Opinion
No. CIV 05-3247-PHX RCB.
May 29, 2007
ORDER
Introduction
On August 29, 2006, this court denied a motion by defendants, Kantilal and Aruna Govan, to dismiss this action based upon improper venue pursuant to Fed.R.Civ.P. 12(b)(3). See Best Western International, Inc. v. Govan, 2006 WL 2523460, at *6 (D.Ariz. Aug. 29, 2006) ("Govan I"). The court also denied defendants' alternative motion to transfer venue to the Eastern District of California pursuant to 28 U.S.C. § 1406(a). See id.
"Under 28 U.S.C. § 1406(a), when an action is filed in the wrong district, the district court may dismiss the action, or, for the convenience of parties and witnesses, as well as in the interests of justice, the district court may use its discretion to transfer a civil action to any other district where it might have been properly brought. Grandinetti v. Bauman, 2007 WL 676012, at *5 (D.Hawai'i Feb. 28, 2007) (citing 28 U.S.C. § 1404(a)).
Currently pending before the court is defendants' motion pursuant to Fed.R.App.P. 5 to amend that order to allow an interlocutory appeal in accordance with 28 U.S.C. § 1292(b) (doc. 15). More specifically, defendants are requesting that as section 1292(b) permits, this court amend Govan I to add the following language:
Fed.R.App.P. 5(a)(3) authorizes a party to, among other things, "petition for permission to appeal" where that party has first received district court certification allowing an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
The Court is of the opinion that this Order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from this Order as authorized by 28 U.S.C. § 1292(b) may materially advance the ultimate termination of this litigation.Id. at 4.
Having carefully considered defendants' motion, plaintiff's response thereto (doc. 21), as well as defendants' reply (doc. 23), the court rules as follows.
Background
As explained more fully in Govan I, familiarity with which is assumed, in the winter of 2001, defendants entered into a "Membership Application and Agreement" with plaintiff Best Western International, Inc. Complt. (doc. 1), exh. 1 thereto. "Best Western is an Arizona non-profit corporation doing business in the State of Arizona." Id., exh. 1 thereto at ¶ 2.
As a result of that Agreement, defendants became a member of Best Western. As part of their membership privileges defendants were licensed to use Best Western's "symbols" in connection with a hotel which they owned and operated in Madera, California. See id. at 18. In addition to allowing defendants to use those symbols, pursuant to that Agreement Best Western provided them with a host of services, such a worldwide satellite reservation system and worldwide marketing campaigns.
That Agreement included a "Choice of Forum" clause which, as noted in Govan I, specifically states that defendants "acknowledge that Best Western is headquartered in Phoenix, Arizona, that the majority of Best Western's records and employees are in Phoenix, Arizona, and that Phoenix, Arizona is the most convenient locale for actions between Best Western and [defendants]." Id., at 19, ¶ 38. Although not mentioned in Govan I, that clause further provides in relevant part that:
UNLESS WAIVED BY BEST WESTERN IN WHOLE OR IN PART, . . . VENUE SHALL BE IN THE COURTS [STATE OR FEDERAL] LOCATED IN MARICOPA COUNTY, ARIZONA. [DEFENDANTS] EXPRESSLY CONSENT AND SUBMIT TO THE JURISDICTION OF SAID COURTS AND TO VENUE BEING IN MARICOPA COUNTY, ARIZONA.Id. (emphasis added).
Defendants allegedly breached that Membership Agreement, and thus Best Western commenced this action in the Superior Court of Arizona, Maricopa County. See Complt. (doc. 1), exh. 1 thereto. Defendants removed to this district court asserting federal jurisdiction based upon diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(1). Shortly after removal defendants then moved to dismiss this action for improper venue in accordance with Fed.R.Civ.P. 12(b)(3). Alternatively, defendants moved for a transfer of this action to the Eastern District of California pursuant to 28 U.S.C. § 1404(a).
In moving to dismiss for improper venue, defendants argued "that, under 28 U.S.C. § 1391(a), venue . . . is only proper in California because" they "are both California residents, . . . the hotel at issue . . . is located in California, and . . . all of Defendants' alleged actions/inactions, as well as Plaintiff's investigation thereof, took place in California." Govan I, 2006 WL 2523460, at *3 (internal quotation marks and citation omitted) (footnote added). Defendants further argued that the Agreement's forum selection clause is "unconscionable because it is one-sided and invalid under the California Franchise Relations Act [("the Act")]." Id. (citations omitted). That Act reads as follows:
That statute provides:
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.28 U.S.C. § 1391(a).
