LABMD, INC. v. TIVERSA HOLDING CORP. et al
MEMORANDUM ORDER denying 191 Motion for Entry of Judgment under Rule 54(b) and 193 Motion for Certification Pursuant to 28 U.S.C. § 1292(b) - all as more fully set forth in the Memorandum Order. Signed by Judge David S. Cercone on 7/14/17. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TIVERSA HOLDING CORP. , formerly )
known as TIVERSA, INC.; ROBERT
J. BOBACK; M. ERIC JOHNSON;
AND NOW, this 14th day of July, 2017, upon due consideration of plaintiff's motions for
certification pursuant to Rule 54(b) and interlocutory appeal and the parties' submissions in
conjunction therewith, IT IS ORDERED that ,  the motions be, and the same hereby
An appeal pursuant to 28 U.S.C. § 1292(b) is to be utilized only in exceptional
circumstances. Gardner v. Westinghouse Broadcasting Co., 559 F.2d 209, 212 (3d Cir. 1977)
aff’d 437 U.S. 478 (1977). Federal law reflects a strong policy against piecemeal appeals and
the certification process is appropriate only where an immediate appeal would avoid protracted
and expensive litigation. Zygmuntowicz v. Hospital Investments, Inc., 828 F. Supp. 346, 353
(E.D. Pa. 1993).
The statutory requirements for interlocutory appeal are succinctly set forth in Katz v.
Carte Blanche Corp., 496 F.2d 747 (3d Cir. 1974) (en banc): “The order must (1) involve a
‘controlling question of law,’ (2) offer ‘substantial ground for difference of opinion’ as to its
correctness, and (3) if appealed immediately ‘materially advance the ultimate termination of the
litigation.’” Id. at 754 (quoting 28 U.S.C. § 1292(b)).
Plaintiff seeks to appeal the order of January 8, 2016, dismissing Counts I, VII and VIII
of plaintiff's original complaint with prejudice and the order of November 23, 2016, dismissing
all of the counts of plaintiff's amended complaint save two subparts of Count II. Defendants
maintain that a resolution of these rulings in plaintiff's favor will not materially advance the
ultimate termination of the litigation because any reinstated claim(s) would necessarily be at the
pleading stage. Consequently, from defendants' perspective an interlocutory appeal would be a
mere first step toward resolution.
In general, interlocutory appeals are not granted from denials of motions to dismiss
because it encourages “piecemeal litigation.” Caraballo-Seda v. Municipality of Hormigueros,
395 F.3d 7, 9 (1st Cir. 2005). The primary purpose of § 1292(b) is to expedite the termination of
litigation where an immediate appeal would avoid protracted and expensive litigation in the
event of either a reversal or an affirmance.
In order satisfy the purpose of § 1292(b), immediate material advancement of the
ultimate termination of the litigation must be a likely result from resolution of a controlling
question of law. A reversal of all or some of the rulings rendered against plaintiff may well
reinstate its claims and return them for further development. But as is evident from the record,
such a result would fall far short of providing an avenue that expeditiously leads to final
resolution. And an affirmance of all or some of the rulings equally would neither terminate the
litigation nor assure an established avenue for immediate resolution of the remaining claims.1
This state of affairs likewise suggests that plaintiff has failed to identify a controlling question
of law, which by definition has the practical effect of saving the court's time and avoiding the
consumption of unnecessary litigation expenses by all parties. See e.g. Shevlin v. Phoenix Life
Therefore, plaintiff's motions fail to advance the primary purpose intended by § 1292(b) and they
properly have been denied.
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
James W. Hawkins, Esquire
Jarrod Shaw, Esquire
Brandon J. Verdream, Esquire
Robert J. Ridge, Esquire
Katie M. Van Hoey, Esquire
Mark A. Eck, Esquire
(Via CM/ECF Electronic Mail)
Ins. Co., 2015 WL 348552 * 5 (D. N.J. January 23, 2015) ("'Controlling' means 'serious to the
conduct of the litigation, either practically or legally.' From the practical standpoint, saving the
district court's time and the litigants' expenses is 'a highly relevant factor.'") (quoting Katz, 496
F.2d at 755)).
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