Opinion
Civil Action No. 02-0241 Section "N" (3).
February 15, 2005
ORDER AND REASONS
Before the Court is a Petition for Permission to File an Interlocutory Appeal, filed by third-party claimant Gilbert M. Goldman, Jr. For the reasons that follow, Goldman's petition is DENIED.
I. BACKGROUND
This is a limitation action filed by petitioner RB Falcon Drilling USA, Inc., in which Gilbert M. Goldman, Jr. ("Goldman") filed a claim, seeking to recover damages for injuries allegedly sustained when the offshore rig on which he was working capsized in March of 2001. Trial si scheduled to commence on February 22, 2005. Besides Mr. Goldman, parties to this action are defendants LLOG Exploration Company ("LLOG") and Halliburton Energy Services, Inc. ("Halliburton"), and intervenor Pacific Employers Insurance Company ("Pacific"). On November 5, 2004, Goldman filed a Motion for Judicial Estoppel (Rec. Doc. No. 336), and on December 8, 2004, he filed a Motion to Strike Statements Alleged by Pacific in their Conclusions of Law (Rec. Doc. No. 351) and a Motion to Strike Inconsistent Contentions for the Financial Gain of Halliburton, and Damages (Rec. Doc. No. 352). All three motions, among others, were set for hearing without oral argument on January 19, 2005. (Rec. Doc. No. 338). Through his Motion for Judicial Estoppel, Goldman argued that intervenor Pacific should be estopped from asserting its position that Goldman was a seaman at the time of his injury. In the two motions to strike, Goldman essentially asserted the same arguments as with his Motion for Judicial Estoppel.
The Motion to Strike Statements Alleged by Pacific and the Motion to Strike Inconsistent Contentions were faxed to the undersigned on or about November 5, 2004; however, they were not filed with the Clerk of Court until December 22, 2004.
Basically, Goldman argued that Pacific should be barred from taking the position that Goldman was a seaman at the time of his injury and that the Court should strike from the record any statements made in the various pleadings relative to seaman status and the asserted payment of maintenance and cure.
On February 1, 2005, after a thorough analysis of the briefs, the record, and the applicable law, the Court issued a Minute Entry, (i) denying Goldman's Motion for Judicial Estoppel; (ii) denying Goldman's Motion to Strike Statements Alleged by Pacific in their Conclusions of Law without prejudice to Goldman's right to re-urge said arguments in a post-trial motion for Rule 11 sanctions; and (iii) denying Goldman's Motion to Strike Inconsistent Contentions for the Financial Gain of Halliburton, and Damages without prejudice to Goldman's right to re-urge said arguments in a post-trial motion for Rule 11 sanctions. (Rec. Doc. No. 371).
In so ruling, the Court concluded that Pacific will not be estopped at trial from arguing that Goldman was a seaman at the time of the incident which is the subject of this litigation. See February 1, 2005 Minute Entry, p. 3. In reaching this conclusion, the Court found (i) that Goldman had not shown that the position of Pacific is clearly inconsistent with its previous one, and (ii) that there was no evidence that this Court or any other court has clearly accepted the alleged previous inconsistent position of Pacific and/or Halliburton. Id. See also Hall v. G.E. Plastic Pacific, Ltd., 327 F.3d 391, 396 (5th Cir. 2003) (setting forth the law on judicial estoppel in the Fifth Circuit: "[f]irst, it must be shown that `the position of the party to be estopped is clearly inconsistent with its previous one; and [second,] that party must have convinced the court to clearly accept that previous position'").
On February 3, 2005, Goldman submitted to the Court the instant Petition for Interlocutory Appeal. In addition, on February 4, 2005, Goldman submitted to the Court a Motion for Rehearing, arguing that the Court erred in concluding that the two-prong requirement had not been met, and, alternatively, that the two-prong Hall requirement is not supported by recent Fifth Circuit case law. On February 14, 2005, the Court denied Goldman's Motion for Rehearing.
II. DISCUSSION
Before a district court may certify an order for interlocutory appeal, the moving party must demonstrate that the matter involved (1) a controlling question of law, (2) as to which there is substantial ground for difference of opinion, and (3) an immediate appeal from the order would materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b). See also Complaint of L.L.P. D. Marine, Inc., 1998 WL 66100, at *1 (E.D.La. Feb. 13, 1998) (holding that the movant bears the burden of satisfying all of these criteria). The Fifth Circuit has held that an interlocutory appeal is "exceptional" and "assuredly does not lie simply to determine the correctness of a judgment." Steel Coils, Inc. v. M/V Lake Marion, 2000 WL 1801842, at *2 (E.D.La. Dec. 7, 2000) (quoting Clark-Dietz Assocs.-Eng'rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 68-69 (5th Cir. 1983)). Further, federal policy discourages piecemeal appeals. See Matterhorn, Inc. v. NCR Corp., 727 F.2d 629, 633 (7th Cir. 1984).
The Court finds that the circumstances presented in this case do not meet the requirements of Section 1292(b). As the movant, Goldman bears the burden of showing that there is a "substantial ground for difference of opinion." Goldman has not demonstrated that there are conflicting or contradictory opinions in the Fifth Circuit relative to the issue of judicial estoppel. Indeed, Goldman makes no argument that there is a difference in opinion.
In his Motion for Rehearing, citing In re Superior Crewboats, Inc., 374 F.3d 330 (5th Cir. 2004), Goldman argued that the two-prong Hall requirement did not control the Court's determination of whether judicial estoppel applies to bar Pacific from taking the position at trial that Goldman was a seaman. In finding that argument to be without merit, the Court explained that in Superior Crewboats, the Fifth Circuit stated that it has recognized three particular requirements for invocation of the doctrine of judicial estoppel: "(1) the party is judicially estopped only if its position is clearly inconsistent with its previous one; (2) the court must have accepted the previous position; and (3) the non-disclosure must have been inadvertent." 374 F.3d at 335. The Court then reasoned that, given that the two requirements cited in the Court's February 1, 2005 Minute Entry are subsumed within the three-prong test set forth in the Superior Crewboats decision, reconsideration was not warranted as Goldman's arguments for judicial estoppel would likewise fail under that three-prong test. While the Fifth Circuit set forth two requirements for judicial estoppel in Hall and three requirements in Superior Crewboats, the Court finds that the slight difference in those tests is neither conflicting nor contradictory and is not the type of "substantial ground for difference in opinion," as contemplated by Section 1292(b).
Accordingly, the Court finds that its February 1, 2005 Order denying Goldman's Motion for Judicial Estoppel, Motion to Strike Statements Alleged by Pacific in their Conclusions of Law, and Motion to Strike Inconsistent Contentions for the Financial Gain of Halliburton does not involve a controlling question of law as to which there is a substantial ground for difference of opinion. Further, the Court does not find that an immediate appeal from the order may materially advance the ultimate termination of the litigation.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Petition for Permission to File an Interlocutory Appeal, filed by third-party claimant Gilbert M. Goldman, Jr., is DENIED.