LINK v. ARS NATIONAL SERVICES, INC.

Filing 27

ORDER. For the reasons stated in the Memorandum filed herewith, Defendant's Motion to Certify for Interlocutory Review (Doc. 24 ) is DENIED. Signed by Judge Cathy Bissoon on 1/11/16. (rld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TERRI LINK,
Plaintiff,
v.
ARS NATIONAL SERVICES, INC.,

Defendant.

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Civil Action No. 15-643
Judge Cathy Bissoon
Magistrate Judge Robert C. Mitchell

MEMORANDUM ORDER
Presently before the Court is ARS National Service, Inc.’s (“Defendant’s”) Motion to
Certify for Interlocutory Review re Order on Motion for Judgment on the Pleadings (Doc. 24)
(“Motion to Certify”), filed on December 28, 2015. On December 29, 2015, Terri Link
(“Plaintiff”) filed his Brief in Opposition. (Doc. 26).
The standard for granting an interlocutory appeal is set forth in 28 U.S.C. § 1292(b) and
states:
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 [1] involves a
controlling question of law [2] as to which there is substantial ground for
difference of opinion and [3] that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so state in
writing such order.
28 U.S.C. § 1292(b).
Each of the three elements must be satisfied for certification, and even if all the elements
are satisfied, the ultimate decision to grant certification is within the district court's sole
discretion. See Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976); Katz v. Carte Blanche
Corp., 496 F.2d 747, 754 (3d Cir. 1974) cert. den., 419 U.S. 885 (1974); Hall v. Wyeth, Inc.,

2010 WL 4925258, at *1 (E.D.Pa. Dec. 2, 2010); Mitchell v. Axcan Scandipharm, Inc., 2006
WL 986971, at *1 (W.D.Pa. Mar.13, 2006). “The party seeking interlocutory review has the
burden of persuading the district court that exceptional circumstances exist that justify a
departure from the basic policy of postponing appellate review until after the entry of final
judgment.” Premick v. Dick's Sporting Goods, Inc., 2007 WL 588992, at *2 (W.D.Pa. Feb.20,
2007).
Both sides agree that the Court’s December 8, 2015 Order denying Defendant’s Motion
for Judgment on the Pleadings (Doc. 22) involves a controlling question of law. The Court is not
convinced that an immediate appeal would materially advance the ultimate termination of the
litigation. As Plaintiff points out, there are limited factual disputes present, discovery should
proceed quickly, and a Status Conference has already been scheduled for January 14, 2016.
In any event, Defendant has simply not demonstrated that exceptional circumstances set
this case apart from others sufficient to warrant deviation from the basic practice of reserving
appellate review until after the entry of final judgment. See Premick, 2007 WL 588992, at *2.
Certification under section 1292(b) should be “sparingly” applied and only be employed in
“exceptional cases.” Milbert v. Bison Lab., Inc., 260 F.2d 431, 433 (3d Cir.1958). Defendant
has not met its burden of demonstrating that this case differs meaningfully from other cases in
which one party disagrees wholeheartedly with the Court’s ruling on a motion for judgment on
the pleadings.
For the reasons stated herein, Defendant’s Motion to Certify (Doc. 22) is DENIED.
IT IS SO ORDERED.

January 11, 2016

s\Cathy Bissoon
Cathy Bissoon
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United States District Judge
cc (via ECF email notification):
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