Filing 93

MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 2/1/2016. (kas, )

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Not for Publication UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY DANISH CROWN AMBA, Plaintiff, Civil Action No. 10-4603 (MAS) (TJB) v. RUPAR! FOOD SERVICES, INC., MEMORANDUM OPINION Defendant. This matter comes before the Court on Defendant Rupari Food Services, Inc.' s ("Defendant" or "Rupari") Motion to Certify the November 19, 2015 Ruling for Interlocutory Appeal pursuant to 28 U.S.C. § 1292(b). (ECF No. 86.) Plaintiff Danish Crown Amba ("Plaintiff' 01 "Danish Crown") filed an opposition brief (ECF No. 87), and Defendant replied (ECF No. 88). The Court having carefully considered the parties' submissions, denies Defendant's Motion to Certify the November 19, 2015 Ruling for Interlocutory Appeal. I. Legal Standard A district court has the discretion to grant a § 1292(b) certification if the order in question: "(1) involve[s] a controlling question of law, (2) offer[s] substantial ground for difference of 01~inion as to its correctness, and (3) if appealed immediately [would] materially advance the ulHmate termination of the litigation." Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. l~n4) (internal quotation marks omitted). The burden to demonstrate that certification is appropriate lies with the moving party. Elec. Mobility Corp. v. Borns Sensors/Controls, Inc., 87 F. Supp. 2d 394, 398 (D.N.J. 2000). Interlocutory appeal is to be ''used sparingly" and only in " xceptional" circumstances that justify foregoing the normal procedure of appealing after final dgment. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 74 (1996). Substantial ground for difference of opinion exists when there is genuine doubt or c nflicting precedent as to the correct legal standard. P. Schoenfeld Asset Mgmt. LLC v. Cendant orp., 161 F. Supp. 2d 355, 360 (D.N.J. 2001). "[M]ere disagreement with [a] district court's ling does not constitute a substantial ground for a difference of opinion within the meaning of [ ] 1292(b)." Kapossy v. McGraw-Hill, Inc., 942 F. Supp. 996, 1001 (D.N.J. 1996) (internal q otation marks omitted). "The clearest evidence of substantial grounds for difference of opinion is where there are conflicting interpretations from numerous courts." Knapick v. Downey, 963 F. S pp. 2d 378, 398 (M.D. Pa. 2013) (internal quotation marks omitted). Rupari argues that there is substantial ground for a difference of opinion on the following two controlling questions oflaw: ( ) "whether a court may look at any evidence regarding the parties' intent concerning a release p ovision contained in a 2009 settlement agreement (the "2009 Settlement Agreement") besides t e release provision itself' and (2) "whether the Court properly ruled that, as a matter of law, anish Crown is not barred from asserting the release provision in the 2009 Settlement Agreement a a defense to Rupari's Counterclaim concerning lost profits." (Def.'s Moving Br. 1-2, ECF No. -1.) As discussed below, the Court does not find a substantial ground for a difference of opinion ·th respect to these questions of law. Analysis A. Courts Agree that Parol Evidence May Not Be Used to Construe an Unambiguous Release First, Defendant challenges New Jersey's parol evidence rule by asserting that there is s bstantial ground for difference of opinion as to "whether a court may look at any evidence r garding the parties' intent concerning a release provision contained in the [2009 Settlement 2 greement] besides the release provision itself." (Id. at 1-2.) In the November 16, 2015 Ruling, t e Court acknowledged and analyzed the appropriate case law with respect to the issue of parol e idence. (Nov. 16, 2015, Tr. 21:5-15, ECF No. 89.) The Court finds no difference in opinion a ongst any of those decisions. All of these decisions dictate that a court should exclude parol e idence in the absence of ambiguity. In addition, Rupari has not identified any conflicting a thority on this issue. Therefore, the Court finds that Rupari has not demonstrated a substantial ound for difference of opinion. 