United States of America v. $88,029.08, More or Less, in United States Currency

Filing 108

MEMORANDUM OPINION AND ORDER re: 107 REQUEST by Katherine Anne Hoover and John F. Tomasic for a stay of proceedings pending an interlocutory appeal, which the court construes as a motion to certify and interlocutory appeal, denying the motion to certify. Signed by Judge John T. Copenhaver, Jr. on 9/9/2011. (cc: attys; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

UNITED STATES OF AMERICA,
Plaintiff
v.

Civil Action No. 2:10-1087

$88,029.08, More or Less,
in United States Currency,
Defendant

MEMORANDUM OPINION AND ORDER

Pending is the motion filed September 2, 2011, by
interested parties Katherine A. Hoover, M.D., and John F. Tomasic
styled, in part, as “A REQUEST FOR A STAY OF PROCEEDINGS PENDING
AN INTERLOCUTORY APPEAL,” which the court construes as a motion
to certify an interlocutory appeal (“motion to certify”).

It appears that the interested parties remain
dissatisfied with the unsuccessful outcome of their subject
matter jurisdiction challenge.

Title 28 U.S.C. § 1292(b)

provides pertinently 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. . . .
28 U.S.C. § 1292(b).

The court of appeals has observed that

section 1292(b) “should be used sparingly . . . .”

Myles v.

Laffitte, 881 F.2d 125, 127 (4th Cir. 1989).

The proposed subject of the appeal does not constitute
a “controlling question of law as to which there is substantial
ground for difference of opinion . . . .”

Id. § 1292(b).

The

court, accordingly, ORDERS that the motion to certify be, and it
hereby is, denied.

The Clerk is directed to forward copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
DATED: September 9, 2011
John T. Copenhaver, Jr.
United States District Judge

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