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Davis Moreno Construction v. Frontier Steel Buildings Corp

February 1, 2011

DAVIS MORENO CONSTRUCTION, PLAINTIFF,
v.
FRONTIER STEEL BUILDINGS CORP., DEFENDANT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION FOR (Doc. 133) CERTIFICATE OF APPEALABILITY

I. INTRODUCTION.

Plaintiff Davis Moreno Construction, Inc., ("Plaintiff") proceeds with an action for damages against Defendant Frontier Steel Buildings Corp. ("Defendant").

On November 18, 2010, the court entered an order granting Plaintiff's motion for partial summary judgment, holding that Defendant was a "contractor" as defined by California's Contractors' State License Law ("CSLL")*fn1 for the purposes of the parties' agreement. (Doc. 120).

Defendant filed a Motion for Certificate of Appealability pursuant to 28 U.S.C. § 1292(b) on January 5, 2011. (Doc. 133). Plaintiff filed opposition on January 10, 2011. (Doc. 141).

Defendant filed a reply on January 13, 2011. (Doc. 144).*fn2

II. LEGAL STANDARD.

Federal law authorizes district courts to certify otherwise unappealable orders in certain circumstances. Pursuant to 28 U.S.C. 1292(b):

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. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order; Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

28 U.S.C. § 1292(b).

The party seeking interlocutory review "'has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basis policy of postponing appellate review until after the entry of a final judgment.'" Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).

The standard to certify a question of law is high and a district court generally should not permit such an appeal where "it would prolong the litigation rather than advance its resolution."

Syufy Enter. v. Am. Multi-Cinema, Inc., 694 F. Supp. 725, 729 (N.D. Cal.1988). Section 1292(b) is to be used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation. United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). Plaintiff must demonstrate that (1) there is a controlling question of law, (2) that there are substantial grounds for difference of opinion, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation. In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982). "'In applying these standards, the court must weigh the asserted need for the proposed interlocutory ...


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