Defendants now move to amend the June 28 Order pursuant to 28 U.S.C. § 1292(b). Specifically, Defendants assert that the conflict of law issue involves a controlling question of law as to which there is substantial grounds for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of the litigation.
28 U.S.C. § 1291 grants courts of appeal jurisdiction over appeals arising from a district court's final order. Section 1292(b) creates a narrow exception to § 1291 by allowing the district court to certify an interlocutory order for immediate appeal. Section 1292(b), however, requires that the order from which the appeal is taken must 1) involve a controlling question of law; 2) offer grounds for a substantial difference of opinion; and 3) be of a nature that an immediate appeal would materially advance the ultimate termination of the litigation. Urbach v. Sayles, 779 F. Supp. 351, 353 (D.N.J. 1991) citing Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974).
It is well established that federal law expresses a strong policy against piecemeal appeals. Freeman v. Kohl & Vick Machine Works, Inc., 673 F.2d 196, 201 (7th Cir. 1982). The Third Circuit has held that certification is to be used in exceptional cases where an immediate appeal would avoid protracted and expensive litigation. Milbert v. Bicen Laboratories, 260 F.2d 431, 433 (3d Cir. 1958). Section 1292(b) was not intended to open the floodgates to a vast number of interlocutory appeals in the course of ordinary litigation. Id. Certification is the exception, not the rule, and is left to the court's sound discretion. Caruso v. Peat, Marwick, Mitchell & Co., 717 F. Supp 218, 223 (S.D.N.Y. 1989).
Pursuant to Third Circuit's admonitions, we find that an immediate appeal would not serve to avoid protracted and expensive litigation. see Milbert, 260 F.2d at 433. While the conflict of laws inquiry could constitute a controlling issue of law,
we do not, however, find that an interlocutory appeal would materially advance the litigation's ultimate termination or that there even exists substantial grounds for differences of opinion. For reasons outlined below, we must deny Defendants' motion to amend the order for certification for immediate appeal.
First, section 1292(b) limits certification to those orders where the court believes that an immediate appeal would materially advance the litigation's ultimate conclusion. This requirement ultimately requires the court to make predictions concerning the litigation's outcome. In re Magic Marker Securities Litigation, 472 F. Supp at 438. Although the moving party is not required to demonstrate that an interlocutory appeal would certainly expedite the case, he should advance something more than mere conjecture that certification would substantially reduce time and expense. Id. at 438-39.
In In re Magic Marker Securities Litigation, the defendants supported their motion for an interlocutory appeal with reasoned predictions on how an immediate appeal could tangibly expedite the case's conclusion. 742 F. Supp. at 439. Although the court found the predictions erroneous, it examined whether an immediate appeal would 1) obviate the need for a trial; 2) eliminate complex issues thereby greatly simplifying the trial; and 3) eliminate issues thus making discovery much easier and less costly. Id. ; see also Burt on Behalf of McDonnell Douglas v. Danforth, 742 F. Supp. 1043, 1054 (E.D.Mo. 1990) (court granted the interlocutory appeal because the court's order potentially eliminated an entire count and greatly restricted another).
Here, Defendants offer no substantial grounds to color their assertion other than the plain language of § 1292(b). Notwithstanding, an immediate appeal of this court's conflict of laws decision will not materially expedite the case's ultimate termination. Assuming that our choice of law was found to be incorrect, this wrongful death action involves a discreet set of issues that would be unaffected by the selection of New Jersey law. New Jersey law still provides a cause of action and thus does not obviate the need for trial. It will not eliminate any issues, make discovery easier, nor make the trial less complex. If there is any impact, New Jersey law will slightly complicate the trial to the extent that the negligence inquiry is more involved than Pennsylvania's strict liability standard and that the jury would be faced with determining contributory negligence.
Secondly, although Defendants allege differences of opinions concerning the conflict of laws issue, we cannot find grounds sufficiently substantial to warrant an interlocutory appeal. In In re Magic Marker Securities Litigation, 472 F. Supp at 438, the court acknowledged that the issue comprising the interlocutory order was plainly controversial and offered substantial grounds for differences of opinion. In the original order, the court invited appellate review by stating that the court of appeals might "view the matter differently" than he did. Id. The court also found that both parties submitted compelling arguments that rendered the decision difficult to reconcile. Id.
Unlike in this case, we did not reach that level of plain doubt in rendering our conflict of law decision. Pennsylvania's choice of law rules provides a clear standard by which to determine the controlling law and given the case's circumstances, the selection of Pennsylvania law was compelling.
Because Defendants failed to hurdle the stringent requirements established by § 1292(b), we find that an appeal at this juncture would only serve to delay a relatively straight forward wrongful death case already ripe for trial. We must, therefore, deny the Defendants' motion to amend for certification for an immediate appeal.
ORDER - July 26, 1993, Filed
AND NOW, this 26th day of July, 1993, upon consideration of the Defendant's Motion to Amend the June 28 Order for Certification for Immediate Appeal and the Plaintiff's response thereto, it is hereby ORDERED that the Defendant's Motion is DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.