MICHAEL R. BARRETT, District Judge.
This matter is before the Court on Defendant Brickman Group Ltd., LLC's ("Brickman") Motion to Certify Interlocutory Appeal and Stay Proceedings (Doc. 26).
This case is a civil action brought under the False Claims Act, 31 U.S.C. § 3729 et seq. The False Claims Act imposes liability on any person who presents a false or fraudulent claim for payment to the government. 31 U.S.C. § 3729(a)(1). It authorizes private individuals to bring civil actions in the government's name, referred to as qui tam actions, and for individuals to collect a portion of any amount recovered. 31 U.S.C. § 3730(b)(1); see also U.S. ex rel. Summers v. LHC Group, Inc., 623 F.3d 287, 291 (6th Cir.2010). Here, Plaintiff brings two counts against Defendant. Count one alleges violations of the False Claims Act, and count two alleges False Claims Act retaliation. (Doc. 13 ¶¶ 49-60.) Both counts survived Defendant's previously filed motion to dismiss (Doc. 20, 21, 30) and Defendant's more recently filed motion to reconsider (Doc. 25, 20, 21). This matter is ripe for review.
The following facts are repeated verbatim from the Court's Order denying Defendant's motion to dismiss. (Doc. 20, 2-6.) They are included here solely for convenience sake.
(Doc. 20, 2-6) (footnotes omitted).
At a case-management conference held after the denial of Defendant's motion to reconsider, Defendant requested that the Court make its recent orders final and appealable. Based on this request, the Court set a briefing schedule for Defendant's motion to certify appeal. (Docket Entry of 11/22/2011.) The issues raised therein are now before this Court.
Defendant's motion to certify appeal asks this Court to certify its prior Orders for an immediate appeal under 28 U.S.C. § 1292(b). Defendant maintains that because § 1292(b)'s requirements have been satisfied, and because compelling equitable considerations exist, this Court should stay further proceedings in this action and permit Defendant to immediately appeal to the Sixth Circuit Court of Appeals. (Doc. 26, 5.)
Title 28 U.S.C. § 1292(b) "`confer[s] on district courts first line discretion to allow interlocutory appeals.'" Turi v. Main St. Adoption Servs., LLP, 633 F.3d 496, 504 (6th Cir.2011) (quoting Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 47, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)). "As a threshold matter, interlocutory appeals in the federal system are generally disfavored." Alexander v. Provident Life & Accident Ins. Co., 663 F.Supp.2d 627, 639 (E.D.Tenn.2009) (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)). "`Attractive as it may be to refer difficult matters to a higher court for advance decision, such a course of action is contrary to our system of jurisprudence.'" Id. (quoting Trollinger v. Tyson Foods, Inc., No. 4:02-CV-23, 2006 WL 2868980, at *3 (E.D.Tenn. Sept. 29, 2006)). "Review under § 1292(b) is granted sparingly and only in exceptional cases." W. Tenn. Chapter of Assoc. Builders & Contractors, Inc. v. City of Memphis (In re City of Memphis), 293 F.3d 345, 350 (6th Cir. 2002). As the Sixth Circuit explained, "`Congress intended that section 1292(b) should be sparingly applied. It is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation and is not intended
Title 28 U.S.C. § 1292 states as follows:
28 U.S.C. § 1292(b). To establish that relief should be granted under § 1292(b), a district court must consider whether: "(1) the order involves a controlling question of law, (2) a substantial ground for difference of opinion exists regarding the correctness of the decision, and (3) an appeal may materially advance the ultimate termination of the litigation." In re City of Memphis, 293 F.3d at 350.
Defendant makes two overall arguments here: (1) § 1292(b)'s requirements have been satisfied, and (2) there is an equitable concern that favors certification of an appeal. (Doc. 26, 5, 12.) Defendant further argues that if the Court certifies an appeal, it should stay this action. (Doc. 26, 14.) The Court addresses each of these issues seriatim.
Defendant first argues that all of the elements required to grant relief under
The first element a Court must consider in deciding whether to grant relief under § 1292(b) is whether the order involves a controlling question of law. 28 U.S.C. § 1292(b); In re City of Memphis, 293 F.3d at 350. "A question of law is controlling if reversal of the district court's order would terminate the action." Howe, 789 F.Supp.2d at 810 (internal quotations omitted) (quoting Genentech, Inc. v. Novo Nordisk A/S, 907 F.Supp. 97, 99 (S.D.N.Y. 1995)). In other words, "[a] legal issue is controlling if it could materially affect the outcome of the case." In re City of Memphis, 293 F.3d at 351.
