense. If the Court of Appeals later held that the defense was available, the district court and the parties might have to retry the case. The district court therefore concluded that an immediate appeal could prevent substantial and needless expenditure of court and party resources.

Ruling and Case Status

Judge Haywood S. Gilliam, Jr. granted the defendants’ motion to certify the order concerning the government-contractor defense for interlocutory appeal. The order did not itself grant appellate review; it certified the issue for the defendants to seek review from the Ninth Circuit.

The court directed the parties to meet and confer and file a joint statement by June 23, 2023, addressing when the defendants expected to apply to the Ninth Circuit and whether the case should be stayed while the application—or, if review were granted, the appeal—was pending. The order also terminated Docket No. 204.