Francie Moeller v. Taco Bell Corp. , 531 F. App'x 805 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCIE E. MOELLER; EDWARD No. 12-17144
MUEGGE; KATHERINE CORBETT;
CRAIG THOMAS YATES, D.C. No. 4:02-cv-05849-PJH
Plaintiffs - Appellants,
MEMORANDUM*
v.
TACO BELL CORP.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted June 13, 2013
San Francisco, California
Before: O’SCANNLAIN and M. SMITH, Circuit Judges, and ANELLO, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
Plaintiffs-Appellants (Plaintiffs) attempt to appeal two orders of the district
court. One order amended the findings of facts and conclusions of law the court
had issued after the first phase of a bifurcated trial regarding an exemplar Taco
Bell restaurant. The second modified the court’s case management plan. Both
stated that the district court would defer any decision concerning whether it would
grant any form of injunctive relief. Plaintiffs assert that we have jurisdiction to
review the referenced orders pursuant to 28 U.S.C. § 1292(a)(1), which gives us
jurisdiction to review “orders of the district courts of the United States . . .
granting, continuing, modifying, refusing or dissolving injunctions.” We disagree,
and dismiss for lack of jurisdiction.
The district court’s decision to defer judgment on the merits of a permanent
injunction is not an express refusal to enter an injunction. See Paige v. California,
102 F.3d 1035, 1038 (9th Cir. 1996) (explaining that orders that fall “squarely
within the scope of § 1292(a)(1)” are appealable as a matter of right). Nor have
plaintiffs satisfied the Supreme Court’s “practical effect” test by demonstrating that
the orders have “serious, perhaps irreparable consequences that petitioners can
effectually challenge only by an immediate appeal.” Carson v. Am. Brands, Inc.,
450 U.S. 79, 90 (1981) (internal quotation marks omitted); see also Oregon
Natural Res. Council, Inc. v. Kantor, 99 F.3d 334, 337 (9th Cir. 1996). In the ten
year span of this litigation, plaintiffs have never sought any form of preliminary
injunctive relief. Therefore, in this case, as was true in the Supreme Court’s
decision in Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., 385
U.S. 23 (1966), “not only [is] the [district] court free to grant the requested
injunctive relief in full after conducting [full proceedings] on the merits, but it [is]
also not precluded from granting a motion for preliminary injunction during the
pendency of the litigation if petitioners were to allege that further delay would
cause them irreparable harm.” Carson, 450 U.S. at 85 n.10 (describing the Court’s
reasoning in Switzerland Cheese).
DISMISSED.