Opinion
CASE NO. 5:11-cv-00275-MP-GRJ
11-08-2012
JACK RAY SMITH, Petitioner, v. EDWIN G. BUSS, Secretary Florida Department of Corrections, Respondent.
ORDER
This matter is before the Court on Respondent's Motion for Reconsideration of Request for Interlocutory Appeal. (Doc. 29). On November 1, 2012, the Court denied respondent's request for interlocutory appeal and held that respondent has not met the burden for an interlocutory appeal. Respondents now request reconsideration and argue that the Court "overlooked the posture of Respondent's request for interlocutory appeal, which, itself is the basis Respondent has met his burden." The respondent asserts that "immediate appeal materially advances termination of the litigation" because if the Petition is untimely, as Respondent asserts (and this Court has agreed has substantial ground for disagreement), this litigation ends immediately." However, Congress intended that 28 U.S.C. § 1292(b) should be sparingly applied and used only in exceptional cases where an intermediate appeal would avoid protracted and expensive litigation. See Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433-435 (3rd Cir. 1958) (quoting extensively from the report of the Committee on the Judiciary of the House of Representatives on this statute). "In assessing whether to certify an order for interlocutory appeal, the court should determine the probability that its decision, of which appeal is sought, is in error as well as the extent to which additional time and expense may be saved by the appeal." Sussman v. Salem, Saxon and Nielsen, P.A., 826 F. Supp. 1416, 1418 (M.D. Fla. 1993). Here, the respondent concedes that this case is likely to be dismissed on the merits.
Accordingly, it is hereby ORDERED AND ADJUDGED:
Respondent's motion for reconsideration of request for interlocutory appeal (doc. 29) is DENIED.
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Maurice M. Paul, Senior District Judge