Palmer v. Prescott, City of et al

Filing 49

ORDER that Plaintiff's Motion to Allow Interlocutory Appeal (Doc. 48) is denied. Signed by Judge David G Campbell on 11/9/10.(KMG)

Palmer v. Prescott, City of et al

Doc. 49

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Peter Michael Palmer, an individual, Plaintiff, vs. City of Prescott, et al., Defendants.

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No. CV-10-8013-PCT-DGC ORDER

Plaintiff seeks the right to pursue an interlocutory appeal under 28 U.S.C. § 1292(b). Doc. 49. A district court may certify an issue for interlocutory appeal under § 1292(b) only when (1) there is a "controlling question of law," (2) on which there are "substantial grounds for difference of opinion," and (3) "an immediate appeal may materially advance the ultimate termination of the litigation." In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982)). "All three requirements must be met for certification to issue under that statute." Best Western Int'l, Inc. v. Govan, No. CIV 05-3247-PHX-RCB, 2007 WL 1545776, at *3 (D. Ariz. May 29, 2007) (citation, quotation marks, and brackets omitted). Plaintiff has identified no controlling question of law he seeks to appeal, much less one on which there is a substantial ground for difference of opinion. The Ninth Circuit has made clear that a § 1292(b) appeal is warranted only when the question is one of law ­ not fact, and not the application of law to fact ­ and only when that question clearly is unsettled in the courts: "To determine if a substantial ground for difference of opinion exists under § 1292(b), courts must examine to what extent the controlling law is unclear. Courts

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traditionally will find that a substantial ground for difference of opinion exists where 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." Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010) (quotation marks and citation omitted). Plaintiff's concern in this case is not with the principles of law that control motions to disqualify under 28 U.S.C. §§ 144 and 455, but with how the Court has applied those wellsettled principles to the facts of this case. That concern does not amount to a controlling question of law. Plaintiff clearly disagrees with the Court's decisions, but that disagreement does not create a question of law. "[A] party' strong disagreement with the Court's ruling is not sufficient for there to be a substantial ground for difference" on a controlling question of law. Couch, 611 F.3d at 633. Because § 1292(b) is a departure from the normal rule that only final judgments are appealable, the statute "must be construed narrowly," James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002), and "applied sparingly and only in exceptional cases," United States v. Woodbury, 263 F.2d 784, 788 n.11 (9th Cir. 1959). Plaintiff has not shown that this is one of the rare cases appropriate for interlocutory appeal under § 1292(b). IT IS ORDERED that Plaintiff's Motion to Allow Interlocutory Appeal (Doc. 48) is denied. DATED this 9th day of November, 2010.

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