Opinion
22-cv-3355 (ER)
07-26-2024
TALHA PASHA, Plaintiff, v. NEW YORK STATE DEPARTMENT OF HEALTH and THE EXECUSEARCH GROUP, Defendants.
ORDER
EDGARDO RAMOS, U.S.D.J.
The Court is in receipt of Pasha's motion to certify certain Court orders for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Doc. 97. Specifically, Pasha references three Court orders: a March 1, 2024 order directing him to consolidate his requests for information to the extent possible as to limit his communications with opposing counsel, Doc. 65; a March 12, 2024 Order denying his requests for reconsideration, to amend his reply, and for the case to be expedited, Doc. 69; and a May 13, 2024 Order denying his request to strike from the docket a letter by the New York State Department of Health that, among other things, concerned his voluminous emails to defense counsel, Doc. 83 (collectively, the “Orders”). For the reasons set forth below, the motion is DENIED.
I. LEGAL STANDARD
Section 1292 of Title 28 of the United States Code grants district courts discretion to certify an issue for interlocutory appeal where the issue involves “a controlling question of law as to which there is substantial ground for difference of opinion and [where] an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “It is a basic tenet of federal law to delay appellate review until a final judgment has been entered.” Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir.1996) (citation omitted). Accordingly, § 1292(b) “must be strictly construed” and “only exceptional circumstances” will justify a departure from the final judgment rule. Wausau Bus. Ins. Co. v. Turner Constr. Co., 151 F.Supp.2d 488, 491 (S.D.N.Y. 2001) (internal quotations marks and citations omitted).
Whether to certify a question for interlocutory appeal under § 1292(b) is trusted to the sound discretion of the district court, which may deny certification even where the statutory criteria are met. Republic of Colombia v. Diageo North America Inc., 619 F.Supp.2d 7, 9 (E.D.N.Y. 2007) (citation omitted). Moreover, the fact that district courts have the power to certify questions for interlocutory appeal in no way suggests that interlocutory appeals should be the norm. Id. at 10. Indeed, the Second Circuit has held that although § 1292(b) was designed as a means to make interlocutory appeals available, “it is a rare exception to the final judgment rule that generally prohibits piecemeal appeals.” Koehler, 101 F.3d at 865. Accordingly, the Second Circuit has repeatedly emphasized that district courts must “exercise great care in making a § 1292(b) certification.” Wausau Bus. Ins. Co., 151 F.Supp.2d at 491-92 (citing Westwood Pharm., Inc. v. Nat'l Fuel Gas Distribution Corp., 964 F.2d 85, 89 (2d Cir. 1992)).
II. DISCUSSION
I. The Orders Do Not Involve Controlling Questions of Law
Pasha alleges that controlling questions of law exist pertaining to purported violations by Defendants of his First, Fifth, and Fourteenth Amendment rights, along with violations of the Federal Rules of Civil Procedure. See Doc 97. However, the Orders primarily concern questions of fact, including whether Pasha's correspondence with opposing counsel had become excessive. Additionally, a question of law is considered controlling when ‘“reversal of the district court's order would terminate the action.” Pineiro v Pension Benefit Guaranty Corp., 22 Fed.Appx. 47, 49 (2d Cir. Oct. 25, 2001) (quotations omitted). Here, any reversal of the Orders would not terminate this action as Pasha's underlying requests relate to the conduct of the litigation and do not seek a judgment. Accordingly, the Court finds that the Orders do not involve a controlling question of law.
2. The Orders Do Not Present A Substantial Ground for Difference of Opinion
Pasha argues that there is a substantial ground for difference of opinion as to whether “actions by the State constitute retaliation,” the Court abused its discretion, and the State and the Court violated his constitutional rights. Doc. 97 at 11. A “substantial ground for difference of opinion” must “arise out of a genuine doubt as to whether the district court applied the correct legal standard in its order.” In re Enron Corp., No. 01-cv-16034 (SAS), 2007 WL 2780394 at *1 (S.D.N.Y. Sept. 24, 2007). 'I his prong may be satisfied when: “(1) there is conflicting authority on the issue, or (2) the issue is particularly difficult and of first impression for the Second Circuit.” Id. Additionally, a court must “analyze the strength of the arguments in opposition to the challenged ruling” when assessing this prong. Id.
Here, there is no substantial ground for difference of opinion that would allow for certification of the Orders. he Court applied the correct legal standards when issuing the Orders. Concerning the March 12, 2024 Order, the Court held that Pasha failed to “identify an intervening change of controlling law or evidence that developed after he submitted his original papers” in support of reconsideration. Doc. 69 at 2. Regarding his request to amend his reply, the Court noted that pro se litigants are not permitted to file serial amendments which would delay the litigation process. Id. Concerning the May 13, 2024 Order, the Court properly denied Pasha's request to strike a letter from the New York Department of State, relying on established legal principles that judicial records should be subject to public inspection. Doc. 83.
Moreover, the Orders do not conflict with other decisions in this District and do not involve difficult legal issues. As the Court noted in its previous order, the New York Department of Health has not accused Pasha of any criminal conduct. Doc. 83 at 2 n.1. Accordingly, there is no substantial ground for difference of opinion that would allow for certification of the Orders.
3. Immediate Appeal of the Orders Will Not Materially Advance the Ultimate Termination of Litigation
An interlocutory appeal will be deemed to advance the ultimate termination of litigation if the “appeal promises to advance the time for trial or to shorten the time required for trial.” In re Facebook, Inc., IPO Securities & Derivative Litig., 986 F.Supp.2d 524, 531 (S.D.N.Y. 2014) (citations omitted). Pasha argues that appeal of the Orders would do so because a reversal would allow them to amend his complaint and to strike documents that protect his privacy interests and preserve his constitutional rights. Doc. 97 at 14. As explained above, this is simply not the case. Moreover, the appeals, which in part seek further amendments to Pasha's current motion to amend his complaint, will only cause further delays. Thus, immediate appeal of the Orders will advance the ultimate termination of this litigation.
CONCLUSION
For the foregoing reasons, Pasha's request to certify the Orders for appeal is DENIED. The Clerk of Court is respectfully directed to terminate the motion, Doc. 97. In addition, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be taken in good faith and therefore denies in forma pauperis status for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962)
SO ORDERED.