Opinion
No. 99 Civ. 3415 (GBD).
March 28, 2005
MEMORANDUM OPINION ORDER
Plaintiff in the above referenced case submitted a motion to certify an interlocutory appeal of this Court's Order dated December 10, 2004 pursuant to 28 U.S.C. § 1292(b). Plaintiff's motion is based on this Court's denial of plaintiff's attempt to file a fourth amended complaint. The proposed fourth amended complaint sought to add three new legal claims and also included, for the first time, class action allegations. Plaintiff's proposed fourth amended complaint offered no new factual allegations to support his proposed new legal theories. Moreover, the proposed amended complaint was plaintiff's fifth attempt to replead after being told by the Court that his third amended complaint would be his final opportunity to amend.
"Interlocutory appeals under Section 1292(b) are an exception to the general policy against piecemeal appellate review embodied in the final judgment rule, and only exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment."Martens v. Smith Barney, Inc., 238 F.Supp.2d 596, 599-600 (S.D.N.Y. 2002) (internal citations and quotations omitted). Before a district court can grant certification under Section 1292(b), the court must find that its order involved a controlling question of law as to which there is a substantial ground for difference of opinion, and the immediate appeal of the order must materially advance the ultimate termination of the litigation.
Plaintiff has failed to meet this burden. Plaintiff has not identified any controlling question of law as to which there is a substantial ground for a difference of opinion. Plaintiff attempts to improperly characterize his interlocutory appeal as an appeal of a denial of class certification, rather than a motion to file a fourth amended complaint. In addition, plaintiff's claim that certification for interlocutory appeal would advance this litigation towards its termination lacks merit. Plaintiff's motion is therefore denied.
SO ORDERED.