As many cases recognize, there are actually two requirements within what this Court (and most others) has labeled as § 1292(b)'s first element: "(1) The question involved must be one of law; [and] (2) It must be controlling." Mason v. Massie, 335 B.R. 362, 369 (N.D.Ohio 2005); see also Dungan v. Chase Home Fin., LLC, No. 10-14549, 2011 WL 4737581, at *2 (E.D.Mich. Oct. 7, 2011); In re A.P. Liquidating Co., 350 B.R. 752, 755 (E.D.Mich. 2006); Cronovich v. Dunn, 573 F.Supp. 1340, 1342 (D.C.Mich.1983). As § 1292 states, an order must present a "question of law" that is "controlling." 28 U.S.C. § 1292(b).
Although Defendant's motion is not entirely clear on this point, (see Doc. 26, 7-8) Defendant's reply in support presents three controlling questions of law: "(1) whether plaintiff's failure to allege with particularity the presentment of a single false claim to the government requires dismissal of his complaint under applicable Sixth Circuit precedent, (2) whether the "strong inference" exception mentioned, but not applied, by the Sixth Circuit in Chesbrough v. VPA, P.C., 655 F.3d 461 (6th Cir.2011), retains any vitality in the qui tam context, and (3) if so, whether Elliott's allegations bring his complaint within that exception," (Doc. 28, 2). Because the question of dismissal of a complaint pursuant to Rule 12(b)(6) is a question of law, Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir.2007); see also Ybarra v. K & S Flooring Servs., LLC, No. 1:07-CV-1249, 2008 WL 607267, at *1 (W.D.Mich. Feb. 29, 2008) ("Whether dismissal is proper pursuant to Federal Rule of Civil Procedure 12(b)(6) is a question of law."), the Court accepts without discussion Defendant's assertion that each of these three questions are questions of law.
The second requirement of § 1292(b)'s first element asks whether there is a "controlling" question of law. Mason v. Massie, 335 B.R. 362, 369 (N.D.Ohio 2005); 28 U.S.C. § 1292(b). Here, Defendant argues that the questions presented in this case are controlling because "a legal ruling would be substantively dispositive of [Plaintiff's] theories of liability." (Doc. 26, 7.) Because Defendant's three questions are of primary importance in this matter, the Court again accepts without discussion Defendant's assertion that each of its three questions are "controlling" questions of law.
The second element a Court must consider when deciding whether to allow an interlocutory appeal under § 1292(b) is whether a substantial ground for difference of opinion exists regarding the correctness of the decision. 28 U.S.C. § 1292(b); In re City of Memphis, 293 F.3d at 350. In other words, an appeal is
In its motion to reconsider and memorandum in support (Docs. 22 & 22-1) Defendant argued that this Court's Order denying its motion to dismiss failed to consider a recently issued, dispositive Sixth Circuit opinion — Chesbrough v. VPA, P.C., 655 F.3d 461 (6th Cir.2011). (Doc. 22, 1.) More specifically, Defendant argued that under Chesbrough's interpretation of Rule 9(b), which requires False Claims Act violations to be alleged with particularity, U.S. ex rel. Marlar v. BWXT Y-12, L.L.C., 525 F.3d 439, 445 (6th Cir.2008); Fed. R.Civ.P. 9(b), Plaintiff's Amended Complaint failed to state a claim because Plaintiff did not specifically identify any individual false claim that was presented to the federal government (Doc. 22-1, 2). However, this Court applied an exception to the normal rule that a plaintiff must particularly plead that a fraudulent claim for payment has been submitted to the government. (Doc. 25, 17); Chesbrough, 655 F.3d at 470 (citing U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc. (Bledsoe II), 501 F.3d 493, 510 (6th Cir.2007)). As this Court recognized in its Order on Defendant's motion to reconsider (Doc. 25, 17), Chesbrough stated as follows:
655 F.3d at 470 (quoting Bledsoe II, 501 F.3d at 504 n. 12). This is the "strong inference" exception. (Doc. 25, 17.) As Chesbrough further explained, "case law... suggests that the requirement that a relator identify an actual false claim may be relaxed when, even though the relator is unable to produce an actual billing or invoice, he or she has pled facts which support a strong inference that a claim was submitted." 655 F.3d at 471 (emphasis added). This Court disagreed with Defendant's reading of Chesbrough and held as follows:
(Doc. 25, 17-18.) Upon an examination of the underlying facts, (Doc. 25, 18-19) this Court held that "Plaintiff's Amended Complaint creates a `strong inference' that a false claim was submitted to the government," (Doc. 25, 18). Overall, this Court held that Chesbrough "provides no reasons justifying relief from this Court's Order denying Defendant's motion to dismiss" (Doc. 25, 20-21).
