Fairbank Reconstruction Corp. v. Greater Omaha Packing Company, Inc.

Filing 185

DECISION AND ORDER -- IT HEREBY IS ORDERED, that Defendants' Motion to Amend this Court's February 10, 2020, Order for Certification for Interlocutory Appeal and to Stay Proceedings Pending Appeal (Docket No. 173) is DENIED. SO ORDERED. Signed by William M. Skretny, United States District Judge on 12/18/2020. (JCM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FAIRBANK RECONSTRUCTION CORP.,
d/b/a FAIRBANK FARMS,
Plaintiff,

DECISION AND ORDER

v.

13-CV-907S

GREATER OMAHA PACKING COMPANY,
INC.,
Defendant.

I. INTRODUCTION
In this case, Plaintiff Fairbank Reconstruction Corp. (“Fairbank”) seeks to hold
defendant Greater Omaha Packing Company, Inc. (“GOPAC”) liable for harms caused by
the presence of E. coli in beef that GOPAC supplied to Fairbank in 2009. After Fairbank
was sued by consumers sickened by the ground beef, it sought indemnification from its
supplier, GOPAC. Following litigation in federal courts in Maine and New Hampshire and
in New York state court, Fairbank commenced the present action before this Court
seeking contractual indemnification and recovery for breach of contract and breach of
warranties for losses it sustained as a result of the tainted meat GOPAC provided to it.
Addressing an earlier motion for summary judgment by Fairbank, GOPAC
conceded the preclusive effect of prior court holdings that a contract between the parties,
the “Fairbank Guarantee,” governed the parties’ relationship and that Fairbank acted as
a reasonable buyer in their transaction. (See GOPAC’s Memorandum in Opposition to
Summary Judgment, May 15, 2015, Docket No. 78 at p. 10.) More than two-and-a-half
years after that concession, after it discovered what it claims is new evidence that
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Fairbank was not in contractual privity with GOPAC, GOPAC moved to amend its answer
and moved for reconsideration of the prior grant of summary judgment. (Docket No. 134,
filed on February 25, 2019.) On February 10, 2020, this Court adopted the Report and
Recommendation of Magistrate Judge McCarthy denying both motions, finding that
GOPAC had failed to exercise the requisite reasonable diligence. (Order, Docket No.
169.)
Presently before this Court is GOPAC’s motion seeking certification of this Court’s
February 10, 2020, order for interlocutory appeal, and seeking a stay of proceedings
pending appeal. (Docket No. 174.) GOPAC asserts that an interlocutory appeal is
warranted because this Court used an erroneous “inquiry notice” in denying GOPAC’s
motions. For the following reasons, GOPAC’s motion is denied.

