Presbyterian Health Plan, Inc. v. Pruess

(D.C. No. 1:19-CV-00629-DHU-JFR) (D. N.M.)

Before BACHARACH, PHILLIPS, and FEDERICO, Circuit Judges.

ORDER

This matter is before the court on Petitioners Presbyterian Health Plan, Inc. and Fluent Health, LLC's Petition for Permission to Appeal Under Federal Rule of Civil Procedure 23(f) . See Fed. R. App. P. 5(a); Fed.R.Civ.P. 23(f). Respondents filed a response in opposition. Petitioners also filed an unopposed motion for leave to file a reply, which includes a proposed reply, and an unopposed motion to seal Volume 9 of their appendix. As an initial matter, the motion for leave to file a reply is GRANTED.

The reply shall be filed as of the date it was received. The motion to seal is also granted. Appendix Volume 9 shall remain under seal.

"A court of appeals may permit an appeal from an order of a district court granting or denying class-action certification...." Fed.R.Civ.P. 23(f) (emphasis added). This discretion is "'unfettered' and 'akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari.'" Vallario v. Vandehey, 554 F.3d 1259, 1262 (10th Cir. 2009) (quoting Fed.R.Civ.P. 23(f) advisory committee's note). "[T]he grant of a petition for interlocutory review constitutes the exception rather than the rule." Id.

Vallario described three situations in which interlocutory review of a class certification order may be appropriate: (1) "death knell" situations, "in which a questionable class certification order is likely to force either a plaintiff or a defendant to resolve the case based on considerations independent of the merits," (2) situations in which a class certification order involves "an unresolved issue of law relating to class actions that is likely to evade end-of-case review, and [that is] significant to the case at hand, as well as to class actions generally," and (3) situations in which the class certification order is "manifestly erroneous." Id. at 1263. The Petition asks us to permit an interlocutory appeal to correct manifest error.

After careful consideration of the parties' filings, the district court's order, and the applicable law, we are not persuaded that a permissive interlocutory appeal is warranted to correct manifest error.

Accordingly, the Petition is DENIED.