Opinion
Civil Action No. 03-5975.
May 11, 2004
MEMORANDUM AND ORDER
Presently before the court is plaintiff's motion requesting that I amend the order of March 1, 2004, an order that declines to remand the case to state court so as to permit an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). I deny the motion for certification for interlocutory appeal.
Before certifying a question to the Court of Appeals, a district court must determine: (1) that the certified order involves a controlling question of law; (2) that there is substantial ground for difference of opinion with respect to that question, and (3) that immediate appeal may materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b). A court will only grant an interlocutory appeal if all of three requirements under § 1292(b) are sufficiently established. Douris v. Schweiker, 229 F. Supp.2d 391, 412 (E.D. Pa. 2002). The decision to certify an order for appeal under § 1292(b) lies within the sound discretion of the trial court. Fox v. Horn, 2000 U.S. Dist. LEXIS 3106, at *3 (E.D. Pa. Mar. 13, 2000). Certification is only appropriate in "exceptional" cases. Thornbury Noble, Ltd. v. Thornbury Twp., 2002 U.S. Dist. LEXIS 4698, at *60 (E.D. Pa. Mar. 20, 2002) ( citing Piazza v. Major League Baseball, 836 F. Supp. 269, 270 (E.D.Pa. Oct. 14, 1993). A district court should be mindful of the strong policy against piecemeal appeals when exercising its discretion. Orson, Inc. v. Miramax Film Corp., 867 F. Supp. 319, 321 (E.D. Pa. 1994).
The Third Circuit has defined a controlling issue of law as one that "would result in a reversal of a judgment after final hearing." Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974). When determining whether an issue presents a controlling question of law, the emphasis is on whether a different resolution of the issue would eliminate the need for trial. FDIC v. Parkway Exec. Office Ctr., 1997 U.S. Dist. LEXIS 14939, at *7 (E.D. Pa. Sep. 24, 1997). After reviewing the parties' submissions and studying the issues involved in this litigation, I cannot conclude that the immediate appeal of my decision declining to remand this case would eliminate the need for a trial. An appeal of my order would simply determine which court, state or federal, would hear the case. Because the first requirement of 28 U.S.C. § 1292(b) has not been met, it is inappropriate to amend the March 1, 2004 Memorandum and Order to include a certification permitting an interlocutory appeal. I therefore deny the plaintiff's motion.
ORDER
AND NOW, this ____ day of April, 2004, IT IS ORDERED that plaintiff's Motion for Interlocutory Appeal (docket # 14) is DENIED.