UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 31, 2011
MICKEY LEE DILTS, RAY RIOS, DONNY DUSHAJ, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PENSKE LOGISTICS LLC; PENSKE TRUCK LEASING CO LP; ET AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) DENYING PLAINTIFFS' EX PARTE MOTION TO APPEND ORDER
(2) SETTING STATUS HEARING
GRANTING PARTIAL SUMMARY JUDGMENT;
Presently before the Court is Plaintiffs' ex parte application (ECF No. 113) requesting the Court append its Order Granting Defendants' Motion for Partial Summary Judgment (ECF No. 112). Also before the Court is Defendants' objection. (ECF No. 114.)
Plaintiffs essentially request that this Court issue a certificate of appealability of its Order, even though this decision is not a final judgment and not otherwise appealable. See 28 U.S.C. § 1292(b). To warrant an interlocutory appeal, Plaintiffs must demonstrate that (1) there is a controlling question of law, (2) there are substantial grounds for difference of opinion, and (3) 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). However, the legislative history of Section 1292(b) indicates that this provision "was to be used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." In re Cement, 673 F.2d at 1026. Plaintiff has not demonstrated any of the requirements of Section 1292(b), and the Court cannot find any reason that an immediate appeal may materially advance the ultimate termination of the litigation. Therefore, Plaintiffs' request to append the Court's Order Granting Partial Summary Judgment is DENIED.
The Court declines to address Defendants' arguments in this Order. (see ECF No. 114.) The parties SHALL APPEAR before this Court on December 8, 2011, at 1:30 p.m. in Courtroom 6. The parties SHALL BE PREPARED to discuss their plans for moving this case to a full conclusion, including setting the necessary pre-trial dates.
IT IS SO ORDERED.
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