With that as background, the Court now considers whether there is a substantial difference of opinion regarding the three questions of law Defendant identified above. See In re City of Memphis, 293 F.3d at 350. The three questions Defendant raised are, "(1) whether plaintiff's failure to allege with particularity the presentment of a single false claim to the government requires dismissal of his complaint under applicable Sixth Circuit precedent, (2) whether the "strong inference" exception mentioned, but not applied, by the Sixth Circuit in Chesbrough v. VPA, P.C., 655 F.3d 461 (6th Cir.2011), retains any vitality in the qui tam context, and (3) if so, whether Elliott's allegations bring his complaint within that exception," (Doc. 28, 2). The Court considers each of these questions in detail.
Defendant's first and third questions can be disposed of quickly because they are not the pure questions of law that § 1292(b) demands. See Howe, 789 F.Supp.2d at 810 ("§ 1292(b) is not appropriate for securing early resolution of disputes concerning whether the trial court properly applied the law to the facts."); In re ASC Inc., 386 B.R. at 196 ("Interlocutory appeals are intended for situations in which the court of appeals can rule on a pure, controlling question of law without having to delve beyond the surface of the record in order to determine the facts."); In re Pilch, 2007 WL 1686308, at *4 (refusing to apply § 1292(b) where an appeal "presents a mixed question of law and fact"). Instead, Defendant's first and third questions call for an application of law to the facts, something that is "not appropriate" under § 1292(b). Howe, 789 F.Supp.2d at 810
Defendant's first question asks whether plaintiff's failure to particularly allege the presentment of false claim for payment to the government requires dismissal. (Doc. 28, 2). Recall that Defendant must show a "difference of opinion" regarding its questions of law, In re City of Memphis, 293 F.3d at 350, and a "difference of opinion" is, "when (1) the case is difficult and of first impression; (2) a difference of opinion exists within the controlling circuit; or (3) the circuits are split on the issue," In re Regions Morgan, 741 F.Supp.2d at 849 (internal quotations omitted). But there is no difference of opinion regarding whether a False Claims Act plaintiff must particularly allege the presentment of a false claim for payment. See Chesbrough, 655 F.3d at 470; Bledsoe II, 501 F.3d at 510. That rule is solidly and uncontroversially established. See id. Defendant is merely arguing with this Court's application of that law to the facts in this particular case, and that is not an appropriate use of § 1292(b). See Howe, 789 F.Supp.2d at 810. Similarly, Defendant's third question asks whether Plaintiff's allegations fall within Chesbrough's strong-inference exception. (Doc. 28, 2). Once again, there is no dispute over a question of law here. Rather, Defendant is faulting this Court's application of the law to the facts. And "§ 1292(b) is not appropriate for securing early resolution of disputes concerning whether the trial court properly applied
Defendant's own statements highlight the correctness of this holding. For example, where Defendant argues that "Chesbrough is directly on point, and the Sixth Circuit might well disagree with its application in the subject Orders," (Doc. 26, 10) Defendant is rearguing this Court's application of the law to the facts. Similarly, Defendant states that "the issues of law are unique in this case, particularly the application of the `strong inference' exception as mentioned in the Court's most recent order." (Doc. 26, 16). Once again, certifying an appeal under § 1292(b) for a dispute over the application of the law to the facts is improper. Howe, 789 F.Supp.2d at 810.
