Commercial Litigation and Arbitration

When Does a Case Present a Substantial Ground for Difference of Opinion within 28 U.S.C. § 1292(b)? Factors

Adhikari v. Daoud & Partners, 2012 U.S. Dist. LEXIS 28394 (S.D. Tex. Mar. 5, 2012):

As to the second prong, which requires a substantial ground for difference of opinion, courts have varied in their approach. Generally, courts have found that there is a substantial ground for difference of opinion when:

[A] trial court rules in a manner which appears contrary to the rulings of all Courts of Appeals which have reached the issue, if the circuits are in dispute on the question and the Court of Appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented.

*** Moreover, distinctions must be drawn between disagreements on questions of law, and questions that turn on the facts. Ultimately, "'fact review questions' are 'inappropriate for § 1292(b) review.'" Solis v. Univ. Project Mgmt., Inc., 2009 WL 2018260, at *3 (S.D. Tex. July 6, 2009) (quoting Clark-Dietz, 702 F.2d at 69).

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