II. BACKGROUND
a) The Fairbank Guarantee, the E. coli outbreak, and earlier litigation
Fairbank is in the business of processing and selling ground beef. (Complaint, ¶
11.) GOPAC supplies beef trim to processors such as Fairbank. (Id., ¶ 12.)
Sometime in 2009, GOPAC supplied beef trim to Fairbank, which ground it and
sold it to supermarkets. (Id., ¶¶ 1-4, see also Id. at pp. 37-39.) Some of this beef was
tainted with E. coli, and some purchasers of the beef were sickened after consuming it.
(Id. at p. 37.) After settling with those purchasers, Fairbank sought indemnification from
GOPAC. (Id., ¶¶ 2-3.) The indemnification action in Maine resulted in holdings that
GOPAC had delivered adulterated raw beef to Fairbank, that Fairbank had acted as a
reasonable buyer in using the beef GOPAC supplied to it, and that the Fairbank
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Guarantee governed the relationship between the parties. (Id., ¶¶ 4, 29; Id., exhibit C, at
pp. 41-42.)
b) Procedural History
Against this backdrop, Fairbank brought the present action against GOPAC in this
Court, seeking a declaratory judgment that GOPAC violated the Fairbank Guarantee and
seeking damages for breach of contract, breach of express warranty, and breach of the
implied warranties of merchantability and fitness for implied purpose. (Id., ¶¶ 28-39, 4247, 50-54, 57-62, 65-71).
This Court referred this matter to Magistrate Judge McCarthy, who issued a Case
Management Order. (Docket Nos. 12, 19.) A Second Amended Case Management Order
provided that motions to amend the pleadings were to be filed by June 12, 2015. (Docket
No. 66.) After several more amendments to the Case Management Order—none of which
extended the deadline for motions to amend—but before discovery had begun, Fairbank
moved on April 6, 2015, for Summary Judgment against GOPAC on a number of issues:
(1) whether the Fairbank Guarantee governed the relationship between the parties; (2)
whether GOPAC breached the Fairbank Guarantee by delivering adulterated raw beef
containing E. coli to Fairbank in September 2009; (3) whether Fairbank acted as a
reasonable buyer in using the same adulterated raw beef; (4) whether GOPAC’s delivery
of adulterated raw beef constituted a breach of GOPAC’s contract with Fairbank and of
its express and implied warranties, and (5) whether the adulterated raw beef that GOPAC
delivered to Fairbank caused the Northeast Outbreak and Fairbank’s resulting damages.
(Docket No. 71-1 at p. 2.) Although it vigorously opposed Fairbank’s motion regarding the
majority of these issues, GOPAC conceded that the Fairbank Guarantee governed the
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parties’ relationship. (See GOPAC’s Memorandum in Opposition to Summary Judgment,
Docket No. 78 at p. 10.) Magistrate Judge McCarthy concluded in a Report and
Recommendation that the Fairbank Guarantee governed the parties’ relationship, but
recommended denial of summary judgment on other issues. (Docket No. 93.) This Court
adopted Judge McCarthy’s Report and Recommendation in full on August 26, 2016.
(Docket No. 109.)
The parties proceeded to discovery, with several extensions being sought and
several amended CMOs being issued—none of which provided a new date for the filing
of amended pleadings. (See Docket Nos. 118, 126, 128, 133.)
On February 25, 2019, GOPAC moved for leave to file an amended answer and
for reconsideration of the grant of summary judgment on the matter it had conceded.
(Docket No. 135.) GOPAC asserted that late in 2018 it had obtained documentation that
informed it—for the first time—that Fairbank was not “owned and operated” by American
Fresh Foods or American Foodservice, but rather by an entity called AFA. (Id. at pp. 1,
8-10.) GOPAC asserted that, prior to this discovery, it had relied on Fairbank’s
representations that it was owned by American Fresh Foods or American Foodservice.
(Id. at p. 8.) GOPAC argued that this new information meant that the Fairbank Guarantee
was inapplicable to the parties’ relationship. (Docket No. 155 at p. 19.)
Judge McCarthy recommended denial of GOPAC’s motion, finding that GOPAC
had not exercised reasonable diligence in ascertaining the ownership of Fairbank, and
that amendment after the deadline and reconsideration of the summary judgment grant
were therefore not warranted. On February 10, 2020, this Court adopted Judge
McCarthy’s recommendations in full and denied both motions. (Docket No. 169.)
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GOPAC now seeks leave to appeal this Court’s denial of its motion to amend its
answer and for reconsideration the grant of summary judgment determining that the
Fairbank Guarantee governs the parties’ relationship. (Docket No. 174.) GOPAC argues
that this Court adopted an improper “inquiry notice” standard in denying its motions to
amend and for reconsideration. (Id. at p. 2.) GOPAC also seeks to stay proceedings
during interlocutory appeal. (Id. at p. 3.) Fairbank opposes GOPAC’s motion.

III. DISCUSSION
GOPAC seeks certification for interlocutory appeal of what it claims is this Court’s
improper use of an “inquiry notice” standard in assessing whether GOPAC showed
reasonable diligence warranting leave to amend and reconsideration.
For the following reasons, this Court finds that GOPAC does not meet the stringent
requirements for certification for interlocutory appeal.
A.

