Opinion
Civ. No. 99-274 (DRD)
July 14, 1999.
David E. Cassidy, Esq., Grotta, Glassman Hoffman, P.C., for Defendants.
Neil H. Deutsch, Esq., Deutsch, Resnick, Green Gramigna, for Plaintiff.
O P I N I O N
In this ERISA and breach of contract action, a former employee is suing ROMO, ROMO's executive compensation committee, several of the committee's individual members, and the executive compensation plan for denying him benefits to which allegedly he was entitled under the plan. The defendants, ROMO Corp. ("ROMO"), the Executive Compensation Committee of ROMO Corp., the ROMO Corporation Executive Compensation Plan (the "Plan"), H. Rex Martin ("Martin"), and Francis B. King ("King" and collectively the "Defendants"), have moved for leave to file an interlocutory appeal of this Court's April 13, 1999, pursuant to 28 U.S.C. § 1292(b). No oral argument was heard pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, Defendants' motion will be denied.
I. BACKGROUND
The plaintiff, John L. Bennett ("Bennett"), was employed by McBee Systems, Inc. ("McBee"), a subsidiary of defendant ROMO Corporation, from 1974 until about December 31, 1997. McBee did business in New Jersey for many years prior to the sale of its assets in 1997. Bennett worked for McBee in New Jersey and, during all relevant times, was a resident of the State.
Bennett, while employed by McBee, was a participant in the ROMO Corporation Executive Compensation Plan. The ROMO Executive Compensation Plan, which was administered by the Executive Compensation Committee of ROMO Corp., Francis B. King, and H. Rex Martin, was established for the benefit of certain of its and McBee's employees. Seven of the nine participants in the plan were McBee employees.
Bennett left the employ of McBee in December of 1997. He claims that the Defendants subsequently denied him benefits to which he was entitled under the Plan. Bennett claims that this denial was wrongful and that the Defendants defrauded him and breached their contractual obligations to him. Bennett brought this suit seeking relief under the Employee Retirement Income Security Act, as amended, 29 U.S.C. § 1001 et.seq. ("ERISA"), and certain state law claims for fraud and promissory estoppel.
On March 16, 1999, Defendants filed a motion to transfer venue pursuant to Fed.R.Civ.P. 12(b)(3) and 28 U.S.C. § 1406(a) or, in the alternative, pursuant to 28 U.S.C. § 1404(a). Holding that venue was proper and that a discretionary transfer was not appropriate under the circumstances, the Court denied Defendants' motion on April 13, 1999.
II. DISCUSSION
Defendants have moved for leave to file an interlocutory appeal of this Court's April 13, 1999, order pursuant to 28 U.S.C. § 1292(b). Defendants argue that their motion for leave to file an appeal should be granted because the issue presented in the venue motion was one of first impression in this circuit for which there is substantial ground for difference of opinion.
Under most circumstances, only final orders of a district court are immediately appealable. See 28 U.S.C. § 1291, 1292(a). Under certain circumstances, however, a district judge may certify for immediate appeal an otherwise unappealable interlocutory order. See 28 U.S.C. § 1292(b). Under section 1292(b) of title 28:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be 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 termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however; That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.28 U.S.C. § 1292(b). See also Fed.R.App.P. 5. On its face, therefore, 28 U.S.C. § 1292(b) requires the court to find that: (i) the order involves a controlling question of law (ii) as to which there is a substantial difference of opinion and that (iii) an immediate appeal may materially advance the ultimate termination of the litigation. See Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.), cert. denied, 419 U.S. 885 (1974) (requiring that the district judge certify that the order satisfies all three criteria).
Some Courts have held that an order denying a defendant's motion to transfer venue pursuant to 28 U.S.C. § 1406(a) involves a controlling question of law. See Johns Manville Sales Corp. v. United States, 796 F.2d 372, 373 (10th Cir. 1986) (petition for interlocutory appeal granted when the question involved a decision on the issue of proper venue).
The portion of the order denying Defendants' motion for a discretionary transfer does not involve a controlling question of law. Section 1292(b) "is not available as a means to review the grant or denial of § 1404(a) motions for incorrect evaluation of proper factors." A. Olinick Sons v. Dempster Brothers, Inc . , 365 F.2d 439, 443 (2d Cir. 1966).
I am not convinced, however, that there is substantial disagreement in case law regarding the holding on the change of venue motion. Defendants are correct in their statement that other courts have decided similar venue motions in a contrary manner. See McFarland v. Yegen, 699 F. Supp. 10 (D.N.H. 1988); Boyer v. J.A. Majors Co., Emp. Profit Sharing Plan, 481 F. Supp. 454 (N.D.Ga. 1979). A majority of the courts who have dealt with this precise issue, however, have adopted the approach introduced inVarsic v. United States District Court, 607 F.2d 245, 248-49 (9th Cir. 1979), and applied by this Court in the underlying motion. See, e.g.,I.A.M. Nat'l Pension Fund v. Wakefield Indus., 699 F.2d 1254, 1257 (D.C. Cir. 1983); Turner v. CFI Steel Corp., 510 F. Supp. 537, 542 (E.D.Pa. 1981), aff'd, 770 F.2d 43 (3d Cir. 1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986); Folke v. Shaffer, 616 F. Supp. 1322, 1325 n. 1 (D.Del. 1985). The disagreement among circuits and districts with regards to this venue question is not so weighty as to warrant an interlocutory appeal.
Finally, a determination by the appellate court on the issue of change of venue will not materially advance the ultimate termination of this litigation. An interlocutory appeal on this matter would only increase the legal expenses for all parties and would delay rather than advance the ultimate termination of this litigation. Accordingly, the motion for leave to file an interlocutory appeal will be denied.
III. CONCLUSION
For the reasons set forth above, Defendants' motion for leave to file an interlocutory appeal will be denied. An appropriate order will issue.
O R D E R
Defendants, ROMO Corp., the Executive Compensation Committee of ROMO Corp., the ROMO Corporation Executive Compensation Plan, H. Rex Martin, and Francis B. King (collectively, the "Defendants"), having moved for leave to file an interlocutory appeal of this Court's April 13, 1999, order pursuant to 28 U.S.C. § 1292(b); and the Court having considered all papers submitted; and in accordance with this Court's opinion of even date;
IT IS this, ___ day of July, 1999, hereby