Alyssa Jones v. Riot Hospitality Group LLC ( 2022 )

FILED
NOT FOR PUBLICATION
FEB 9 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALYSSA JONES, No. 20-15407
Plaintiff-Appellant, D.C. No. 2:17-cv-04612-GMS
ELLE FOSTER; et al.,
MEMORANDUM*
Appellants,
v.
RIOT HOSPITALITY GROUP LLC, now
known as Noatoz LLC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
Submitted February 7, 2022**
Phoenix, Arizona
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GRABER and MILLER, Circuit Judges, and FITZWATER,*** District Judge.
In this appeal from a March 4, 2020 discovery order, as amended on August 10,
2020 (collectively, the “Discovery Orders”), entered in ongoing litigation, we
conclude that we lack appellate jurisdiction, and we dismiss the appeal.
I
After this appeal was docketed, the clerk of this court issued a show cause order
noting that “[a] review of the record suggests that this court may lack jurisdiction over
the appeal because the order challenged in the appeal may not be final or appealable.”
The order directed that “appellant shall move for voluntary dismissal of the appeal or
show cause why the appeal should not be dismissed for lack of jurisdiction.” After
the parties filed memoranda addressing the jurisdictional issue, a panel of this court
“discharged” the clerk of court’s show cause order and set a briefing schedule.
After merits briefing commenced, defendants-appellees (collectively,
“Appellees”) filed a motion to dismiss for lack of jurisdiction. The parties then
submitted briefing on the motion, which a motions panel of this court “denied without
prejudice to renewing the arguments in the answering brief.” Appellees now raise the
jurisdictional challenge in their answering brief. Appellants argue in reply that this
***
The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.
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court has twice rejected jurisdictional challenges and that these rulings should stand.
The parties have also submitted letter briefs on the jurisdictional question.1
II
1. The Discovery Orders are not appealable under 28 U.S.C. § 1292(a)(1).
Section 1292(a)(1) provides that “courts of appeals shall have jurisdiction of appeals
from: [i]nterlocutory orders of the district courts . . . granting, continuing, modifying,
refusing or dissolving injunctions . . . .” This court has held that § 1292(a)(1)
authorizes appellate jurisdiction over orders granting an injunction and orders that
have the practical effect of granting an injunction. See Orange Cnty. v. Hongkong &
Shanghai Banking Corp., 52 F.3d 821, 825 (9th Cir. 1995); Gon v. First State Ins. Co.,
871 F.2d 863, 865 (9th Cir. 1989).
The Discovery Orders are not injunctions. An injunction has three elements:
1
Appellants point to the motions panel’s decision to “discharge[]” the
show cause order as supporting the conclusion that this court has appellate
jurisdiction. We disagree. As a merits panel, we have a duty to assess our
jurisdiction. See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1032 n.3 (9th Cir.
1990) (stating that, even when a motions panel has already ruled that the court has
jurisdiction, a merits panel has an independent duty to determine its jurisdiction); see
also Sackett v. U.S. Envtl. Prot. Agency, 8 F.4th 1075, 1082 n.4 (9th Cir. 2021) (“In
an unpublished order, a motions panel denied the motion to dismiss without prejudice
to EPA’s renewing the argument in opposition . . . . That prior ruling does not
eliminate the need for us to reassess this jurisdictional question.”). Further, the
motions panel discharged the show cause order without explicitly addressing the
jurisdictional issue.
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it is “an order that is directed to a party, enforceable by contempt, and designed to
accord or protect some or all of the substantive relief sought by a complaint in more
than temporary fashion.” Gon, 871 F.2d at 865. The Discovery Orders do not satisfy
the third element. In the district court, plaintiff seeks relief in the form of damages for
certain alleged violations of federal and state law. Unlike in Gon, however, the
Discovery Orders plainly do not award Appellants or Appellees the substantive relief
they seek. See id. at 865–66. Rather, as in In re Lorillard Tobacco Co., 370 F.3d 982(9th Cir. 2004), the Discovery Orders preserve data that are relevant for trial—i.e., the
orders “concern[] the conduct of the parties . . . while awaiting trial.” Id. at 987(ellipsis in original) (internal quotation marks omitted).
Nor do the Discovery Orders have the practical effect of granting an injunction.
To determine whether an order has this effect, the court considers the following: “(1)
does the order have the practical effect of the grant or denial of an injunction; (2) does
the order have serious, perhaps irreparable consequences; and (3) is the order one that
can be effectively challenged only by immediate appeal?” Negrete v. Allianz Life Ins.
Co. of N. Am., 523 F.3d 1091, 1097 (9th Cir. 2008) (internal quotation marks omitted).
The Discovery Orders do not satisfy the second element. Appellants filed
affidavits discussing the harms they would face from being without their cell phones
for hours while the data from the phones are being downloaded. But this type of
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injury is insufficient to constitute irreparable injury because the harms described may
be remedied by expending money to secure an alternate way to communicate during
the short period they are without their cell phones. See United States v. El Dorado
Cnty., 704 F.3d 1261, 1265 (9th Cir. 2013) (“Mere injuries, however substantial, in
terms of money, time and energy necessarily expended . . . are not enough” to show
irreparable injury (ellipsis in original) (internal quotation marks omitted)).2
Further, assuming arguendo that the Discovery Orders meet the second
element, they do not satisfy the third: that the Discovery Orders are “one[s] that can
be effectively challenged only by immediate appeal.” Negrete, 523 F.3d at 1097. A
party or non-party can appeal a discovery order if she refuses to comply with the order
and is held in contempt. Bank of Am. v. Nat’l Mortg. Equity Corp., 857 F.2d 1238,
1239 (9th Cir. 1988) (per curiam). And Appellants can take an appeal from a later,
final judgment in this case. See id. at 1240 (“[A]ny unfair use of the information or
2
To the extent Appellants contend that they will suffer irreparable harm
to their Fourth Amendment privacy interests, we are unpersuaded. Litigants have
made similar arguments under the collateral order doctrine, which the Supreme Court
has rejected; indeed, it “routinely require[s] litigants to wait until after final judgment
to vindicate valuable rights.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
108–09 (2009) (attorney-client privilege); see Richardson-Merrell, Inc. v. Koller, 472
U.S. 424, 426 (1985) (disqualification of counsel in civil case); Flanagan v. United
States, 465 U.S. 259, 260 (1984) (disqualification of counsel in criminal case). This
suggests that Appellants would not suffer irreparable harm here, even if a violation of
a valuable right is assumed.
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documents produced as a result of an improper order can be corrected on appeal from
final judgment in the case.”)
2. Nor are the Discovery Orders appealable under the collateral order doctrine.
Collateral orders are a “small category” of decisions that are immediately appealable
despite not being final judgments. Mohawk Indus., Inc, 558 U.S. at 106. “That small
category includes only decisions that are conclusive, that resolve important questions
separate from the merits, and that are effectively unreviewable on appeal from the
final judgment in the underlying action.” Swint v. Chambers Cnty. Comm’n, 514 U.S.
35, 42 (1995). Discovery orders generally do not qualify under the collateral order
doctrine. See Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1490 (9th Cir. 1989)
(“Discovery orders are not final appealable orders under 28 U.S.C. § 1291, and courts
have refused interlocutory review of such orders under the collateral order doctrine.”).
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The Discovery Orders do not satisfy the third element of a collateral order. As
discussed, they are reviewable either after a final judgment or, if needed, after
contempt sanctions are imposed.
DISMISSED.
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