Opinion
Case No. CIV. S-05-1510 WBS PAN.
February 14, 2006
ORDER GRANTING CERTIFICATE OF APPEALABILITY
Pursuant to defendants' motion, the court hereby certifies its January 3, 2006 order, denying defendants' motion to dismiss for failure to state a claim under CERCLA, for appeal.
Under 28 U.S.C. § 1292(b), a district court may certify for appeal an interlocutory order which is not otherwise appealable if the district court is "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 outcome of the litigation." 28 U.S.C. § 1292(b). Plaintiff does not dispute that the court's previous order involved a controlling question of law that has generated several differing opinions. The only contested matter is whether an appeal in this case will materially advance the ultimate outcome of this litigation.
In light of the representation that every other judge who has considered this issue has granted a certificate of appealability, this court likewise finds that an appeal in this case will materially advance this litigation. See City of Rialto v. U.S. Dep't of Defense, No. 05-56749 (9th Cir. filed Nov. 5, 2005) (scheduled to be fully briefed in April, 2006); Kotrous v. Goss-Jewett Co., No. 05-80120 (9th Cir. filed Oct. 21, 2005);Aggio v. Estate of Aggio, No. 04-4357, 2006 U.S. Dist. LEXIS 3183 (N.D. Cal. Jan. 18, 2006) (granting defendants' motion to certify for interlocutory appeal). Eliminating the CERCLA and CERCLA-dependent claims from this action would significantly limit the complexity of this litigation, and thereby materially advance the case.
IT IS THEREFORE ORDERED that defendants' motion to certify this court's January 3, 2006 order in this case for interlocutory appeal be, and the same hereby is, GRANTED.