June 9, 1960.
Schultheis Laybourne, Everett B. Laybourne, Robert W. MacMahon, Los Angeles, Cal., for appellant.
Scudder Forde, Pacific Palisades, Cal., Guy Richards Crump, Los Angeles, Cal., for appellee.
Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.
The granting of an interlocutory appeal under 28 U.S.C. § 1292(b) is a matter of discretion in the Court of Appeals.
Here the district court entered an order denying a motion to dismiss and noted that it "was of the opinion that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal under 28 U.S.C. § 1292 (b) may materially advance the ultimate termination of this litigation." On November 30, 1959, a division of this court entered an order granting interlocutory appeal.
After briefing and oral argument, the court is of the opinion that it is unwise now to establish here in this case the law of the case, or a portion thereof. In short: we hold the case is not ripe enough.
Therefore, we vacate as improvidently made the order of November 30, 1959, granting the interlocutory appeal.
It may be noted that under Section 1292(b), which came into the Judiciary and Judicial Procedure Title (Title 28) under Public Law, 85-919, 72 Stat. 1770, what is here done may have to be done in other cases from time to time. At the threshold when an interlocutory appeal is sought, in some cases it will be impractical to review fully the district court's findings that there should be a special interlocutory appeal granted under Section 1292(b). Therefore, at the beginning doubts must be resolved in favor of permitting the appeal. But, when it eventually appears that the question presented should await further ripening, we hold our duty is equally clear to vacate the initial order.