A provision in a franchise agreement restricting venue to a forum outside this state is void with respect to any claim arising under or relating to a franchise agreement involving a franchise business operating within this state.Id. (quoting CAL. BUS. PROF. CODE § 20040.5 (West 1997)).
In urging repudiation of the Agreement's forum selection clause, defendants relied heavily upon Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000), as they continue to on this motion. As more fully explained in Govan I, the Ninth Circuit in Jones held that the Act "expresses a strong public policy of the State of California to protect California franchisees from the expense, inconvenience, and possible prejudice of litigating in a non-California venue." Id. at 498. The Jones Court further held that a forum selection clause which "requires a California franchisee to resolve claims related to the franchise agreement in a non-California court directly contravene[d] th[at] strong public policy and [wa]s unenforceable under the directive of [the Supreme Court in] Bremen." Id. On that basis, the Ninth Circuit affirmed the district court's denial of a franchisor's motion to dismiss or transfer venue under section 1406(a) based upon a contractual forum selection clause. Id. In Govan I, the defendants urged this court to reach the same result as did the Court in Jones. See Govan I, 2006 WL 2523460 at *3.
This court declined to apply the Jones reasoning to the present case, however. In denying defendants' motion to dismiss for improper venue, this court expressly "concur[red] with Plaintiff's assertion that venue in cases removed from state court [is] governed by 28 U.S.C. § 1441(a), rather than 28 U.S.C. § 1391." Id. *4 (citing Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665 (1953)). Section 1441(a) states in relevant part that "[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the . . . defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1411(a). In light of the foregoing, and because "[d]efendants d[id] not challenge . . . venue under . . . [section] 1441(a) [,]" this court concluded that it "need not analyze Defendants' argument regarding whether the enforcement of the forum selection clause would contravene a `strong public policy' of California." Govan I, 2006 WL 2523460, at *5. This court also denied defendants' alternative motion to transfer venue as section 1404(a) permits. See id. at *5 — *6.
Discussion
I. 28 U.S.C. § 1292(b)
"`Section 1292(b) provides a mechanism by which litigants can bring an immediate appeal of a non-final order upon the consent of both the district court and the court of appeals.'" Kight v. Eskanos Adler, P.C., 2007 WL 173825, at *2 (S.D.Cal. Jan. 8, 2007) (quoting In re Cement Antitrust Litigation, 673 F.2d 1020, 1025-26 (9th Cir. 1982) ( en banc)). Certification of a non-appealable order under section 1292(b) is appropriate where the order (1) "involves a controlling question of law[;]" (2) "as to which there is a substantial ground for difference of opinion[;]" and (3) "an immediate appeal from the order may materially advance the ultimate termination of the litigation[.]"See 28 U.S.C. § 1292(b); see also Cement Antitrust, 673 F.2d at 1026. "All three requirements must be met for certification to issue" under that statute. Kight, 2007 WL 173825, at *2 (citation omitted).
In United States v. Woodbury, 263 F.2d 784 (9th Cir. 1959), the seminal Ninth Circuit case on certification, the Court noted "[t]hat § 1292(b) is to be applied sparingly and only in exceptional cases[.]" Id. at 788 n. 11 (citations omitted). This view is consistent with the legislative history of section 1292(b) which supports caution in its application. "[I]n passing this legislation Congress did not intend that the courts abandon the final judgment doctrine and embrace the principle of piecemeal appeals." Id. (internal quotation marks and citation omitted). Thus, as the Ninth Circuit has more recently observed, because"[s]ection 1292(b) is a departure from the normal rule that only final judgments are appealable," it "must be construed narrowly." James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n. 6 (9th Cir. 2002). Section 1292(b) certification "is intended to be `used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation.'" Kight, 2007 WL 173825, at *1 (quoting Cement Antitrust, 673 F.2d at 1026); see also In re Related Asbestos Cases, 23 B.R. 523, 532 (N.D.Cal. 1982) (internal quotation marks and citation omitted) ("Certification under 1292(b) is intended to be used in the few situations where an immediate appeal . . . would more speedily terminate the litigation.") "`It is not thought that district judges would grant the certificate in ordinary litigation which could otherwise be promptly disposed of or that mere question[s] as to the correctness of the ruling would prompt the granting of the certificate.'" Lopritz v. CMT Blues, 271 F.Supp.2d 1252, 1254 (S.D. Cal. 2003) (quotingWoodbury, 263 F.2d at 785 n. 2 (quoting in turn S.Rep. No. 2434 91958), reprinted in 1958 U.S.C.C.A.N. 5255, 5260). More succinctly put, section 1292(b) was not intended "`merely to provide review of difficult rulings in hard cases.'"Environmental Protection, 2004 WL 838160, at *2 (quoting United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)). Consequently, only "[i]n rare circumstances" may a district court "allow an immediate appeal of an interlocutory order." Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., 2007 WL 1119193, at *2 (N.D.Cal. April 16, 2007) (citing James, 283 F.3d at 1068, n. 6).
