Genesis Health Clubs, Inc. v. LED Solar & Light Company

Filing 62

MEMORANDUM AND ORDER denying 58 plaintiff's motion for certification for interlocutory appeal. Signed by District Judge John W. Lungstrum on 07/03/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GENESIS HEALTH CLUBS, INC.,

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)
Plaintiff,
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v.
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LED SOLAR & LIGHT COMPANY,
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)
Defendant.
)
)
_______________________________________)

Case No. 13-1269-JWL

MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff’s motion for certification for
interlocutory appeal (Doc. # 58). For the reasons set forth below, the Court denies the
motion.
On March 26, 2014, the Court issued its Memorandum and Order by which it
granted in part and denied in part defendant’s motion for summary judgment (Doc. # 50).
Among its rulings, the Court granted summary judgment in favor of defendant on
plaintiff’s claim to recover the purchase price of the goods at issue, on the basis that
plaintiff had failed to provide evidence of its revocation of its acceptance of the goods
(necessary for recovery of the purchase price) sufficient to create a question of fact for
trial. On May 20, 2014, the Court issued a Memorandum and Order by which it denied
plaintiff’s motion for reconsideration of that ruling (Doc. # 57). Plaintiff now requests
that the Court certify those two orders for interlocutory appeal of that ruling pursuant to

28 U.S.C. § 1292(b).
Section 1292(b) provides as follows:
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.
Id. Upon such certification by the district court, the Court of Appeals may or may not
decide to permit the interlocutory appeal in its discretion. Id. Certification under this
section is within the discretion of the district court. See Swint v. Chambers County
Comm’n, 514 U.S. 35, 47 (1995). In deciding whether to exercise its discretion under
Section 1292(b), the Court is mindful that “there is a long-established policy preference
in the federal courts disfavoring piecemeal appeals.” See Conrad v. Phone Directories
Co., 585 F.3d 1376, 1382 (10th Cir. 2009).
In this case, the Court declines to exercise its discretion to certify its ruling for
interlocutory appeal. First, the Court does not believe that its ruling presents the kind
of “controlling question of law” on which an interlocutory appeal should be permitted.
Plaintiff attempts to characterize the relevant legal issue here as one concerning the
amount of notice necessary for revocation of acceptance under Kansas law. Plaintiff has
not shown or even suggested, however, that the Court incorrectly stated the governing
law concerning revocation, or that there is controversy among the courts concerning the
amount of notice necessary. Rather, the pertinent issue of law in this case is whether

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plaintiff submitted sufficient evidence to create a question of fact concerning revocation.
The Court agrees with those courts that have concluded that such an issue of the
sufficiency of the evidence to avoid summary judgment is not the type of legal question
envisioned by the interlocutory appeal process, as such an issue requires the appellate
court to embroil itself in the record, instead of merely deciding a more traditional legal
issue. See, e.g., McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258-59 (11th Cir.
2004) (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 . . . . The antithesis
of a proper § 1292(b) appeal is one that turns on whether there is a genuine issue of fact
or whether the district court properly applied settled law to the facts or evidence of a
particular case.”); Ahrenholz v. Board of Trustees of Univ. of Ill., 219 F.3d 674, 676-77
(7th Cir. 2000) (“We think ‘question of law’ as used in section 1292(b) has reference to
a question of the meaning of a statutory or constitutional provision, regulation, or
common law doctrine rather than to whether the party opposing summary judgment had
raised a genuine issue of material fact.”); Harriscom Svenska AB v. Harris Corp., 947
F.2d 627, 631 (2d Cir. 1991) (section 1292(b) does not provide for appeal of “questions
as to whether genuine issues of material fact remain to be tried”); see also 16 Charles A.
Wright, et al., Federal Practice and Procedure § 3930 (1996) (“Even when the question
is the supposed question of law whether there are any genuine issues of material fact that
preclude summary judgment, ordinarily it seems better to keep courts of appeals aloof
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from interlocutory embroilment with the factual content of the record.”).1
The Court also does not agree that a substantial ground exists for a difference of
opinion concerning whether plaintiff did submit evidence sufficient to create a question
of fact for trial. Plaintiff insists that it submitted evidence of conversations by which it
revoked its acceptance of the goods, but as the Court stated in its prior orders, plaintiff
presented no evidence suggesting that plaintiff went beyond merely complaining about
the goods and also revoked its acceptance of the goods.
Accordingly, the Court concludes in its discretion that certification for
interlocutory appeal is not warranted in this case, and it therefore denies plaintiff’s
motion.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s motion for
certification for interlocutory appeal (Doc. # 58) is denied.
IT IS SO ORDERED.
Dated this 3rd day of July, 2014, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

1

Plaintiff did not submit a reply brief in support of its motion, and thus it did not
respond to this point raised by defendant concerning the type of legal issue presented
here.
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