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Kisting v. Gregg Appliances, Inc.

United States District Court, E.D. Wisconsin

January 4, 2017

JOHN KISTING, on behalf of himself and all others similarly situated, Plaintiff,
GREGG APPLIANCES, INC. d/b/a hhgregg, Defendant.


          NANCY JOSEPH, United States Magistrate Judge

         John Kisting filed a class action complaint alleging breach of express warranty; breach of the implied warranty of merchantability; breach of contract; unjust enrichment; and violations of the Magnuson-Moss Act (15 U.S.C. §§ 2301, et seq.), Wisconsin's Deceptive Trade Practices Act (“DTPA”) (Wis. Stat. § 100.18), and Wis.Stat. §§ 895.446 and 943.20(1)(d) against Gregg Appliances, Inc. d/b/a hhgregg arising out of injuries sustained as a result of Gregg's alleged false advertising relating to the sale of Samsung 4K televisions to consumers in the State of Wisconsin. Gregg moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss those putative class members who purchased different televisions and viewed different advertisements than Kisting on the ground that Kisting lacks standing to represent them. I previously granted Gregg's motion and limited Kisting's putative class to those who purchased the same television model he did. (Docket # 23.)

         Kisting now asks that I amend the order to include a certification that it satisfies the criteria set forth in 28 U.S.C. § 1292(b) for an interlocutory appeal to the Seventh Circuit. (Docket # 30.) Gregg opposes the motion. (Docket # 34.) For the reasons stated below, Kisting's motion is denied.


         As an initial matter, although Kisting notes that Fed.R.Civ.P. 23(f) does not control his motion, he urges me to utilize this standard and all but ignores the criteria set forth in § 1292(b). As Kisting acknowledges, Rule 23(f) addresses appeals from an order granting or denying class action certification. While Kisting argues that my decision on standing has the same result as denying class certification, the decision did not, in fact, deny class certification. Thus, I am obliged to address Kisting's motion using the criteria outlined in § 1292(b).

         Section 1292(b) provides that a district court may certify for immediate appeal interlocutory orders entered in civil cases that present “a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “There are four statutory criteria for the grant of a section 1292(b) petition to guide the district court: there must be a question of law, it must be controlling, it must be contestable, and its resolution must promise to speed up the litigation.” Ahrenholz v. Bd. of Trustees of Univ. of Illinois, 219 F.3d 674, 675 (7th Cir. 2000) (emphasis in original). Additionally, the petition must be filed in the district court within a reasonable time after the order sought to be appealed. Id. “Unless all these criteria are satisfied, the district court may not and should not certify its order to [the appellate court] for an immediate appeal under section 1292(b).” Id. at 676 (emphasis in original). I will address each criteria in turn.


         Although the parties do not address the timeliness issue, I find that Kisting's motion, filed less than one month after my order on the motion to dismiss, is timely. See Boim v. Quaranic Literacy Inst. & Holy Land Found. for Relief & Dev., 291 F.3d 1000, 1008 (7th Cir. 2002) (finding that motions for certificates of appealability filed on February 14, 2001 were filed within a reasonable amount of time after the court's January 10, 2001 decision).

         Statutory Criteria

         1. Question of Law

         The phrase “question of law” refers to “a question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine.” Ahrenholz, 219 F.3d at 676. “Question of law” is referred to “in much the same way a lay person might, as referring to a ‘pure' question of law rather than merely to an issue that might be free from a factual contest.” Id. at 676-77. Put simply, the court of appeals stated that the idea behind § 1292(b) is “that if a case turn[s] on a pure question of law, something the court of appeals could decide quickly and cleanly without having to study the record, the court should be enabled to do so without having to wait till the end of the case.” Id. at 677. The Seventh Circuit has instructed that a “question of law” under § 1292(b) means an “abstract legal issue rather than an issue of whether summary judgment should be granted.” Id.

         The question presented in Gregg's motion to dismiss was whether an individual has standing to represent putative class members for products he or she did not purchase. Kisting does not attempt to demonstrate that this question constitutes a pure question of law as contemplated by Ahrenholz. Although I noted that this issue is unsettled across the country and that courts generally fell into three categories in analyzing the issue, I disagree that this presents a pure question of law. After reviewing the cases and considering all three approaches, I held that an individual does not have standing to bring claims for products he did not purchase. However, in so holding, it was necessary to review Kisting's complaint to scrutinize the type of product he allegedly purchased and the advertisements he allegedly viewed. Because of this, I do not find that the court of appeals could “quickly and cleanly” decide the issue without delving into the record. See id. As such, Kisting has not shown that the issue presents a question of law as contemplated by § 1292(b).

         2. Controlling

         Because all four statutory elements must be satisfied to grant a § 1292(b) petition, my analysis could end here with Kisting's failure to meet the first statutory element. However, for the sake of completeness, I will address the other three elements. The second element is whether the question at issue is controlling. A question of law may be deemed “controlling” if its resolution is quite likely to affect the further course of the litigation, even if not certain to do so. Sokaogon Gaming Enter. Corp. v. Tushie-Montgomery Associates, Inc., 86 F.3d 656, 659 (7th Cir. 1996). “This axiom, however, must not be read without context, for certainly any number of interlocutory orders may, in any given case, be ‘quite likely to affect the further course of the litigation.'” Kostal v. Life Ins. Co. of N. Am., No. 09-CV-31, 2011 WL 5374432, *1 (E.D. Wis. Nov. 7, 2011). Further, a question of law is not “controlling” merely because it is ...

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