Before continuing, the Court pauses to note that several of Defendant's arguments here repeat ones that the Court has already addressed its prior Order. (See Doc. 26, 10; Doc. 28, 3-4.) This also is an improper use of § 1292(b). See Alexander v. Provident Life & Accident Ins. Co., 663 F.Supp.2d 627, 639 (E.D.Tenn. 2009). Given that this Court has already considered, and rejected, Defendant's arguments regarding whether Plaintiff's Amended Complaint is particularly pled (Doc. 25, 16-19, 20) and whether Chesbrough is directly on point, (Doc. 25, 18-20) Defendant's motion under § 1292(b) is not an opportunity to relitigate these issues. As occurred in Alexander v. Provident Life and Accident Insurance Co., 663 F.Supp.2d 627, 639 (E.D.Tenn.2009), Defendant does not point to controlling authority raising a difference of opinion regarding the two above-discussed controlling questions of law (see Docs. 26 & 28). Instead, Defendant merely repeats arguments addressed in the Court's decision on its motion to reconsider. See id.; (see also Doc. 26, 10; Doc. 28, 3-4). This Court previously distinguished Chesbrough based on the facts (Doc. 25, 18-20) ("based on all the facts plead, Plaintiff's Amended Complaint creates a `strong inference' that a false claim was submitted to the government"), and this Court previously found that "Plaintiff meets the particularly requirements of Rule 9(b) by providing sufficient detail regarding the time, place, and content of Brickman's alleged fraud," (Doc. 25, 20) (citing Doc. 20, 21). This is not an occasion to reargue those decisions.
Defendant's second question of law asks "whether the `strong inference' exception mentioned, but not applied, by the Sixth Circuit in Chesbrough v. VPA, P.C., 655 F.3d 461 (6th Cir.2011), retains any vitality in the qui tam context." (Doc. 28, 2.) More specifically, Defendant argues that Bledsoe II did not expressly establish the "existence of any such exception to the general rule that an allegation of an actual false claim is a necessary element of [a False Claims Act] violation." (Doc. 26, 9.) Rather, Defendant argues that "Bledsoe [II] merely mentioned the possibility that some sort of exception could conceivably be formulated; at the same time, the court expressly declined to speculate as to whether such an exception in fact existed." (Doc. 26, 9) (citing Bledsoe II, 501 F.3d at 504 n. 12). Furthermore, Defendant argues that while Chesbrough did not foreclose the existence of the strong-inference exception derived from Bledsoe II, neither did it endorse or apply such an exception. (Doc. 26, 9.) Defendant states, "The Chesbrough court said only that the `strong inference' that a claim was submitted `may arise when the relator has "personal knowledge that the claims were submitted
Defendant is incorrect where it states that no Sixth circuit case has applied the strong-inference exception. (Doc. 26, 9.) In fact, Chesbrough itself applied the strong-inference exception.
This leads to a second point. Not only does this quote affirm the existence of the strong-inference exception, as just discussed, but Chesbrough specifically applied that exception to its facts. See id. Reaffirming the rule's existence, Chesbrough states, "The case law just discussed suggests that the requirement that a relator identify an actual false claim may be relaxed when, even though the relator is unable to produce an actual billing or invoice, he or she has pled facts which support a strong inference that a claim was submitted." Id. Applying this strong-inference exception that it had just identified and defined, Chesbrough states, "[h]ere, the Chesbroughs lack the personal knowledge of billing practices or contracts with the government that the relators had in cases like Lane [v. Murfreesboro Dermatology Clinic, PLC, No. 4:07-cv-4, 2010 WL 1926131 (E.D.Tenn. May 12, 2010)]." Id. at 471-72. The Court went on to apply the strong-inference exception to the facts in greater depth, and it identified "a series of assumptions" that would have had to be true for the exception to apply. Id. at 472. After specifically applying the exception, the Court concluded, "this is not a situation in which the alleged facts support a strong inference ... that a false claim was presented to the government." Id. The Sixth Circuit would not apply an exception that does not exist, as Defendant contends. Rather, it applied the exception exactly because it does exist and because ignoring it would have been ignoring binding precedent. Any other reading of Chesbrough ignores the obvious.
Plaintiff fails to address these issues, (see Doc. 27), but Defendant's own statements illustrate why it fails to demonstrate a substantial ground for difference of opinion here. Defendant states that "[t]he Chesbrough court found no such exception because the relators lacked `the personal knowledge of billing practices or contracts with the government' that might support such an inference as their personal knowledge was `limited to the allegedly fraudulent scheme.'" (Doc. 26, 9-10) (quoting Chesbrough ...). But this is misleading. Rather, as has just been explained, Chesbrough found that the strong-inference exception did not apply based on the particular facts in that case. Chesbrough, 655 F.3d at 472.
