Garza v. Citigroup Inc.
MEMORANDUM. Signed by Judge Sue L. Robinson on 1/4/2016. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARIO ALBERTO LOPEZ GARZA,
the Executor of the Estate of Hans
Jorg Schneider Sauter,
) Civ. No. 15-537-SLR
At Wilmington this 4th day of January, 2016, having reviewed the motion for
certification and for stay filed by defendant Citigroup, Inc. ("Citigroup"), and the
response thereto filed by plaintiff Mario Alberto Lopex Garza ("Garza"); the motion will
be granted consistent with the reasoning that follows:
1. Background. In my November 13, 2015 memorandum opinion (D.I. 16), I
granted Citigroup's motion for costs and a stay pursuant to Fed. R. Civ. P. 41 (d), but
concluded that the term "costs" should not be interpreted to include attorney fees.
Citigroup now moves to certify, pursuant to 28 U.S.C. § 1292(b), the question of
whether the costs recoverable under Rule 41 (b) includes such fees.
2. Standard of review. A non-final order may be certified for interlocutory
appeal if the district court determines that the order (1) involves a controlling question of
law upon which there is (2) substantial grounds for a difference of opinion as to its
correctness, and (3) if appealed immediately, may materially advance the ultimate
termination of the litigation. 28 U.S.C. § 1292(b). See also Chase Bank USA, N.A. v.
Hess, 2011 WL 4459604, at *1 (D. Del. Sept. 26, 2011).
3. Analysis. I agree with Citigroup that certification is appropriate, consistent
with the prerequisites of§ 1292(b). In the first instance, the scope of recoverable
"costs" under§ 1292(b) is a question of law which has not been resolved by the Third
Circuit and over which there is substantial debate, as noted in the November 13, 2015
memorandum opinion. (D.I. 16 at 10) With respect to the remaining considerations, I
recognize that the central purpose of Rule 41 (b) is to deter parties from wasting judicial
resources and imposing unnecessary costs on defendants by bringing multiple actions
based on the same underlying claim. Whether the above captioned litigation goes
forward at all depends on plaintiff's ability to pay the costs associated with the earlier
dismissed case; it goes to reason that the higher the costs, the greater the obstacle to
plaintiff's pursuit of his goals through litigation. It, therefore, is reasonable to
characterize the question of what costs are recoverable under Rule 41 (b) as one that is
"serious to the conduct of the litigation" 1 and which may "materially advance the ultimate
termination of the litigation." 2
4. Conclusion. For the reasons stated above, the motion for certification is
granted, as is Citigroup's request for a continuance of the stay, given that the legal
question to be certified concerns the very terms by which the current stay should be
See Katz v. Carle Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974).
See Apeldyn Corp. v. Samsung E/ecs. Co., Ltd., 693 F. Supp. 2d 399, 407 (D.
lifted and plaintiff permitted to proceed with the instant litigation. An order shall issue.
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