Leite et al v. Crane Company et al

Filing 125

ORDER Granting Plaintiffs' Motion For Leave To Take An Interlocutory Appeal From Order Dated 4/16/12 re 121 . Signed by JUDGE J. MICHAEL SEABRIGHT on 5/31/12. (gls, )CERTIFICATE OF SERVICEParticipants registere d to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DOUGLAS P. LEITE and MARY ANN )
K. LEITE,
)
)
Plaintiffs,
)
)
vs.
)
)
CRANE COMPANY, a Delaware
)
Corporation, et al.,
)
)
Defendants.
)
________________________________ )

CIVIL NO. 11-00636 JMS/RLP
ORDER GRANTING PLAINTIFFS’
MOTION FOR LEAVE TO TAKE
AN INTERLOCUTORY APPEAL
FROM ORDER DATED 4/16/12

ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO TAKE AN
INTERLOCUTORY APPEAL FROM ORDER DATED 4/16/12
I. INTRODUCTION
The court grants Plaintiffs Douglas and Mary Leite’s (“Plaintiffs”)
Motion for Leave to Take an Interlocutory Appeal on a question that has sharply
and consistently divided many courts throughout the country -- whether a
defendant who supplied products containing asbestos to the U.S. Navy may
remove the action from state court on the basis of the federal officer removal
statute, 28 U.S.C. § 1442(a)(1). In this court’s view, permitting an interlocutory
appeal would clearly serve the interests of justice by avoiding protracted and
expensive litigation not only in this case, but also in many other cases already filed
in this district and potentially scores of follow-on cases. That is, a resolution in

this case by the Ninth Circuit will have substantial precedential value to a large
number of other cases.
Plaintiffs filed this action on September 6, 2011 in the First Circuit
Court of the State of Hawaii asserting claims against eighteen Defendants that
manufactured, sold and/or supplied various products containing asbestos to the
United States Navy. As alleged in the Complaint, Douglas Leite was exposed to
asbestos contained in Defendants’ products while working as a machinist at the
Pearl Harbor Naval Shipyard from 1966 to 1972, causing him to develop asbestosrelated diseases. As to those Defendants that supplied asbestos products, the
Complaint asserts claims for failure to warn.
On October 21, 2011, Defendant Crane Company (“Crane”), a
supplier of asbestos products, removed the action to this court pursuant to 28
U.S.C. § 1442(a)(1), which allows removal where a defendant can establish a
colorable federal defense. In response, Plaintiffs filed their Motion to Remand,
arguing that Defendants failed to establish two necessary elements of the defense
-- (1) a colorable federal defense and (2) a causal nexus between their actions,
taken pursuant to a federal officer’s directions. On January 23, 2012, Magistrate
Judge Richard L. Puglisi entered his Findings and Recommendation to grant
Plaintiffs’ Motion for Remand (the “January 23 F&R”), finding that Defendants
2

had not established these elements.
Several Defendants objected to the January 23 F&R, and on April 16,
2012, the court entered its Order (1) Sustaining Objections to the January 23 F&R;
and (2) Denying Motion for Remand (the “April 16 Order”). The April 16 Order
recognized that the parties’ arguments had already been presented to numerous
courts in other asbestos cases, which had come to different conclusions regarding
a defendant’s evidentiary burden and whether a defendant can establish the defense
by presenting evidence that the government exercised some amount of discretion in
determining what warnings to include, or must present evidence that the
government actually considered and prevented the defendant from including an
asbestos warning. After a lengthy analysis, the court ultimately determined that
Defendants properly removed this action pursuant to § 1442(a)(1). In particular,
the court found admissible Defendants’ expert affidavits asserting that the Navy
would not have allowed warnings, and explained that this evidence was sufficient
to establish a colorable federal defense.
Plaintiffs filed their Motion for Leave to Take an Interlocutory Appeal
from the April 16 Order on May 1, 2012. Defendant Crane filed its Opposition on
May 16, 2012, and Plaintiffs filed their Reply on May 24, 2012. The other
asbestos actions pending before this court are in various stages of briefing on the
3

