Opinion
Case Number: 00-CV-75258-DT
June 21, 2002
Now before the Court is Defendants' motion for reconsideration of the Court's April 25, 2002 Order denying Defendants' motion for summary judgment. Defendants, in the alternative, seek (1) certification of two questions to the Michigan Supreme Court pursuant to Eastern District of Michigan Local Rule 83.40 and Michigan Court Rule 7.305(B), or (2) certification of an immediate interlocutory appeal to the U.S. Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1292 (b). Having considered the entire record, and for the reasons that follow, the Court DENIES Defendants' motion in its entirety.
A. Defendants' Motion for Reconsideration
Eastern District of Michigan Local Rule 7.1(g)(3) provides that in order for a court to grant a motion for reconsideration, the movant must show (1) a palpable defect; (2) that misled the court and the parties; and (3) that correcting the defect will result in a different disposition of the case. E.D. MICH. L.R. 7.1(g)(3); Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp.2d 714, 718 (E.D. Mich. 2001). "A `palpable defect' is a defect which is obvious, clear, unmistakable, manifest, or plain." Ososki, 162 F. Supp.2d at 718 (citation omitted). Moreover, "[g]enerally, . . . the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication." E.D. MICH. L.R. 7.1(g)(3).
Defendants urge the Court to reconsider (1) whether Plaintiff's claims are barred by section 339.2512a of the Michigan Compiled Laws because Plaintiff was engaged in brokering business opportunities; and (2) whether the Michigan Sales Commission Act, section 600.2961 of the Michigan Compiled Laws, applies to the commission which Plaintiff seeks. Defendants essentially present the same issues already ruled on by the Court. Furthermore, the Court finds no palpable defect as required by Local Rule 7.1(g). Consequently, the Court DENIES Defendants' motion for reconsideration.
B. Certification to the Michigan Supreme Court
In the alternative, Defendants seeks to certify the following questions to the Michigan Supreme Court: (1) Does MICH. COMP. LAWS ANN. § 339.2512a apply to one who offers to negotiate a non-real estate related purchase or sale of a business opportunity; and (2) Does MICH. COMP. LAWS ANN. § 600.2961(5) apply to one who offers to negotiate the purchase or sale of a business opportunity for a fee based on a percentage of future sales.
Eastern District of Michigan Local Rule 83.40 provides that the Court may certify an issue for decision to the highest Court of the State whose law governs its disposition. E.D. MICH. L.R. 83.40(a). Michigan Court Rule 7.305 also provides that "[w]hen a federal court . . . considers a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent, the court may on it own initiative or that of an interested party certify the question to the Michigan Supreme Court." MICH. CT. R. 7.305(B)(1).
Certification of questions to the Michigan Supreme Court is left to a federal district court's sound discretion. The Court does not believe that certification is appropriate in this case, and accordingly, declines, in its discretion, to certify Defendants' questions to the Michigan Supreme Court.
C. Interlocutory Appeal is Inappropriate
Finally, Defendants seek permission to immediately appeal the Court's conclusion that Plaintiff's claims are not barred by M.C.L.A. § 339.2512a.
Title 28 U.S.C. § 1292(b) provides, in relevant part:
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.28 U.S.C. § 1292(b). The decision to certify an appeal pursuant to section 1292(b) is left to the sound discretion of the district court. Brown v. City of Oneonta, 916 F. Supp. 176, 180 (N.D.N.Y. 1996); Zygmuntowicz v. Hospitality Investments, Inc., 828 F. Supp. 346, 353 (E.D. Pa. 1993).
In order to obtain permission to immediately appeal the Court's Order pursuant to section 1292(b), the movant must establish that the order (1) involves a controlling question of law; (2) for which there is substantial ground for difference of opinion respecting the correctness of the decision; and (3) for which an immediate appeal would materially advance the ultimate termination of the litigation. Vitols v. Citizens Banking Co., 984 F.2d 168, 170 (6th Cir. 1993).
Federal law expresses a strong policy against piecemeal appeals. Zygmuntowicz, 828 F. Supp. at 353. As such, permission to appeal pursuant to section 1292(b) should only be granted in exceptional circumstances. Vitols, 984 F.2d at 170 (citation omitted); see also Durant v. Servicemaster Co. Trugreen, Inc., 147 F. Supp.2d 744, 752 (E.D. Mich. 2001) (interlocutory appeal "exists only for exceptional situations where an immediate appeal may prevent protracted litigation"). Section 1292(b) "was not intended merely to provide review for difficult rulings in hard cases." United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966).
Moreover, as recently noted by the Seventh Circuit Court of Appeals, controlling questions of law involve abstract legal issues, "rather than merely [issues] that might be free from a factual contest. The idea was that if a case turned on a pure question of law, something the court of appeals could decide quickly and cleanly without having to study the record, the court should be enabled to do so without having to wait until the end of the case." Ahrenholz v. Board of Trustees of the University of Illinois, 219 F.3d 674, 676-77 (7th Cir. 2000).
The Court concludes, consistent with Ahrenholz, that the Court's application of section 339.2512a to the facts of this case, although a question of law, is not a controlling question of law as contemplated by section 1292(b). A determination that Plaintiff was required to be licensed under the statute in order to enforce the Letter of Understanding — i.e., that Plaintiff was a "Real Estate Broker" as defined by the statute — would require a detailed examination of the record and the specific facts of this case. Thus, while the Sixth Circuit would certainly be required to construe the meaning of the phrase "negotiates the purchase or sale or exchange of a business, business opportunity, or the goodwill of an existing business for others," it would also be required to examine the record in detail to determine if Plaintiff in fact contracted to "negotiate" the purchase or sale of a business opportunity — the specific contract language stating that Plaintiff will " assist and direct Puget Plastics Corporations in the negotiation of a Joint Venture, Acquisition or Supply Agreement with Oreck Manufacturing Company" not that Plaintiff will "negotiate" the "Joint Venture, Acquisition or Supply Agreement [on behalf of PPC] with Oreck Manufacturing Company." Consequently, the Court, in its discretion, declines to certify an appeal pursuant to section 1292(b).
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants' motion for reconsideration, DENIES Defendants' motion for certification of two questions to the Michigan Supreme Court, and DENIES Defendants' motion to certify an immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b).