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)

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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 2

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