Going directly to Defendant's argument that the legal issue here is the existence of the strong-inference exception, (Doc. 26, 9) recall that Defendant's burden is to show that "(1) the case is difficult and of first impression; (2) a difference of opinion exists within the controlling circuit; or (3) the circuits are split on the issue." In re Regions Morgan, 741 F.Supp.2d at 849. Defendant has not argued the first or third points here — that the existence of the strong-inference exception is a difficult issue and one of first impression or that the circuits are split on this issue. (See Docs. 26 & 28.) Defendant instead maintains that in relation to the strong-inference exception, "Brickman is not aware of any case in which the Sixth Circuit has found such an exception to definitively exist, much less apply." (Doc. 26, 9.) This Court definitively disagrees with this statement, because, as has been shown, Chesbrough itself found the exception to exist, and Chesbrough itself applied the exception. Further analysis on this point is unnecessary.
Defendant has failed to establish the second required element of § 1292(b). There are no substantial grounds for difference of opinion regarding the correctness of the decision in relation to Defendant's questions of law. See 28 U.S.C. § 1292(b); In re City of Memphis, 293 F.3d at 350. There are no substantial differences of opinion regarding any of the three questions of law presented by Defendant.
Defendant additionally argues that "`[t]he level of uncertainty required to find a substantial ground for difference of opinion should be adjusted to meet the importance of the question in the context of the specific case.'" (Doc. 26, 10) (quoting 16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure, § 3930 (2d ed. West 2008)). In other words, Defendant maintains that because the viability of Plaintiff's primary claim and the future course of these proceedings hinge on the determination of the issues presented here, this Court should apply a lower standing in determining whether a substantial ground for difference
The third element a Court must consider when deciding whether to grant relief under § 1292(b) is whether an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b); In re City of Memphis, 293 F.3d at 350. "An interlocutory appeal will materially advance the litigation if it will `save substantial judicial resources and litigant expense.'" In re Regions, 741 F.Supp.2d at 849 (quoting W. Tenn. Chapter of Assoc. Builders & Contractors, Inc. v. City of Memphis, 138 F.Supp.2d 1015, 1026 (W.D.Tenn.2000)). "Under this standard, `an interlocutory appeal is more appropriate early in the proceedings, particularly in protracted and expensive cases, where failure to resolve a question of law early in the case could lead to the placement of an enormous burden on the parties.'" Id. (quoting Black & Decker, Inc. v. Smith, No. 07-1201, 2008 WL 3850825, at *10 (W.D.Tenn. Aug. 13, 2008)). This analysis appears to overlap with the first element's determination of whether the question of law presented is "controlling." If a question of law is "controlling," and if an appeal definitively determines that question, then such an appeal will almost certainly "materially advance the ultimate termination of the litigation," and, "save substantial judicial resources and litigant expense." 28 U.S.C. § 1292(b); In re Regions Morgan, 741 F.Supp.2d at 849.
But as previously mentioned, regardless of the result of an interlocutory appeal, Plaintiff's second count would remain to be litigated in this Court. As a result, an immediate appeal would not materially advance the ultimate termination of the litigation. Recognizing this, Defendant argues that "advancing the ultimate termination of the litigation does not necessarily mean dismissal of all claims in the event the Court of Appeals reverses the District Court." (Doc. 26, 11.) Defendant maintains that even if Plaintiff's retaliation claim were to survive, at least the course of discovery would change dramatically. (Doc. 26, 12 n. 7.) Furthermore, even if the Sixth Circuit were to accept an interlocutory appeal and affirm this Court's decisions, several of its legal defenses would be "effectively foreclosed," and the litigation would necessarily be simplified. (Doc. 26, 12.)
Defendant additionally argues that the intent behind § 1292(b) — to avoid protracted and expensive litigation — "meshes perfectly with the heightened pleading standard applicable to FCA claims" — the prevention of fishing expeditions, to protect defendants' reputations from allegations of fraud, and to narrow potentially wide ranging discovery to relevant matters. (Doc. 26, 11) (citing Abrams v. United Steel Workers of Am., AFL-CIO-CLC,
This Court generally agrees with each of Defendant's points here. Regardless of the outcome, an interlocutory appeal would, at least to a limited extent, materially advance the ultimate termination of this litigation. However, given that "[r]eview under § 1292(b) is granted sparingly and only in exceptional cases," In re City of Memphis, 293 F.3d at 350, and more importantly, given that there is no substantial ground for difference of opinion regarding the questions of law underlying this Court's prior decisions, granting leave to file an interlocutory appeal would be inappropriate here.