"The decision to certify an order for interlocutory appeal is committed to the sound discretion of the district court." United States v. Tenet Healthcare Corp., 2004 WL 3030121, at *1 (C.D.Cal. Dec. 27, 2004) (citing Swint v. Chambers County Comm'n, 514 U.S. 35, 47 (1995)). Hence, "a district court's denial of a motion to certify a decision for immediate appeal under section 1292(b) is not reviewable by the appellate court." Environmental Protection Information Center v. Pacific Lumber Co., 2004 WL 838160, at *2, n. 6 (N.D.Cal. April 19, 2004) (citing Executive Software v. U.S. Dist. Court, 24 F.3d 1545, 1550 (9th Cir. 1994)). By the same token, however, "[e]ven where the district court makes such a certification, the court of appeals nevertheless has discretion to reject the interlocutory appeal, and does so quite frequently." James, 283 F.3d at 1068, n. 6 (citation omitted). With these standards firmly in mind, the court will consider whether defendants have met the three criteria necessary for section 1292(b) certification.
A. "Controlling Question of Law"/"May Materially Advance the Ultimate Termination of the Litigation"
"Congress did not specifically define what it meant by `controlling'" as used in section 1292(b). See Cement Antitrust, 673 F.2d at 1026. Likewise, "[t]he Ninth Circuit's guidance as to what constitutes a controlling question of law is minimal."Sierra Foothills Public Utility District v. Clarendon American Insurance Company, 2006 WL 2085244, at *2 (E.D. Cal. July 25, 2006). It is well settled, however, that "[t]he issue need not be `dispositive of the lawsuit in order to be regarded as controlling[.]'" Id. at *2 (quoting Woodbury, 263 F.2d at 787-88). But at the same time, the issue "cannot be `collateral to the basic issues of [the] case.'" Id. In this Circuit "all that must be shown in order for a question to be `controlling' is that resolution of the issue on appeal could materially affect the outcome of litigation in the district court.'" Kight, 2007 WL 173825, at *2 (quoting Cement Antitrust, 673 F.2d at 1026). Thus, it is clear is that "`at the very least, a controlling question of law must encompass every order which, if erroneous, would be reversible error on final appeal.'" Sierra Foothills, 2006 WL 2085244, at *2 (quoting Cement Antitrust, 673 F.2d at 1026) (other citation omitted).
"The third requirement for an interlocutory appeal — that the appeal must be likely to materially speed the termination of the litigation — is closely linked to the question of whether an issue of law is `controlling,' because the district court should consider the effect of a reversal on the management of the case."L.H. Meeker v. Belridge Water Storage District, 2007 WL 781889, at *6 (E.D. Cal. March 13, 2007) (citing Cement Antitrust, 673 F.2d at 1026); see also Environmental Protection Information, 2004 WL 838160, at *3 n. 7 (A "court must assess whether immediate appellate reversal will speed the outright disposition of [an] action (even if this conflates the `controlling issue' analysis with the `speed disposition' one").") Given this close link, the court will jointly address the first and third elements necessary for certification under section 1292(b). The court will then address the third element — whether there exists a substantial ground for difference of opinion.
Defendants baldly assert that this court's "determination that venue is proper in Arizona, notwithstanding California's Franchise Relations Act, is a legal decision that presents a controlling question of law of utmost importance." Doc. 15 at 3. Defendants further contend that if the court denies this motion, and if they ultimately succeed on appeal, "then the entire case may have to be litigated a second time[.]" Id. at 4. Based upon the foregoing, evidently it is defendants' position that this court's venue determination in Govan I constitutes reversible error. Hence, the venue issue amounts to a controlling question of law because its disposition on appeal will materially affect the outcome of this litigation. Resolution of the venue issue will also, from defendants' standpoint, materially advance the ultimate termination of this litigation.
