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MCNULTY v. BORDEN

August 7, 1979

John J. McNULTY
v.
BORDEN, INC.



The opinion of the court was delivered by: BRODERICK

ON MOTION FOR RECONSIDERATION

In this action plaintiff has alleged antitrust violations and breach of contract and defamation claims in connection with the termination of his employment by the defendant. The defendant moved to dismiss each of the three counts of the second amended complaint. In an order dated July 3, 1979, the Court denied the defendant's motion to dismiss as to each count. The defendant has moved for reconsideration of the Court's order denying defendant's motion to dismiss or for certification pursuant to 28 U.S.C. § 1292(b) with respect to the antitrust and breach of contract claims. The Court will deny the defendant's motion for reconsideration of this Court's order and, for the reasons hereinafter set forth, will deny the defendant's motion for certification pursuant to 28 U.S.C. § 1292(b).

 Section 1292(b) provides as follows:

 
(b) 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.

 Thus, a district court judge is authorized pursuant to section 1292(b) to certify for appeal a nonfinal order that involves a controlling question of law as to which there is substantial ground for difference of opinion if he believes that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Section 1292(b) is to be used only in exceptional cases, Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958) (En banc ), and the critical issue in each case is whether certification would promote the policies underlying interlocutory appeals, including the avoidance of harm to a party pendente lite from a possibly erroneous interlocutory order and the avoidance of possibly wasted trial time and litigation expense, Katz v. Carte Blanche Corp., 496 F.2d 747, 756 (3d Cir.) (En banc ), Cert. denied, 419 U.S. 885, 95 S. Ct. 152, 42 L. Ed. 2d 125 (1974). See In re Magic Marker Securities Litigation, 472 F. Supp. 436 (E.D.Pa.1979).

 The Court's order denying the defendant's motion to dismiss counts 1 and 2 of the complaint clearly involved controlling questions of law as to which there are substantial grounds for difference of opinion. This Court is well aware of the paucity of authority holding that an employee allegedly discharged for the purpose of preventing the discovery and prosecution of antitrust violations has section 4 standing. Although we endeavored to apply the balancing test for standing as established in Bravman v. Bassett Furniture Industries, Inc., 552 F.2d 90 (3d Cir.), Cert. denied, 434 U.S. 823, 98 S. Ct. 69, 54 L. Ed. 2d 80 (1977), and Cromar Co. v. Nuclear Materials & Equipment Corp., 543 F.2d 501 (3d Cir. 1976), we are not unmindful that others applying the same test might determine that plaintiff lacked standing. The same may be said of the issue concerning the breach of contract claim. However, recognition by the district court that its order involves a controlling question of law as to which there is substantial ground for difference of opinion does not mandate certification for immediate appeal pursuant to 28 U.S.C. § 1292(b). The district judge must also certify that in his opinion "an immediate appeal from the order may materially advance the ultimate termination of the litigation." It is our opinion that in this particular case immediate appeal will not materially advance the ultimate termination of the litigation, particularly since there is a third count in this complaint the defamation claim concerning which there is no substantial ground for difference of opinion as to any controlling question of law. The defendant does not request certification concerning the denial of its motion to dismiss count 3. The trial of the defamation portion of this action will involve substantially the same evidence as will be required for the trial of counts 1 and 2. An immediate appeal therefore does not eliminate the necessity for trial nor does it appear that it would significantly simplify or abbreviate the trial. Furthermore, in considering the motion of the defendant to dismiss counts 1 and 2, the Court was required to consider the allegations of the complaint in a light most favorable to the plaintiff and the Court's denial of the motion to dismiss these counts in no way expresses an opinion as to whether the plaintiff will be able to sustain his burden to prove such allegations.

19790807

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