Fairbank’s waiver argument
Fairbank argues that GOPAC is barred from appealing this Court’s adoption of

Judge McCarthy’s recommendation because it failed preserve the issue by objecting to
the use of an “inquiry notice” standard in Judge McCarthy’s Report and Recommendation.
Local Civil Rule 72 (b) of the Western District of New York provides that written
objections to a magistrate's report “shall specifically identify the portions of the proposed
findings and recommendations to which objection is made and the basis for such
objection and shall be supported by legal authority.” Where parties receive clear notice of
the consequences, failure timely to object to a magistrate's report and recommendation
operates as a waiver of further judicial review of the magistrate's decision. Mario v. P &
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C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (citing Small v. Sec'y of Health &
Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)). Merely referring the court to
previously filed papers or arguments does not constitute an adequate objection under
either Fed. R. Civ. P. 72(b) or Local Civil Rule 72 (b). Id.
GOPAC’s objections focused on Judge McCarthy’s finding that it did not exercise
reasonable diligence, that the “newly discovered evidence” would not have changed the
outcome of the prior summary judgment ruling, and that GOPAC has not shown that
manifest injustice justifies reconsideration. In other words, GOPAC’s objections focus on
how Judge McCarthy applied the unchallenged standards to GOPAC’s facts.
In passing, GOPAC stated in its objections that Judge McCarthy “erroneously
found” that a 2011 deposition put GOPAC on “inquiry notice” regarding Fairbank’s
ownership. (Docket No. 155 at pp. 19-20.) GOPAC argued that Judge McCarthy “cite[d]
no authority for the proposition that a failure to inquire in a prior case can have
substantive—perhaps even dispositive—impact in this case.” (Id. at p. 20.) GOPAC did
specify that it disputed Judge McCarthy’s alleged use of an “inquiry notice” standard, but
it did not cite any authority for the proposition that inquiry notice is a clearly erroneous
standard. While this is minimal notice, it does identify the question of whether a failure to
inquire is the proper standard in a good-cause inquiry. Thus, this Court finds that GOPAC
has not waived this argument, and proceeds to consider GOPAC’s motion on its merits.
B.

Interlocutory Appeal
GOPAC seeks certification of an interlocutory appeal of this Court’s denial of its

motions to amend and for reconsideration.
An interlocutory appeal is considered an “extraordinary remedy” that lies within a
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district court’s “unfettered discretion.” Transp. Workers Union of Am., Local 100 v. NYC
Transit Auth., 358 F. Supp. 2d 347, 351 (S.D.N.Y. 2005). Such unfettered discretion can
be for “any reason, including docket congestion” and “the system-wide costs and benefits
of allowing the appeal.” Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990).
“Only exceptional circumstances [will] justify a departure from the basic policy of
postponing appellate review until after the entry of a final judgment.” In re Facebook, Inc.,
IPO Sec. & Derivative Litig., 986 F. Supp. 2d 524, 529–30 (S.D.N.Y. 2014) (quoting
McNeil v. Aguilos, 820 F. Supp. 77, 79 (S.D.N.Y. 1993) (Sotomayor, J.) (internal
quotations omitted)).
Pursuant to 28 U.S.C. § 1292 (b), a district court may certify an order for
interlocutory appeal when the district judge determines that such an order (a) involves a
controlling question of law as to which (b) there is substantial ground for difference of
opinion and (c) that an immediate appeal from the order may materially advance the
ultimate termination of the litigation. All three of these prerequisites must be met. In re
Facebook, 986 F. Supp. 2d at 529–30 (citing Casey v. Long Island R.R., 406 F.3d 142,
146 (2d Cir. 2005) (“The proponents of an interlocutory appeal have the burden of
showing that all three of the substantive criteria are met.”)).
A controlling question of law “must refer to a ‘pure’ question of law that the
reviewing court could decide quickly and cleanly without having to study the record.”
Retail Pipeline, LLC v. JDA Software Grp., Inc., No. 2:17-CV-00067, 2018 WL 2298355,
at *2 (D. Vt. May 21, 2018) (citing Youngers v. Virtus Inv. Partners Inc., 228 F. Supp. 3d
295, 298 (S.D.N.Y. 2017)); see also Cal. Pub. Employees’ Ret. Sys. v. WorldCom, Inc.,
368 F.3d 86, 96 (2d Cir. 2004) (“By its plain terms, Section 1292(b) may only be used to
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challenge legal determinations.”).
GOPAC seeks to appeal this Court’s denial of leave to amend and its motion for
reconsideration. It argues that a controlling question of law is involved because this Court
mistakenly used an “inquiry notice” standard instead of the proper “reasonable discretion”
standard. GOPAC concedes that this Court had discretion to make a good-cause
determination, but argues that it abused its discretion by using the wrong legal standard
in determining whether good cause existed. Zervos v. Verizon New York, Inc., 252 F.3d
163, 168-69 (2d Cir. 2001).
GOPAC also argues that immediate resolution of this issue now would materially
advance the termination of this case because once its concession that the Fairbank
Guarantee governs the parties’ relations is removed, it can quickly defeat all of Fairbank’s
claims against it.
C.

