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Lehman Brothers Bank, Fsb v. Beverly Hills Estates Funding
April 21, 2011
LEHMAN BROTHERS BANK, FSB, PLAINTIFF,
BEVERLY HILLS ESTATES FUNDING, INC., A CALIFORNIA CORPORATION; ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING MOTION TO CERTIFY ORDER
[Motion filed on March 14, 2011]
Presently before the court is Plaintiff/Intervenors RBC Mortgage Company of California and RBC USA Holdco Corporation's (together "Plaintiffs") Motion for Certification of this court's March 3, 2011, Order dismissing Plaintiffs' Fourth Claim for Relief.
Interlocutory appeals by permission are governed by 28 U.S.C. § 1292(b). Under that provision, the statutory certification requirements are as follows: (1) there must be a controlling question of law; (2) there must be substantial grounds for difference of opinion; and (3) it must appear that an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b); see also In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982). Plaintiffs have the "burden of persuading the court of appeals [and district court in the first instance] that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after entry of a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).
The court considers each of the § 1292(b) factors in turn. First, Plaintiffs have not offered any support for their conclusion that the court's Order, granting Defendant's motion to dismiss Plaintiffs's Fourth Claim for relief for breach of contract, concerned a controlling question of law. Plaintiffs have remaining tort claims for relief in their Third Amended Complaint, and those claims are unaffected by the court's March 3, 2001, Order. Next, Plaintiffs argue that the court's grant of the motion against them by itself and without more amounts to substantial ground for difference of opinion. This would be true in any instance where a court has ruled against a party and cannot support a finding of an "exceptional circumstance." Finally, Plaintiffs state that interlocutory review will expedite resolution of the litigation. The court is mindful of the need to conserve judicial resources, but the court is not persuaded that interlocutory review of this court's motion to dismiss, which involved only one independent claim, would indeed advance resolution of the matter.
For the reasons stated above, the court DENIES Plaintiffs' Motion for Certification Pursuant to 28 U.S.C. § 1292(b).
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