removal issue, and are awaiting resolution in this action. Based on the following,
the court GRANTS Plaintiffs’ Motion.
II. ANALYSIS
Plaintiffs seek an interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b), which provides a means for litigants to bring an immediate appeal of a
non-final order with the consent of both the district court and the court of appeals.
Pursuant to § 1292(b), a district court may certify an order for interlocutory appeal
if the movant establishes that (1) there is a controlling question of law, (2) there are
substantial grounds for difference of opinion, and (3) an immediate appeal may
materially advance the ultimate termination of the litigation.1
A movant seeking an interlocutory appeal has a heavy burden to show
that “exceptional circumstances justify a departure from the basic policy of

1

Section 1292(b) provides:
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that
such order involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in
such order. The Court of Appeals which would have jurisdiction
of an appeal of such action may thereupon, in its discretion, permit
an appeal to be taken from such order, if application is made to it
within ten days after the entry of the order: Provided, however,
That application for an appeal hereunder shall not stay proceedings
in the district court unless the district judge or the Court of
Appeals or a judge thereof shall so order.
4

postponing appellate review until after the entry of a final judgment.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 475 (1978); see also James v. Price Stern Sloan,
Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002) (“Section 1292(b) is a departure from
the normal rule that only final judgments are appealable, and therefore must be
construed narrowly.”); Pac. Union Conference of Seventh-Day Adventists v.
Marshall, 434 U.S. 1305, 1309 (1977) (“The policy against piecemeal
interlocutory review other than as provided for by statutorily authorized appeals is
a strong one.” (citations omitted)). Indeed, § 1292(b) is used “only in exceptional
situations in which allowing an interlocutory appeal would avoid protracted and
expensive litigation.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir.
1982) (citing U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966) (per
curiam)). Based on the following, the court finds that Plaintiffs have met this
heavy burden.
1.

Substantial Grounds for Difference of Opinion
The Ninth Circuit recently described the “substantial grounds for

difference of opinion” requirement as follows:
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
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
5

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.”
3 Federal Procedure, Lawyers Edition § 3:212 (2010)
(footnotes omitted). However, “just because a court is
the first to rule on a particular question or just because
counsel contends that one precedent rather than another
is controlling does not mean there is such a substantial
difference of opinion as will support an interlocutory
appeal.” Id. (footnotes omitted).
Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010).
At issue in the April 16 Order was whether Defendants carried their
burden of establishing removal pursuant to the federal officer removal statute, 28
U.S.C. § 1442(a)(1), and in particular whether Defendants established (1) a
colorable federal defense and (2) a causal nexus between their actions, taken
pursuant to a federal officer’s directions. In support of removal, Defendants
submitted the affidavits -- as they have in many other similar cases throughout the
country -- of Rear Admirals Roger B. Horne Jr. and David P. Sargent and Dr.
Samuel P. Forman, which assert that the Navy would not have allowed Defendants
to include asbestos warnings with their products and manuals. These affidavits and
the parties’ arguments presented several legal issues dispositive of the removal
issue, including the evidentiary burden a defendant must carry in establishing a
colorable federal defense, and whether a defendant can establish the defense by
presenting evidence that the government exercised some amount of discretion in
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determining what warnings to include.
The same affidavits and issues have been presented in each of the
twelve actions pending in this court, and these same and/or similar affidavits have
been previously presented in numerous other actions. Despite presenting common
facts, numerous district court cases that have addressed these same issues and/or
evidence, and reached different decisions. Cases denying remand include the
multidistrict asbestos litigation, Hagen v. Benjamin Foster Co., 739 F. Supp. 2d
770 (E.D. Pa. 2010) (finding that the Horne affidavit, among others, supported the
federal contractor defense), as well as, for example:
•

Najolia v. Northrop Grumman Ship Sys., 2012 WL 1886119 (E.D. La. May
23, 2012) (addressing Horne affidavit);

•

Brantley v. Borg-Warner Morse Tec, Inc., 2012 WL 1571129 (S.D. Cal.
May 3, 2012) (same);

