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Children First Foundation, Inc. v. Martinez

June 20, 2008

THE CHILDREN FIRST FOUNDATION, INC., A NEW YORK NON-PROFIT ORGANIZATION, PLAINTIFF,
v.
RAYMOND P. MARTINEZ, INDIVIDUALLY, DAVID J. SWARTS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK DEPARTMENT OF MOTOR VEHICLES; JILL A. DUNN, INDIVIDUALLY; NEAL SCHOEN, IN HIS OFFICIAL CAPACITY AS DEPUTY COMMISSIONER AND COUNSEL FOR THE NEW YORK DEPARTMENT OF MOTOR VEHICLES; GEORGE E. PATAKI, INDIVIDUALLY; AND DAVID A. PATERSON, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

MEMORANDUM, DECISION AND ORDER

I. Introduction

Presently before the court is a motion by defendant, Jill A. Dunn ("Dunn") to certify a question for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) regarding this court's Memorandum, Decision and Order of December 27, 2007. See Dkt. No. 160; Children First Foundation, Inc. v. Martinez, No. 1:04-CV-0927, 2007 WL 4618524 (N.D.N.Y. Dec. 27, 2007). Plaintiff, the Children First Foundation, Inc. ("CFF" or "Plaintiff") opposes. The motion is considered on the papers submitted without oral argument.

II. Background

The protracted factual and procedural background of this case has recently been very aptly summarized by Magistrate Judge Randolph Treece, and will not be repeated here. See Children First Foundation, Inc. v. Martinez, No. 1:04-CV-0927, 2007 WL 4344915, at *1-4 (N.D.N.Y. Dec. 10, 2007). However, a discussion of the events leading to the underlying MDO will be briefly summarized for contextual purposes.

On August 3, 2007, Judge Treece issued a Memorandum, Decision and Order granting in part and denying in part Dunn's motion to amend her answer. See Dkt. No. 128. By her motion, Dunn sought to amend her answer to assert as affirmative defenses that (1) Plaintiff's amended complaint is barred by the government speech doctrine, and (2) Plaintiff's amended complaint is barred, and Dunn is immune, by the Establishment Clause of the First Amendment to the United States Constitution. Judge Treece denied the motion insofar as Dunn sought to assert a government speech doctrine defense, and granted the motion insofar as she sought to assert an Establishment Clause affirmative defense. Upon consideration of objections filed thereto, this court respectfully disagreed with Judge Treece, and reversed, thereby allowing Dunn to amend her answer with a government speech doctrine defense, but denying her motion to amend her answer with an Establishment Clause defense. See Children First Foundation, Inc, No. 2007 WL 4618524.

Dunn now seeks permission to file an interlocutory appeal to the Court of Appeals for the Second Circuit as to this court's MDO insofar as it denies her motion to amend her answer with an Establishment Clause defense. See Dkt. No. 169. Plaintiff opposes. See Dkt. No. 173.

III. Discussion

A. Legal Standard

"[A] district court may certify an immediate appeal of an interlocutory order if the court finds that the '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.'" Century Pacific, Inc. v. Hilton Hotels Corp., No. 03-Civ.-8258, 2008 WL 2276701, at *1 (S.D.N.Y. May 29, 2008) (quoting 28 U.S.C. § 1292(b)).

In order to determine whether a controlling question of law exists, courts 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." Kelsey v. County of Schoharie, No. 1:04-CV-299, 2007 WL 1532024, at *1 (N.D.N.Y. May 24, 2007) (internal quotation omitted). Moreover, the issue should present a "pure question of law that the reviewing court could decide quickly and cleanly without having to study the record." Id. (internal citation and quotation omitted).

In order to establish the existence of a substantial ground for difference of opinion, the party seeking interlocutory appeal must establish that "there is a substantial reason to doubt the correctness of the district court's ruling." Anderson Group, LLC v. City of Saratoga Springs, No. 1:05-CV-1369, 2008 WL 2064969, at *1 (N.D.N.Y. May 13, 2008).

Finally, resolution of an issue by interlocutory appeal must "literally accelerate the action as a whole" in order for a district court to find that it would materially advance the ultimate termination of the litigation. See Anderson Group, LLC, 2008 WL 2064969, at *1. Accordingly, "it is not enough that the interlocutory appeal would not delay the action; it must advance the time for trial or ... shorten the time required for trial." Id. (internal quotation and citation omitted).

It is important to note that, even when the statutory criteria are met, district courts have broad discretion to deny a motion for certification. See Century Pacific, Inc., 2008 WL 2276701, at *1(internal citations omitted). Moreover, "interlocutory appeal is a rare exception where, in the discretion of the district judge, ...


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