§ 1292(b) Certification Is Not Appropriate Simply Because the Interlocutory Decision Addresses an Issue of First Impression or Complex, Difficult Statutory Interpretation

From Lang v. Crocker Park, LLC, 2011 U.S. Dist. LEXIS 83451 (N.D. Ohio July 29, 2011):

B. Substantial Ground for Difference of Opinion Is Not Present

Defendants posit that the language used by the court in its Order is intentionally equivocal in recognition of the fact that certain provisions of the ADAAG [Americans with Disabilities Act Accessibility Guidelines ] are susceptible to competing interpretations. *** In support of this contention, Defendants emphasize the court's use of the word "plausibly." Id. Defendants also cite the court's use of the phrase "may be" as further evidence of the court's equivocation. Id.

However, a plaintiff's claim survives a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) when the complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While Defendants may take issue with the equivocal nature of the word "plausibly," the fact remains that the analysis of a complaint under a motion to dismiss pertains to the plausibility standard. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949. Thus, the word "plausibly" is not used in the Order to express doubt about the court's own interpretation of the relevant statutes, but rather is used in the context of applying the correct legal standard. Further, the court used "may be" regarding certain regulations and Defendants' obligations arising under those regulations because the applicability of those regulations or obligations to the present case hinges on questions of fact. As it is neither possible nor appropriate to make these determinations of fact at this point in the proceedings, the court used "may be" to express its reliance on future factual determinations.

Defendants point out that it appears that no court, let alone the Sixth Circuit, has ruled on the issue Defendants urge the court to certify. *** Defendants maintain that the substantial ground for the difference of opinion requirement of § 1292(b) is met if the court's decision raises "questions which are novel, or involve matters of first impression." Gionis v. Javitch, Block and Rathbone, 405 F. Supp. 2d 865, 873 (S.D. Ohio 2005). However, courts have also noted that the fact that a court addressed an issue of first impression does not demonstrate the existence of substantial ground for difference of opinion. See Baden-Winterwood v. Life Time Fitness, No. 2:06-CV-99, 2007 WL 2326877, at *3; Atlas Lederer Co., 174 F. Supp. 2d at 669 (citing In re Flor, 79 F.3d 281, 284 (2d Cir. 1996) (noting 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")). Rather, the court should analyze the strength of the arguments in opposition to the challenged ruling when deciding whether there is truly substantial ground for dispute. Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 283 (E.D. Pa. 1983).

In the present case, Defendants disagree with the court's finding in its Order denying Defendants' Motion to Dismiss that the text of 28 C.F.R. Part 36 App. A § 4.1.2(5)(a) encompasses any given "parking area," arguing instead that the provision's reference to § 4.6 (which refers to "lots") excludes on-street parking from the statutory definition of "parking area." Still, as the court noted in its Order, the ADAAG provision cited above indicates that if accessible spots are provided in locations separate from non-accessible spots, the accessible spots must be in locations that are of "equivalent or greater accessibility, . . . cost and convenience." (Order at p. 6.) Defendants maintain that "substantial grounds for difference of opinion may exist when the court is faced with issues of statutory interpretation that are somewhat novel and complex." N.J., Dept. of Treasury, Div. of Inv. v. Fuld, Civ. No. 09-1629, 2009 WL 2905432, at *2 (D.N.J. Sept. 8, 2009). However, the court finds that neither the complexity of the statutory interpretation issue nor the strength of Defendants' arguments rise to the level that would warrant certification of this issue for immediate interlocutory appeal. Because 28 U.S.C. § 1292(b) is a rare exception to the final judgment rule, courts have noted that it is "not intended merely to provide an avenue for review of difficult rulings in hard cases." Equal Emp't Opportunity Comm'n v. Allstate Ins. Co., No. 4:04cv01359, 2007 WL 38675, at *4 (E.D. Mo. Jan. 4, 2007) (quoting Fed. Deposit Ins. Corp. v. First Nat. Bank of Waukesha, Wis., 604 F. Supp. 616, 620 (D. Wis. 1985)). The dearth of cases treating this issue is not, by itself, sufficient to show that substantial ground for difference of opinion is present in this case, despite the fact that Defendants disagree with the court's interpretation of the statute. Additionally, the statutory language is not so complex that the court is compelled to submit the issue to the Sixth Circuit. Therefore, the court finds that, while there may be disagreement among the parties on the interpretation of the ADA for the purposes of certifying the appeal under § 1292(b), substantial ground for difference of opinion is not present in this case.

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