Balazhi et al v. Allstate Property and Casualty Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
LJUMNIE BALAZHI, for herself and on
behalf of her Minor Child, A.B., and as
Personal Representative of the Estate of
Shaziman Balazhi,
Plaintiff,
v.
ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY,
Defendant.
Case No. 3:19-cv-00241-JMK
ORDER ON PLAINTIFFS’
APPLICATION FOR
CERTIFICATION OF
INTERLOCUTORY APPEAL
(DOCKET 171)
This matter comes before the Court on Plaintiffs’ Second Application for
Certification Permitting Interlocutory Appeal at Docket 171. The application is opposed.1
Oral argument was not requested and was not necessary. 	For the following reasons, the
Court will deny the application.
I. 	BACKGROUND
On May 16, 2022, the Court issued an order granting partial summary
judgment in Defendant’s favor on the issue of Plaintiffs’ claim of tortious breach of the
1 Docket 175 (Opposition); Docket 176 (Reply).
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
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covenant of good faith and fair dealing under Alaska law.2 Plaintiffs now seek to take an
immediate interlocutory appeal of that order under 28 U.S.C. § 1292(b). Plaintiffs assert
that the Court erred “due to Defendant insurer having told the Plaintiffs that their claims
had no value without considering the Plaintiffs’ ongoing and future medical expenses,
economic losses (such as Shaziman Balazhi’s lost wages and capacity to earn) and non-
economic damages.”3 Plaintiffs assert that this is a controlling question of law on which
there is substantial ground for difference of opinion. 	Plaintiffs further assert that an
interlocutory appeal 	would materially advance this litigation’s 	ultimate termination
because, if the Ninth Circuit cannot hear an immediate appeal of this issue, it “could cause
a retrial” or bifurcation of the upcoming trial.4
Defendant opposes the application. Defendant maintains that the Court did
not err in its evaluation of Plaintiffs’ evidence under the summary judgment standard.5
Defendant also maintains that an interlocutory appeal is not warranted because the Court’s
order did not present any controlling question of law.6
II. 	LEGAL STANDARD
Under 	28 	U.S.C. 	§ 1292(b), 	district 	courts 	may 	certify 	an 	order 	for
interlocutory appeal when the judge “shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference of opinion
2 Docket 159.
3 Docket 171 at 2–3.
4 Id. at 6–7.
5 Docket 175 at 3–4.
6 Id. at 4–6.
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
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and that an immediate appeal from the order may materially advance the ultimate
termination of the litigation.”7 Congress intended district courts to use § 1292(b) “only in
exceptional situations in which allowing an interlocutory appeal would avoid protracted
and expensive litigation.”8 The party pursuing the interlocutory appeal bears the burden to
establish that § 1292(b)’s requirements are met.9
Regarding 	§ 1292(b)’s 	“substantial 	ground 	for 	difference 	of 	opinion”
requirement, the question for the Court is “to what extent the controlling law is unclear.”10
The Ninth Circuit has explained: “That settled law might be applied differently does not
establish a substantial ground for difference of opinion.”11 Furthermore, “a party’s strong
7 It is not fully clear whether § 1292(b) applies to dispositive orders such as partial
summary judgment grants. Some district courts in this circuit have interpreted § 1292(b) to apply
only to non-dispositive orders. See, e.g., Tsyn v. Wells Fargo Advisors, LLC, No. 14-cv-02552-
LB, 2016 WL 1718139, at *3 (N.D. Cal. Apr. 29, 2016) (“Section 1292(b) ‘provides a means for
litigants to bring an immediate appeal of a non-dispositive order . . . .” (quoting Sateriale v. RJ
Reynolds Tobacco Co., No. 2:09-CV-08394-CAS, 2015 WL 3767424, at *2 (C.D. Cal. June 17,
2015))). 	And some Ninth Circuit precedents suggest that the proper procedure in such
circumstances is to file a Rule 54(b) motion. See, e.g., Jewel v. Nat’l Sec. Agency, 810 F.3d 622,
627–28 (9th Cir. 2015) (“‘[A]n order granting partial summary judgment is usually not an
appealable final order under 28 U.S.C. § 1291 because it does not dispose of all the claims.’ An
important exception is found in Rule 54(b) . . . .” (quoting Am. States Ins. Co. v. Dastar Corp., 318
F.3d 881, 884 (9th Cir. 2003))).
The Circuit discussed the differences between § 1292(b) applications and Rule 54(b)
motions in James v. Price Stern Sloan, Inc., 283 F.3d 1064 (9th Cir. 2002). In dicta, the James
court suggested that § 1292(b) cannot be used for dispositive orders. See id. at 1067 n.6. But the
Circuit has accepted appeals of partial summary judgment grants under § 1292(b) both before and
since James. See Juliana v. United States, 947 F.3d 1159, 1165–66 (9th Cir. 2020); Klem v. Cnty.
of Santa Clara, Cal., 208 F.3d 1085, 1089 (9th Cir. 2000); see also Solis v. Jasmine Hall Care
Homes, Inc., 610 F.3d 541, 543 (9th Cir. 2010) (per curiam) (dismissing an appeal of a partial
summary judgment grant because, among other reasons, “[t]he district court did not certify the
appeal under 28 U.S.C. § 1292(b)”). 	For this reason, the Court accepts Plaintiffs’ present
application as properly filed under § 1292(b).
8 In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981).
9 Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010).
10 Id.
11 Id.
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disagreement with the Court’s ruling is not sufficient for there to be a ‘substantial ground
for difference.’”12
III. 	DISCUSSION
In this case, the basis for Plaintiffs’ application is their disagreement with the
Court’s application of settled Alaska law. 	Plaintiffs assert that the Court erred in its
evaluation of the evidence the parties presented on summary judgment. Plaintiffs criticize
the Court’s interpretation of the Alaska Supreme Court’s decision in Lockwood v. GEICO
General Insurance Co.,13 asserting that Lockwood should have dictated a conclusion that
this case presented a genuine dispute of material fact for a jury to decide.14
But 	regardless 	of 	whether 	Plaintiffs’ 	arguments 	about 	Lockwood 	are
correct,15 Plaintiffs’ assertions are nothing more than allegations that the Court “should
have applied settled law differently.”16 	Under controlling Ninth Circuit precedent, such
assertions do not demonstrate the existence of “substantial ground for difference of
opinion” on a controlling question of law.17 The Court therefore concludes that Plaintiffs’
application does not meet the requirements of § 1292(b).
12 Id. (quoting Couch v. Telescope, Inc., No. 2:07-cv-03916-FMC-VBKx, 2008 WL
11363646, at *3 (C.D. Cal. Mar. 26, 2008)).
13 323 P.3d 691 (Alaska 2014).
14 Docket 171 at 2–7; Docket 176 at 1–3.
15 As the Court mentioned in its summary judgment order, Docket 159 at 5, Alaska’s
summary judgment standard is much more “lenient” than the federal summary judgment standard.
Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520–21 & n.51 (Alaska 2014). For that
reason, Lockwood’s conclusion that certain evidence was sufficient to survive summary judgment
under the Alaska state-law standard was of limited relevance to the Court’s ruling.
16 Couch, 611 F.3d at 633.
17 Id.
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
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Accordingly, Plaintiffs’ Second Application for Certification Permitting
Interlocutory Appeal at Docket 171 is DENIED.
IT IS SO ORDERED this 6th day of September, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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