United States District Court, E.D. Wisconsin
JOHN KISTING, on behalf of himself and all others similarly situated, Plaintiff,
GREGG APPLIANCES, INC. d/b/a hhgregg, Defendant.
DECISION AND ORDER ON PLAINTIFF'S MOTION TO AMEND
DECISION TO INCLUDE CERTIFICATION FOR INTERLOCUTORY
JOSEPH, United States Magistrate Judge
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.)
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.
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).
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.
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).
Question of Law
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
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).
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 ...