*2 First, David asks the Court to amend the January 31, 2012 judgment to note that he is also entitled to summary judgment on the vicarious and contributory infringement claims. Plaintiff did not timely respond. David previously requested summary judgment based purely upon personal jurisdiction, and the Court denied his motion. (
See Order 23:18–24–14, Jan. 31, 2012, ECF No. 780). He now in substance moves for summary judgment for the same reasons as the other Defendants who have obtained summary judgment, and, by implication, for leave to file such a motion beyond the time specified in the scheduling order. Although styled as a motion to alter or amend the judgment under Rule 59(e), there is no cause under that rule to amend the judgment. But David is correct that he cannot be liable for contributory or vicarious infringement via his work with
Jersey Boys if the play itself, as the Court has ruled, did not infringe the Work due to valid licensing. The Court will therefore grant the motion as a motion for summary judgment.
Second, several Defendants ask the Court to amend the January 31, 2012 order to include an express certification under Rule 54(b). Plaintiff objects. There are two vehicles to obtain interlocutory appeal: Federal Rule of Civil Procedure 54(b) and 28 U.S.C. § 1292(b). Rule 54(b) permits a Court to enter judgment after making a ruling partially disposing of a case, or to await its rulings on remaining causes of action in the case before entering judgment, at its discretion:
When an action presents more than one claim for relief-whether as a claim, counterclaim, crossclaim, or third-party claim-or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.
Fed.R.Civ.P. 54(b). Section 1292(b) allows for interlocutory review of non-dispositive rulings in a case under a narrow set of circumstances:
When a district judge, in making in a civil action an order not otherwise appealable under this section, 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 and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
*3 28 U.S.C. § 1292(b). If a district court includes the required language in the order, this gives the Court of Appeals jurisdiction to accept the interlocutory appeal at its discretion. Although the jurisdictional statute does not use the terminology, inclusion of the jurisdictionally required language by the district court is commonly referred to as “certification.” The Ninth Circuit has carefully explained the difference between these two routes to interlocutory review:
Some of our cases use the phrase “Rule 54(b) certification.” This is a misnomer born of confusion between Rule 54(b) and 28 U.S.C. § 1292(b), only the latter of which requires a certification. The two procedures apply to different situations. Rule 54(b) applies where the district court has entered a final judgment as to particular claims or parties, yet that judgment is not immediately appealable because other issues in the case remain unresolved. Pursuant to Rule 54(b), the district court may sever this partial judgment for immediate appeal whenever it determines that there is no just reason for delay. A court of appeals may, of course, review such judgments for compliance with the requirements of finality, but accords a great deference to the district court.
By contrast, section 1292(b) addresses the situation where a party wishes to appeal an interlocutory order, such as pertaining to discovery, denying summary judgment, denying a motion to remand, or decertifying a class. Normally, such interlocutory orders are not immediately appealable. In rare circumstances, the district court may approve an immediate appeal of such an order by certifying that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Even where the district court makes such a certification, the court of appeals nevertheless has discretion to reject the interlocutory appeal, and does so quite frequently.
Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly. This explains the reasons for the specific form of the certification required of the district court and de novo review thereof by the court of appeals. By contrast, a Rule 54(b) severance is consistent with the final judgment rule because the judgment being severed is a final one, whose appeal is authorized by 28 U.S.C. § 1291. Referring to a Rule 54(b) severance order as a “certification” misleadingly brings to mind the kind of rigorous judgment embodied in the section 1292(b) certification process. In reality, issuance of a Rule 54(b) order is a fairly routine act that is reversed only in the rarest instances.
James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n. 6 (9th Cir.2002) (citations omitted). The Court will “certify” the January 31, 2012 Judgment (ECF No. 781) for immediate review and will certify the judgment resulting from the grant of David's motion, as well. There is no just reason to delay review of the licensing issues, which are separate from the accounting and fiduciary issues remaining for trial as against DeVito.