The opinion of the court was delivered by: Honorable Joseph E. Irenas
ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO APPEAL
This matter having appeared before the Court upon Plaintiffs' Motion to Amend Interlocutory Orders to Include Certification for Immediate Appellate Review Pursuant to 28 U.S.C. § 1292(b) and Motion to Stay Pending Appellate Review (Docket No. 277), the Court having reviewed Plaintiffs' submissions, and it appearing that:
(1) In the instant Motion, Plaintiffs have requested that the Court amend its Orders entered on July 26, 2007, granting summary judgment in favor of Defendant on Count XII, June 2, 2009, granting summary judgment in favor of Defendant on Count XI, and June 8, 2009, denying reconsideration of the June 2, 2009, Order,*fn1 pursuant to 28 U.S.C. § 1292(b)*fn2 so that they may immediately file an appeal with the Court of Appeals.
(2) In order to justify an interlocutory appeal pursuant to § 1292(b), a Plaintiffs must show "(1) that the order at issue involves a controlling issue of law, which if erroneously decided, would result in reversible error on final appeal, (2) that there is substantial ground for difference of opinion about the resolution of the issue, and (3) that an immediate appeal will materially advance the ultimate termination of litigation." Levine v. United Healthcare Corp., 285 F. Supp. 2d 552, 556-57 (D.N.J. 2003) (citing Katz v. Carte Blanche Corp., 496 F.2d 747, 754-55 (3d Cir.1974)).
(3) While Plaintiffs neither explicitly, nor concisely, state what the "controlling issue of law" is, the Court can reasonably infer from Plaintiffs arguments that the Motion is based generally on the dismissal of the two NJCFA counts. While the Court acknowledges that "the question is serious to the conduct of the litigation either practically or legally," because, should the Court of Appeals ultimately reverse the aforementioned decisions, the result will likely be 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.'" Hulmes v. Honda Motor Co., Ltd., 936 F. Supp. 195, 210 (D.N.J. 1996)
(4) Merely disagreeing with the Court's ruling does not provide Plaintiffs with a substantial ground for difference of opinion for Section 1292(b) purposes. See Kapossy v. McGraw-Hill, Inc., 942 F. Supp. 996, 1001 (D.N.J. 1996); Hulmes, 936 F. Supp. at 208. Generally, "[i]ssues of fact are not an appropriate basis for an interlocutory appeal." Truong v. Kartzman, No. 06-3286, 2007 WL 1816048, at *3 (D.N.J. June 22, 2007) (citing Christy v. Pa. Tpk. Comm'n, 912 F. Supp. 148, 148-49 (E.D.Pa. 1996)).
(5) Plaintiffs' argument is based on the premise that they did in fact provide evidence of an affirmative misrepresentation, and that the jury could have found in their favor. However, after the massive amount of discovery in this case, the Court did not see adequate evidence of either an affirmative misrepresentation or a knowing omission necessary to prove a violation of the NJCFA. While "[t]he grounds for a difference of opinion must arise out of genuine doubt as to the correct legal standard," Plaintiffs' dispute appears not to be with the legal standard, but rather with the Court's interpretation of the facts. Truong, 2007 WL 1816048, at *3 (citing Kapossy, 942 F. Supp. at 1001). "Section 1292(b) was not designed to secure appellate review of 'factual matters' or of the application of the acknowledged law to the facts of a particular case, matters which are within the sound discretion of the trial court." Hulmes, 936 F. Supp. at 210 (citing Link v. Mercedes-Benz, 550 F.2d 860, 863 (3d Cir. 1977)). As such, Plaintiffs have failed to satisfy the second prong.*fn3
(6) With regard to the third prong, advancing the ultimate termination of the litigation, the Court first notes that this Motion was filed on the eve of what will likely be a lengthy trial.*fn4 "Delay is a particularly strong ground for denying appeal if certification is sought from a ruling made shortly before trial" Hulmes, 936 F. Supp. at 212 (quotation and citation omitted). Furthermore, the Court does not feel that holding a trial only on the breach of warranty issue would be a waste of judicial resources even if the ultimate appeal is successful.*fn5 Such a trial would provide the Court of Appeals with a complete record of all the evidence in the case, which will be particularly helpful given the parties conflicting interpretations of the record as it currently exists. As such, an interlocutory appeal will not materially advance the ultimate termination of the litigation.
And for good cause shown,
IT IS on this 15th day of June, 2009,
ORDERED THAT: Plaintiffs' Motion to Amend Interlocutory Orders to Include Certification for Immediate Appellate Review Pursuant to 28 U.S.C. § 1292(b) and Motion to Stay Pending Appellate Review (Docket No. 277) is hereby DENIED.