Framing the challenged issue differently, Best Western counters that Govan I does not involve a "controlling question of law" because reversal of the "the question [of] whether 28 U.S.C. § 1441(a), rather than 28 U.S.C. § 1391 controls venue in removed cases would . . . have no effect whatsoever on the outcome of the litigation[.]" Doc. 21 at 3 (emphasis added). Furthermore, according to Best Western an immediate appeal would not materially advance the termination of this litigation. Indeed, such an appeal would have the opposite effect in that it would "unnecessarily protract the case and increase the cost of this litigation." Id. at 4.
In their reply, defendants state that Best Western is under the "mistaken impression that the legal issue [they] seek to appeal is whether 28 U.S.C. § 1441(a) controls venue in removed cases." Doc. 23 at 1. Defendants are "not contest[ing] the general initial application of § 1441(a) to venue in removed cases[.]"Id. In fact, they expressly concede that that issue is not a "controlling question of law worthy of interlocutory appeal." Id. Rather, as defendants frame it, the "controlling issue of law" which does warrant granting this certification motion "is whether a franchisor doing business in California may sidestep that state's important public policy against forum selection clauses for its franchisees, as enunciated by the Ninth Circuit inJones . . ., by filing a lawsuit in the franchisor's choice state court." Id. 3 at 1-2 (citation omitted).
Regardless of how the issue for certification is defined, there is case law to support defendants' position that if venue is found to be improper on appeal, the result will be reversal. See,e.g. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491 (9th Cir. 1979) (on interlocutory appeal Court reversed district court's denial of summary judgment based on improper venue); andBechtel v. Liberty National Bank, 534 F.2d 1335 (9th Cir. 1976) (reversing judgment on the merits after trial where district court improperly denied a defendant's motion to dismiss for improper venue). In fact, in Central Valley Chrysler-Jeep, Inc. v. Witherspoon, 2005 WL 2709508 (E.D.Cal. Oct. 20, 2005),reconsideration denied, 2005 WL 3470653 (E.D.Cal. Dec. 19, 2005), the court granted a motion for an interlocutory appeal of its order denying defendant's motion to dismiss for improper venue. In certifying that appeal the court found that "an immediate appeal" of the venue issue would "materially advance the ultimate termination of th[at] litigation . . . because a reversal by the Ninth Circuit of this court's ruling on intra-district venue may result in the vacation of any substantive rulings made by this court and the transfer of this action to the Sacramento Division." Id. at 8 ((citing, inter alia, Olberding v. Illinois Cent. R. Co., 346 U.S. 338, 74 S.Ct. 83 (1953)).
On the other hand, case law exists supporting Best Western's opposing view, i.e. venue issues do not involve controlling questions of law; nor do they materially advance the termination of litigation. For example, in Graves v. C S National Bank of Georgia, 491 F.Supp. 280 (D.S.C. 1980), the court denied plaintiffs' motion for an interlocutory appeal of its order finding that venue was improper under the National Bank Act's venue provision. In denying that motion, the Graves court held that the venue issue was not a "controlling question" because "the decision as to whether venue [wa]s proper and transfer appropriate [wa]s not determinative of th[at] . . . case." Id. at 282. Likewise, the court found that venue "relate[d] to [a] preliminary matter . . . as opposed to any determinative legal issue in the case itself." Id. at 283. Thus, the court explained that "any determination on . . . [venue] [wa]s less likely to result in the avoidance of expensive litigation." Id.
In addition, the Graves court reasoned that although its decision did "set venue in Georgia, . . ., a decision for or against transfer does not end the litigation or otherwise determine the rights of the parties as a trial would still be required at some later date." Id. at 282. As an additional reason for denying certification, the Graves court found that "an immediate appeal would result in postponing th[e] trial and increase the time and costs of litigation." Id.