•

Ellis v. Pneumo Abex Corp., 798 F. Supp. 2d 985 (C.D. Ill. 2011)
(discussing affidavits of Rear Admirals Horne and Sargent);

•

Morgan v. Bill Vann Co., 2011 WL 6056083 (S.D. Ala. Dec. 6, 2011)
(same);

•

Beckwith v. Gen. Elec. Co., 2010 WL 1287095 (D. Conn. Mar. 30, 2010)
(discussing affidavits of Rear Admirals Horne and Sargent and Dr. Forman);

•

Allen v. Gen. Elec. Co., 2010 WL 918305 (D. Conn. Mar. 9, 2010) (same);

•

Kotecki v. Buffalo Pumps, Inc., 2009 WL 2253169 (D. Conn. July 28, 2009)
(same);

•

Seigfried v. Allegheny Ludlum Corp., 2009 WL 1035001 (W.D. Pa. Apr. 17,
7

2009) (discussing affidavits of Rear Admirals Horne and Sargent and Dr.
Forman);
•

O’Connell v. Foster Wheeler Energy Corp., 544 F. Supp. 2d 51 (D. Mass.
2008) (discussing affidavits of Rear Admirals Horne and Sargent and Dr.
Forman); and

•

Harris v. Rapid Am. Corp., 532 F. Supp. 2d 1001, 1004 (N.D. Ill. 2007)
(explaining that the defendants “support removal with affidavits concerning
past policies and practices of the U.S. Navy”).

Cases granting remand include, for example:
•

Ruppel v. A.O. Smith Corp., 2012 WL 1389703 (S.D. Ill. Apr. 20, 2012)

•

Francis v. Union Carbide Corp., 2011 WL 6180061 (E.D. La. Dec. 13,
2011);

•

Glein v. Boeing Co., 2011 WL 537987 (S.D. Ill. Feb. 8, 2011) (addressing
affidavits of Navy experts);

•

Lindenmayer v. Allied Packing & Supply, Inc., 2010 WL 234906, at *6
(N.D. Cal. Jan. 14, 2010) (same);

•

Cardaro v. Aerojet Gen. Corp., 2010 WL 3488207 (E.D. La. Aug. 27, 2010)
(discussing affidavits of Rear Admirals Horne and Sargent and Dr. Forman);

•

Moore v. Asbestos Defendants (B*P), 2010 WL 2650487, at *4 (N.D. Cal.
July 1, 2010) (addressing affidavits of Navy experts);

•

Prewett v. Goulds Pumps (IPG), 2009 WL 2959877, at *7 (W.D. Wash.
Sept. 9, 2009) (same);

•

Holdren v. Buffalo Pumps, Inc., 614 F. Supp. 2d 129 (D. Mass. 2009)
(discussing affidavits of Rear Admirals Horne and Sargent and Dr. Forman);

•

Hilbert v. McDonnell Douglas Corp., 529 F. Supp. 2d 187 (D. Mass. 2008)
(addressing affidavits of Navy experts); and
8

•

Epperson v. Northrop Grumman Sys. Corp., 2006 WL 90070 (E.D. Va. Jan.
11, 2006) (same).2
This split shows how close these issues are -- even when courts are

presented with the substantially the same record and legal arguments, they have
come to opposite conclusions. Indeed, in this case alone, the January 23 F&R
came to the opposite conclusion as the April 16 Order based on the same record
and caselaw.
And these same arguments and evidence have been submitted -- and
will most certainly continue to be submitted -- in support of the numerous asbestos
cases that have been and will be removed to this court. See, e.g., Nelson v. Crane
Co., Civ. No. 11-00400 LEK-KSC (D. Haw.); Akau v. Crane Co., Civ. No. 1100637 JMS-RLP (D. Haw.); Thompson v. Crane Co., Civ. No. 11-00638 LEK-RLP
(D. Haw.); Schriner v. Crane Co., Civ. No. 11-00769 JMS-RLP (D. Haw.);
Robinson v. Crane Co., Civ. No. 11-00776 LEK-RLP (D. Haw.) Selitto v. Crane
Co., Civ. No. 12-00030 LEK-RLP (D. Haw.); Blevins v. Crane Co., Civ. No. 12-