In enacting § 1292(b), "`Congress ... chose to confer on district courts first line discretion to allow interlocutory appeals.'" Turi, 633 F.3d at 504 (quoting Swint, 514 U.S. at 47, 115 S.Ct. 1203). Because this is not an exceptional case presenting a question of law as to which there is substantial ground for difference of opinion, this Court holds that an immediate appeal here would not materially advance the ultimate termination of this litigation. See 28 U.S.C. § 1292(b); In re City of Memphis, 293 F.3d at 350. Although there are controlling questions of law presented here, and although appellate review of those questions would advance the termination of this litigation to a limited extent, there are not a substantial grounds for difference of opinion on any of those questions. For each of the reasons stated above, Defendant's request for an order permitting an immediate appeal of this Court's prior Orders is DENIED.
Defendant's presentation of what it labels "powerful equitable concerns" does not alter this Court's decision to deny Defendant's requested relief. Defendant maintains that it has information that Plaintiff Mark Elliott and another former employee of Defendant are "planning to go into business and go after Brickman customers as soon as their respective non-compete agreements expire[] in early 2012." (Doc. 26, 13; Doc. 26-1, 1-2.)
In support of this allegation, Defendant presents the Declaration of Thomas A. Brown, a Brickman employee. Mr. Brown specifically alleges, among other things, that Plaintiff has started a landscaping and snow removal business to compete with Defendant and he has already presented proposals to prospective clients. (Doc. 26-2, 1-2.) Defendant maintains that because Plaintiff seeks "highly confidential and proprietary information regarding Brickman's billing practices and other business strategies .... there can be little doubt that this information would be put to improper competitive use." (Doc. 26, 13.)
But in point of fact, there a great deal of doubt here, and the Court cannot determine the truth because Plaintiff Mark Elliott has filed a Declaration of his own (Doc. 27-2). Implicitly denying Defendant's allegations, Plaintiff's Declaration (Doc. 27-2) states, "I have no intention of EVER working in the green industry in this market or any other market in the United States." (Doc. 27-2, 2.) It would be impossible for Plaintiff to compete with Defendant, as Defendant alleges Plaintiff intends, if Plaintiff never again works in Defendant's industry. Thus, Defendant appears to be incorrect where it states that "the Brown Declaration stands unrebutted." (Doc. 28, 2.) While Plaintiff does not deny each of Defendant's specific allegations, (compare Doc. 26-1, with Doc. 27-2)
Given Defendant's fears of unfair competition based on Plaintiff's access to confidential documents, a protective order would seem to be the natural solution. But Defendant maintains that "a protective order would be worthless" given Plaintiff's desire to gain access to Defendant's "[c]lient lists, bidding information, [and] internal pricing schemes." (Doc. 26, 13.) Defendant contends that this equitable consideration "mandate[s] that any lingering questions be resolved in favor of certification." (Doc. 26, 14.) The Court disagrees, in part, because it does not have any lingering questions about certification. As addressed above, the result here is certain because Defendant has presented no disputed questions of law. Additionally, a doubt about the effectiveness of a protective order is not a factor going to the application of § 1292(b). The cases Defendant cites do not support its argument. (See Doc. 26) (citing Iowa Beef Processors Inc. v. Bagley, 601 F.2d 949, 953-54 (8th Cir.1979) and United States v. U.S. Dist. Ct. for E. Dist. of Mich., 444 F.2d 651, 655-56 (6th Cir.1971)). Both of Defendant's cases specifically state that § 1292 is not at issue, and thus, they are distinguishable on that basis alone. See Iowa Beef Processors, 601 F.2d at 953; U.S. Dist. Ct. for E. Dist. of Mich., 444 F.2d at 655.
Defendant's equitable considerations do not change this Court's decision to deny its request for an order permitting an immediate appeal. To this extent, Defendant's motion to certify appeal is DENIED.
Defendant's final request is for a stay of this action pending the outcome of an interlocutory appeal. Given the Court's denial of the remainder of Defendant's motion, the question of a stay is moot. Because § 1292(b) provides that a request for an interlocutory appeal "shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order," a stay is not proper at this time. See 28 U.S.C. § 1292(b). Defendant's motion to certify appeal is DENIED to this extent.
Based on the foregoing, Defendant Brickman's Motion to Certify Interlocutory Appeal and Stay Proceedings (Doc. 26) is