Interlocutory appeal is not warranted regarding this Court’s denial of
GOPAC’s motion to amend its answer.
As to the denial of its motion to amend, GOPAC has not established that there is

a controlling issue of law or that resolution of this matter would materially advance the
termination of this case.
a) Legal Standard
A pleading can only be amended after the dates set forth in a case management
order when a court finds “good cause.” Fed. R. Civ. P. 16 (b). A finding of “good cause”
depends on the diligence of the moving party. Parker v. Columbia Pictures Indus., 204
F.3d 326, 340–41 (2d Cir. 2000) (finding no diligence where plaintiff claimed he did not
discover his contractual entitlement to six months' paid leave until receiving defendant’s
motion for summary judgment, but in fact received a copy of the relevant leave policy
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when he began work at the company).
To satisfy the good cause standard, “the party must show that, despite its having
exercised diligence, the applicable deadline could not have been reasonably met.”
Enzymotec Ltd. v. NBTY, Inc., 754 F. Supp. 2d 527, 536 (E.D.N.Y. 2010) (citing Sokol
Holdings, Inc. v. BMD Munai, Inc., No. 05–CV–3749, 2009 WL 2524611, at *7 (S.D.N.Y.
Aug. 14, 2009). The good cause standard “is not satisfied when the proposed amendment
rests on information ‘that the party knew, or should have known, in advance of the
deadline.’” Id. (quotation omitted).
b) This Court applied the proper reasonable diligence standard to GOPAC’s
motion to amend.
GOPAC argues that this Court did not apply the above standard, but rather, applied
an inquiry notice standard to its analysis. In particular, GOPAC objects to Judge
McCarthy’s comment that it had evidence of Fairbank’s ownership in 2011, from a
deposition in a prior case, and that “if GOPAC wanted further information about Fairbank’s
ownership, it should have followed up at that time.” (Report and Recommendation, Docket
No. 152 at p. 4.) GOPAC argues that this represents an improper “inquiry notice” standard
that sets the bar too high and that it is unfair to hold it to expect it to have inquired into
2011 deposition testimony in a case that was not litigated on contractual grounds.
In making this argument, GOPAC purports to find a distinction between cases
where a party first obtains facts related to new claim or defense after a deadline to amend
has passed, and moves to amend soon after obtaining the facts—where courts often find
reasonable diligence—, and cases where a party either knew, or “because it had all the
information it needed—should have known the basis for amending,”—which, GOPAC
argues, demonstrates a lack of reasonable diligence. (Docket No. 174 at p. 13.) Compare
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Soroof Trading Dev. Co., Ltd. v. GE Microgen, Inc., 283 F.R.D. 142, 148–49 (S.D.N.Y.
2012) (finding diligence and allowing amendment filed two months after facts allegedly
learned during discovery); Enzymotec Ltd. v. NBTY, Inc., 754 F.Supp.2d 527, 537
(E.D.N.Y. 2010) (finding diligence when plaintiff “may have suspected” that defendant
breached an agreement but only filed motion to amend when it obtained facts supporting
a claim for breach, “based on factual allegations, not factual speculation”) with CRA
Holdings U.S., Inc. & Subsidiaries v. United States, No. 1:15-CV-00239 EAW, 2019 WL
4544390, at *4 (W.D.N.Y. Sept. 19, 2019) (denying amendment where there was no
dispute that Plaintiffs were aware of all the facts underlying their claim prior to deadline
for seeking to amend); Rent-A-Ctr., Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100,
104 (S.D.N.Y. 2003) (finding a lack of diligence where “the substance of the defendants'
‘new’ claim was known when the defendants filed their original amended answer and
added their counterclaim”).
This distinction does not help GOPAC, because GOPAC falls into the latter
category, which GOPAC itself agrees does not represent reasonable diligence. In his
Report and Recommendation, Judge McCarthy in fact found that GOPAC had the
information in its possession as of 2011. (See Docket No. 152 at p. 3.) GOPAC’s real
problem lies with Judge McCarthy’s subsequent, explanatory, statement that if GOPAC
wanted further information,” it “should have followed up at that time.” (Id. at p. 4.) But this
statement refers to any further information GOPAC might have obtained, after finding that
GOPAC had sufficient information with the 2011 deposition testimony. Thus, neither
Judge McCarthy, nor this Court in adopting his Report and Recommendation, relied on
an “inquiry notice” standard.
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The record provides additional evidence that GOPAC had sufficient knowledge
both that its contractual privity with Fairbank might be an issue, and that Fairbank was
owned by AFA, before the deadline to amend its answer. First, the 2013 complaint clearly
alleges contract claims. (See Docket No. 1.) In a breach-of-contract case, relying on an
adversary’s past representations as to the existence of contractual privity does not
demonstrate reasonable diligence.
Additionally, Fairbank filed and served a corporate disclosure statement on
November 22, 2013. (Docket No. 17.) This document states clearly that AFA is the owner
of Fairbank. (Id.) Far from exercising the bad-faith deception GOPAC attributes to it,
Fairbank timely notified GOPAC of its corporate owner. GOPAC had this information
about AFA’s ownership of Fairbank well before the last deadline to amend its pleadings,
and well before it conceded that the Fairbank Guarantee controlled the parties’
relationship. (Docket No. 77.) It is not an improper invocation of “inquiry notice” to suggest
that a corporate disclosure statement should have alerted GOPAC to Fairbank’s
corporate owner.
This Court further finds that an immediate appeal would not materially advance the
ultimate termination of this case. First, it is unlikely that a differently nuanced reasonablediligence inquiry would come to a different outcome. Further, an appeal would prolong
the already drawn-out litigation in this matter.
For all the foregoing reasons, this Court will deny GOPAC’s motion for certification
of an interlocutory appeal of this Court’s denial of its motion to amend.
D.