2

That only district courts -- and no circuit courts -- have addressed removal pursuant to
the federal contractor defense is simply a function of recent legislation. Orders granting remand
were non-appealable until November 9, 2011 when Congress amended the removal statutes to
provide that orders on removal petitions under § 1442 are appealable as of right. See 28 U.S.C.
§ 1447(d) (“An order remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise, except that an order remanding a case to the State court from
which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal
or otherwise.”).
9

00055 JMS-RLP (D. Haw.); Felimer v. Crane Co., Civ. No. 12-00106 LEK-KSC
(D. Haw.); Nonies v. Crane Co., Civ. No. 12-00107 LEK-KSC (D. Haw.); Capati
v. Crane Co., Civ. No. 12-00120 JMS-BMK (D. Haw.); Calbero v. Crane Co., Civ.
No. 12-00131 LEK-BMK (D. Haw.). Until the Ninth Circuit answers the questions
raised in the April 16 Order, the court fully expects parties in these cases and those
to come to continue to argue these issues.3
In opposition, Crane argues that Getz v. Boeing Co., 654 F.3d 852 (9th
Cir. 2011), controls the issues presented and in particular stands for the proposition
that a defendant need not establish that the government specifically prohibited
asbestos warnings. As explained in the April 16 Order, the court certainly agrees
that Getz is helpful defining the federal contractor defense in the failure-to-warn
context -- it explains that the focus of the analysis is on “government discretion,
rather than dictation” such that the defense is not limited “to cases in which the
government specifically forbids warnings altogether or to instances where the
government specifically explicitly dictates the content of the warnings adopted.”
Id. at 860. But as a three-judge court, Getz does not -- and cannot -- overrule
earlier three-judge Ninth Circuit decisions requiring that governmental approval

3

At an April 24, 2012 joint status conference of all currently-pending asbestos actions in
the District of Hawaii, Plaintiffs’ counsel represented that additional similar failure-to-warn
asbestos actions will be filed in Hawaii state court.
10

(or disapproval) of particular warnings “conflict” with the contractor’s “duty to
warn under state law.” See Butler v. Ingalls Shipbuilding, Inc., 89 F.3d 582, 586
(9th Cir. 1996); In re Haw. Fed. Asbestos Cases, 960 F.2d 806, 813 (9th Cir.
1992). Thus, whether this “conflict” is met in this case (and all the other failure-towarn cases filed and/or to be filed in this court and circuit) remains an open
question despite Getz.4
That Getz does not answer the issues in this action is confirmed by the
fact that district courts continue to disagree in the face of this same guidance
provided in other circuits. Specifically, Getz joined other circuits in rejecting that
failure-to-warn cases require “that the government ‘prohibit’ warnings altogether
or ‘dictate’ the contents of the warnings actually incorporated.” See Leite v. Crane
Co., 2012 WL 1277222, at *5 (D. Haw. April 16, 2012) (quoting Oliver v. Oshkosh
Truck Corp., 96 F.3d 992, 1004 n.8 (7th Cir. 1996)) (citing Tate v. Boeing
Helicopters, 140 F.3d 654, 658 (6th Cir. 1998)). Yet in the Seventh Circuit,
district courts continue to come to opposite conclusions regarding whether removal
is appropriate. Compare Ruppel v. A.O. Smith Corp., 2012 WL 1389703 (S.D. Ill.
Apr. 20, 2010) (granting motion to remand), with Ellis, 798 F. Supp. 2d 985

4

And in any event, Getz does not address the removal standard and leaves open the
argument whether removal defendants can establish a colorable federal defense based on
arguably speculative expert affidavits.
11

(denying motion to remand). Thus, Getz certainly does not conclusively answer
the removal question and courts will continue to come to different conclusions as
to whether defendants have properly removed these asbestos actions. The court
therefore finds that there are substantial grounds for a difference of opinion on the
issues presented in the April 16 Order.
2.

