age was a term of that contract, and therefore, if the jury found age discrimination, it could find "bad faith," outside the implied contract, on the part of the employer, which might violate a "good faith and fair dealing" standard. However, if the jury finds that McGraw-Hill discriminated against Kapossy on the basis of age, Kapossy will recover on his NJLAD claim. This avenue of recovery was closed to Holsman. The cases are irrefragably distinguishable.
More importantly, Kapossy has simply never advanced a convincing foundation for his claim for breach of the implied covenant of good faith and fair dealing. It was his burden to support the "implied covenant of good faith and fair dealing" count of his complaint when it was challenged by defendant's motion for summary judgment. Plaintiff failed to shoulder this burden, and summary judgment was entered against him.
C. Materially Advance the Ultimate Termination of the Litigation.
In his brief in support of this motion, Kapossy states that "while the instant matter is surely several years old, it is not so old that the delay occasioned by an appeal would result in any significant harm or prejudice to either party." Brief on Behalf of Plaintiff at 2. This statement completely mistakes the requirements of § 1292(b). It is not up to the opponent of certification to demonstrate harm or prejudice, or even the plaintiff's burden to show the absence of prejudice. Rather, Kapossy is obliged to show that interlocutory appeal at this juncture will "materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). It is significant that plaintiff has not even attempted to persuade this court that his request for § 1292(b) certification meets this standard.
Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir. 1974), is a good example of how certification can "materially advance" the litigation. In Katz, the district court certified, pursuant to Fed. R. Civ. P. 23(b)(3), a class of approximately 800,000 holders of Carte Blanche credit cards and simultaneously certified its order under § 1292(b). Carte Blanche, which opposed the class certification, prevailed on interlocutory appeal. As a result of the Third Circuit's ruling on interlocutory appeal, the case could be tried in the district court by a single plaintiff, without the delays attendant upon the class action notice provisions and the close judicial scrutiny that are mandated by Fed. R. Civ. P. 23.
Thus, the character of the underlying litigation in Katz, and the time that it would take to pursue it, were significantly altered by the Third Circuit's decision. On the other hand, had the Third Circuit affirmed the class certification on interlocutory appeal, the underlying litigation would not have been excessively delayed, principally because the class certification question arose early in the procedural history of the case. In Katz, therefore, from the point of view of the district court, there was much to gain and little to lose by granting leave to take an interlocutory appeal.
By contrast, this action arises out of plaintiff's termination from employment, which was final as of December 31, 1992. This case has been proceeding in this court since 1993. Discovery has been concluded. In limine motions have been filed and decided. Trial in this matter is scheduled to commence on Monday, October 28, 1996. If these issues were certified for interlocutory appeal, and a stay granted, under § 1292(b), trial would be postponed for an indefinite period. Ultimately, of course, there would be a trial in this matter, and that trial would be of approximately the same duration as it would have been without interlocutory appeal.
In view of all these factors, it is clear that interlocutory appeal at this time will not materially advance the litigation, but rather, will result in further delay. "Delay is a particularly strong ground for denying appeal if certification is sought from a ruling made shortly before trial." Baranski v. Serhant, 602 F. Supp. 33, 36 (N.D. Ill. 1985). See also Singh, 800 F. Supp. at 263.
Plaintiff's request for entry of final judgment pursuant to Fed. R. Civ. P. 54(b) betrays a misunderstanding of the function and purpose of the Rule. This court cannot enter final judgment as to a part of a single claim.
Plaintiff's request that certain issues be certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and for a stay pending appeal, will also be denied because plaintiff has failed to show either a "substantial ground for difference of opinion," or that interlocutory appeal will "materially advance the ultimate termination of the litigation." The court will enter an appropriate order.
STEPHEN M. ORLOFSKY
United States District Judge
Dated: October 4, 1996
This matter having come before the Court on October 4, 1996, on the motions of plaintiff, Stephen Kapossy, for certification of an interlocutory appeal and a stay pending appeal pursuant to 28 U.S.C. § 1292(b), and for entry of final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, Gregory S. Schaer, Esq., of the Law Offices of Linda B. Kenney, appearing on behalf of the plaintiff, and Kerry M. Parker, Esq., of Crummy, Del Deo, Dolan, Griffinger & Vecchione, appearing on behalf of the defendant; and,
The Court having considered the briefs filed in support of and in opposition to these motions, for the reasons set forth in this Court's OPINION filed concurrently with this ORDER;
It is on this 4th day of October, 1996, ORDERED that the plaintiff's motions for certification of an interlocutory appeal and a stay pending appeal pursuant to 28 U.S.C. § 1292(b), and for entry of final judgment pursuant to Fed. R. Civ. P. 54(b) are DENIED.
STEPHEN M. ORLOFSKY
United States District Judge