Interlocutory appeal is not warranted regarding this Court’s denial of
GOPAC’s motion for reconsideration.
Fairbank argues that GOPAC failed to move to appeal this Court’s denial of its
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motion for reconsideration. This Court assumes, from the references to reconsideration
in its briefing, that GOPAC does seek to appeal the denial of reconsideration. (See Docket
No. 174 at pp. 6, 9.) Nevertheless, this Court will deny GOPAC’s motion because the
stringent requirements for interlocutory appeal are not met.
a) Legal Standard for Reconsideration
A court retains discretion to reconsider and revise decisions made prior to the final
entry of judgment in a case. Fed. R. Civ. P.

54 (b). The major grounds justifying

reconsideration are “an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” DiLaura v.
Power Auth. of N.Y., 982 F.2d 73, 76 (2d Cir. 1992).
A party seeking reconsideration based on new evidence must demonstrate “that
the … evidence was neither in [its] possession nor available upon the exercise of
reasonable diligence at the time the interlocutory decision was rendered,“ and that the
evidence is “of such importance that it probably would have changed the outcome.”
Vicuna v. O.P. Schuman & Sons, Inc., 298 F. Supp. 3d 419, 433 (E.D.N.Y. 2017).
“With respect to the [manifest injustice inquiry], to justify review of a decision, the
Court must have ‘a clear conviction of error on a point of law that is certain to recur.’”
Neubecker v. New York State, 387 F. Supp. 3d 302, 304 (W.D.N.Y. 2019) (citing Turner
v. Vill. of Lakewood, No. 11-CV-211-A, 2013 WL 5437370, at *3-4 (W.D.N.Y. Sept. 27,
2013) (quoting United States v. Adegbite, 877 F.2d 174, 178 (2d Cir. 1989)). “These
criteria are strictly construed against the moving party so as to avoid repetitive arguments
on issues that have been considered fully by the court.'” Id. (citing Boyde v. Osborne, No.
10-CV-6651, 2013 WL 6662862, at *1 (W.D.N.Y. Dec. 16, 2013) (quoting Griffin Indus.,
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Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999)).
“[I]f the movant had the opportunity to present the evidence or litigate the issue
earlier but did not do so, either because of inadvertence or as a strategic maneuver, the
Rule 54(b) motion should be denied.” Vornado Realty Tr. v. Castlton Envtl. Contractors,
LLC, No. 08-CV-4823 WFK JO, 2013 WL 5719000, at *3 (E.D.N.Y. Oct. 18, 2013). In
other words, “a motion for reconsideration does not mean the parties get a ‘do over.’” J.S.
v. Attica Cent. Sch., No. 00-CV-513S, 2011 WL 6140527, at *1 (W.D.N.Y. Dec. 9, 2011)
(quoting Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int'l
Union, No. 00–CV–3613, 2004 WL 1943099 (S.D.N.Y. Aug.27, 2004)).
b) This Court applied the proper reasonable diligence standard to GOPAC’s
motion for reconsideration.
An interlocutory appeal of this Court‘s denial of GOPAC’s motion for
reconsideration is not warranted for the same reasons discussed above, namely, because
there is no controlling question of law at issue and because resolution of this matter would
not materially advance the termination of this action.
GOPAC again argues that this Court mistakenly applied an inquiry-notice standard
to its consideration of whether GOPAC had sufficiently alleged new evidence that
warranted reconsideration. But this argument fails. This Court, in adopting Judge
McCarthy’s Report and Recommendation, used a proper reasonable-diligence inquiry.
To show “reasonable diligence,” GOPAC was required to demonstrate “that the