In a similar vein, in Mazzella v. Stineman, 472 F.Supp. 432 (E.D.Pa. 1979), the court found that certification would not materially advance the termination of that litigation. In so finding, the court rejected plaintiff's argument that "because the court of appeals may well adopt [their] interpretation of the venue statutes, an immediate appeal might obviate the need for a second trial and thus materially advance the ultimate termination of the litigation." Id. at 435. In rejecting this argument the court observed that Mazzella was "an ordinary case, rather than an exceptional one." Id. at 436. Further, the court saw "no reason to believe that the trial . . . w[ould] be either protracted or exceptionally costly." Id. Thus, even if an immediate appeal might obviate the need for a second trial, significantly, the court found that that "savings . . . [wa]s not so significant as to warrant" certification under section 1292(b). Id. Accordingly, the Mazzella court denied certification of its decision finding venue improper and transferring the action to another district. Id.; see also Same Day Surgery Centers, L.L.C. v. Montana Regional Orthopedics, 2003 WL 1565942, at *3 (D.Minn. March 4, 2003) (interlocutory appeal of denial of motion to transfer not allowed in a "relatively straightforward contract dispute" which did "not present protracted and complex litigation[,]" because even if there was the risk of a second trial, that did not show that an appeal would "materially advance the resolution of th[at] litigation").
Given these divergent views, it is a close call as to whether defendants have shown a "controlling question of law" which "may materially advance the ultimate termination of this litigation[.]" See 28 U.S.C. § 1292(b). On balance, though, under the facts presented, the court finds that defendants, as the party seeking certification, have not met their burden of showing that "exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of final judgment." Coopers Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 2461 (1978)).
Defendants have not met their burden primarily because this is an ordinary, unexceptional contract dispute. "The factual and legal issues in this case are not complex and would not necessitate protracted and expensive litigation." Lopritz v. CMT Blues, 271 F.Supp.2d 1252, 1254 (S.D.Cal. 2003). As the Ninth Circuit explained in Wright, the legislative history of section 1292(b) indicates that that statute is to be applied only in "exceptional cases" such as "antitrust and similar protracted cases[.]" Wright, 359 F.2d at 785 n. 2 (internal quotations and citation omitted). Obviously, the present straightforward contract dispute does not fall into that category of cases. Defendants' argument for certification, at most, would "merely provide review of [a] difficult ruling in [a] hard case." See id. Section 1292(b) was not enacted for that purpose, though. See id.
Even if defendants were able to persuade the court that the venue issue presents a "controlling question of law" which "may materially advance the ultimate termination of this litigation" so as to bring it within the ambit of section 1292(b), still, the court would deny this certification motion. The court would deny this motion because, as explained below, defendants have not shown that there is a "substantial ground for difference of opinion" on the venue issue.
B. "Substantial Ground for Difference of Opinion"
As to the second criteria for section 1292(b) certification, defendants assert that the court's "determination that venue is proper in Arizona, notwithstanding California's Franchise Relations Act . . . is one that reasonably could provoke a substantial difference of opinion." Doc. 15 at 3 (emphasis added). This is not the governing legal standard, however. Rather, "[t]he term [substantial ground for difference of opinion] refers to the legal standard applied in the decision for which certification is sought and whether other courts have substantially differed in applying that standard." Central Valley Chrysler Jeep, 2005 WL 3470653, at *2 (citation omitted); see also Stanford Junior University, 2007 WL 1119193, at *2 (citations omitted) ("In order to secure an interlocutory appeal, [defendant] must demonstrate a legitimate and `substantial ground for difference of opinion' between and among judicial bodies.") Thus, "[a] party's strong disagreement with the court's ruling is not sufficient for there to be a `substantial ground for difference'; the proponent of an appeal must make some greater showing." Hansen v. Schubert, 459 F.Supp.2d 973, 1000 (E.D.Cal. 2006) (citation omitted).
In an attempt to show a substantial ground for difference of opinion, without explaining, defendants assert that Govan I andJones "present two different answers to th[e] question" of "whether [the Act] is immaterial in cases involving California franchisees that are removed to judicial districts outside of Arizona." Doc. 15 at 3. As an additional basis for asserting that there is a "substantial ground for difference of opinion," defendants claim that "[t]his case presents an issue of first impression[.]" Id.
Defendants' framing of the issue in this way is puzzling in several ways, but the most significant is that plainly this action was not removed to a "judicial district outside of Arizona." See Doc. 15 at 3.