Controlling Question of Law
Whether an interlocutory appeal presents a “controlling question of

law” raises two questions -- whether the issue is “controlling,” and whether the
issue is one of law as opposed to one of fact.
As to whether an issue is “controlling,” “all that must be shown in
order . . . is that resolution of the issue on appeal could materially affect the
outcome of litigation in the district court.” In re Cement, 673 F.2d at 1026 (citing
U.S. Rubber Co., 359 F.2d at 785). Questions of law appropriate for interlocutory
appeal include “the determination of who are necessary and proper parties, whether
a court to which a cause has been transferred has jurisdiction, or whether state or
federal law should be applied.” Id.
As to whether an interlocutory appeal raises a “question of law,” the
Ninth Circuit has not precisely defined this term, but “several other courts have
concluded a ‘question of law’ under § 1292(b) means a ‘pure question of law’
12

rather than a mixed question of law and fact or the application of law to a particular
set of facts.” Chehalem Physical Therapy, Inc. v. Coventry Health Care, Inc.,
2010 WL 952273, at *3 (D. Or. Mar. 10, 2010) (collecting cases); see also
McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) (stating
that Ҥ 1292(b) appeals were intended, and should be reserved, for situations in
which the court of appeals can rule on a pure, controlling question of law without
having to delve beyond the surface of the record in order to determine the facts”);
Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 677 (7th Cir. 2000) (“The
idea [behind § 1292] was that if a case turned on a pure question of law, something
the court of appeals could decide quickly and cleanly without having to study the
record, the court should be enabled to do so without having to wait till the end of
the case.”); Keystone Tobacco Co. v. U.S. Tobacco Co., 217 F.R.D. 235, 239 (D.
D.C. 2003) (When “the crux of an issue decided by the court is fact-dependent, the
court has not decided a ‘controlling question of law’ justifying immediate
appeal.”).
The April 16 Order determined that the court has jurisdiction over this
action, which certainly is a “controlling” issue for purposes of 28 U.S.C.
§ 1292(b). See In re Cement, 673 F.2d at 1026; see, e.g., Lee v. Am. Nat’l Ins. Co.,
260 F.3d 997, 1000 (9th Cir. 2001) (addressing interlocutory appeal of denial of
13

motion to remand); Regal Stone Ltd. v. Longs Drug Stores Cal., L.L.C., 2012 WL
1595070, at *2 (N.D. Cal. May 4, 2012) (finding that denial of motion to remand
raises a controlling issue because “[r]esolution of that issue on appeal will
determine whether the litigation continues in the district court at all”).
The court further finds that the April 16 Order addressed issues of law
including the evidentiary burden a defendant must carry in establishing a colorable
federal defense, and the applicability of Getz when raised in support of a
defendant’s colorable federal defense argument on removal. These are all issues of
law that control determination of the removal issue in both this action and the
many other actions in this district, and are therefore appropriate for the Ninth
Circuit to address in an interlocutory appeal.
In opposition, Crane argues that an appeal will necessarily require the
Ninth Circuit to “delv[e] into a detailed factual analysis of the affidavits and
evidence presented [in] deciding whether that evidence comports with Getz.” See
Doc. No. 123, Crane Opp’n at 7-8. The court disagrees -- at issue is not the weight
of the evidence, or even what the evidence establishes. Rather, at issue is, among
other things, what evidence the court should consider in determining whether a
defendant has properly removed pursuant to the § 1442, and what Defendants must
establish to support a colorable federal defense in the failure-to-warn context. The
14

evidence Defendants have presented in this action is the same evidence presented
in the other eleven asbestos actions currently pending before this court, and is the
same evidence that has been presented to other district courts in support of removal
(see above). And the court is certain that these same affidavits will continue to be
presented to this court and others as more asbestos actions are filed. The Ninth
Circuit’s legal determination of whether these affidavits should be considered and
whether Defendants have properly removed pursuant to § 1442 does not require
the Ninth Circuit to weigh the evidence or make factual determinations. The court
therefore finds that Plaintiffs have carried their burden of establishing that the
April 16 Order addresses a controlling issue of law.
3.