…evidence was neither in [its] possession nor available upon the exercise of reasonable
diligence” at the time the earlier decision was rendered and that the evidence is “of such
importance that it probably would have changed the outcome.” Vicuna, 298 F. Supp. 3d
at 433. In adopting Judge McCarthy’s Report and Recommendation, this Court found that
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GOPAC did have the evidence in its possession from the 2011 deposition. It further finds
that GOPAC was on notice of Fairbank’s contract claims from the complaint, and on notice
of Fairbank’s owner from Fairbank’s corporate disclosure statement.
This Court thus finds that GOPAC has not shown that the “new” evidence was not
in its possession nor available upon the exercise of reasonable diligence. There is no use
of an “inquiry notice” standard here, and there is therefore no controlling question of law
meriting interlocutory appeal.
GOPAC argues that this Court erred in not finding manifest injustice warranting
reconsideration. It argues that the finding that the Fairbank Guarantee controls the
relations of the parties was made in prior third-party indemnification actions, in which
GOPAC lacked incentive to pursue discovery regarding Fairbank’s owner. It is true that a
court considering the preclusive effect of another court’s holding must inquire about
fairness to the nonmoving party, and look at its opportunity and incentive to defend in the
prior action. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 332–33, 99 S. Ct. 645,
652, 58 L. Ed. 2d 552 (1979).
But the question of incentive to defend is not relevant here, because this Court did
not grant summary judgment on the basis of preclusion. Rather, it relied on GOPAC’s
own concession that the Fairbank Guarantee controlled. Assuming that in the present
case GOPAC read the complaint and the filings, there is no manifest injustice in holding
it to its own admissions.
Further, as discussed above, granting GOPAC a “do-over” on this issue would
result in docket congestion and a rehashing of issues that GOPAC failed to pursue earlier.
“[If] the movant had the opportunity to present the evidence or litigate the issue
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earlier but did not do so, either because of inadvertence or as a strategic maneuver, the
Rule 54(b) motion should be denied.” Vornado Realty 2013 WL 5719000, at *3. This is
the case here. Interlocutory appeal of this Court’s denial of GOPAC’s motion for
reconsideration is therefore denied.
IV. CONCLUSION
GOPAC’s motion for leave to file an interlocutory appeal is denied. There is no
controlling question of law warranting the extraordinary remedy of interlocutory appeal,
either in this court’s denial of GOPAC’s motion to amend its answer or in its denial of
GOPAC’s motion for reconsideration. This Court applied the correct standards to
GOPAC’s actions and found that it did not exercise the required reasonable diligence.
Further, an immediate appeal of this matter would not materially advance the termination
of this case. GOPAC still has the ordinary remedy of appeal after this case is resolved on
its merits, but the extraordinary remedy of interlocutory appeal is not warranted.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Motion to Amend this Court’s
February 10, 2020, Order for Certification for Interlocutory Appeal and to Stay
Proceedings Pending Appeal (Docket No. 173) is DENIED.

SO ORDERED.
Dated:

December 18, 2020
Buffalo, New York

s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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