Sunday, March 23, 2008

federal courts - interlocutory appeals

Photomedex, Inc. v. St. Paul Fire & Marine Ins. Co. - ED Pa. - March, 2008

Federal courts have discretion to certify an issue for immediate appeal under 28 U.S.C. § 1292(b), when the court issues a non-final order and certifies that
a) the order involves a controlling question of law
b) as to which there is substantial ground for difference of opinion,
c) and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.

The court must certify that all three factors are met. Even then, the district court should exercise its discretion to certify only in exceptional cases. The Third Circuit has held that the certification procedure is not mandatory; permission to appeal is wholly within the discretion of the courts, even if the § 1292(b)] criteria are present.

In this case, the defendant failed to show a “substantial ground for difference of opinion” under the second element. A substantial ground for difference of opinion “refers to the legal standard applied in the decision for which certification is sought and whether other courts have substantially differed in applying that standard.”