WILLIAM B. SHUBB, District Judge.
Plaintiffs Dale M. Wallis, James L. Wallis, and Hygieia Biological Laboratories Inc. brought this action against defendants Centennial Insurance Company, Inc. and Atlantic Mutual Insurance Co., Inc. alleging breach of insurance contract, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty relating to plaintiffs' professional liability insurance policy. The court held a Status Conference on April 30, 2012, in which counsel for both parties were in attendance. Defendants now move for certification of the court's January 30, 2012, Order, denying defendants' motion to stay, for appeal pursuant to 28 U.S.C. § 1292(b). (Docket No. 139.)
On December 19, 2011, defendants filed a motion to indefinitely stay the proceedings in this case pursuant to the Orders of Liquidation issued by the Supreme Court of the State of New York. (Docket No. 130.) In its January 30, 2012, Order, the court denied defendants' motion to stay this action pending the outcome of the liquidation proceedings in New York. (Docket No. 136.) In denying defendants' motion, the court relied upon the Ninth Circuit's opinion in
Orders denying motions to stay are not ordinarily final decisions from which appeal may be taken under 28 U.S.C. § 1291.
The court first considers the threshold issue of whether the motion for certification of interlocutory appeal was timely filed. Appeals brought under 28 U.S.C. § 1292(b) must be filed within ten days of the court's certification of the order for interlocutory appeal. "Though there is no specified time limit for seeking certification, § 1292(b) provides for an `immediate appeal,' and `a district judge should not grant an inexcusably dilatory request.'"
"The ten-day limitation in section 1292(b) is not to be nullified by promiscuous grants of motions to amend. An amendment that will have the effect of extending the limitation is proper only if there is a reason for the delay."
Defendants have provided no reason for their three month delay in seeking certification of the court's January 30, 2012, Order denying their motion to stay the proceedings.
Furthermore, even if defendants had presented sufficient justification for their delay in filing the motion seeking certification, the court would have denied the motion on its merits. A district court may certify an order for interlocutory appeal when the order: (1) involves a controlling question of law as to which (2) there is substantial ground for difference of opinion and (3) an immediate appeal from the order may materially advance the ultimate outcome of the litigation. 28 U.S.C. § 1292(b);
First, in the court's experience, most orders from which a party may seek to take an interlocutory appeal involve a controlling question of law in the sense that deciding the issue in favor of the moving defendants would materially affect the outcome of the litigation.
Second, in most seriously contested motions there is also substantial ground for a difference of opinion. Filing a motion involves the expenditure of attorney time and client resources. Such motions are not generally pursued by competent attorneys unless there is a substantial basis to believe they may be granted. The complexity of such motions is precisely why courts write lengthy opinions explaining their decisions. This case, again, is no exception. Defendants argue that several out-of-state authorities support their interpretation that a stay is required pursuant to UILA.
This is not a case, however, in which there is an absence of controlling Ninth Circuit case law. The court has already undertaken a substantially similar analysis of the likelihood of defendants' success on appeal in its Order denying defendants' motion to stay. The court's Order relies directly on the Ninth Circuit's decision in
Third, whether an immediate appeal would materially advance the ultimate outcome of this litigation usually depends, of course, on whether the appeal is successful. Defendants argue that an immediate appeal from this court's Order "may" materially advance the ultimate outcome of this litigation, but it is unclear that would be the case.
But there is more to the analysis than that. The Supreme Court has construed the 1958 amendments to § 1292(b) "to confer on district courts first line discretion to allow interlocutory appeals."
Furthermore, the purpose of defendants' motion to stay was to delay adjudication of this action. If the court were to certify the motion for interlocutory appeal and the matter were to be stayed pending the outcome of the appeal, then defendants would achieve their desired delay regardless of their success on appeal. The court is under an independent obligation to move its calender forward and will not permit defendants to circumvent this duty. Accordingly, the court will deny defendants' motion for certification of order for appeal.
At the Status Conference held on April 30, 2012, plaintiffs requested that the court lift the stay over all claims not subject to the court's April 16, 2009, Order compelling arbitration, (Docket No. 41). This stay was originally ordered by the court pursuant to plaintiffs' motion to stay and defendants' non-opposition to the motion. (Docket No. 74.) Because plaintiffs no longer wish the matter to be stayed pending the outcome of the arbitration hearings, the court will lift the stay.
IT IS THEREFORE ORDERED that defendants' motion for certification of the court's January 30, 2012, Order for appeal pursuant to 28 U.S.C. § 1292(b) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that the stay imposed by the court's December 10, 2009, Order, (Docket No. 74), is hereby lifted as to all claims not subject to the court's April 16, 2009, Order compelling arbitration.
The court's July 2, 2009, Scheduling Order, (Docket No. 53), is amended as follows: All discovery shall be completed by September 28, 2012. All pretrial motions shall be filed by November 26, 2012. The Final Pretrial Conference is RESET for January 22, 2013, at 2:00 p.m. in Courtroom No. 5. The trial is RESET for February 20, 2013, at 9:00 a.m. in Courtroom No. 5.