1 B. Courts Agree that a Party is Not Barred from Asserting an Affirmative Defense in Response to a Motion for Summary Judgment in the Absence of Prejudice Second, Defendant asserts that there are substantial grounds for appealing the Court's ling that "with respect to Defendant's equitable argument and argument pursuant to Rule 8( c) of t e Federal Rules of Civil Procedure, the Court finds that Defendant had sufficient opportunity to t ke discovery regarding the Release Agreement, therefore Defendant was not prejudiced by P aintiffs delay in asserting this defense." (Def.'s Reply Br. 5-6, ECF No. 88.) In particular, efendant argues that there is substantial ground for difference of opinion as to whether the :6 llowing constitute prejudice: (1) the need to reopen discovery; and (2) the fact that Rupari paid o er $200,000 to settle Danish Crown's claim for breach of the December 2008 Back Ribs greement. (Def.'s Moving Br. 21-22; Def.'s Reply Br. 10.) While it is clear that Defendant d sagrees with the Court's ruling regarding prejudice, Defendant fails to identify any substantial 1 nits Moving Brief in support of its motion for certification of an interlocutory appeal, Defendant, :6 r the first time, argues that the Release is ambiguous. (Def.'s Moving Br. 16-17.) Because efendant did not raise this argument in either of the two rounds of summary judgment briefing, t is argument was waived and may not be argued on appeal. See Pension Benefit Guar. Corp. v. ite Consol.. Indus., Inc., 215 F.3d 407, 419 n.14 (3d Cir. 2000) (collecting cases regarding aiver of arguments not raised in district court). 3 ound for difference of opinion regarding a controlling question of law. See Kapossy, 942 F. S pp. at 1001 ("[M]ere disagreement with [a] district court's ruling does not constitute a s bstantial ground for a difference of opinion within the meaning of[§] 1292(b)."). Moreover, the issue of prejudice is not controlling with respect to Defendant's assertion of dicial and equitable estoppel. Regardless of whether Defendant was prejudiced by Plaintiffs :D ilure to assert the Release Defense as an affirmative defense, the doctrines of judicial and e uitable estoppel are inapplicable. Judicial estoppel, which is premised on maintaining the i tegrity of the courts, requires that a party take a position that is inconsistent with a position that it previously took, and that was embraced by the court. See New Hampshire v. Maine, 532 U.S. 7 2, 749-50 (2001) (discussing purpose of doctrine and noting that "[a]bsent success in a prior p oceeding, a party's later inconsistent position, introduces no risk of inconsistent determinations") (i temal quotation marks omitted). Here, Defendant contends that Count One of Plaintiffs omplaint is inconsistent with Plaintiffs release defense. The Court did not, however, rule on ount One of the Complaint. The parties settled Count One before any motion practice c mmenced in this action. Accordingly, judicial estoppel is not applicable. Likewise, the doctrine of equitable estoppel is inapplicable. Equitable estoppel requires s owing, inter alia, the concealment of a material fact. Eileen T. Quigley, Inc. v. Miller Family rms, Inc., 266 N.J. Super. 283, 296 {App. Div. 1993) ("Equitable estoppel requires proof of isrepresentation of material facts, or concealment thereof, known to the party sought to be e topped and unknown to the party claiming estoppel .... "). Defendant did not argue that Plaintiff c ncealed any fact regarding the Release, rather Defendant argues that Plaintiff concealed its " resent theory that the scope of the release provision in the 2009 Settlement Agreement included a 1 claims related to rib agreements." (Def.'s Reply Br. 21 (emphasis added).) Because Defendant 4 h s not asserted that Plaintiff concealed any material fact, the doctrine of equitable estoppel is Accordingly, Rupari has failed to meet the second prong requiring a substantial ground for difference of opinion with respect to either the exclusion of parol evidence or permitting Plaintiff to raise the Release Defense. III. Conclusion For the reasons set forth above, Defendant's Motion to Certify the November 19, 2015 Order for Interlocutory Appeal is denied. The Court will issue an Order consistent with this Memorandum Opinion. MI':J1!#.:I/ UNITED STATES DISTRICT JUDGE ~·~ Dated: February_I, 2016 5

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