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CARDONA v. GMC

September 20, 1996

SEBASTIAN CARDONA, Plaintiff,
v.
GENERAL MOTORS CORPORATION, Defendant. LOUIS MARAZZO, Plaintiff, vs. CHEVROLET MOTOR DIVISION OF THE GENERAL MOTORS CORPORATION, Defendant.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Appellants, Jay M. London, Esq. ("London" or "appellant"), and the law firm of Kimmel & Silverman, P.C. ("K&S" or "appellant"), have filed a motion to amend an Order entered by this Court on August 8, 1996. By its August 8, 1996, Opinion and Order, this court affirmed a decision of the magistrate judge disqualifying London and K&S from further representing plaintiffs in these actions. London and K&S seek certification of this Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

 Appellants have 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, appellants' motion will be denied. *fn1"

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

 Interlocutory appeal under § 1292(b) is "used sparingly." 16 Charles A. Wright, et al., Federal Practice and Procedure, § 3929, at 134 (1977). Any appeal under this section is necessarily a deviation from the ordinary 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, therefore, 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 not altogether clear that an order disqualifying counsel, if held to be error on an appeal from an adverse verdict, would require a new trial. Even if reversal would be required, however, this would satisfy only the first prong of the § 1292(b) test.

 As noted, a party's mere 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. 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 ...


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