Commercial Litigation and Arbitration

Interlocutory Appeal under 28 U.S.C. § 1292(b) — Merely Because Issue is One of First Impression Does Not Necessarily Mean that There Is a Substantial Ground for Difference of Opinion

From Stuart v. RadioShack Corp., 2009 U.S. Dist. LEXIS 57963 (N.D. Cal. June 25, 2009):

[T]here are three factors that a trial court considers in determining whether certification of an interlocutory appeal is appropriate [under 28 U.S.C. § 1292(b)]: (1) whether the moving party seeks to appeal an order involving a controlling question of law; (2) whether there is substantial ground for difference of opinion on that legal question; and (3) whether an immediate appeal on that legal question may materially advance the ultimate termination of the litigation.


Allstate's position is that this factor is satisfied because the legal question here is an issue of first impression for which there is no controlling precedent. But simply because the legal question at issue is a novel one does not mean that there is necessarily a substantial ground for difference of opinion on that legal question. See Flor v. BOT Fin. Corp. (In re Flor), 79 F.3d 281, 284 (2d Cir. 1996) ("not[ing] that the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion"); Federal Deposit Ins. Corp. v. First Nat'l Bank, 604 F. Supp. 616, 620 (E.D. Wis. 1985) (stating that "the mere fact that there is a lack of authority on a disputed issue does not necessarily establish some substantial ground for a difference of opinion under the statute"); Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 283 (E.D. Pa. 1983) (stating that "the mere fact that the appeal would present a question of first impression is not, of itself, sufficient to show that the question is one on which there is a substantial ground for difference of opinion"; adding that "[t]he mere fact that a substantially greater number of judges have resolved the issue one way rather than another does not, of itself, tend to show that there is no substantial ground for difference of opinion" and that "[i]t is the duty of the district judge faced with a motion for certification to analyze the strength of the arguments in opposition to the challenged ruling when deciding whether the issue for appeal is truly one on which there is a substantial ground for dispute"). See also Wright, et al. §a 3930 (noting that "[d]istrict judges have not been bashful about refusing to find substantial reason to question a ruling of law, even in matters of first impression").

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