UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
July 8, 1986
MARTHA VON BULOW, by her next friends Alexander Auersperg and Annie Laurie Auersperg Kneissl, Plaintiff, v CLAUS VON BULOW, Defendant
The opinion of the court was delivered by: WALKER
WALKER, District Judge:
Defendant has moved for a limited reargument of his motion to dismiss the complaint. Specifically, he seeks to reargue the question of plaintiffs' standing to bring this action as "next friends" Defendant does not advance any basis for rearguing the issue before this Court, but rather urges that Court's opinion of May 5, 1986, (familiarity with which is assumed), be modified to certify the question to the Court of Appaels for the Second Circuit pursuant to 28 U.S.C. § 1292(b). That section permits certification of an order to the Court of Appeals where 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."
The Court declines to certify the question of plaintiffs standing for several reasons. First, in this time of crowded appellate dockets there is a strong public interest in avoiding unnecessary piecemeal litigation. thus, not every question of law that disposes of a particular litigation is a "controlling question" as that term has been interpreted by the Second Circuit Court of Appeals and the court s in this District. The phrase "controlling question of law" is not equivalent merely to a question of law which is determinative of the case at hand. Instead, the question should contribute to the termination, at an early stage, of a wide spectrum of cases. Brow v. Bullock, 294 F.2d 415, 417 (2d Cir. 1961); Kohn v. Royall, Kogel & Wells, 59 F.R.D. 515, 525 (S.D.N.Y. 1973) appeal dismissed, 496 F.2d 1094 (2d Cir. 1974); see also Abortion Rights Mobilization Inc. v. Regan, 552 F.Supp. 364, 366 (1982).
In this case the factual circumstances leading to the Court's order that plaintiffs may sue s "next friends" are unique Thus, it cannot be said that a review of the order would have "precedential value in a large number of other would have "precedential value in a large number of other suits." Brown, 294 F.2d at 417. The question is not, as defendant argues, whether the plaintiffs may sue as next friends where a committee for the incompetent has decided not to bring the action. It is the much narrower question of whether plaintiff may sue where the committee, while declining to sue itself, has of the incompetent and where suit by the committee would place it in conflict with the incompetent. To the Court's knowledge, this narrow question has not been presented in any previous case, nor is it likely to recur often.
Secondly, there is no "substantial grounds for difference of opinion" since there is no conflicting authority on this narrow issue. See Federal Deposit Insurance Corp v. First National Bank of Waukehsau, 604 F.Supp. 616 (E.D. Wis. 1985). Indeed, there is no authority on it at all.
Thirdly and most significant, the order of this Court holding that plaintiffs have standing to sue as "next friends" is not a pure "question of law such as would warrant certification if the other requisites of 28 U.S.C. § 1292(b) were met. Rather, the order is the result of an exercise of the Court's discretionary power to protect the interest of an incompetent by appointing a guardian ad litem, notwithstanding the existence of a committee. See von Bulow v. von Bulow, 85 civ. 5553 (JMW), slip op. at 7-11 (S.D.N.Y. May 5, 1986) (discussion of Court's discretionary power under both federal and New York State law).
Accordingly, defendant's motion for certification is denied.
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