Materially Advance the Ultimate Termination of the Litigation
The requirement that an interlocutory appeal materially advance the

ultimate termination of the litigation is directed to the very purpose of § 1292(b) -to “facilitate disposition of the action by getting a final decision on a controlling
legal issue sooner, rather than later [in order to] save the courts and the litigants
unnecessary trouble and expense.” United States v. Adam Bros. Farming, Inc., 369
F. Supp. 2d 1180, 1182 (C.D. Cal. 2004); see also In re Cement Antitrust Litig.,
673 F.2d at 1026 (stating that § 1292(b) is used “only in exceptional situations in
which allowing an interlocutory appeal would avoid protracted and expensive
15

litigation”).
And most critical here, an interlocutory appeal is appropriate where
resolution of the issue would materially advance the termination of not only the
present case, but also other cases pending before the court. See Klinghoffer v.
S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990) (“[T]he impact that an appeal
will have on other cases is a factor that we may take into account in deciding
whether to accept an appeal that has been properly certified by the district court.”);
Triax Co. v. United States, 20 Cl. Ct. 507, 514 (1990) (determining that an
interlocutory appeal would materially advance the litigation because reversal of the
trial court would resolve the case and a large number of other cases); see, e.g., Al
Maqaleh v. Gates, 620 F. Supp. 2d 51, 55 (D. D.C. 2009) (“[I]nterlocutory appeal
is warranted where the jurisdictional determination will impact numerous cases.”);
In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liability Litig., 399 F. Supp.
2d 320, 324 (S.D.N.Y. 2005) (stating that courts consider, in part, whether the
certified issue has precedential value for a large number of cases); Krangel v.
Crown, 791 F. Supp. 1436, 1449 (S.D. Cal. 1992) (“Certification for appeal may
also materially advance the conclusion of other cases involving this same legal
issue.”).
An interlocutory appeal of the April 16 Order will materially advance
16

the ultimate termination of this litigation, as well as the numerous other asbestos
actions that have been and will almost certainly be removed to federal court.
Specifically, a dispositive ruling on the removal issue will decide whether these
actions can proceed in federal court. An interlocutory appeal will prevent a
potentially troublesome alternative -- that the parties in all of these actions (and
future actions) will proceed through discovery, trial and appeal only to have the
Ninth Circuit determine that the court has no jurisdiction. Such result would
clearly not serve the interests of justice, resulting in a waste of both the court’s and
the parties’ time and expense, an outcome that will only be exacerbated by the
numerous cases presenting this same issue.
In opposition, Crane argues that this factor is not met because an
appeal will not “lead to the ultimate termination of the litigation in all forums.”
Doc. No. 123, Crane Opp’n at 8. The court rejects that an interlocutory appeal
must be on a case-dispositive issue -- “neither § 1292(b)’s literal text nor
controlling precedent requires that the interlocutory appeal have a final, dispositive
effect on the litigation, only that it ‘may materially advance’ the litigation.” Reese
v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). Rather, as
explained above, “an immediate appeal of the order would materially advance the
ultimate termination of the litigation in the sense that if the motion to remand were
17

granted, the federal courts would cede jurisdiction of this matter to the [Hawaii]
state courts, effectively ending federal litigation of this case.” See Regal Stone,
2012 WL 1595070, at *2. The court therefore finds that Plaintiffs have established
that an interlocutory appeal will materially advance the ultimate termination of this
action.
III. CONCLUSION
In sum, Plaintiffs have established that an interlocutory appeal of the
April 16, 2012 Order is necessary because (1) there are controlling questions of
law, (2) there are substantial grounds for difference of opinion, and (3) an
immediate appeal may materially advance the ultimate termination of the
litigation. The court therefore GRANTS Plaintiffs’ Motion for Leave to Take an
Interlocutory Appeal from the April 16, 2012 Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 31, 2012.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Leite et al. v. Crane Co. et al., Civ. No. 11-00636 JMS/RLP, Order Granting Plaintiffs’ Motion
for Leave to Take an Interlocutory Appeal from Order Dated 4/16/12
18