Opinion
No. 09-56859.
Argued and Submitted February 17, 2011.
Filed March 8, 2011.
David Boies, Boies, Schiller Flexner, Armonk, NY, George F. Carpinello, Adam R. Shaw, Boies Schiller Flexner LLP, Albany, NY, Charles Juntikka, Esquire, Charles Juntikka Associates LLP, New York, NY, Daniel Wolf, Esquire, Law Offices of Daniel Wolf, Gregory Andrew Beck, Deepak Gupta, Public Citizen Litigation Group, Washington, DC, David Laurence Zifkin, Boies, Schiller Flexner LLP, Santa Monica, CA, for Plaintiffs-Appellants.
Allison S. Elgart, Michael Sobol, Esquire, Paul A. Moore, Esquire, Lieff Cabraser Heimann Bernstein, LLP, San Francisco, CA, Brian C. Frontino, Esquire, Stephen J. Newman, Esquire, Partner, Julie Sorenson Stanger, Esquire, Julia B. Strickland, Stroock Stroock Lavan LLP, Daniel John McLoon, Esquire, Michael Gregory Morgan, Esquire, Christopher Dengler, Angel Ho, Jones Day, Los Angeles, CA, Leonard A. Bennett, Esquire, Consumer Litigation Associates, Newport News, VA, Michael Allen Caddell, Cynthia B. Chapman, George Y. Nino, Esquire, Caddell Chapman, Houston, TX, Charles Marshall Delbaum, Stuart T. Rossman, Boston, MA, Matthew James Erausquin, Esquire, Consumer Litigation Associates, Fairfax, VA, Mitchell A. Toups, Weller, Green, Toups Terrell, L.L.P., Beaumont, TX, Gino Paul Pietro, Esquire, Pietro Associates, Santa Ana, CA, Lee A. Sherman, Esquire, Callahan, Thompson, Sherman Caudill, LLP, Tustin, CA, Thomas R. Malcolm, Esquire, Jones Day, Irvine, CA, Craig E. Bertschi, Cindy D, Hanson, Esquire, Kilpatrick Stockton, LLP, Atlanta, GA, Thomas Quinn, Esquire, Nokes Quinn APC, Laguna Beach, CA, for Defendants-Appellees.
Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding. D.C. No. 8:05-cv-01070-DOC-MLG.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Plaintiffs-Appellants and their counsel, Charles Juntikka ("Juntikka"), appeal that portion of the district court's order denying Juntikka's motion to allow him to contact members of the class, who, Juntikka alleged, were his former clients. Finding that we lack jurisdiction, we dismiss the appeal.
Appellants cite three bases for appellate jurisdiction. First, they contend that we have jurisdiction under the collateral order doctrine of 28 U.S.C. § 1291, set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Second, they argue that the district court's order is an appealable injunction under 28 U.S.C. § 1292(a)(1). Finally, they contend that mandamus provides an appropriate means for review.
Each of these bases for interlocutory appellate jurisdiction requires that the order be effectively unreviewable on appeal from a final judgment. See United States v. Godinez-Ortiz, 563 F.3d 1022, 1026 (9th Cir. 2009) (quoting Sett v. United States, 539 U.S. 166, 176, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003)) (stating that an interim order may be appealed under the collateral order doctrine where, among other things, it is effectively unreviewable on appeal from a final judgment); Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1097 (9th Cir. 2008) (an order may be appealed as an injunction under 28 U.S.C. § 1292(a)(1) if it "can be effectively challenged only by immediate appeal" (internal quotations omitted)); Bauman v. U.S. Dist. Court, 557 F.2d 650, 654 (9th Cir. 1977) (noting that mandamus is generally appropriate only where "[t]he party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires").
The district court's order simply concerns the management of a class action, a matter entrusted to the district court's discretion under Rule 23(d)(1). The order is typical of class action management orders that may be reviewed on direct appeal from a final judgment. See In re Sugar Antitrust Litig., 559 F.2d 481, 484 (9th Cir. 1977) (per curiam) (stating that the district court's order certifying indirect purchasers as class members could be appealed following entry of the final judgment). This is true even though the order limits Juntikka's communications with class members. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).
Appellants contend that requiring them to wait until entry of final judgment will effectively deny them review because any delay will result in denial of their First Amendment rights. We disagree. This is not an instance where Juntikka has been completely prohibited from contacting his former clients.
DISMISSED.