WARD, District Judge.
Defendants City of New York ("the City") and the Department of Housing Preservation and Development of the City of New York (collectively "municipal defendants") and Chinese-American Planning Counsel, Inc. ("CPC") have each moved, pursuant to Local Civil Rule 3(j), USDC, SDNY, for reargument of that portion of this Court's Opinion and Order dated June 5, 1992 (the "June 5, 1992 Opinion and Order") in which the Court "declined the municipal defendants' request to certify this case for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b)". Kam Shing Chan and the other plaintiffs (collectively "plaintiffs") oppose the instant motions. For the reasons that follow, the Court: (1) deems defendants' motions for reargument to be motions to modify the June 5, 1992 Opinion and Order; and (2) grants these motions, thereby certifying this case for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In all other respects, the Court adheres to its June 5, 1992 Opinion and Order.
The relevant background to the underlying action is contained in the June 5, 1992 Opinion and Order at 3-6.
On June 3, 1992, approximately one month after oral argument on defendants' motions to dismiss and two days before the Court issued its opinion on those motions, municipal defendants submitted a short letter, containing little supporting authority, to the Court seeking certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Prior to issuance of the June 5, 1992 Opinion and Order, no other party made any submissions on this subject to the Court. In its June 5, 1992 Opinion and Order, this Court declined to certify the case for interlocutory appeal, and the instant motions followed.
A. Defendants' Motions for Reargument
A party may move for reargument pursuant to Local Civil Rule 3(j) only upon an assertion that "the court has overlooked 'matters or controlling decisions' which, had they been considered, might reasonably have altered the result reached by the court." Adams v. United States, 686 F.Supp. 417, 418 (S.D.N.Y. 1988) (quoting Local Civil Rule 3(j), USDC, SDNY), quoted in Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y. 1990).
In addition, "a party making a motion for reargument may not, under [Local] Civil Rule 3(j), advance new facts, issues or arguments not previously presented to the Court." Schonberger v. Serchuk, 742 F.Supp. at 119.
In light of the fact that neither CPC nor plaintiffs briefed the § 1292(b) certification issue prior to issuance of the June 5, 1992 Opinion and Order, and that municipal defendants' letter seeking certification cited little authority in support of municipal defendants' position, it is clear that, in the context of the instant motions for reargument, each of which presents a great deal of supporting authority, all parties are "advancing new facts, issues or arguments not previously presented to the Court." Accordingly, this Court would be compelled to deny defendants' motions for reargument pursuant to Local Civil Rule 3(j).
However, because the issues concerning § 1292(b) certification have only now been fully briefed, in the context of defendants' motions for reargument, it is appropriate to treat these issues as before the Court for the first time. For this reason, the Court deems the instant motions to be motions to modify the June 5, 1992 Opinion and Order. Accordingly, the Court now turns to the merits of the parties' arguments.
B. Certification of an Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)
Defendants seek an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), which provides, in relevant part, that
when a district judge, in making in a civil action an order not otherwise appealable under [section 1292], shall be of the opinion that such order [(1)] involves a controlling question of law [(2)] as to which there is substantial ground for difference of opinion and that [(3)] 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 . . . 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.
(emphasis added). The Second Circuit recently has "urged the district courts to exercise great care in making a § 1292(b) certification[, because] the district courts are presumed to be more familiar with a case than is the court of appeals prior to briefing and argument." Westwood Pharmaceuticals Inc. v. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992). Furthermore, only "exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978), quoted in Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990). With these general admonitions in mind, the Court now turns to the three-pronged test of § 1292(b) to ascertain whether the exceptional circumstances of this case suggest that certification is appropriate.
1. Is there a Controlling Question of Law?
There can be little doubt that the issues defendants seek to appeal, concerning whether plaintiffs have a right of action pursuant to 42 U.S.C. § 1983, "importantly affect the conduct of [this] action," see In re Duplan Corp., 591 F.2d 139, 148 n.11 (2d Cir. 1978) and the sources cited therein. As defendants have correctly noted, if the Court of Appeals determines that plaintiffs have no § 1983 right of action, this Court may be compelled to dismiss plaintiff's other claims as well, either under a theory of preemption or because the only remaining claims would be pendent state claims. Thus, a ruling by the Court of Appeals in favor of defendants could result in dismissal of this lawsuit.
Plaintiffs assert that the precedential value of the June 5, 1992 Opinion and Order and any appellate review will be limited. The Court agrees with plaintiffs on this point. See June 5, 1992 Opinion and Order at 44-45, n.19. However, it is not necessary for the resolution of a question to be of great precedential value in order for that question to be "controlling." Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d at 24.
For these reasons, the Court finds that its June 5, 1992 Opinion and Order does involve a controlling question of law.
2. Is there a Substantial Ground for Difference of Opinion?
The issues addressed in the June 5, 1992 Opinion and Order involved matters that were both difficult and of first impression. See Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d at 25 (noting with approval the district court's conclusion that, when the issues before the district court on a motion for certification pursuant to 28 U.S.C. § 1292(b) were "difficult and of first impression," there were "substantial grounds for difference of opinion"). Although this Court found that there is a § 1983 right of action under 42 U.S.C. § 5310, the conclusions reached by the Court were by no means the only reasonable conclusions an impartial arbiter could reach. The Court was presented with two close questions concerning whether Congress intended to (1) create a "right" under § 5310 and (2) foreclose § 1983 enforcement of § 5310. The Court obviously believes it answered these questions correctly. However, primarily because there was no explicit indication in the text of § 5310 or in its legislative history to guide an arbiter in answering these questions, the Court cannot say that there is no "substantial ground for difference of opinion." Accordingly, defendants have met the second prong of the § 1292(b) test.
3. Might an Immediate Appeal from the order Materially Advance the Ultimate Termination of the Litigation?
If defendants are successful on appeal and the Second Circuit dismisses the § 1983 claims, there is a substantial likelihood that the amount of discovery and corresponding district court time will be reduced dramatically, perhaps even entirely. Given the number of plaintiffs already involved in this litigation, and their pending motion for class certification, there is a significant amount of discovery to be conducted simply to determine the extent of each plaintiff's participation in CPC's training programs. The fact that plaintiffs seek class certification and that certain aspects of discovery involve translations from Chinese to English adds an additional level of complexity to this action. For these reasons, a successful appeal by defendants would materially advance the ultimate termination of the litigation and would, in all likelihood, preserve scarce resources of the parties and the judiciary.
Defendants' motions for reargument pursuant to Local Civil Rule 3(j), USDC, SDNY are deemed by this Court to be motions to modify the June 5, 1992 Opinion and Order. For the reasons stated supra, this Court finds that the June 5, 1992 Opinion and 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 opinion and order may materially advance the ultimate termination of the instant litigation. Except to the extent indicated above, nothing in this opinion and order shall be construed to modify the June 5, 1992 Opinion and Order.
It is so ordered.
Dated: New York, New York
September 8, 1992
Robert J. Ward
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