Tyrell Glass v. Fmm Enterprises, Inc. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYRELL GLASS; et al., No. 18-55291
Plaintiffs-Appellees, D.C. No.
3:17-cv-00563-JAH-KSC
v.
FMM ENTERPRISES, INC.; et al., ORDER*
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted November 9, 2018
Pasadena, California
Before: RAWLINSON, MELLOY,** and HURWITZ, Circuit Judges.
Defendants FMM Enterprises, Inc., GTPD Enterprises, Inc., Cynthia Walsh,
Ryan McAweeney, and Neil Billock appeal two district court orders that temporarily
forbid the parties in this putative class action from communicating with putative
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
class members until a curative notice can be approved by the court and distributed.
We dismiss this appeal for lack of jurisdiction.1
1. The district court’s orders, which were issued under Federal Rule of
Civil Procedure 23(d), are not injunctions for purposes of 28 U.S.C. § 1292(a)(1).
Moreover, they can be effectively challenged by direct appeal after a final judgment.
See Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1077 (9th Cir. 2010) (“To
be appealable under section 1292(a)(1), as having the ‘practical effect’ of an
injunction, the district court’s order ‘must (1) have the practical effect of entering an
injunction, (2) have serious, perhaps irreparable, consequences, and (3) be such that
an immediate appeal is the only effective way to challenge it.’” (citations omitted));
cf. Gulf Oil Co. v. Bernard, 452 U.S. 89, 94–95, 97, 103 (1981) (reversing a Rule
23(d) order “[o]n appeal from a subsequent final order”); Wang v. Chinese Daily
News, Inc., 623 F.3d 743, 749–50, 755–58 (9th Cir. 2010) (reviewing a Rule 23(d)
order after final judgment had been entered), vacated on other grounds, 565 U.S.
801 (2011) (mem.); Domingo v. New England Fish Co., 727 F.2d 1429, 1439–41
(9th Cir. 1984) (per curiam) (reversing a communication-limiting, pre-trial order
after judgment), modified, 742 F.2d 520 (9th Cir. 1984).
1
The Plaintiffs also move this Court for leave to file a sur-reply brief on the merits
of the case. Because we dismiss for lack of jurisdiction, we deny the Plaintiffs’
motion as moot.
2
2. Because they can be effectively reviewed on appeal from a final
judgment, the district court’s orders are also not final collateral orders. See
Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766 (9th Cir. 2017) (“To establish
jurisdiction under the collateral order doctrine, the appellants must show the order
they seek to appeal [1] determines the disputed question conclusively, [2] resolves
an important issue completely separate from the merits of the action, and [3] is
effectively unreviewable on appeal from a final judgment.”).
3. Finally, mandamus relief is not appropriate here. None of the factors
we are required to consider when deciding whether to grant this extraordinary
remedy favor granting the mandamus. See Barnes v. Sea Hawaii Rafting, LLC, 889
F.3d 517, 535 (9th Cir. 2018).
DISMISSED.
3
Glass v. FMM Enterprises, Inc., No 18-55291 FILED
RAWLINSON, Circuit Judge, concurring: MAR 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.