The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan
OPINION ON PLAINTIFFS' MOTION TO AMEND THE JUDGMENT
I. HISTORY AND SCOPE OF CLAIM
As noted repeatedly in this Court‟s previous Opinions, the claims presently remaining in this 2002 action relate to Defendants‟ representation of the eight (8) above-named Plaintiffs (the "Named Plaintiffs") in consolidated individual personal injury actions for exposure to asbestos, in the State Court of Mississippi (the "Mississippi Asbestos Exposure Consolidated Litigation" or "Mississippi AECL"). More specifically, "Plaintiffs maintain, under the express law of the case as set forth by the Court of Appeals, a claim for breach of fiduciary duty under Texas law, by which they may be entitled, despite having incurred no actual injury, to disgorgement of all or some portion of the attorney fees paid by the Named Plaintiffs . . . . And with evidence sufficient to raise a question of intentional breach of fiduciary duty, Plaintiffs might also be entitled to punitive damages under Texas law." See September 29, 2011 Opinion on Motions for Class Certification and Partial Summary Judgment (denying Plaintiffs‟ Motion for Class Certification and granting Defendant‟s Motion for Partial Summary Judgment) (the "September Opinion").*fn1 Plaintiffs‟ claims turn on allegations that Defendants breached their Texas law fiduciary duty (by failing to adequately disclose material information, including, e.g., co-counsel arrangements and/or settlement information, to Mississippi AECL participants residing in Pennsylvania, Ohio and Indiana (the "Northern Clients"); allocating settlement funds disproportionately owing to conflicting fee incentives; and/or failing a duty of candor/disclosure by imposing excessive charges).
The Court‟s September Opinion explained at length its bases for granting partial summary judgment. See September Opinion; see also Defendants‟ Joint Memorandum of Law in Opposition to Plaintiffs‟ Motion to Amend ("Defendants‟ November Memorandum").
Presently pending is Plaintiffs‟ October, 2011captioned "Motion to Amend the Judgment", which is essentially a Motion for Certification for Interlocutory Appeal of this Court‟s grant of Defendants‟ Motion for Partial Summary Judgment, asserted under 28 U.S.C. ' 1292(b).*fn2
Said Motion will, for reasons set forth below, be denied.
Under 28 U.S.C. ' 1292(b), the Court may certify an Order for interlocutory appeal where it concludes that it Ainvolves 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.@ The circumstances must meet each of these three (3) conditions. And the party seeking certification has the burden of establishing that exceptional circumstances warrant departure from the general policy against piecemeal litigation and in favor of postponing appellate review until after the entry of final judgment. See, e.g., Vaughn v. Flowserve Corp., 2006 WL 3231417 (D.N.J. Nov. 8, 2006); see also Harris v. Kellogg, Brown & Root Services, Inc., 2009 WL 1248060 (W.D. Pa. Apr. 30, 2009) ("Certification pursuant to section 1292(b) should be granted "sparingly‟ and only when [all] three conditions are met.").
Plaintiffs seek interlocutory appeal to the Third Circuit under 28 U.S.C. ' 1292(b), on what they characterize as this Court‟s fundamental errors in the following "controlling questions of law": (A) whether the parole evidence rule applies to interpretation of a contract in the context of a breach of fiduciary claim; (B) whether Defendant Pritchard was Plaintiffs‟ attorney; and (C) whether there is sufficient evidence for a reasonable jury to conclude that Defendant Taylor satisfied his fiduciary duties to Plaintiffs in attempting to withdraw from representation." Plaintiffs‟ Motion to Amend the Judgment at 2.*fn3
A. Inapplicability of Parole Evidence Rule
The September Opinion granted partial summary judgment on Plaintiffs‟ claim that Defendants breached a Texas law fiduciary duty because settlement funds were allocated on the basis of conflicting fee incentives that disfavored Northern clients. In doing so, it set forth the factual evidence identified by the parties.*fn4 It then addressed Plaintiffs‟ assertion that under the Agreement on Fees, Taylor‟s 95-97% fee in the Northern clients‟ cases, like his fee in the Southern clients‟ cases, was subject to a 50% fee share to Pritchard and Weathers. After observing that "the question raised by Plaintiffs is whether Defendant counsel allocating settlement funds had an expectation of retaining a greater portion of the underlying fee in Southern cases", the Opinion concluded that "the understanding of the parties to the fee-sharing agreements and the parties' practice pursuant to those agreements is certainly material to determining that expectation" and "a contested interpretation of the language that runs contrary to all evidence of the parties' understandings and course of performance is insufficient to raise a triable issue as to any purported conflicting interest." September Opinion at 19 (emphasis added).
As noted in the September Opinion and canvassed in Defendants‟ Joint
Reply Brief in Further Support at 11-13, the cases cited by Plaintiffs
in their supportive Memoranda were and remain factually and legally
inapposite. Plaintiffs‟ assertion, in their Memorandum of Law in
Support of Motion to Amend at 2, that this Court "[held] that the
parole evidence rule does not apply when interpreting an unambiguous
contract unless the plaintiff asserts a breach of contract
claim"*fn5 is, in light of the actual language of the
Opinion, simply incorrect. To the contrary, the Court rejected
Plaintiffs‟ contention that the parole evidence rule could be invoked
(a) by a third party with neither contractual nor beneficiary
relationship to the contract to (b) preclude the contracting parties‟
evidence of mutually-agreed intent and course of conduct over several
years where (c) that third-party wished the Court to interpret the
contract to have had some other meaning and (d) said party had
introduced, despite nine (9) years of litigation, not one iota of
evidence that the contract had been interpreted or implemented in a
manner potentially giving rise to the improper settlement allocations
alleged. See September Opinion. As the September Opinion indicates,
interpretation of the Fee Agreement is simply not at issue. Rather,
the allegation of conflicting incentives raised by Plaintiffs turns on
the expectation of receipt of fees -- an issue as to which the
Defendants‟ actual conduct is clearly more relevant than a ...