The opinion of the court was delivered by: BY THE COURT; JOHN R. PADOVA
The denial of a motion to dismiss is interlocutory and generally not appealable. However, federal law permits immediate appeals in certain circumstances:
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. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C.A. § 1292(b) (West 1993).
The decisions by both the trial judge and the appellate court in certification are discretionary; however, certification is appropriate only in "exceptional" cases. See Rottmund v. Continental Assurance Co., 813 F. Supp. 1104, 1112 (E.D. Pa. 1992). See also Link v. Mercedes-Benz of N. Am., 550 F.2d 860, 863 (3d Cir.) ("We cannot sanction an erosion of the prohibition against 'piecemeal' appellate review."), cert. denied, 431 U.S. 933, 53 L. Ed. 2d 250, 97 S. Ct. 2641 (1977). Before an order can be certified all three of the factors identified in § 1292(b) must be met; the importance of a single factor, standing alone, cannot be determinative. See Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.) ("The district judge must certify that the order satisfies the three criteria."), cert. denied, 419 U.S. 885, 42 L. Ed. 2d 125, 95 S. Ct. 152 (1974).
Controlling Question of Law
In the Third Circuit, a controlling issue of law is one that "would result in a reversal of a judgment after final hearing." Katz, 496 F.2d at 755. To make that determination here, the entire antitrust issue must be considered. The holding of the case is that Baseball's antitrust exemption is limited to the "reserve system." To establish a full record in the event of certification, but without making any determination of certification at that time, I provided in the order of August 4, 1993, an alternative basis for denying Baseball's motion to dismiss: that even if the exemption were not limited to the reserve system, the record was insufficient for me to determine whether the ownership and relocation of teams constitute the "business of baseball" and are therefore protected by the antitrust exemption. Although this alternative is not the holding in the case, and has no present role in this action in the absence of certification, its implications must be considered within the context of the certification decision.
The nature and extent of Baseball's antitrust exemption may be a controlling issue of law. In order for it to be controlling as to the antitrust count, however, the Court of Appeals would have to rule that the antitrust exemption extends beyond the reserve clause and also rule, without the need for factual development, that the ownership and relocation issues constitute the "business of baseball." Even if the Court of Appeals so ruled, there would be a controlling issue only as to one count of a multi-count complaint. Under such circumstances, it is appropriate to be particularly cautious in deciding whether to certify. See Note, supra note 2, at 622.
Substantial Ground for Difference of Opinion
The second factor is whether there is a substantial ground for difference of opinion with the antitrust decision. Other courts considering the issue have concluded that Baseball's antitrust exemption extends beyond the reserve system. See, e.g., Charles O. Finley & Co. v. Kuhn, 569 F.2d 527 (7th Cir.), cert. denied, 439 U.S. 876, 58 L. Ed. 2d 190, 99 S. Ct. ...