Opinion
Civ. No: 97-775, c/w 97-803, c/w 98-2200, SECTION: "R"(4).
September 5, 2000.
ORDER AND REASONS
Before the Court are defendant Grinnell Corporation's motions for certification of interlocutory appeal pursuant to 28 U.S.C. § 1292 (b), for entry of partial final judgment pursuant to Federal Rule of Civil Procedure 54(b), and for stay pending appeal. For the following reasons the Court denies defendant's motions.
I. Background
In early 1997, two plaintiff groups — one comprising London-based insurance companies and the other comprising Underwriters at Lloyd's, London ("Names") — brought this action to recover amounts they paid for merchandise destroyed in a warehouse fire. The complaint alleged diversity of citizenship under 28 U.S.C. § 1332 as the basis of subject matter jurisdiction. While it is undisputed that the Court possesses subject matter jurisdiction over the corporate insurers, an issue arose in January 2000 whether the Court had jurisdiction over the Names. To cure the jurisdictional defect, plaintiffs moved to dismiss the claims lodged by the Names, arguing that they were dispensable under Rule 19.
This Court granted that motion in part on August 1, 2000. Although the Court found that it lacked diversity jurisdiction over the claims of the Names, it also found that the Names were dispensable parties. Accordingly, the Court dismissed the Names as dispensable non-diverse parties to preserve its diversity jurisdiction over the corporate insurers.
Grinnell now moves the Court to certify its order for interlocutory appeal, to enter a partial final judgment under Rule 54(b), and to stay further proceedings pending appeal.
II. Discussion
A. Certification for Interlocutory Appeal
Before a district court may certify an order for interlocutory appeal, the moving party must demonstrate that the matter involves (1) a controlling question of law, (2) as to which there is substantial ground for difference of opinion, and (3) an immediate appeal from the order would materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292 (b). See also Complaint of L.L.P. D. Marine, Inc., 1998 WL 66100, at *1 (E.D. La. Feb. 13, 1998) (Movant bears the burden of showing that all of these criteria have been satisfied.). An interlocutory appeal, however, is "exceptional" and "assuredly does not lie simply to determine the correctness of a judgment." Clark-Dietz Assocs.-Eng'rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 68, 69 (5th Cir. 1983). Moreover, matters regarding the exercise of judicial discretion ordinarily do not fall within the ambit of "controlling questions of law." See Garner v. Wolfinbarger, 430 F.2d 1093, 1097 (5th Cir. 1970) (distinguishing a controlling question of law from "a question of fact or master for the discretion of the trial court"); J. C. Trahan Drilling Contractor, Inc. v. Sterling, 335 F.2d 65, 66-67 (5th Cir. 1964) (dismissing interlocutory appeal that "did not involve a controlling question of law within the meaning of Section 1292(b) but merely an exercise of sound judicial discretion respecting a matter entrusted to the trial court"); Texaco, Inc. v. Duhe, 44 F. Supp.2d 809, 812 (W.D. La. 1998) ("Whether the state court may more fully resolve the issues being litigated is a discretionary matter, not a controlling issue of law for 1292 review.").
The Court finds that the circumstances presented in this case do not meet the requirements of Section 1292(b). As defendant acknowledges in its motion, a question of law is controlling if reversal would terminate the litigation. (Mem. Supp. Mot. Certification at 5.) See, e.g., Northfield Ins. Co. v. George E. Buisson Realty Co., 1999 WL 777721, at *2 (E.D. La. Sept. 28, 1999). Two of defendant's proffered issues (whether each Name must be diverse and whether any method exists to preserve jurisdiction over the Names), however, fail to present questions that would terminate the litigation should the Fifth Circuit reverse. Specifically, defendant asserts that this Court should have retained jurisdiction over the Names. As the Court has retained jurisdiction over the London-based insurance companies, reversal would merely affirm the Court's retention of jurisdiction, not terminate the litigation.
The other three proffered issues all question the Court's discretionary determination that the Names are dispensable, which ordinarily does not fall within the ambit of controlling questions of law. Although a Fifth Circuit conclusion that the Names are indispensable would terminate this action for want of diversity jurisdictions there is no "substantial" ground for difference of opinion whether the Names are dispensable parties. Defendant presents no, and the Court is unable to find any, Fifth Circuit precedent in which a trial court certified for appeal a ruling on a party's indispensability. Indeed, there is precedent not to certify such a motion. See, e.g., Copelco Capital, Inc. v. Gautreaux, 1999 WL 729248 (E.D. La. Sept. 16, 1999) Furthermore, defendant merely reiterates and reurges the very arguments that this Court already found to be unpersuasive.
As a final consideration, the Court finds that an interlocutory appeal will not materially advance the ultimate termination of the litigation. Reversal by the Fifth Circuit on two of the issues would only affirm this Court's jurisdiction, and reversal of the dispensability determination would require a finding of abuse of discretion, which the Court finds unlikely. Therefore, the Court denies defendant's motion for certification of interlocutory appeal.
B. Rule 54(b)
Defendant also asks the Court to enter a partial final judgment. When deciding whether to certify a judgment under Rule 54(b), a district court must make two determinations. See Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7-8, 100 S.Ct. 1460, 1464-65 (1980). "First, the district court must determine that `it is dealing with a final judgment.'" Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enterprises, 170 F.3d 536, 539 (5th Cir. 1999) (quoting Curtiss-Wright, 446 U.S. at 7, 100 S.Ct. at 1464). A judgment is final if "it is `an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Id. (quoting Curtiss-Wright, 446 U.S. at 7, 100 S.Ct. at 1464). Second, the district court must determine "whether any just reason for delay exists." Id. (quoting Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. at 1465). In making this determination, the district court must weigh "`the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.'" Road Sprinkler Fitters Local Union v. Continental Sprinkler Co., 967 F.2d 145, 148 (quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324 (1950)). A major factor the court should consider is whether the appellate court "`would have to decide the same issues more than once even if there were subsequent appeals.'" H W Indus., Inc. v. Formosa Plastics Corp., USA, 860 F.2d 172, 175 (5th Cir. 1988) (quoting Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. at 1465).
After weighing the appropriate factors, the Court finds that certification is inappropriate. Defendant fails to convince the Court that "there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal." PYCA Indus., Inc. v. Harrison County Waste Water Management Dist., 81 F.3d 1412, 1421 (5th Cir. 1996). Consequently, the possibility that an entry of judgment will produce piecemeal review in this case outweighs the danger of denying justice by delay.
C. Stay
Having decided not to certify an interlocutory appeal or enter a partial final judgment, it is not necessary for the Court to consider staying further proceedings.
III. Conclusion
For the foregoing reasons the Court denies defendant's motions for certification of interlocutory appeal pursuant to 28 U.S.C. § 1292 (b), for entry of partial final judgment pursuant to Federal Rule of Civil procedure 54(b), and for stay pending appeal.
New Orleans, Louisiana, this 5 day of September, 2000.
SARAH S. VANCE, United States District Judge.