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IN RE METHYL TERTIARY BUTYL ETHER

United States District Court, S.D. New York


January 6, 2005.

IN RE: METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This document relates to: Orange County Water District
v.
Unocal Corp., et al., No. 04 Civ. 4968 (SAS). City of Riverside v. Atlantic Richfield Co., et al., No. 04 Civ. 4969 (SAS). Quincy Community Services District v. Atlantic Richfield Co., et al., No. 04 Civ. 4970 (SAS). City of Roseville v. Atlantic Richfield Co., et al., No. 04 Civ. 4971 (SAS). The People of the State of California, et al. v. Atlantic Richfield Co., et al., No. 04 Civ. 4972 (SAS). City of Fresno v. Chevron USA, Inc., et al., No. 04 Civ. 4973 (SAS). California-American Water Co. v. Atlantic Richfield Co., et al., No. 04 Civ. 4974 (SAS). Silver, et al. v. Alon USA Energy, Inc., et al., No. 04 Civ. 4975 (SAS). City of Dodge City v. Alon USA Energy, Inc., et al., No. 04 Civ. 2060 (SAS). Chisholm Creek Utilities Authority v. Alon USA Energy, Inc., et al., No. 04 Civ. 2061 (SAS). City of Bel Aire v. Alon USA Energy, Inc., et al., No. 04 Civ. 2062 (SAS). City of Park City v. Alon USA Energy, Inc., et al., No. 04 Civ. 2059 (SAS). City of Galva, City of Ida Grove, and City of Sioux City, Iowa v. Amerada Hess Corp., et al., No. 04 Civ. 1723 (SAS). North Newton School Corp. v. Amerada Hess Corp., et al., No. 04 Civ. 2057 (SAS). City of South Bend v. Amerada Hess Corp., et al., No. 04 Civ. 2056 (SAS). City of Mishawaka v. Amerada Hess Corp., et al., No. 04 Civ. 2055 (SAS). City of Rockport v. Amerada Hess Corp., et al., No. 04 Civ. 1724 (SAS). Escambia County Utilities Authority v. Amerada Hess Corp., et al., No. 04 Civ. 1722 (SAS). Patrick County School Board v. Amerada Hess Corp., et al., No. 04 Civ. 2070 (SAS). Town of Hartland v. Amerada Hess Corp., et al., No. 04 Civ. 2072 (SAS). Buchanan County School Board v. Amerada Hess Corp., et al., No. 04 Civ. 3418 (SAS). Town of Matoaka v. Amerada Hess Corp., et al., No. 04 Civ. 3420 (SAS). Town of Campbellsburg v. Amerada Hess Corp., et al., No. 04 Civ. 4990 (SAS). Town of Rayville, Richland Parish v. Alon USA Energy, Inc., et al., No. 04 Civ. 3413 (SAS). Town of Marksville v. Alon USA Energy, Inc., et al., No. 04 Civ. 3412 (SAS). Craftsbury Fire District #2 v. Amerada Hess Corp., et al., No. 04 Civ. 3419 (SAS).

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

I. INTRODUCTION

In prior opinions dated March 16, 2004, and September 3, 2004, I held that this Court has federal agent jurisdiction and bankruptcy jurisdiction over the MTBE cases consolidated before it.*fn1 Some plaintiffs, but not all, have moved for certification of an interlocutory appeal pursuant to section 1292 of Title 28 to appeal this determination. For the reasons set forth below, plaintiffs' motion is denied.

  II. LEGAL STANDARD

  It is a "basic tenet of federal law to delay appellate review until a final judgment has been entered."*fn2 However, a court, in its discretion, may certify an interlocutory order for appeal if the order "[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion and [3] that an immediate appeal from the order may materially advance the ultimate termination of the litigation."*fn3

  "In determining whether a controlling question of law exists the district court should consider whether: reversal of the district court's opinion could result in dismissal of the action; reversal of the district court's opinion, even though not resulting in dismissal, could significantly affect the conduct of the action; or, the certified issue has precedential value for a large number of cases."*fn4 "Although technically the question of whether there is a controlling issue of law is distinct from the question of whether certification would materially advance the ultimate termination of the litigation, in practice the two questions are closely connected."*fn5 When considering requests for certification, district courts must carefully evaluate whether each of the above conditions are met.*fn6 The Second Circuit has urged courts "to exercise great care in making a § 1292(b) certification."*fn7 "[O]nly `exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'"*fn8 Section 1292 certification should be reserved for "those cases where an intermediate appeal may avoid protracted litigation."*fn9

  Indeed, even where the three legislative criteria of section 1292(b) appear to be met, district courts have "unfettered discretion to deny certification" if other factors counsel against it.*fn10 These factors include: (1) the time an appeal would likely take; (2) the need for a stay pending appeal and the effect on the litigation, including discovery, that would result from a stay; (3) the probability of reversal on appeal; (4) the effect of a reversal on the remaining claims; (5) the benefit of further factual development and a complete record on appeal, particularly in rapidly developing or unsettled areas of law; and (6) the probability that other issues may moot the need for the interlocutory appeal.*fn11

  III. DISCUSSION

  The second statutory factor for section 1292(b) certification has not been met. There is no substantial ground for a difference of opinion with respect to the Court's jurisdictional analysis. First, the Court applied well-settled principles of law to find that core bankruptcy jurisdiction exists because plaintiffs alleged arguably dischargeable claims that pre-date the confirmation of defendant Texaco's reorganization plan.*fn12 Although plaintiffs cite opinions that suggest a split in authority as to what constitutes a discharged bankruptcy claim, those cases support my conclusion that a federal court should decide the issue.*fn13 Second, this Court relied on substantial case law when it determined that defendants sufficiently alleged acting under the direction of a federal agency.*fn14 Plaintiffs argue that there is a significant difference of opinion because other courts have not interpreted the "acting under" requirement in the same manner as this Court. However, neither disagreement outside this Circuit, nor the presence of disputed matters of first impression demonstrate a substantial ground for a difference of opinion.*fn15 Furthermore, plaintiffs have not demonstrated that interlocutory review would materially advance the ultimate termination of the litigation — the last, and most important, of section 1292(b)'s three factors.*fn16 "An immediate appeal is considered to advance the ultimate termination of the litigation if that `appeal promises to advance the time for trial or to shorten the time required for trial.'"*fn17 In this case, interlocutory appeal would not only fail to terminate these actions, but it could make the litigation even more protracted and expensive in the event of reversal because plaintiffs would surely continue to litigate these claims in sixteen state courts.*fn18 This is not a case warranting departure from the "general policy [prohibiting] piecemeal appellate review."*fn19

  Plaintiffs' briefs merely reargue points I rejected when I considered the jurisdictional issues in the first instance.*fn20 Section 1292 was "not intended as a vehicle to provide early review of difficult rulings in hard cases."*fn21 Because the requirements of section 1292 have not been met, I need not consider other factors. Accordingly, plaintiffs' motion for certification is denied.

  IV. CONCLUSION

  For the reasons set forth above, the plaintiffs' request for certification to pursue interlocutory appeal is denied. The Clerk of the Court is directed to close this motion. A conference is scheduled for January 13, 2005 at 2:00 p.m.

  SO ORDERED.


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