United States District Court, E.D. Michigan, Southern Division
BRIAN LYNGAAS, D.D.S., individually and as the representative of a class of similarly situated persons, Plaintiff,
CURADEN AG, et al., Defendants.
OPINION & ORDER DENYING DEFENDANTS' MOTION TO
STAY (DKT. 91)
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
23, 2019, this Court entered an Opinion and Order which,
inter alia, certified a class (Dkt. 89). Defendants
Curaden AG and Curaden USA have appealed this ruling pursuant
to Federal Rule of Civil Procedure 23(f), and now ask the
Court to stay this case while the appeal is pending (Dkt.
91). Plaintiff Brian Lyngaas opposes Defendants' motion.
For the reasons that follow, the Court denies Defendants'
motion to stay.
STANDARD OF REVIEW
23(f) confers discretion upon the district court to stay
proceedings pending appeal of an order granting or denying
class certification. On a motion to stay pending appeal, the
Court considers “(1) whether the defendant has a strong
or substantial likelihood of success on the merits; (2)
whether the defendant will suffer irreparable harm if the
district court proceedings are not stayed; (3) whether
staying the district court proceedings will substantially
injure other interested parties; and (4) where the public
interest lies.” Baker v. Adams Cty./Ohio Vally Sch.
Bd., 310 F.3d 927, 928 (6th Cir. 2002); see also
Beattie v. CenturyTel., Inc., No. 02-10277, 2006 WL
1722207, at *2-*3 (E.D. Mich. June 20, 2006) (applying these
factors to a motion to stay pending a Rule 23(f) appeal).
These factors are to be balanced. The strength of the
likelihood of success on the merits that must be demonstrated
is inversely proportional to the degree of irreparable harm
that will be suffered absent a stay. Baker, 310 F.3d
Likelihood of success on the merits
Turning first to Defendants' likelihood of success on the
merits, the Court finds that this factor weighs against
issuing a stay. Defendants' burden with respect to
showing a likelihood of success on the merits is two-fold:
they must show that it is likely that their Rule 23(f)
petition will be granted, and that they will prevail on the
merits of their petition. In re Polyurethane Foam
Antitrust Litig., No. 10-md-2196, 2014 WL 12591692, at
*1 (N.D. Ohio May 16, 2014).
initial matter, the Sixth Circuit may decide not to hear
Defendants' appeal. A Rule 23(f) appeal “is never
to be routine, ” and “Rule 23(f) appeals will be
the exception, not the norm.” In re Delta Air
Lines, 310 F.3d 953, 959-960 (6th Cir. 2002). Although
there is no “hard-and-fast test” that the Sixth
Circuit uses to determine whether to grant a Rule 23(f)
petition, the Sixth Circuit has explained that it may allow
an appeal when the class certification decision is
essentially a “death-knell” for the litigation,
when the case raises “a novel or unsettled question,
” or when a petitioner has a particularly strong
likelihood of success on the merits under the deferential
abuse-of-discretion standard, among other bases. Id.
Court finds it unlikely that the Sixth Circuit would hear the
appeal on the theory that this Court's decision would be
a “death-knell” for the litigation. In
Delta, the Sixth Circuit explained that a defendant
who contends that the costs of continuing litigation would
present such a barrier that later review would be hampered
“must go beyond a general assertion, ” and
“provide the court insight into potential expenses and
liabilities.” 310 F.3d at 960. Defendants'
petition, attached as an exhibit to the motion to stay,
stresses that damages in this case “possibly exceed
$30 million, ” but does not provide any further detail
regarding Defendants' inability to continue this case
without review of the class certification order. Pet. for
Permission to Appeal, Ex. 1 to Defs. Mot., at 20 (Dkt. 91-1).
This does not provide the insight the Sixth Circuit requires.
Court also finds it unlikely that the Sixth Circuit would
grant Defendants' petition on the grounds of a strong
likelihood of success on the merits. The Court carefully
considered the arguments raised by Defendants in connection
with the motion for class certification, and Defendants have
offered no new substantive arguments that would lead this
Court to reconsider its conclusions. For the reasons set
forth in this Court's May 23, 2019 Opinion, the Court
cannot conclude that Defendants have a strong likelihood of
succeeding on the merits.
be that the Sixth Circuit decides to hear the appeal based on
novel or unsettled issues of class certification law.
Defendants raise three grounds for the Sixth Circuit to
reverse this Court's decision on class certification: (1)
the Court certified a class consisting of out-of-state
Plaintiffs; (2) the class includes members who may have
received an e-fax; and (3) the Court certified a class even
though Plaintiff did not present admissible evidence
supporting his argument. The second ground does not go to an
issue of class certification; it concerns the merits of the
case, making it unlikely that the Sixth Circuit would decide
to consider it on a Rule 23(f) appeal. Delta, 310
F.3d at 960 (noting that cases raising a novel or unsettled
question “weigh more heavily in favor of review when
the question is of relevance not only in the litigation
before the court, but also to class litigation in
general”). While the first and third grounds admittedly
present unsettled issues of law in this Circuit, the Sixth
Circuit may determine that those issues are better resolved
at the end of the case rather than on interlocutory appeal.
it is unlikely that, if the Sixth Circuit does take the
appeal, Defendants would prevail on appeal. An order granting
class certification “is subject to a very limited
review and will be reversed only upon a strong showing that
the district court's decision was a clear abuse of
discretion.” Olden v. LaFarge Corp., 383 F.3d
495, 507 (6th Cir. 2004). For the reasons set forth in the
Court's May 23, 2019 Opinion, Defendants' arguments
are unlikely to prevail. The first factor weighs against
granting a stay.