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HULMES v. HONDA MOTOR CO.

August 12, 1996

ROBERT T. HULMES, Plaintiff,
v.
HONDA MOTOR COMPANY, LTD., HONDA RESEARCH AND DEVELOPMENT GROUP, LTD., HONDA R & D NORTH AMERICA, INC., and AMERICAN HONDA MOTOR COMPANY, INC., Defendants. and HONDA MOTOR COMPANY, LTD., et al., Third Party Plaintiffs, vs. NICHOLAS J. HULMES, Third Party Defendant. SHERRY HULMES, Plaintiff, vs. HONDA MOTOR COMPANY, LTD., et al., Defendants. and HONDA MOTOR COMPANY, LTD., et al., Third Party Plaintiffs, vs. NICHOLAS J. HULMES, Third Party Defendant.



The opinion of the court was delivered by: ORLOFSKY

CONSOLIDATED ACTIONS

 ORLOFSKY, District Judge:

 Plaintiff, Robert T. Hulmes ("Hulmes," or the "plaintiff"), filed this product liability action against defendants, Honda Motor Company, Ltd., Honda Research and Development Group, Ltd., Honda R & D North America, Inc., and American Honda Motor Company, Inc. (collectively referred to as "Honda"). Plaintiff has filed a motion requesting certification under 28 U.S.C. § 1292(b) of this court's Order, filed on July 22, 1996 (the "Order"), denying plaintiff's motion in limine seeking to bar evidence of Hulmes's alcohol consumption immediately prior to the tragic accident which gives rise to this case. Plaintiff has also applied to this court for a stay under § 1292(b). Because this court is not of the opinion that an interlocutory appeal of the Order in question is appropriate, certification and a stay will both be denied.

 I. Interlocutory Appeal Under Section 1292(b)

 Section 1292(b) provides for immediate appeal of interlocutory decisions of the district court under the following circumstances:

 28 U.S.C. § 1292(b).

 Interlocutory appeal under § 1292(b) is "used sparingly in exceptional" cases. 16 Charles A. Wright, et al., Federal Practice and Procedure, § 3929, at 134 (1977). An appeal under this section is an exception to the important policy of avoiding "piecemeal appellate review of trial court decisions which do not terminate the litigation." United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 73 L. Ed. 2d 754, 102 S. Ct. 3081 (1982).

 In order to merit interlocutory review, a movant must point to: (1) a controlling question of law, (2) about which there is substantial ground for difference of opinion, the immediate resolution of which by the appeals court will (3) materially advance the ultimate termination of the litigation. In evaluating these factors, "the court must remember that . . . [a] motion should not be granted merely because a party disagrees with the ruling of the district judge." Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 282 (E.D. Pa. 1983); see also United States v. Grand Trunk Western R.R., 95 F.R.D. 463, 471 (W.D. Mich. 1981) (denying certification because the moving party "merely questions the correctness" of the court's ruling).

 A question is "controlling" if its incorrect disposition would require reversal of the final judgment. Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974). It is clear that this court's Order, if held to be error on plaintiff's appeal from an adverse verdict, would probably require a new trial. Nevertheless, a "controlling" question under § 1292(b) must also be a question "of law," and it must be a question about which there is "substantial ground for difference of opinion."

 A party's disagreement with the district court's ruling does not constitute a "substantial ground for difference of opinion" within the meaning of § 1292(b). Rather, the difference of opinion must arise out of genuine doubt as to the correct legal standard. Indeed, one court in this Circuit refused to certify a previously undecided issue of law because it found the statutory language to be clear, even in the face of a squarely contradictory ruling on the same issue from another district court. See Singh v. Daimler-Benz, AG, 800 F. Supp. 260 (E.D. Pa. 1992) (holding that the amendment to the diversity jurisdiction statute which defined a permanent resident alien as a citizen for diversity purposes gave the federal court subject matter jurisdiction over a case brought by a permanent resident alien against a nonresident alien).

 Furthermore, Judge Newcomer explained that an interlocutory appeal in Singh would only materially advance the ultimate termination of the litigation "if the Third Circuit concludes that this court does not have jurisdiction over this case, [but] if the Third Circuit finds that this court does in fact have jurisdiction, the litigation will not be advanced, but will instead will be considerably delayed." Id. at 263. Judge Newcomer was prescient in focusing on the risk of unnecessary delay. On appeal from the final judgment in Singh, the Third Circuit affirmed the district court, holding that the diversity jurisdiction statute, as amended, gives federal courts subject matter jurisdiction over cases brought by permanent resident aliens against alien defendants. Singh v. Daimler-Benz, AG, 9 F.3d 303 (3d Cir. 1993).

 II. Discussion

 A. A Controlling Question of Law

 It is perhaps an all too common failing among attorneys that, under the guise of zealously discharging their professional duties to their clients, they claim the prerogative of Humpty-Dumpty, who said: "When I use a word, . . . it means just what I choose it to mean -- neither more nor less." Lewis Carroll, Through the Looking-Glass and What Alice Found There 163 (Norton ed. 1971). Plaintiff's counsel, in this instance, however, has surpassed Humpty-Dumpty, because for plaintiff's counsel, when the court uses a word, it means just what plaintiff's counsel chooses it to mean, and nothing else.

 In an attempt to obtain immediate appellate review of this court's Order, plaintiff's counsel has manufactured a "controlling question of law" out of whole cloth. Plaintiff's true purpose is transparently evident in the manner in which counsel has phrased what he contends to be the "controlling question of law" in this case as to which there is "substantial ground for ...


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