Best Western responds that defendants have not made the requisite "difference of opinion" showing because they have not "cite[d] [to] a single decision in which any other court has substantially differed with this Court in determining the appropriate statute governing venue in removed cases." Doc. 21 at 4. Instead, as Best Western construes defendants' argument, they are simply "re-hash[ing]" their disagreement with this court's ruling in Govan I; and, as set forth above, this is insufficient to show a "substantial difference of opinion" warranting certification under section 1292(b). See id.
In their reply, rather than directly responding to these arguments, defendants reframe the issue about which they claim there is a substantial ground for difference of opinion. This time, as noted earlier, as defendants frame it, the issue is "whether a franchisor doing business in California may sidestep that state's important public policy against forum selection clauses for its franchisees, as enunciated . . . in Jones, . . ., by filing a lawsuit in the franchisor's choice state court." Doc. 23 at 1-2 (citation omitted). As defendants read Govan I, this court "impliedly" addressed that issue "by finding that Defendants' removal in effect waived any venue challenged.'" Id. at 2 (citation omitted). Not only is this finding "contrary to the law regarding non-waiver of venue challenges by removal," but defendants assert that "[m]ore importantly, th[is] Court's holding renders [the Act] illusory and in direct conflict with . . . Jones." Id. Further, according to defendants, "the Ninth Circuit [needs] to clarify whether Jones is limited only to those cases that were initially filed in federal court or a California state court." Doc. 15 at 3.
Try as they might, defendants have not made the necessary showing of a "substantial ground for difference of opinion" within the meaning of section 1292(b). Defendants' attempt to demonstrate a conflict between Govan I and Jones is unpersuasive.Govan I and Jones involved different issues. In the former the issue was which statute governs venue in removed actions, 28 U.S.C. § 1441(a) or 28 U.S.C. § 13 91. Thus, the court found no need to address the argument, based upon Jones, that the forum selection clause in the Agreement at issue herein contravenes a strong public policy of California. What is more, because Jones was removed to a California district court, the Jones Court was considering whether enforcement of the forum selection clause there would "contravene a strong public policy of the forum in which [the] suit [wa]s brought[,]" i.e. California. See Jones, 211 F.3d at 497 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). Plainly, as Best Western pointed out in Govan I, such an analysis is irrelevant here because "even if the Court were to follow Jones, it would have to review whether the Agreement's forum selection clause contravenes a strong public policy of the State of Arizona[,]" not California. Govan I, 2006 WL 2523460, at *4 (citation omitted). Therefore, the court disagrees with defendants that "[a]t the very least" Govan I "conflict[s]" with Jones[.]" See Doc. 15 at 3.
Further, essentially it is defendants' position that this court improperly declined to follow Jones. However, without more defendants have not shown the requisite "substantial ground for difference of opinion." See Sierra Foothills, 2006 WL 2085244, at * 5 (citing 28 U.S.C. § 1292(b)) (Defendant's "bald assertion that this court's interpretation of [the] Gunderson [case] is incorrect does not establish that `there is substantial ground for difference of opinion' as to the controlling law on this issue.") Thus, at the end of the day, defendants are left with their disagreement with this court's ruling in Govan I, which "even if vehement, . . . does not establish a `substantial ground for different of opinion' sufficient to satisfy the statutory requirements for an interlocutory appeal." See First Am. Corp. v. Al-Nahyan, 948 F.Supp. 1107, 1116 (D.D.C. 1996).
In short, defendants "may disagree with the way the court has interpreted the relevant [law], but at least one party [is always] convinced that the court got it wrong." Environmental Protection, 2004 WL 838160, at *4 (internal quotation marks and citation omitted). As the court soundly reasoned in Environmental Protection though, "[s]uch disagreement is not tantamount to a disagreement among the courts, and it does not itself compel section 1292(b) review." Id. (citation omitted) (emphasis in original). "If it did, nearly every judgment would give rise to an interlocutory appeal." Id. (internal quotation marks and citation omitted).
Conclusion
In short, keeping in mind that section 1292(b) is to be "sparingly" applied, and only in "rare circumstances," the court finds that defendants have not satisfied the requirements for certification under 28 U.S.C. § 1292(b). Accordingly,IT IS ORDERED that defendants' motion seeking to amend the court's August 29, 2006, Order to add the necessary language for certification to the Ninth Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b) is DENIED (doc. 15).
Given that denial, in accordance with the court's prior order of October 13, 2006,
IT IS FURTHER ORDERED that defendants "shall have up to and including the fifth day following" the date of this order in which to file their answer. See Doc. 18 at 1.