Micro Focus (US) Inc. et al v. Insurance Services Office Inc.

Filing 175

MEMORANDUM ORDER: The Motion for Certification of Interlocutory Appeal (D.I. 166 ) is DENIED. Signed by Judge Richard G. Andrews on 5/22/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MICRO FOCUS (US) INC., et al.,
Plaintiffs,
Civil Action No. 15-252-RGA

v.

INSURANCE SERVICES OFFICE, INC.,:
Defendant.

MEMORANDUM ORDER
Presently before the Court is Defendant's Motion for Certification of Interlocutory
Appeal. (D.I. 166). The issue has been fully briefed. (D.I. 167, 172, 173). For the
reasons set forth herein, Defendant's motion is DENIED.
On February 20, 2018, I denied Defendant's motion to strike a supplemental
response to an interrogatory. (D. I. 162). Defendant now moves for certification of
interlocutory appeal, specifically "request[ing] that the Court amend its [Order] by
certifying it for interlocutory appeal." (D.I. 167, p.1 ). The "controlling question of law" at
issue is "[w]hether a plaintiff alleging breach of contract must move to amend its
complaint to allege breach of contract not referenced in or attached to the complaint if
there are no substantial differences between the provisions of the two contracts alleged
to have been breached." (Id.).
"The decision of whether to grant leave to file an interlocutory appeal is 'informed
by the criteria set forth in 28 U.S.C. § 1292(b).' " Chase Bank USA, N.A. v. Hess, 2011
WL 4459604, at *1 (D. Del. Sept. 26, 2011) (quoting In re Phi/a. Newspapers, LLC, 418

B.R. 548, 556 (E.D. Pa. 2009)). "Leave to file an interlocutory appeal may be granted
when the order at issue (1) involves a controlling question of law upon which there is (2)
substantial grounds for difference of opinion as to its correctness, and (3) if appealed
immediately, may materially advance the ultimate termination of the litigation." In re

SemCrude, L.P., 407 B.R. 553, 556-57 (D. Del. 2009) (citing Katz v. Carte Blanche
Corp., 496 F.2d 747, 754 (3d Cir. 1974)); see also 28 U.S.C. § 1292(b). "Interlocutory
appeal is meant to be used sparingly and only in exceptional cases where the interests
cutting in favor of immediate appeal overcome the presumption against piecemeal
litigation." Delalla v. Hanover Ins., 2010 WL 3908597, at *3 (D.N.J. Sept. 30, 2010).
I am doubtful that Defendant raises a question of law. It seems to me the
question sought to be answered involves factual questions and is likely a matter for the
District Court's discretion. I am also doubtful that there are substantial grounds for a
difference of opinion on the question of law (even assuming that there are substantial
grounds for a difference of opinion on my application of the law to the facts of this case).
Finally, I am doubtful that reversal on appeal "may materially advance the ultimate
termination of the litigation." As Defendant concedes, if I have made a reversible error,
Plaintiff may still seek to amend its complaint. (D.I. 167, p.7). Defendant says I would
deny such a request. I do not think that it is clear that I would.
In any event, I decline to certify my order for appeal.
IT IS SO ORDERED this

J.~ay of May 2018.